As
filed with the U.S. Securities and Exchange Commission on November 24, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FAT
Brands Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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82-1302696
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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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9720
Wilshire Blvd., Suite 500
Beverly
Hills, California 90212
(310)
319-1850
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Andrew
A. Wiederhorn
Chief
Executive Officer
FAT
Brands Inc.
9720
Wilshire Blvd., Suite 500
Beverly
Hills, California 90212
(310)
319-1850
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
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Allen
Z. Sussman, Esq.
General
Counsel
FAT
Brands Inc.
9720
Wilshire Blvd, Suite 500
Beverly
Hills, California 90212
Tel:
(310) 319-1850
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Mark
J. Kelson, Esq.
William
Wong, Esq.
Greenberg
Traurig, LLP
1840
Century Park East, Suite 1900
Los
Angeles, California 90067
Tel:
(310) 586-7700
Fax:
(310) 586-7800
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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, as amended (which we refer to as the “Securities Act”), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. ☒
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 statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. 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.D. 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 a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934,
as amended.
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer
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☒
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Smaller
reporting company
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☒
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Emerging
growth company
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☒
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If
an emerging growth company, 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 Securities Act. ☒
CALCULATION
OF REGISTRATION FEE
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Title
of each class of securities to be registered(1)
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Amount
to be
registered(3)
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Proposed
maximum offering price
per security(3)
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Proposed
maximum aggregate offering price(3)
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Amount
of registration fee(3)
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Class
A Common Stock, par value $0.0001 per share(2)
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Preferred Stock, par
value $0.0001 per share
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Debt
Securities
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Warrants
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Subscription
Rights
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Units
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Total
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$
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482,000,000.00
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$
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44,681.40
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(1)
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Securities
registered hereunder may be sold separately, together, or as units with other securities registered hereunder. The securities registered
hereunder include the following: (a) an indeterminate number of shares of Class A Common Stock as may be sold from time to
time by the Registrant and an indeterminate number of shares of Class A Common Stock as may be issued from time to time upon
conversion or exchange of any securities registered hereunder; (b) an indeterminate number of shares of preferred stock as may be
sold from time to time by the Registrant and an indeterminate number of shares of preferred stock as may be issued from time to time
upon conversion or exchange of any securities registered hereunder; (c) an indeterminate amount of debt securities as may be sold
from time to time by the Registrant and an indeterminate amount of debt securities as may be issued from time to time upon conversion
or exchange of any securities registered hereunder; (d) an indeterminable number of warrants, representing rights to purchase Class
A Common Stock or preferred stock registered hereunder; (e) an indeterminable number of subscription rights, representing rights
to purchase Class A Common Stock, preferred stock, debt securities or warrants registered hereunder; and (f) an indeterminable
number of units, representing interests in two or more securities registered hereunder, which may or may not be separable from one
another.
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(2)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (which we refer to as the “Securities Act”), this Registration
Statement includes any additional shares of Class A Common Stock that may become issuable from time to time as a result of
any stock split, stock dividend, recapitalization or other similar transaction effected without the receipt of consideration that
results in an increase in the number of shares of the Registrant’s outstanding Class A Common Stock.
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(3)
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Pursuant
to Rule 457(o) under the Securities Act and General Instruction II.D to Form S-3, this Calculation of Registration Fee table does
not specify by each class of securities being registered information as to the amount to be registered, proposed maximum offering
price per security, or proposed maximum aggregate offering price. In no event will the maximum aggregate offering price of all securities
issued pursuant to this Registration Statement exceed $482,000,000.
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(4)
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In
accordance with Rule 415(a)(6) under the Securities Act, this Registration Statement carries over, as of the date of filing of this
Registration Statement, $482,000,000 of unsold securities (which we refer to as the “Previously Registered Unsold Securities”)
previously registered under the Registrant’s registration statement on Form S-3 (File No. 333-256342) (which we refer to as
the “Prior Registration Statement”), which was initially filed with the U.S. Securities and Exchange Commission (which
we refer to as the “Commission”) on May 20, 2021, and declared effective by the Commission on June 21, 2021. In connection
with the registration of the offering and sale of the Previously Registered Unsold Securities under the Prior Registration Statement,
the Registrant previously paid the applicable registration fee (which we refer to as the “Previously Paid Registration Fee”),
which will continue to be applied to the Previously Registered Unsold Securities, and the Registrant hereby offsets any registration
fee that may be due under this Registration Statement by the amount of the Previously Paid Registration Fee relating to the Previously
Registered Unsold Securities. Accordingly, no registration fee is due upon the filing of this Registration Statement.
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Pursuant
to Rule 415(a)(6) under the Securities Act, the offering of the Previously Registered Unsold Securities under the Prior Registration
Statement will be deemed terminated as of the date of effectiveness of this Registration Statement.
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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 that specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act, or until the registration statement shall become effective on such date as the
U.S. Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not offer or sell these securities until the registration statement
filed with the U.S. Securities and Exchange Commission is declared effective. This prospectus is not an offer to sell these securities,
nor a solicitation of an offer to buy these securities, in any jurisdiction where the offer, solicitation, or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 24, 2021
PROSPECTUS
FAT
Brands Inc.
Class
A Common Stock
Preferred
Stock
Debt
Securities
Warrants
Subscription
Rights
Units
From
time to time, we may offer and sell our Class A Common Stock, preferred stock, debt securities, warrants, subscription rights
and units (which we refer to collectively as “securities”) in amounts, at prices and on terms described in one or more supplements
to this prospectus. The aggregate amount of the securities offered by us under this prospectus will not exceed $482,000,000.
This
prospectus provides you with a general description of the securities that may be offered in one or more offerings. Each time we offer
securities, we will provide a supplement to this prospectus that will contain more specific information about the terms of that offering.
We may also add, update or change in the prospectus supplement any of the information contained in this prospectus. This prospectus may
not be used to consummate sales of our securities unless it is accompanied by a prospectus supplement.
You
should read both this prospectus and the applicable prospectus supplement, as well as any documents incorporated by reference in this
prospectus and/or the applicable prospectus supplement, before you make your investment decision.
Investing
in our securities involves risks. You should carefully consider the risk factors beginning on page 3 of this prospectus and set
forth in the documents incorporated by reference herein before making any decision to invest in our securities.
The
securities may be sold by us or through underwriters or dealers, directly to purchasers or through agents designated from time to time.
For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this
prospectus. If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered,
the names of such underwriters and any applicable discounts or commissions and over-allotment options will be set forth in a prospectus
supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth
in a prospectus supplement.
Our
Class A Common Stock is listed under the symbol “FAT”, and our 8.25% Series B Cumulative Preferred Stock is
listed under the symbol “FATBP”, on the Nasdaq Capital Market.
Neither
the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is ,
2021.
TABLE
OF CONTENTS
You
should rely only on the information set forth or incorporated by reference in this prospectus or any supplement. No dealer, salesperson
or other person is authorized to provide you with information different from that which is set forth or incorporated by reference in
this prospectus. You must not rely on any unauthorized information or representations. This prospectus is an offer to sell only the securities
it describes, and only under circumstances and in jurisdictions where it is lawful to do so. The information contained in each of this
prospectus and the applicable prospectus supplement is accurate only as of the date on its respective cover, regardless of the time of
delivery of this prospectus or the applicable prospectus supplement or any sale of a security, and any information incorporated by reference
in this prospectus or the applicable prospectus supplement is accurate only as of the date of the document incorporated by reference,
unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (which we refer to as the
“SEC”) using a “shelf” registration process. Under this shelf registration statement, we may sell:
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Class
A Common Stock;
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preferred
stock;
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debt
securities;
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warrants;
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subscription
rights; and
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units.
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This
prospectus provides you with a general description of the Class A Common Stock, preferred stock, debt securities, warrants, subscription
rights, and units that we may sell. Each time we sell such instruments, we will provide a prospectus supplement (and, if
applicable, a pricing supplement) that will contain specific information about the terms of that offering. The prospectus supplement
(and any pricing supplement) may also add, update or change information in this prospectus. If there is any inconsistency between the
information in this prospectus (including the information incorporated by reference herein) and any prospectus supplement (or pricing
supplement), you should rely on the information in that prospectus supplement (or pricing supplement). You should read both this prospectus
and any prospectus supplement together with the additional information described under the headings “Information Incorporated by
Reference” and “Where You Can Find More Information”.
The
registration statement that contains this prospectus (including the exhibits to the registration statement) has additional information
about us and the securities offered under this prospectus. The registration statement can be read at the SEC web site or at the SEC offices
mentioned under the headings “Information Incorporated by Reference” and “Where You Can Find More Information”.
Unless
otherwise stated, the words “FAT”, our “Company”, “we”, “us”, and “our”
refer to FAT Brands Inc. and its subsidiaries, except that such terms refer to FAT Brands Inc. only and not to its subsidiaries in
the sections entitled “Description of Common Stock”, “Description of Preferred Stock”, “Description of
Debt Securities”, “Description of Warrants”, “Description of Subscription Rights”, and “Description
of Units”.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements contained in this prospectus that are not statements of historical fact constitute forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995 (which we refer to as the “Act”), notwithstanding that such statements
are not specifically identified as such. In addition, certain statements may be contained in our future filings with the SEC, in press
releases, and in oral and written statements made by us or with our approval that are not statements of historical fact and constitute
forward-looking statements within the meaning of the Act. Examples of forward-looking statements include, but are not limited to: (i)
projections of revenues, expenses, income or loss, earnings or loss per share, the payment or nonpayment of dividends, capital structure
and other financial items; (ii) statements of our plans, objectives and expectations or those of our management or board of directors,
including those relating to products or services; (iii) statements of future economic performance; and (iv) statements of assumptions
underlying such statements. Forward-looking statements include information concerning our possible or assumed future results of operations
and statements preceded by, followed by or that include the words “believes,” “expects,” “feels,”
“anticipates,” “intends,” “plans,” “estimates,” “predicts,” “projects,”
“potential,” “outlook,” “could,” “will,” “may” or similar expressions.
Forward-looking
statements are not guarantees of future performance and are subject to risks, uncertainties and assumptions. Actual results may differ
materially from those expressed in or implied by these forward-looking statements. Factors that could cause actual results to differ
from these forward-looking statements include, but are not limited to, the following, as well as those discussed elsewhere in this prospectus,
any accompanying prospectus supplement and in the documents incorporated by reference herein:
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our
inability to generate sufficient cash to service our obligations;
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uncertainties
surrounding the severity, duration and effects of the COVID-19 pandemic;
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our
inability to manage our growth;
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our
franchisees could take actions that could harm our business, including not accurately
reporting sales;
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our
inability to maintain good relationships with our franchisees;
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our
inability to successfully add franchisees, brands and new stores, and timely develop and expand our operations;
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our
inability to protect our brands and reputation;
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our
ability to adequately protect our intellectual property;
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success
of our advertising and marketing campaigns;
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our
inability to protect against security breaches of confidential guest information;
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our
business model being susceptible to litigation;
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competition
from other restaurants;
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shortages
or interruptions in the supply or delivery of food products;
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our
vulnerability to increased food commodity costs;
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our
failure to prevent food safety and food-borne illness incidents;
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changes
in consumer tastes and nutritional and dietary trends;
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our
dependence on key executive management;
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our
inability to identify qualified individuals for our workforce;
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our
vulnerability to labor costs;
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our
inability to comply with governmental regulation;
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violations
of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery and anti-kickback laws;
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our
inability to maintain sufficient levels of cash flow, or access to capital, to meet growth expectations; and
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control
of our Company by Fog Cutter Holdings, LLC.
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You
should not put undue reliance on any forward-looking statements. Forward-looking statements speak only as of the date they are made,
and we undertake no obligation to update them in light of new information or future events except to the extent required by applicable
law. Please see the sections entitled “Risk Factors” in this prospectus and any accompanying prospectus supplement, and other
risks and uncertainties detailed in our other reports and filings with the SEC. If a change occurs, our business, financial condition,
liquidity, cash flows and results of operations may vary materially from those expressed in or implied by our forward-looking statements.
New risks and uncertainties arise over time, and it is not possible for us to predict the occurrence of those events or the manner in
which they may affect us. Except as required by law, we are not obligated to, and do not intend to, update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
DESCRIPTION
OF FAT BRANDS INC.
Our
Company
FAT
Brands Inc. is a leading multi-brand restaurant company that develops, markets and acquires quick service, fast casual, casual dining,
and polished casual dining restaurant concepts around the world. We operate primarily as a franchisor of restaurants, where we generally
do not own or operate the restaurant locations but rather generate revenue by charging franchisees an initial franchise fee as well as
ongoing royalties. This “asset light” franchisor model provides us with the opportunity for strong profit margins and an
attractive free cash flow profile while minimizing restaurant operating company risk, such as long-term real estate commitments or capital
investments. For some of our brands, we also directly own and operate restaurant locations, in addition to franchising restaurants. Our
scalable management platform enables us to add new stores and restaurant concepts to our portfolio with minimal incremental corporate
overhead cost, while taking advantage of significant corporate overhead synergies. The acquisition of additional brands and restaurant
concepts as well as expansion of our existing brands are key elements of our growth strategy. In addition to our restaurant operations,
we also own and operate a manufacturing and production facility in Atlanta, Georgia, which supplies
our franchisees with cookie dough, pretzel dry mix, and other ancillary products.
Our
Concepts
As
of the date of this prospectus, we are the owner and franchisor of the following restaurant brands in four main categories – Quick
Service, Fast Casual, Casual Dining, and Polished Casual Dining.
Quick
Service Restaurants
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Round
Table Pizza. Round Table Pizza is the franchisor of quick service restaurants located primarily in California and the western
United States. Round Table pizzas are made with fresh dough and offered in a variety of original flavors and pizza combinations.
Customers also have the option to create their own pizzas. Round Table Pizza includes three restaurant formats – Traditional,
Clubhouse and Delivery Only.
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Marble
Slab Creamery. Marble Slab Creamery is a purveyor of hand-mixed ice cream. Founded in 1983, Marble Slab was an innovator
of the frozen slab technique where customers select a variety of items to be mixed into their ice cream or frozen yogurt on a chilled
marble slab. Marble Slab ice cream is made in small batches in franchise locations using ingredients from around the world and dairy
from local farms. Marble Slab has locations in the United States, Canada, Bahrain, Bangladesh, Guam, Kuwait, Pakistan, Puerto Rico,
and Saudi Arabia.
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Great
American Cookies. Great American Cookies (which we refer to as “GAC”) was founded in Atlanta, Georgia in 1977
as a single store which relied upon a single chocolate chip cookie recipe. In 1978, GAC began its franchise operations and introduced
a complete line of cookies and brownies. Over the last 30 years, GAC further increased its presence in malls throughout the United
States and significantly expanded its product offerings. GAC is known for its signature Cookie Cakes, signature flavors and menu
of gourmet products baked fresh in store. GAC has franchised stores in the United States, Bahrain, Guam, and Saudi Arabia.
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Hot
Dog on a Stick. Hot Dog on a Stick (which we refer to as “HDOS”) is the franchisor of quick service restaurants
primarily located in regional malls in California and the western United States. HDOS founder Dave Barnham opened his first hot dog
stand in Santa Monica, California in 1946. HDOS offers its turkey frank dipped in batter and cooked in canola oil, along with fresh
squeezed lemonade, hot dog in a bun, cheese on a stick, funnel cake sticks, and french fries.
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Pretzelmaker.
Pretzelmaker and Pretzel Time are franchised concepts that specialize in offering hand-rolled soft pretzels, innovative soft
pretzel products, dipping sauces, and beverages. Retail locations are primarily located in shopping malls and other types of shopping
centers. The brands were founded independently of each other in 1991, united under common ownership in 1998, and consolidated in
2008 to become the new Pretzelmaker.
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Fazoli’s.
On November 1, 2021, we agreed to acquire Fazoli’s, an Italian restaurant chain known for its freshly prepared pasta,
Submarinos® sandwiches, and unlimited signature breadsticks. The acquisition is expected to close in mid-December
2021.
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Fast
Casual
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Fatburger.
Founded in Los Angeles, California in 1947, Fatburger (The Last Great Hamburger Stand) has, throughout its history, maintained
its reputation as an iconic, all-American, Hollywood favorite hamburger restaurant serving a variety of freshly made-to-order and
customizable Fatburgers, Turkeyburgers, Chicken Sandwiches, Impossible™ Burgers, Veggieburgers, french fries, onion rings,
soft-drinks and milkshakes.
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Johnny
Rockets. Founded in 1986 on iconic Melrose Avenue in Los Angeles, California, Johnny Rockets is a world-renowned, international
restaurant franchise that offers high quality, innovative menu items including Certified Angus Beef® cooked-to-order hamburgers,
Boca Burger®, chicken sandwiches, crispy fries and rich, delicious hand-spun shakes and malts. This dynamic lifestyle brand offers
friendly service and upbeat music contributing to the chain’s signature atmosphere of relaxed, casual fun.
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Elevation
Burger. Established in Northern Virginia in 2002, Elevation Burger is a fast-casual burger, fries, and shakes chain that
provides its customers with healthier, “elevated” food options. Serving grass-fed beef, organic chicken, and french fries
cooked using a proprietary olive oil-based frying method, Elevation maintains environmentally friendly operating practices, including
responsible sourcing of ingredients, robust recycling programs intended to reduce its carbon footprint, and store décor constructed
of eco-friendly materials.
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Yalla
Mediterranean. Founded in 2014, Yalla Mediterranean is a Los Angeles, California based restaurant chain specializing in authentic,
healthful, Mediterranean cuisine with an environmentally conscience and focus on sustainability. The word “yalla”, which
means “let’s go”, is embraced in every aspect of Yalla Mediterranean’s culture and is a key component of
our concept. Yalla Mediterranean offers a healthful Mediterranean menu of wraps, plates, and bowls in a fast-casual setting, with
cuisine prepared fresh daily using, GMO-free, local ingredients for a menu that includes vegetarian, vegan, gluten-free and dairy-free
options accommodating customers with a wide variety of dietary needs and preferences. The Yalla Mediterranean brand demonstrates
its commitment to the environment by using responsibly sourced proteins and utensils, bowls and serving trays made from compostable
materials.
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Casual
Dining
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Buffalo’s
Cafe and Buffalo’s Express. Established in Roswell, Georgia in 1985, Buffalo’s Cafe (Where Everyone is Family)
is a family-themed casual dining concept known for its chicken wings and 13 distinctive homemade wing sauces, burgers, wraps, steaks,
salads and other classic American cuisine. Featuring a full bar and table service, Buffalo’s Cafe offers a distinctive dining
experience affording friends and family the flexibility to share an intimate dinner together or to casually watch sporting events
while enjoying extensive menu offerings. Beginning in 2011, Buffalo’s Express was developed and launched as a fast-casual,
smaller footprint variant of Buffalo’s Cafe offering a limited version of the full menu with an emphasis on chicken wings,
wraps and salads. Current Buffalo’s Express outlets are co-branded with Fatburger locations, providing our franchisees with
complementary concepts that share kitchen space and result in a higher average unit volume (compared to stand-alone Fatburger locations).
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Hurricane
Grill & Wings. Founded in Fort Pierce, Florida in 1995, Hurricane Grill & Wings is a tropical beach themed casual
dining restaurant known for its fresh, jumbo, chicken wings, 35 signature sauces, burgers, bowls, tacos, salads and sides. Featuring
a full bar and table service, Hurricane Grill & Wings’ laid-back, casual, atmosphere affords family and friends the flexibility
to enjoy dining experiences together regardless of the occasion. The acquisition of Hurricane Grill & Wings has been complementary
to FAT Brands’ existing portfolio chicken wing brands, Buffalo’s Cafe and Buffalo’s Express.
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Ponderosa
and Bonanza Steakhouse. Ponderosa Steakhouse, founded in 1965, and Bonanza Steakhouse, founded in 1963, offer the quintessential
American steakhouse experience, for which there is strong and growing demand in international markets, particularly in Asia and the
Middle East. Ponderosa and Bonanza Steakhouses offer guests a high-quality buffet and broad array of great tasting, affordably priced
steak, chicken and seafood entrées. Buffets at Ponderosa and Bonanza Steakhouses feature a large variety of all you can eat
salads, soups, appetizers, vegetables, breads, hot main courses and desserts. An additional variation of the brand, Bonanza Steak
& BBQ, offers a full-service steakhouse with fresh farm-to-table salad bar and a menu showcasing flame-grilled USDA steaks and
house-smoked BBQ, with contemporized interpretations of traditional American classics.
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Polished
Casual Dining
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Twin
Peaks. Founded in 2005 in Dallas, Texas, Twin Peaks is a leading sports lodge-themed restaurant chain known for its scratch
made food, 29-degree cold beer, and all-female wait staff. Each Twin Peaks restaurant features a sports viewing experience in a comfortable
mountain lodge atmosphere with a customized sports programming package provided by DirecTV. Menu items include smashed and seared
to order burgers, in-house smoked ribs, street tacos, and hand-breaded chicken wings. We currently franchise, and also directly own
and operate, Twin Peaks restaurants in various states in the United States, and we have two international franchised Twin Peaks restaurants
in Mexico City, Mexico.
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Corporate
Information
FAT
Brands Inc. was incorporated as a Delaware corporation on March 21, 2017.
Our corporate headquarters are located at 9720 Wilshire Blvd., Suite 500, Beverly Hills, California 90212. Our main telephone
number is (310) 319-1850. Our principal Internet website address is www.fatbrands.com. The information on our website is not incorporated
by reference into, or a part of, this prospectus.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company”
as defined in the Jumpstart Our Business Startups Act of 2012 (which we refer to as the “JOBS Act”). An emerging growth company
may take advantage of specified reduced reporting and other requirements that are otherwise applicable generally to public companies.
These provisions include the following:
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we
are required to have only two years of audited financial statements and only two years of related Management’s Discussion and
Analysis of Financial Condition and Results of Operations disclosure;
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we
are not required to engage an auditor to report on our internal controls over financial reporting pursuant to Section 404(b) of the
Sarbanes-Oxley Act of 2002;
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we
are not required to submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay”,
“say-on-frequency” and “say-on-golden parachutes”; and
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we
are not required to disclose certain executive compensation related items such as the correlation between executive compensation
and performance and comparisons of the chief executive officer’s compensation to median employee compensation.
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We
may take advantage of these provisions until December 25, 2022, which is the last day of our fiscal year following the fifth anniversary
of the consummation of our initial public offering, or such earlier time that we are no longer an emerging growth company. We would cease
to be an emerging growth company if we have more than $1.07 billion in annual revenue, have more than $700 million in market value of
our Common Stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period (as such amounts
may be adjusted from time-to-time). We may choose to take advantage of some but not all of these reduced burdens. We have elected to
adopt the reduced disclosure with respect to financial statements and the related Management’s Discussion and Analysis of Financial
Condition and Results of Operations disclosure. As a result of this election, the information that we provide stockholders may be different
than you might get from other public companies in which you hold equity.
The
JOBS Act permits an emerging growth company like us to take advantage of an extended transition period to comply with new or revised
accounting standards applicable to public companies. We have chosen to “opt out” of this provision and, as a result, we comply
with new or revised accounting standards as required when they are adopted. This decision to opt out of the extended transition period
is irrevocable.
Controlled
Company
As
long as Fog Cutter Holdings, LLC continues to own at least 50% of the voting power of our Company, we will be a “controlled company”
as defined under the Nasdaq Marketplace Rules. However, we do not currently intend to rely on the controlled company exemptions provided
under the Nasdaq Marketplace Rules. For so long as we are a controlled company under that definition, however, we are permitted to elect
to rely, and may rely, on certain exemptions from corporate governance rules, including:
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an
exemption from the rule that a majority of our board of directors must be independent directors;
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an
exemption from the rule that the compensation of our chief executive officer must be determined or recommended solely by independent
directors; and
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an
exemption from the rule that our director nominees must be selected or recommended solely by independent directors.
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If
we elect to rely on the “controlled company” exemption, a majority of the members of our board of directors might not be
independent directors and our nominating and corporate governance and compensation committees might not consist entirely of independent
directors.
RISK
FACTORS
Investing
in our securities involves risk. You should carefully consider the specific risks discussed or incorporated by reference in the applicable
prospectus supplement, together with all the other information contained in the prospectus supplement or incorporated by reference in
this prospectus and the applicable prospectus supplement. You should also consider the risks, uncertainties and assumptions discussed
under the caption “Item 1A. Risk Factors” in Part 1 of our Annual Report on Form 10-K for the fiscal year ended December
27, 2020, which is incorporated by reference in this prospectus. Such discussion may be amended, supplemented or superseded from time
to time by other reports we file with the SEC in the future, including our Quarterly Reports on Form 10-Q. Our business, financial
condition and results of operations could be materially and adversely affected by any of these risks. Additional risks not presently
known to us or that we currently deem immaterial may also impair our business operations. The occurrence of any of these risks may cause
you to lose all or part of your investment in the offered securities.
USE
OF PROCEEDS
Unless
indicated otherwise in the applicable prospectus supplement, we expect to use the net proceeds from the sale of the securities by us
for general corporate purposes. Pending such use, we may temporarily invest the proceeds or use them to reduce short-term indebtedness.
Additional
information on the use of proceeds from the sale of the securities offered by this prospectus may be set forth in the applicable prospectus
supplement.
DESCRIPTION
OF COMMON STOCK
General
The
Second Amended and Restated Certificate of Incorporation of our Company, as amended (which we refer to as our “Certificate
of Incorporation”), authorizes the issuance of up to (i) 50,000,000 shares of Class A Common Stock, par value
$0.0001 per share (which we refer to as our “Class A Common Stock”), and (ii) 1,600,000 shares of Class B Common Stock,
par value $0.0001 per share (which we refer to as our “Class B Common Stock”, and together with our Class A Common Stock,
our “Common Stock”). As of the date of this prospectus, there were 15,108,346 shares of our Class A Common
Stock, and 1,270,805 shares of our Class B Common Stock, issued and outstanding. Our Class A Common Stock is listed on the
Nasdaq Capital Market under the symbol “FAT”.
Voting Rights
Holders
of our Class A Common Stock are entitled to cast one vote per share of Class A Common Stock, and holders of our Class B Common
Stock are entitled to cast 2,000 votes per share of Class B Common Stock. The holders of shares of our Class A Common Stock and the holders
of shares of our Class B Common Stock will at all times vote together as a single class. Holders of our Common Stock are not
entitled to cumulate their votes in the election of directors. Generally, all matters to be voted on by stockholders must be approved
by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all stockholders present
in person or represented by proxy, voting together as a single class. Except as otherwise provided by law, amendments to our Certificate
of Incorporation must be approved by a majority or, in some cases, a super-majority of the combined voting power of all shares entitled
to vote, voting together as a single class.
Dividend Rights
Holders
of our Common Stock are entitled share ratably (based on the number of shares of Common Stock held) if and when any dividend
is declared by our board of directors (which we refer to as our “Board”) out of funds legally available therefor, subject
to any statutory or contractual restrictions on the payment of dividends and to any restrictions on the payment of dividends imposed
by the terms of any outstanding preferred stock. No dividend may be paid on one class of Common Stock unless a dividend is paid simultaneously
on the other class of Common Stock.
Liquidation
Rights
On
our liquidation, dissolution or winding up, each holder of our Common Stock will be entitled to a pro rata distribution of any
assets available for distribution to holders of our Common Stock.
Other Matters
No
shares of Common Stock are subject to redemption or have preemptive rights to purchase additional shares of Common Stock.
The rights, preferences and privileges of the holders of our Common Stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of our preferred stock, including our non-voting 8.25% Series B Cumulative Preferred Stock
(which we refer to as our “Series B Preferred Stock”) and any series of preferred stock which we may designate in the future.
There are no redemption or sinking fund provisions applicable to our Common Stock. All outstanding shares of our Common Stock
are, and the shares of our Class A Common Stock to be issued in the offering will be, fully paid and nonassessable.
DESCRIPTION
OF PREFERRED STOCK
Our
Certificate of Incorporation authorizes the issuance of up to 15,000,000 shares of preferred stock, par value $0.0001 per share.
As of the date of this prospectus, there were 9,058,109 shares of our Series B Preferred Stock issued and outstanding.
General
This
section describes the general terms and provisions of the preferred stock offered by this prospectus, other than pricing and related
terms disclosed for a particular issuance in an applicable prospectus supplement. You should read the particular terms of any series
of preferred stock we offer in any prospectus supplement relating to such series, together with the more detailed provisions of our Certificate
of Incorporation and the certificate of designations with respect to each particular series of preferred stock, which will be filed as
an exhibit to a document incorporated by reference into this prospectus. The prospectus supplement also will state whether any of the
terms summarized below do not apply to the series of preferred stock being offered.
Shares
of preferred stock may be issued in one or more series from time to time as determined by our Board. Our Board is expressly authorized,
without stockholder approval, to fix by resolution the designations, the powers, preferences and rights, and the qualifications, limitations
and restrictions, of the shares of each series of preferred stock. Our Board’s ability to authorize, without stockholder approval,
the issuance of preferred stock with conversion and other rights may adversely affect the rights of holders of our Common Stock
or other series of preferred stock that may be outstanding.
In
authorizing any series of preferred stock, our Board may determine the following:
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the
voting powers, if any, of the holders of stock of such series in addition to any voting rights affirmatively required by law;
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the
rights of shareholders in respect of dividends, including, without limitation, the rate or rates per annum and the time or times
at which (or the formula or other method pursuant to which such rate or rates and such time or times may be determined) and conditions
upon which the holders of stock of such series will be entitled to receive dividends and other distributions, and whether any such
dividends will be cumulative or noncumulative and, if cumulative, the terms upon which such dividends will be cumulative;
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whether
the stock of each such series shall be redeemable by us at our option or the holder of the stock, and, if redeemable, the terms and
conditions upon which the stock of such series may be redeemed;
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the
amount payable and the rights or preferences to which the holders of the stock of such series will be entitled upon any voluntary
or involuntary liquidation, dissolution or winding-up;
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the
terms, if any, upon which shares of stock of such series will be convertible into, or exchangeable for, shares of stock of any other
class or classes or of any other series of the same or any other class or classes, including the price or prices or the rate or rates
of conversion or exchange and the terms of adjustment, if any; and
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any
other designations, preferences, and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions thereof, so far as they are not inconsistent with the provisions
of our Certificate of Incorporation, and to the full extent now or hereafter permitted by the laws of the State of Delaware.
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Prior
to the issuance of any series of preferred stock, our Board will adopt resolutions creating and designating the series as a series of
preferred stock, and a certificate of designations setting forth the preferences, rights, limitations and other terms of such
series will be filed with the Secretary of State of the State of Delaware.
The
preferred stock will have the dividend, liquidation, redemption and voting rights stated in this section unless the applicable prospectus
supplement indicates otherwise. You should read the applicable prospectus supplement relating to the particular series of the preferred
stock being offered for specific terms, including:
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the
title, stated value and liquidation preferences of the preferred stock and the number of shares offered;
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the
initial public offering price at which the preferred stock will be issued;
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the
dividend rate(s) (or method of calculation), the dividend periods, the dates on which dividends shall be payable and whether these
dividends will be cumulative or noncumulative and, if cumulative, the dates at which the dividends shall begin to cumulate;
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any
redemption or sinking fund provisions; and
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any
additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions.
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When
we issue shares of preferred stock, the shares will be fully paid and nonassessable, which means the full purchase price of the shares
will have been paid and holders of the shares will not be assessed any additional monies for the shares. Unless the applicable prospectus
supplement indicates otherwise, each series of the preferred stock will rank equally with any outstanding shares of our preferred stock
and each other series of the preferred stock. Unless the applicable prospectus supplement states otherwise, the preferred stock will
have no preemptive rights to subscribe for any additional securities which are issued by us, meaning, the holders of shares of preferred
stock will have no right to buy any portion of the issued securities.
In
addition, unless the applicable prospectus indicates otherwise, we will have the right to “reopen” a previous issue of a
series of preferred stock by issuing additional preferred stock of such series.
The
transfer agent, registrar, dividend disbursing agent and redemption agent for shares of each series of preferred stock will be named
in the prospectus supplement relating to such series.
Voting
Rights
The
holders of shares of preferred stock will have no voting rights, except:
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as
otherwise stated in the applicable prospectus supplement;
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as
otherwise stated in the certificate of designations with respect to shares establishing such series; or
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as
required by applicable law.
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Dividend
Rights
The
holders of the preferred stock of each series will be entitled to receive cash dividends out of funds legally available, when, as and
if, declared by our Board or a duly authorized committee of our Board, at the rates and on the dates stated in the applicable prospectus
supplement. These rates may be fixed, or variable, or both. If the dividend rate is variable, the applicable prospectus supplement will
describe the formula used to determine the dividend rate for each dividend period. We will pay dividends to the holders of record as
they appear on our stock books on the record dates determined by our Board or authorized committee. Unless the applicable prospectus
supplement indicates otherwise, dividends on any series of preferred stock will be cumulative.
Our
Board will not declare and pay a dividend on any of our stock ranking as to dividends, equal with or junior to the preferred stock unless
full dividends on the preferred stock have been declared and paid (or declared and sufficient money was set aside for payment).
Until
dividends are paid in full or declared and set aside for payment on any series of preferred stock ranking equal with the preferred stock
as to dividends:
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we
will declare all dividends pro rata among the preferred stock of each series, so that the amount of dividends declared per share
on each series will have the same relationship to each other that accrued dividends per share on each series of preferred stock and
other preferred stock bear to each other;
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other
than the pro rata dividends, we will not declare or pay or set aside for payment dividends, or declare or make any other distribution
on any security ranking junior to or equal with the preferred stock offered under this prospectus as to dividends or at liquidation
(except dividends or distributions paid for in shares of, or options, warrants or rights to subscribe or purchase shares of securities
ranking junior to or equal with the preferred stock as to dividends and at liquidation);
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we
will not redeem, purchase or otherwise acquire for any consideration (or have any monies paid to or set aside in a sinking fund)
any securities ranking junior to or equal with the preferred stock as to dividends or at liquidation (except by conversion into or
exchange for our stock which ranks junior to the preferred stock as to dividends and at liquidation); and
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we
will not pay interest, or money in lieu of interest, for any dividend payments on any series of the preferred stock that are in arrears.
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Redemption
Rights
A
series of the preferred stock may be redeemable, in whole or in part, at our option, and may be subject to mandatory redemption under
a sinking fund or otherwise as described in the applicable prospectus supplement. The preferred stock that we redeem will be restored
to the status of authorized but unissued shares of preferred stock which we may issue in the future.
If
a series of preferred stock is subject to mandatory redemption, the applicable prospectus supplement will specify the number of shares
that we will redeem in each year and the redemption price per share together with an amount equal to all accrued and unpaid dividends
on those shares to the redemption date. The applicable prospectus supplement will state whether the redemption price can be paid in cash
or other property. If the redemption price is to be paid only from the net proceeds of issuing our capital stock, the terms of the series
of preferred stock may provide that, if the capital stock has not been issued or if the net proceeds are not sufficient to pay the full
redemption price then due, the shares relating to series of the preferred stock shall automatically and mandatorily be converted into
shares of our capital stock under the conversion provisions of the applicable prospectus supplement.
If
fewer than all of the outstanding shares of any series of the preferred stock are to be redeemed, the redemption will be made in a manner
that our Board decides is equitable.
Unless
we default in the payment of the redemption price, dividends will cease to accrue after the redemption date on shares of preferred stock
called for redemption and all rights of holders of such shares will terminate except for the right to receive the redemption price.
Conversion
and Exchange Rights
If
any series of offered preferred stock is convertible into or exchangeable for any other class or series of our capital stock, the applicable
prospectus supplement relating to that series will describe the terms and conditions governing the conversions and exchanges.
Liquidation
Rights
If
we voluntarily or involuntarily liquidate, dissolve or wind up our business, the holders of shares of each series of preferred stock
and any other securities that have rights equal to that series of preferred stock under these circumstances will be entitled to receive
out of our assets that are available for distribution to stockholders:
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liquidation
distributions in the amount stated in the applicable prospectus supplement; and
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all
accrued and unpaid dividends (whether or not earned or declared), before any distribution to holders of Common Stock or of
any securities ranking junior to the series of preferred stock.
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Neither
the sale of all or any part of our property and business, nor our merger into or consolidation with any other corporation, nor the merger
or consolidation of any other corporation with or into us, will be deemed to be a dissolution, liquidation or winding up.
If
our assets are insufficient to pay all amounts to which holders of preferred stock are entitled, we will make no distribution on the
preferred stock or on any other securities ranking equal to the preferred stock unless we make a pro rata distribution to those holders.
After we pay the full amount of the liquidation distribution to which the holders are entitled, the holders will have no right or claim
to any of our remaining assets.
DESCRIPTION
OF DEBT SECURITIES
We
may issue debt securities under an indenture between us and a U.S. banking institution, as the indenture trustee. Each indenture will
be subject to, and governed by, the Trust Indenture Act of 1939, as amended (which we refer to as the “Trust Indenture Act”),
and we may supplement the indenture from time to time after we execute them.
This
prospectus summarizes the material provisions of the indenture and the debt securities that we may issue under an indenture. This summary
may not describe all of the provisions of the indenture or of any of the debt securities that might be important to you. For additional
information, you should carefully read the forms of indenture that are incorporated by reference as an exhibit to the registration statement
of which this prospectus forms a part.
When
we offer to sell a particular series of debt securities, we will describe the specific terms of those debt securities in a supplement
to this prospectus. We will also indicate in the supplement whether the general terms in this prospectus apply to a particular series
of debt securities. Accordingly, for a description of the terms of a particular issue of debt securities, you should carefully read this
prospectus and the applicable supplement.
Terms
The
prospectus supplement will describe the debt securities and the price or prices at which we will offer the debt securities. The description
will include:
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title and form of the debt securities;
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any
limit on the aggregate principal amount of the debt securities or the series of which they are a part;
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the
person to whom any interest on a debt security of the series will be paid;
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the
date or dates on which we must repay the principal;
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the
rate or rates at which the debt securities will bear interest;
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the
date or dates from which interest will accrue, and the dates on which we must pay interest;
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the
place or places where we must pay the principal and any premium or interest on the debt securities;
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the
terms and conditions on which we may redeem any debt security, if at all;
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any
obligation to redeem or purchase any debt securities, and the terms and conditions on which we must do so;
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the
denominations in which we may issue the debt securities;
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the
manner in which we will determine the amount of principal of or any premium or interest on the debt securities;
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the
currency in which we will pay the principal of and any premium or interest on the debt securities;
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the
principal amount of the debt securities that we will pay upon declaration of acceleration of their maturity;
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the
amount that will be deemed to be the principal amount for any purpose, including the principal amount that will be due and payable
upon any maturity or that will be deemed to be outstanding as of any date;
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if
applicable, that the debt securities are defeasible and the terms of such defeasance;
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if
applicable, the terms of any right to convert debt securities into, or exchange debt securities for, shares of our capital stock
or other securities or property;
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whether
we will issue the debt securities in the form of one or more global securities and, if so, the respective depositaries for the global
securities and the terms of the global securities;
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the
subordination provisions that will apply to any subordinated debt securities;
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any
addition to or change in the events of default applicable to the debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities due and payable;
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any
addition to or change in the covenants in the indentures; and
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any
other terms of the debt securities not inconsistent with the applicable indentures.
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We
may sell the debt securities at a substantial discount below their stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue discount in the prospectus supplement. An “original
issue discount security” is any debt security sold for less than its face value, and which provides that the holder cannot receive
the full face value if maturity is accelerated. The prospectus supplement relating to any original issue discount securities will describe
the particular provisions relating to acceleration of the maturity upon the occurrence of an event of default. In addition, we will describe
U.S. federal income tax or other considerations applicable to any debt securities that are denominated in a currency or unit other than
U.S. dollars in the prospectus supplement.
Conversion
and Exchange Rights
The
prospectus supplement will describe, if applicable, the terms on which you may convert debt securities into or exchange them for other
debt securities, shares of our capital stock, other securities, or property. The conversion or exchange may be mandatory
or may be at your option. The prospectus supplement will describe how the amount of other debt securities, number of shares of
our capital stock, amount of other securities, or amount of property to be received upon conversion or exchange
would be calculated.
Senior
Debt Securities
Payment
of the principal, premium, if any, and interest on senior debt securities will rank with all of our other unsecured and unsubordinated
debt securities.
Subordinated
Debt Securities
Payment
of the principal, premium, if any, and interest on subordinated debt securities will be junior in right of payment to the prior payment
in full of all of our unsubordinated debt. We will set forth in the applicable prospectus supplement relating to any subordinated debt
securities the subordination terms of such securities as well as the aggregate amount of outstanding debt, as of the most recent practicable
date, that by its terms would be senior to the subordinated debt securities. We will also set forth in such prospectus supplement limitations,
if any, on issuance of additional senior debt.
Form,
Exchange, and Transfer
We
will issue debt securities only in fully registered form, without coupons, and only in denominations of $1,000 and integral multiples
thereof, unless the prospectus supplement provides otherwise. The holder of a debt security may elect, subject to the terms of the indentures
and the limitations applicable to global securities, to exchange them for other debt securities of the same series of any authorized
denomination and of similar terms and aggregate principal amount.
Holders
of debt securities may present them for exchange as provided above or for registration of transfer, duly endorsed or with the form of
transfer duly executed, at the office of the transfer agent we designate for that purpose. We will not impose a service charge for any
registration of transfer or exchange of debt securities, but we may require a payment sufficient to cover any tax or other governmental
charge payable in connection with the transfer or exchange. We will name the transfer agent in the prospectus supplement. We may designate
additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer
agent acts, but we must maintain a transfer agent in each place where we will make payment on debt securities.
If
we redeem the debt securities, we will not be required to issue, register the transfer of or exchange any debt security during a specified
period prior to mailing a notice of redemption. We are not required to register the transfer or exchange of any debt security selected
for redemption, except the unredeemed portion of the debt security being redeemed.
Global
Securities
The
debt securities may be represented, in whole or in part, by one or more global securities that will have an aggregate principal amount
equal to that of all debt securities of that series. Each global security will be registered in the name of a depositary identified in
the prospectus supplement. We will deposit the global security with the depositary or a custodian, and the global security will bear
a legend regarding the restrictions on exchanges and registration of transfer.
No
global security may be exchanged in whole or in part for debt securities registered, and no transfer of a global security in whole or
in part may be registered, in the name of any person other than the depositary or any nominee or successor of the depositary unless:
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the
depositary is unwilling or unable to continue as depositary; or
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the
depositary is no longer in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation.
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The
depositary will determine how all securities issued in exchange for a global security will be registered.
As
long as the depositary or its nominee is the registered holder of a global security, we will consider the depositary or the nominee to
be the sole owner and holder of the global security and the underlying debt securities. Except as stated above, owners of beneficial
interests in a global security will not be entitled to have the global security or any debt security registered in their names, will
not receive physical delivery of certificated debt securities and will not be considered to be the owners or holders of the global security
or underlying debt securities. We will make all payments of principal, premium and interest on a global security to the depositary or
its nominee. The laws of some jurisdictions require that some purchasers of securities take physical delivery of such securities in definitive
form. These laws may prevent you from transferring your beneficial interests in a global security.
Only
institutions that have accounts with the depositary or its nominee and persons that hold beneficial interests through the depositary
or its nominee may own beneficial interests in a global security. The depositary will credit, on its book-entry registration and transfer
system, the respective principal amounts of debt securities represented by the global security to the accounts of its participants. Ownership
of beneficial interests in a global security will be shown only on, and the transfer of those ownership interests will be effected only
through, records maintained by the depositary or any such participant.
The
policies and procedures of the depositary may govern payments, transfers, exchanges and others matters relating to beneficial interests
in a global security. We and the trustee will assume no responsibility or liability for any aspect of the depositary’s or any participant’s
records relating to, or for payments made on account of, beneficial interests in a global security.
Payment
and Paying Agents
We
will pay principal and any premium or interest on a debt security to the person in whose name the debt security is registered at the
close of business on the regular record date for such interest.
We
will pay principal and any premium or interest on the debt securities at the office of our designated paying agent. Unless the prospectus
supplement indicates otherwise, the corporate trust office of the trustee will be the paying agent for the debt securities.
Any
other paying agents we designate for the debt securities of a particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent
acts, but we must maintain a paying agent in each place of payment for the debt securities.
The
paying agent will return to us all money we pay to it for the payment of the principal, premium or interest on any debt security that
remains unclaimed for a specified period. Thereafter, the holder may look only to us for payment, as an unsecured general creditor.
Consolidation,
Merger, and Sale of Assets
Under
the terms of the indentures, so long as any securities remain outstanding, we may not consolidate or enter into a share exchange with
or merge into any other person, in a transaction in which we are not the surviving corporation, or sell, convey, transfer or lease our
properties and assets substantially as an entirety to any person, unless:
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the
successor assumes our obligations under the debt securities and the indentures; and
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we
meet the other conditions described in the indentures.
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Events
of Default
Each
of the following will constitute an event of default under each indenture:
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failure
to pay the principal of or any premium on any debt security when due;
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failure
to pay any interest on any debt security when due, for more than a specified number of days past the due date;
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failure
to deposit any sinking fund payment when due;
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failure
to perform any covenant or agreement in the indenture that continues for a specified number of days after written notice has been
given by the trustee or the holders of a specified percentage in aggregate principal amount of the debt securities of that series;
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events
of bankruptcy, insolvency or reorganization; and
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any
other event of default specified in the prospectus supplement.
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Additional
or different events of default applicable to a series of debt securities may be described in a prospectus supplement. An event of default
of one series of debt securities is not necessarily an event of default for any other series of debt securities.
If
an event of default occurs and continues, both the trustee and holders of a specified percentage in aggregate principal amount of the
outstanding securities of that series may declare the principal amount of the debt securities of that series to be immediately due and
payable. The holders of a majority in aggregate principal amount of the outstanding securities of that series may rescind and annul the
acceleration if all events of default, other than the nonpayment of accelerated principal, have been cured or waived.
Except
for its duties in case of an event of default, the trustee will not be obligated to exercise any of its rights or powers at the request
or direction of any of the holders, unless the holders have offered the trustee reasonable indemnity. If they provide this indemnification
and subject to conditions specified in the applicable indenture, the holders of a majority in aggregate principal amount of the outstanding
securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No
holder of a debt security of any series may institute any proceeding with respect to the indentures, or for the appointment of a receiver
or a trustee, or for any other remedy, unless:
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the
holder has previously given the trustee written notice of a continuing event of default;
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the
holders of a specified percentage in aggregate principal amount of the outstanding securities of that series have made a written
request upon the trustee, and have offered reasonable indemnity to the trustee, to institute the proceeding;
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the
trustee has failed to institute the proceeding for a specified period of time after its receipt of the notification; and
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the
trustee has not received a direction inconsistent with the request within a specified number of days from the holders of a specified
percentage in aggregate principal amount of the outstanding securities of that series.
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Modification
and Waiver
We
and the trustee may change an indenture without the consent of any holders with respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture; and
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to
change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
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In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is
affected. However, we and the trustee may only make the following changes with the consent of the holder of any outstanding debt securities
affected:
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extending
the fixed maturity of the series of debt securities;
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reducing
the principal amount, reducing the rate of or extending the time of payment of interest, or any premium payable upon the redemption,
of any debt securities; or
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reducing
the percentage of debt securities the holders of which are required to consent to any amendment.
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The
holders of a majority in principal amount of the outstanding debt securities of any series may waive any past default under the indenture
with respect to debt securities of that series, except a default in the payment of principal, premium or interest on any debt security
of that series or in respect of a covenant or provision of the indenture that cannot be amended without each holder’s consent.
Except
in limited circumstances, we may set any day as a record date for the purpose of determining the holders of outstanding debt securities
of any series entitled to give or take any direction, notice, consent, waiver or other action under the indentures. In limited circumstances,
the trustee may set a record date. To be effective, the action must be taken by holders of the requisite principal amount of such debt
securities within a specified period following the record date.
Defeasance
To
the extent stated in the prospectus supplement, we may elect to apply the provisions in the indentures relating to defeasance and discharge
of indebtedness, or to defeasance of restrictive covenants, to the debt securities of any series. The indentures provide that, upon satisfaction
of the requirements described below, we may terminate all of our obligations under the debt securities of any series and the applicable
indenture, known as legal defeasance, other than our obligation:
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to
maintain a registrar and paying agents and hold monies for payment in trust;
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to
register the transfer or exchange of the debt securities; and
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to
replace mutilated, destroyed, lost or stolen debt securities.
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In
addition, we may terminate our obligation to comply with any restrictive covenants under the debt securities of any series or the applicable
indenture, known as covenant defeasance.
We
may exercise our legal defeasance option even if we have previously exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the debt securities may not be accelerated because of the occurrence of events of default.
To
exercise either defeasance option as to debt securities of any series, we must irrevocably deposit in trust with the trustee money and/or
obligations backed by the full faith and credit of the United States that will provide money in an amount sufficient in the written opinion
of a nationally recognized firm of independent public accountants to pay the principal of, premium, if any, and each installment of interest
on the debt securities. We may only establish this trust if, among other things:
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no
event of default shall have occurred or be continuing;
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in
the case of legal defeasance, we have delivered to the trustee an opinion of counsel to the effect that we have received from, or
there has been published by, the Internal Revenue Service a ruling or there has been a change in law, which in the opinion of our
counsel, provides that holders of the debt securities will not recognize gain or loss for federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
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in
the case of covenant defeasance, we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt
securities will not recognize gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case
if such deposit, defeasance and discharge had not occurred; and
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we
satisfy other customary conditions precedent described in the applicable indenture.
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Notices
We
will mail notices to holders of debt securities as indicated in the prospectus supplement.
Title
We
may treat the person in whose name a debt security is registered as the absolute owner, whether or not such debt security may be overdue,
for the purpose of making payment and for all other purposes.
Governing
Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York.
Regarding
the Trustee
The
trustee will have all the duties and responsibilities of an indenture trustee specified in the Trust Indenture Act. The trustee is not
required to expend or risk its own funds or otherwise incur financial liability in performing its duties or exercising its rights and
powers if it reasonably believes that it is not reasonably assured of repayment or adequate indemnity.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of shares of our Class A Common Stock or preferred stock (which we refer to in this section
as the “applicable capital stock”). Warrants may be issued separately or together with our Class A Common Stock, preferred
stock or debt securities, and may be attached to or separate from such Class A Common Stock, preferred stock or debt securities.
Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust corporation,
as warrant agent, all as set forth in the prospectus supplement relating to the particular issue of offered warrants. The warrant agent
will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for
or with any holders of warrants or beneficial owners of warrants. Copies of the forms of warrant agreements, including the forms of warrant
certificates representing the warrants, will be filed as exhibits to a document incorporated by reference into this prospectus.
This
section describes the general terms and provisions of the warrants offered hereby. The applicable prospectus supplement will describe
the specific terms of any issuance of warrants. You should read the particular terms of any warrants we offer in any prospectus supplement,
together with the more detailed form of warrant agreement and the form of warrant certificate. The prospectus supplement also will state
whether any of the terms summarized below do not apply to the warrants being offered.
General
The
applicable prospectus supplement will describe the terms of the warrants, including the following where applicable:
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the
title of the warrants;
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the
offering price of the warrants, if any;
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the
aggregate number of warrants;
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the
designation and terms of the applicable capital stock that is purchasable upon exercise of the warrants;
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the
designation and terms of the securities with which the warrants are issued, and the number of warrants issued with each such security;
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the
date after which the warrants and any securities issued with the warrants will be separately transferable;
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the
number of shares of applicable capital stock purchasable upon exercise of a warrant and the purchase price;
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the
dates on which the right to exercise the warrants begins and expires;
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the
minimum or maximum number of warrants that may be exercised at any one time;
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the
currency, currencies or currency units in which the offering price, if any, and the exercise price are payable;
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a
discussion of certain United States federal income tax considerations;
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any
antidilution provisions of the warrants;
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any
redemption or call provisions applicable to the warrants; and
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any
additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
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Warrant
certificates may be exchanged for new warrant certificates of different denominations, may be presented for registration of transfer,
and may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement.
Prior to the exercise of any warrants to purchase shares of applicable capital stock, holders of such warrants will not have any rights
of holders of the underlying shares of applicable capital stock purchasable upon such exercise, including the right to receive payments
of dividends, if any, on the shares of applicable capital stock purchasable upon such exercise or to exercise any applicable right to
vote.
Exercise
of Warrants
Each
warrant will entitle the holder thereof to purchase such number of shares of applicable capital stock at such exercise price as shall
in each case be set forth in, or calculable from, the prospectus supplement relating to the offered warrants. After the close of business
on the expiration date of the warrants (or such later date to which such expiration date may be extended by us), unexercised warrants
will become void.
Warrants
may be exercised by delivering to the warrant agent payment as provided in the applicable prospectus supplement of the amount required
to purchase the shares of applicable capital stock purchasable upon such exercise together with certain information set forth on the
reverse side of the warrant certificate. Warrants will be deemed to have been exercised upon receipt of payment of the exercise price,
subject to the receipt, within five business days, of the warrant certificate evidencing such warrants. Upon receipt of such payment
and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office
indicated in the applicable prospectus supplement, we will, as soon as practicable, issue and deliver the shares of applicable capital
stock purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, a new warrant
certificate will be issued for the remaining number of warrants.
Amendments
and Supplements to Warrant Agreements
We
and the relevant warrant agent may, with the consent of the holders of at least a majority in number of the outstanding unexercised warrants
affected, modify or amend the warrant agreement and the terms of the warrants. However, the warrant agreements may be amended or supplemented
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 adversely affect the interests of the holders of the warrants. Notwithstanding the foregoing, no such
modification or amendment may, without the consent of the holders of each warrant affected:
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reduce
the amount receivable upon exercise, cancellation or expiration;
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shorten
the period of time during which the warrants may be exercised;
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otherwise
materially and adversely affect the exercise rights of the beneficial owners of the warrants; or
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reduce
the percentage of outstanding warrants whose holders must consent to modification or amendment of the applicable warrant agreement
or the terms of the warrants.
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Antidilution
and Other Adjustments
Unless
otherwise indicated in the applicable prospectus supplement, the exercise price of, and the number of shares of applicable capital stock
covered by a warrant, are subject to adjustment in certain events, including:
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the
issuance of shares of applicable capital stock as a dividend or distribution on the shares of applicable capital stock;
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subdivisions
and combinations of the applicable capital stock;
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the
issuance to all holders of shares of applicable capital stock of rights entitling them to subscribe for or purchase shares of applicable
capital stock within 45 days after the date fixed for the determination of the stockholders entitled to receive such capital stock
rights, at less than the current market price; and
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the
distribution to all holders of shares of applicable capital stock of evidences of our indebtedness or assets (excluding certain cash
dividends and distributions described below) or rights or warrants (excluding those referred to above).
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We
may, in lieu of making any adjustment in the exercise price of, and the number of shares of applicable capital stock covered by, a warrant,
make proper provision so that each holder of such warrant who exercises such warrant (or any portion thereof):
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before
the record date for such distribution of separate certificates, shall be entitled to receive upon such exercise shares of applicable
capital stock issued with capital stock rights; and
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after
such record date and prior to the expiration, redemption or termination of such capital stock rights, shall be entitled to receive
upon such exercise, in addition to the shares of applicable capital stock issuable upon such exercise, the same number of such capital
stock rights as would a holder of the number of shares of applicable capital stock that such warrants so exercised would have entitled
the holder thereof to acquire in accordance with the terms and provisions applicable to the capital stock rights if such warrant
was exercised immediately prior to the record date for such distribution.
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Shares
of applicable capital stock owned by or held for our account or for the account of any of our majority owned subsidiaries will not be
deemed outstanding for the purpose of any adjustment.
No
adjustment in the exercise price of, and the number of shares of applicable capital stock covered by, a warrant will be made for regular
quarterly or other periodic or recurring cash dividends or distributions of cash dividends or distributions to the extent paid from retained
earnings. Except as stated above, the exercise price of, and the number of shares of applicable capital stock covered by, a warrant will
not be adjusted for the issuance of shares of applicable capital stock or any securities convertible into or exchangeable for shares
of applicable capital stock, or securities carrying the right to purchase any of the foregoing.
In
the case of a reclassification or change of the applicable capital stock, a consolidation or merger involving us or sale or conveyance
to another corporation of our property and assets as an entirety or substantially as an entirety, in each case as a result of which holders
of shares of applicable capital stock shall be entitled to receive stock, securities, other property or assets (including cash) with
respect to or in exchange for such shares of applicable capital stock, the holders of the warrants then outstanding will be entitled
thereafter to convert such warrants into the kind and number of shares of stock and amount of other securities or property which they
would have received upon such reclassification, change, consolidation, merger, sale or conveyance had such warrants been exercised immediately
prior to such reclassification, change, consolidation, merger, sale or conveyance.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
The
following summary describes the general terms and provisions of the subscription rights to purchase shares of our Class A Common
Stock or other securities that we may offer to our shareholders. 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. Unless we
are prohibited from doing so by the applicable rules and regulations of the SEC (including the General Instructions to Form S-3) based
on the aggregate market value of our outstanding common equity held by non-affiliates, in connection with any subscription rights offering
to our shareholders, we may enter into a standby underwriting or other arrangement with one or more underwriters or other persons pursuant
to which such underwriters or other persons would purchase any offered securities remaining unsubscribed for after such subscription
rights offering. Each series of subscription rights will be issued under a separate subscription rights agent agreement to be entered
into between us and a bank or trust company, as subscription rights agent, that we will name in the applicable prospectus supplement.
The subscription rights agent will act solely as our agent in connection with the certificates relating to the subscription rights and
will not assume any obligation or relationship of agency or trust for or with any holders of subscription rights certificates or beneficial
owners of subscription rights.
The
prospectus supplement relating to any subscription rights we offer will include specific terms relating to the offering, including, among
others:
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the
securities for which the 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
number of shares of Class A Common Stock or amount of any other securities purchasable upon exercise of such subscription
rights;
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the
extent, if any, to which such subscription rights are transferable;
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a
discussion of the material U.S. 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 exercise of such subscription
rights.
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Each
subscription right will entitle the holder of the subscription right to purchase for cash the number of shares of our Class A Common
Stock or other securities at an exercise price set forth in, or determinable as set forth in, the applicable prospectus supplement.
Subscription rights may be exercised at any time up to the close of business on the expiration date for the subscription rights provided
in the applicable prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights will
become void and of no further force or effect.
Holders
may exercise subscription rights as described in the applicable prospectus supplement. 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, as soon as practicable, issue the shares of Class A Common Stock or other security purchasable
upon exercise of the subscription rights. Unless we are prohibited from doing so by the applicable rules and regulations of the SEC (including
the General Instructions to Form S-3) based on the aggregate market value of our outstanding common equity held by non-affiliates, if
less than all of the subscription rights issued in any subscription rights offering are exercised, we may offer any unsubscribed 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 arrangements, as described in the applicable prospectus supplement.
The
description in the applicable prospectus supplement and other offering material of any subscription rights we offer will not necessarily
be complete and will be qualified in its entirety by reference to the applicable subscription rights certificate, the form of which will
be filed with the SEC if we offer subscription rights. We urge you to read the form of subscription rights certificate, prospectus supplement
and other offering material in their entirety.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other classes of securities described in this prospectus in any combination. Each unit
will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The units may be issued under unit agreements to be entered into
between us and a unit agent, as detailed in the prospectus supplement relating to the units being offered. The 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 the
securities comprising the units may be held or transferred separately;
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a
description of the terms of any unit agreement governing the units;
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a
description of the provisions for the payment, settlement, transfer or exchange of the units;
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a
discussion of material federal income tax considerations, if applicable; and
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whether
the units if issued as a separate security will be issued in fully registered or global form.
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The
descriptions of the units in this prospectus and in any prospectus supplement are summaries of the material provisions of the applicable
agreements. These descriptions do not restate those agreements in their entirety and may not contain all the information that you may
find useful. We urge you to read the applicable agreements because they, and not the summaries, define your rights as holders of the
units. For more information, please review the forms of the relevant agreements, which will be filed with the SEC and will be available
as described under the headings “Information Incorporated by Reference” and “Where You Can Find More Information”.
PLAN
OF DISTRIBUTION
We
may offer and sell the securities in any one or more of the following ways:
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to
or through underwriters, brokers or dealers;
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directly
to one or more other purchasers;
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upon
the exercise of rights distributed or issued to our security holders;
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through
a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may
position and resell a portion of the block as principal to facilitate the transaction;
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●
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through
agents on a best-efforts basis; or
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●
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otherwise
through a combination of any of the above methods of sale.
|
We
may sell the securities being offered by this prospectus by any other method permitted by law, including sales deemed to be an “at
the market” offering as defined in Rule 415(a)(4) of the Securities Act of 1933, as amended (which we refer to as the “Securities
Act”), including without limitation sales made directly on the Nasdaq Capital Market, on any other existing trading market
for our securities or to or through a market maker.
In
addition, we may enter into option, share lending or other types of transactions that require us to deliver the securities to an underwriter,
broker or dealer, who will then resell or transfer the securities under this prospectus. We may also enter into hedging transactions
with respect to our securities. For example, we may:
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●
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enter
into transactions involving short sales of the securities by underwriters, brokers or dealers;
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sell
securities short and deliver the shares to close out short positions;
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enter
into option or other types of transactions that require us to deliver the securities to an underwriter, broker or dealer, who will
then resell or transfer the securities under this prospectus; or
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●
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loan
or pledge the securities to an underwriter, broker or dealer, who may sell the loaned securities or, in the event of default, sell
the pledged securities.
|
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, the third parties may
sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the
third party 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 stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock.
The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the
applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial
institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other
third party may transfer its economic short position to investors in our securities, or in connection with a concurrent offering of other
securities.
Each
time we sell securities, we will provide a prospectus supplement that will name any underwriter, dealer or agent involved in the offer
and sale of the securities. The prospectus supplement will also set forth the terms of the offering, including:
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●
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the
purchase price of the securities and the proceeds we will receive from the sale of the securities;
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●
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any
underwriting discounts and other items constituting underwriters’ compensation;
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●
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any
public offering or purchase price and any discounts or commissions allowed or re-allowed or paid to dealers;
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●
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any
commissions allowed or paid to agents;
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any
other offering expenses;
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●
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any
securities exchanges on which the securities may be listed;
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●
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the
method of distribution of the securities;
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●
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the
terms of any agreement, arrangement or understanding entered into with the underwriters, brokers or dealers; and
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●
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any
other information we think is important.
|
If
underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account. The
securities may be sold from time to time by us in one or more transactions:
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●
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at
a fixed price or prices, which may be changed;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices;
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at
varying prices determined at the time of sale; or
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●
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at
negotiated prices.
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Such
sales may be effected:
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in
transactions on any national securities exchange or quotation service on which the securities may be listed or quoted at the time
of sale;
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in
transactions in the over-the-counter market;
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in
block transactions in which the broker or dealer so engaged will attempt to sell the securities as agent but may position and resell
a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both
sides of the trade;
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●
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through
the writing of options; or
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●
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through
other types of transactions.
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The
securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly
by one or more of such firms. Unless otherwise set forth in the prospectus supplement, the obligations of underwriters or dealers to
purchase the securities offered will be subject to certain conditions precedent and the underwriters or dealers will be obligated to
purchase all the offered securities if any are purchased. Any public offering price and any discount or concession allowed or reallowed
or paid by underwriters or dealers to other dealers may be changed from time to time.
In
addition, any securities covered by this prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to this prospectus.
The
securities may be sold directly by us or through agents designated by us, from time to time. Any agent involved in the offer or sale
of the securities in respect of which this prospectus is delivered will be named, and any commissions payable by us to such agent will
be set forth in, the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any such agent will be acting on
a best efforts basis for the period of its appointment.
Offers
to purchase the securities offered by this prospectus may be solicited, and sales of the securities may be made by us directly to institutional
investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the
securities. The terms of any offer made in this manner will be included in the prospectus supplement relating to the offer.
If
indicated in the applicable prospectus supplement, underwriters, dealers or agents will be authorized to solicit offers by certain institutional
investors to purchase securities from us pursuant to contracts providing for payment and delivery at a future date. Institutional investors
with which these contracts may be made include, among others:
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commercial
and savings banks;
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insurance
companies;
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pension
funds;
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investment
companies; and
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educational
and charitable institutions.
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In
all cases, these purchasers must be approved by us. Unless otherwise set forth in the applicable prospectus supplement, the obligations
of any purchaser under any of these contracts will not be subject to any conditions except that (a) the purchase of the securities must
not at the time of delivery be prohibited under the laws of any jurisdiction to which that purchaser is subject, and (b) if the securities
are also being sold to underwriters, we must have sold to these underwriters the securities not subject to delayed delivery. Underwriters
and other agents will not have any responsibility in respect of the validity or performance of these contracts.
Some
of the underwriters, dealers or agents used by us in any offering of securities under this prospectus may be customers of, engage in
transactions with, and perform services for us, or affiliates of ours and/or theirs, as applicable, in the ordinary course of business.
Underwriters, dealers, agents and other persons may be entitled under agreements which may be entered into with us to indemnification
against and contribution toward certain civil liabilities, including liabilities under the Securities Act, and to be reimbursed by us
for certain expenses.
Subject
to any restrictions relating to debt securities in bearer form, any securities initially sold outside the United States may be resold
in the United States through underwriters, dealers or otherwise.
Any
underwriters to which offered securities are sold by us for public offering and sale may make a market in such securities, but those
underwriters will not be obligated to do so and may discontinue any market making at any time.
The
anticipated date of delivery of the securities offered by this prospectus will be described in the applicable prospectus supplement relating
to the offering.
In
compliance with the guidelines of the Financial Industry Regulatory Authority (which we refer to as “FINRA”), the aggregate
maximum discount, commission, agency fees or other items constituting underwriting compensation to be received by any FINRA member or
independent broker-dealer will not exceed 8% of the offering proceeds from any offering pursuant to this prospectus and any applicable
prospectus supplement.
No
FINRA member may participate in any offering of securities made under this prospectus if such member has a conflict of interest under
FINRA Rule 5121, including if 5% or more of the net proceeds, not including underwriting compensation, of any offering of securities
made under this prospectus will be received by a FINRA member participating in the offering or affiliates or associated persons of such
FINRA members, unless a qualified independent underwriter has participated in the offering or the offering otherwise complies with FINRA
Rule 5121.
To
comply with the securities laws of some states, if applicable, the securities may be sold in these jurisdictions only through registered
or licensed brokers or dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified
for sale or an exemption from registration or qualification requirements is available and is complied with.
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, the validity of the securities offered by us pursuant to this prospectus
will be passed upon for us by Greenberg Traurig, LLP, Los Angeles, California. If the validity of the securities will be passed upon
by counsel for any underwriters, dealers or agents, such counsel will be named in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements of FAT Brands Inc. incorporated by reference from our Annual Report on Form 10-K the fiscal year ended
December 27, 2020 have been audited by Baker Tilly US, LLP, independent public accounting firm, as set forth in their report thereon
included therein. Such financial statements incorporated by reference in this prospectus have been so incorporated in reliance on the
reports of Baker Tilly US, LLP, given on their authority as experts in auditing and accounting.
The
consolidated financial statements of GFG Holding, Inc. and its subsidiaries as of December 31, 2020 and 2019 and for the two years ended
December 31, 2020 incorporated by reference in this prospectus have been so incorporated in reliance on the report of BDO USA, LLP, independent
auditors, incorporated herein by reference, given on the authority of said firm as experts in accounting and auditing.
The consolidated
financial statements of Twin Restaurant Holding, LLC as of December 27, 2020 and December 29, 2019, for the year ended December 27, 2020
and for the period from March 29, 2019 (inception) to December 29, 2019 incorporated by reference in this prospectus have been so incorporated
in reliance on the report of BDO USA, LLP, independent auditors, incorporated herein by reference, given on the authority
of said firm as experts in auditing and accounting.
INFORMATION
INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” information that we file with the SEC into this prospectus, which means we can
disclose important information to you by referring you to another document. The information incorporated by reference is considered to
be part of this prospectus from the date on which we file that document. Any reports filed by us with the SEC (i) on or after the date
of filing of the registration statement of which this prospectus forms a part, and (ii) on or after the date of this prospectus and before
the termination of the offering of the securities by means of this prospectus, will automatically update and, where applicable, supersede
information contained in this prospectus or incorporated by reference into this prospectus. We incorporate by reference the following
documents that we have filed with the SEC (but excluding any information furnished to, rather than filed with, the SEC):
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Our
Annual Report on Form 10-K for the fiscal year ended December 27, 2020, filed with the SEC on March 29, 2021;
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Our
Quarterly Reports on Form 10-Q for the quarterly period ended March 28, 2021, filed with the SEC on May 12, 2021, the
quarterly period ended June 27, 2021, filed with the SEC on August
6, 2021, and the quarterly period ended September 26, 2021, filed with the SEC on November
8, 2021;
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●
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Our
Current Reports on Form 8-K, filed with the SEC on (i) December 30, 2020, as amended by Amendment No. 1 to Form 8-K filed
on March 12,
2021, (ii) January
11, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (iii) January
28, 2021, (iv) February
26, 2021, (v) March
31, 2021, as amended by Amendment No. 1 to Form 8-K filed on April
1, 2021, (vi) April
22, 2021, (vii) April
26, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (viii) April
29, 2021, (ix) May
19, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), as amended by Amendment No. 1 to Form 8-K filed on June
30, 2021, (x) May
28, 2021, (xi) June
15, 2021, (xii) June
28, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (xiii) July
1, 2021, (xiv) July
6, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (xv) July
26, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), as amended by Amendment No. 1 to Form 8-K filed on October
5, 2021, (xvi) July
29, 2021, (xvii) August
2, 2021, (xviii) August
5, 2021, (xix) August
19, 2021, (xx) August
25, 2021, (xxi) August
30, 2021, (xxii) September
2, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (xxiii) September
16, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (xxiv) September
29, 2021, (xxv) October
6, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), as amended by Amendment No. 1 to Form 8-K filed on October
15, 2021, (xxvi) October
19, 2021, (xxvii) October
22, 2021, (xxviii) October
25, 2021, (xxix) October
28, 2021, (xxx) November
3, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof), (xxxi) November
18, 2021, and (xxxii)
November 24, 2021 (excluding Item 7.01 and Exhibit 99.1 thereof);
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Our
Definitive Proxy Statement on Schedule 14A, filed with the SEC on September
9, 2021;
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Our
Definitive Information Statement on Schedule 14C, filed with the SEC on July
20, 2021;
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Our
Definitive Information Statement on Schedule 14C, filed with the SEC on August
3, 2021;
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The
description of our Class A Common Stock contained in our registration statement on Form 8-A, filed with the SEC on
October
19, 2017, including any amendment or report filed for the purpose of updating such descriptions;
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●
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The
description of our Series B Preferred Stock contained in our registration statement on Form 8-A, filed with the SEC on July
7, 2020, including any amendment or report filed for the purpose of updating such descriptions; and
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Any
documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(which we refer to as the “Exchange Act”) after the date of this prospectus and before the termination of the offering
of the securities offered hereby, but excluding any information furnished to, rather than filed with, the SEC.
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You
may request a copy of these filings, at no cost, by writing or calling us at the following address:
FAT
Brands Inc.
9720 Wilshire Blvd., Suite 500
Beverly
Hills, California 90212
(310)
319-1850
Attn:
Investor Relations
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the information requirements of the Exchange Act. Accordingly, we file annual, quarterly and current reports, proxy statements
and other information with the SEC, and filed a registration statement on Form S-3 under the Securities Act relating to the securities
offered by this prospectus. This prospectus, which forms part of the registration statement, does not contain all of the information
included in the registration statement. For further information, you should refer to the registration statement and its exhibits.
You
can also review our filings by accessing the website maintained by the SEC at http://www.sec.gov. The site contains reports, proxy and
information statements and other information regarding issuers that file electronically with the SEC. In addition, to the foregoing,
we maintain a website at http://www.fatbrands.com. Our website content is made available for informational purposes only. It should neither
be relied upon for investment purposes nor is it incorporated by reference into this prospectus. We make available on our website copies
of our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any amendments to such document
as soon as practicable after such documents or materials are electronically filed with or furnished to the SEC.
PART
II.
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
Item
14.
|
Other
Expenses of Issuance and Distribution.
|
The
following table shows the costs and expenses payable in connection with the sale and distribution of the securities being registered.
All fees and expenses listed below, other than the SEC registration fee, are estimates and will be paid by FAT Brands Inc.
|
SEC
registration fee
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$
|
0(1
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)
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|
Legal
fees and expenses
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|
$
|
(2
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)
|
|
Accounting
fees and expenses
|
|
$
|
(2
|
)
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|
Stock
exchange and listing fees
|
|
$
|
(2
|
)
|
|
Printing
and transfer fees
|
|
$
|
(2
|
)
|
|
Miscellaneous
|
|
$
|
(2
|
)
|
|
Total
|
|
$
|
(2
|
)
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(1)
|
In
accordance with Rule 415(a)(6) under the Securities Act, this Registration Statement carries over, as of the date of filing of this
Registration Statement, $482,000,000 of unsold securities (which we refer to as the “Previously Registered Unsold
Securities”) previously registered under the Registrant’s registration statement on Form S-3 (File No. 333-256342)
(which we refer to as the “Prior Registration Statement”), which was initially filed with the SEC on May 20, 2021, and
declared effective by the SEC on June 21, 2021. In connection with the registration of the offering and sale of the Previously
Registered Unsold Securities under the Prior Registration Statement, the Registrant previously paid the applicable registration fee
(which we refer to as the “Previously Paid Registration Fee”), which will continue to be applied to the Previously
Registered Unsold Securities. The Registrant is offsetting any SEC registration fee that may be due under this Registration
Statement by the amount of the Previously Paid Registration Fee relating to the Previously Registered Unsold Securities.
Accordingly, the amount of the SEC registration fee is $0 because no additional securities are being registered in this Registration
Statement.
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(2)
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These
fees and expenses are calculated based on the securities offered and the number of issuances, and, accordingly cannot be estimated
at this time.
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Item
15.
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Indemnification
of Directors and Officers.
|
Section
102 of the General Corporation Law of the State of Delaware (which we refer to as the “DGCL”) permits a corporation to eliminate
the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or
a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in
related capacities against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation,
no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.
Our
Second Amended and Restated Certificate of Incorporation, as amended
(which we refer to as our “Certificate of Incorporation”), and our bylaws (which we refer to as our “Bylaws”),
provide indemnification for our directors and officers to the fullest extent permitted by the DGCL. We will indemnify each person
who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than
an action by or in the right of us) by reason of the fact that he or she is or was, or has agreed to become, a director or officer, or
is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an “Indemnitee”),
or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and
any appeal therefrom, if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to,
our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct
was unlawful. Our Certificate of Incorporation and Bylaws provide that we will indemnify any Indemnitee who was or is a party to an action
or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed
to become, a director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee
or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to
the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding,
and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed
to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances,
he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been
successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually
and reasonably incurred in connection therewith. Expenses must be advanced to an Indemnitee under certain circumstances.
We
have entered into separate indemnification agreements with each of our directors and certain officers. Each indemnification agreement
provides, among other things, for indemnification to the fullest extent permitted by law and our Certificate of Incorporation and Bylaws
against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The indemnification agreements
provide for the advancement or payment of all expenses to the indemnitee and for the reimbursement to us if it is found that such indemnitee
is not entitled to such indemnification under applicable law and our Certificate of Incorporation and Bylaws.
We
maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out
of claims based on acts or omissions in their capacities as directors or officers.
|
Exhibit
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|
Description
|
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1.1*
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|
Form
of underwriting agreement (or other similar agreement)
|
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4.1
|
|
Second
Amended and Rested Certificate of Incorporation of FAT Brands Inc., effective August 16, 2021 (incorporated by reference to
Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 19, 2021)
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4.2
|
|
Certificate
of Amendment to Second Amended and Rested Certificate of Incorporation of FAT Brands Inc., effective August 24, 2021(incorporated
by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 30, 2021)
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4.3
|
|
Bylaws
of FAT Brands Inc., effective October 15, 2021 (incorporated by reference to Exhibit 3.1
to the Company’s Current Report on Form 8-K, filed with the SEC on October 19, 2021)
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4.4
|
|
Amended
and Restated Certificate of Designation of Rights and Preferences of Series B Cumulative Preferred Stock (incorporated by reference
to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on July 16, 2020)
|
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4.5
|
|
Certificate
of Increase of Series B Cumulative Preferred Stock of FAT Brands Inc., effective December 22, 2020 (incorporated by reference
to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed with the SEC on December 30, 2020)
|
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4.6
|
|
Certificate
of Increase of Series B Cumulative Preferred Stock of FAT Brands Inc., effective June 9, 2021 (incorporated by reference to Exhibit
3.2 to the Company’s Current Report on Form 8-K, filed with the SEC on June 15, 2021)
|
|
|
|
|
|
4.7
|
|
Certificate
of Increase of Series B Cumulative Preferred Stock of FAT Brands Inc., effective September
15, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report
on Form 8-K, filed with the SEC on September 16, 2021)
|
|
|
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|
|
4.8
|
|
Certificate
of Increase of Series B Cumulative Preferred Stock of FAT Brands Inc., effective October
28, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report
on Form 8-K, filed with the SEC on October 28, 2021)
|
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4.9*
|
|
Form
of Certificate of Designations
|
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|
4.10
|
|
Form
of Indenture for Senior Debt Securities
|
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|
4.11*
|
|
Form
of Note for Senior Debt Securities
|
|
|
|
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|
4.12
|
|
Form
of Indenture for Subordinated Debt Securities
|
|
|
|
|
|
4.13*
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|
Form
of Note for Subordinated Debt Securities
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|
|
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4.14*
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|
Form
of Warrant Agreement and Warrant Certificate
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4.15*
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Form
of Subscription Rights Agreement
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4.16*
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Form
of Unit Agreement
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5.1
|
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Opinion
of Greenberg Traurig, LLP
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|
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23.1
|
|
Consent
of Baker Tilly US, LLP
|
|
*
|
If
applicable, to be subsequently filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference.
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|
|
(a)
|
The
undersigned registrant (which we refer to as the “Registrant”) hereby undertake:
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(1)
|
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)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (which we refer to as the “Securities
Act”);
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(ii)
|
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 this 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 U.S. Securities and Exchange Commission
(which we refer to as the “Commission”) 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; and
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(iii)
|
To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration
Statement;
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provided, however, that paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above 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 Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (which we refer to as the “Exchange Act”), that are incorporated by reference in this Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of this Registration Statement.
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(2)
|
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)
|
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)
|
That, for the purpose of determining liability under the Securities Act, to any purchaser:
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(A)
|
Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this Registration Statement as of the
date the filed prospectus was deemed part of and included in this Registration Statement; and
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(B)
|
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 this 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 this Registration Statement or made in a document incorporated or deemed incorporated by reference into this Registration
Statement or a prospectus that is part of this 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 this Registration Statement or a prospectus that was part
of this Registration Statement or made in any such document immediately prior to such effective date.
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(5)
|
That,
for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
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The
Registrant undertakes that in a primary offering of securities of the 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 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 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 Registrant or used or referred to by the 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 Registrant or its
securities provided by or on behalf of the Registrant; and
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(iv)
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Any
other communication that is an offer in the offering made by the Registrant to the purchaser.
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(b)
|
The 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 Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act that is incorporated by reference in this 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)
|
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 Commission, 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 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 of 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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(d)
|
The 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 of 1939, as amended (which we refer to as the “Trust Indenture Act”), in accordance with
the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
|
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Beverly Hills, State of California, on the 24th day of November,
2021.
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FAT
Brands Inc.
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By:
|
/s/
Andrew A. Wiederhorn
|
|
|
Name:
|
Andrew
A. Wiederhorn
|
|
|
Title:
|
President
and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Andrew A. Wiederhorn and Kenneth J.
Kuick, and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him
or her and in his or her name, place and stead, in any and all capacities to sign this Registration Statement on Form S-3
and any and all amendments thereof (including post-effective amendments), and to file the same, with the exhibits thereto, and other
documents in connection herewith, including any related registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, as amended, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing required and necessary to be done in and about the foregoing
as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
|
Signature
|
|
Title
|
|
Date
|
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|
/s/
Andrew A. Wiederhorn
|
|
President,
Chief Executive Officer and Director
|
|
November 24, 2021
|
|
Andrew
A. Wiederhorn
|
|
(Principal
Executive Officer)
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|
/s/
Kenneth J. Kuick
|
|
Chief
Financial Officer
|
|
November
24, 2021
|
|
Kenneth
J. Kuick
|
|
(Principal
Financial and Accounting Officer)
|
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|
/s/
Edward H. Rensi
|
|
Chairman
of the Board of Directors
|
|
November
24, 2021
|
|
Edward
H. Rensi
|
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|
/s/
Kenneth J. Anderson
|
|
Director
|
|
November
24, 2021
|
|
Kenneth
J. Anderson
|
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|
|
/s/
Amy V. Forrestal
|
|
Director
|
|
November
24, 2021
|
|
Amy
V. Forrestal
|
|
|
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|
/s/
Squire Junger
|
|
Director
|
|
November
24, 2021
|
|
Squire
Junger
|
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|
/s/
James Neuhauser
|
|
Director
|
|
November
24, 2021
|
|
James
Neuhauser
|
|
|
|
|
Exhibit
5.1
November 24, 2021
FAT
Brands Inc.
9720
Wilshire Blvd., Suite 500
Beverly
Hills, California 90212
Re:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as counsel to FAT Brands Inc., a Delaware corporation (the “Company”), in connection with the Company’s
filing of a Registration Statement on Form S-3 with the U.S. Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”), on or around the date hereof (as may be amended, the “Registration
Statement”). The Registration Statement includes a base prospectus (the “Base Prospectus”), which provides that it
will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”),
relating to the registration of sales and issuances by the Company of up to $482,000,000 aggregate offering price of (i) shares
of Class A Common Stock, par value $0.0001 per share, of the Company (“Class A Common Stock”), (ii) shares
of one or more series of preferred stock, par value $0.0001 per share, of the Company (“Preferred Stock”), (iii) senior debt
securities in one or more series and/or subordinated debt securities in one or more series, of the Company (collectively, “Debt
Securities”), which may be issued pursuant to respective indentures between the Company and a trustee to be selected by the Company
(the “Trustee”) (each such respective indenture, including any supplements or amendments thereto, an “Indenture”),
the forms of which are filed as Exhibits 4.6 and 4.8, respectively, to the Registration Statement, (iv) warrants of the Company (“Warrants”)
representing rights to purchase Class A Common Stock or Preferred Stock, (v) subscription rights to purchase Class A Common
Stock or other securities of the Company (“Subscription Rights”), and (vi) units of the Company (“Units”) consisting
of any combination of the other types of Securities (as defined below). The Class A Common Stock, Preferred Stock, Debt Securities,
Warrants, Subscription Rights, and Units are herein collectively referred to as the “Securities.”
This
opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and
no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or such related applicable Prospectus,
other than as expressly stated herein with respect to the sale and issuance of such respective Securities under such related applicable
Prospectus.
In
rendering the opinions expressed below, we have acted as counsel for the Company and have examined and relied upon originals (or copies
certified or otherwise identified to our satisfaction) of the Second Amended and Restated Certificate of Incorporation of the
Company, as amended (the “Certificate of Incorporation”), the Bylaws of the Company (the “Bylaws”),
the Registration Statement, the forms of the Indentures, such corporate documents, records, agreements and instruments of the Company,
certificates of public officials, certificates of officers of the Company, resolutions of the Company’s board of directors and
committees thereof, and such other documents, records, agreements, instruments and certificates, and have examined such questions of
law and have satisfied ourselves as to such matters of fact, as we have deemed relevant and necessary as a basis for the opinions set
forth herein. In our examination, we have assumed, without independent investigation, the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of all natural persons who have executed any of the documents
reviewed by us, and the conformity with the original documents of any copies thereof submitted to us for our examination. In addition,
we have relied, to the extent that we deem such reliance proper, upon such certificates and/or statements of public officials and of
officers of the Company with respect to the accuracy of material factual matters contained therein which were not independently established.
In making our examination of documents executed by parties other than the Company, we have assumed that such other parties had the power,
corporate or other, to enter into and perform all their obligations thereunder, and have also assumed the due authorization by all requisite
action, corporate or other, the execution and delivery by such other parties of such documents, and the validity and binding effect thereof.
Greenberg
Traurig, LLP ■ Attorneys
at Law ■ WWW.GTLAW.COM
1840
Century Park East, Suite 1900 ■
Los Angeles, California 90067 ■ Tel 310.586.7700 ■ Fax 310.586.7800
FAT
Brands Inc.
November 24, 2021
Page
2
We
have assumed that (i) each of the Debt Securities, Warrants, Subscription Rights and Units, and each of the Indentures, warrant agreements,
subscription rights agreements and unit agreements governing such Securities (collectively, the “Security Documents”), has
been or will be duly authorized, executed and delivered by the parties thereto, (ii) each of the Security Documents constitutes or will
constitute legally valid and binding obligations of the parties thereto, enforceable against each of them in accordance with their respective
terms (other than with respect to the Company), and (iii) the sale and issuance of the respective Securities, and the status of each
of the Security Documents as legally valid and binding obligations of the parties, will not be affected by any (a) breaches of the Certificate
of Incorporation or the Bylaws, (b) breaches of, or defaults under, other agreements or instruments, (c) violations of applicable law,
statutes, rules, regulations or court or governmental orders, or (d) failures to obtain required consents, approvals or authorizations
from, or to make required registrations, declarations or filings with, governmental authorities. We have also assumed that the Registration
Statement and any post-effective amendment thereto have been declared effective by the Commission under the Securities Act, and that
the Prospectus required by applicable laws have been delivered as required by such laws.
Our
opinions set forth herein are limited to the federal laws of the United States, the General Corporation Law of the State of Delaware,
and, as to the Debt Securities constituting legally valid and binding obligations of the Company, the laws of the State of New York,
and we do not express any opinion herein with respect to the laws of any other jurisdiction. In addition, we express no opinion as to
matters relating to compliance with any federal or state antifraud laws, any securities or blue-sky laws of any jurisdiction, or any
other rules or regulations relating to securities.
Based
upon the foregoing, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion
that:
1.
When an issuance of Class A Common Stock has been duly authorized by all necessary corporate action of the Company, upon issuance,
delivery and payment therefor in an amount not less than the par value thereof in the manner contemplated by the applicable Prospectus
and by such corporate action, and in total amounts and numbers of shares that do not exceed the respective total amounts and numbers
of shares (a) available under the Certificate of Incorporation, and (b) authorized by the Board of Directors of the Company in connection
with the offering contemplated by the applicable Prospectus, such shares of Class A Common Stock will be validly issued, fully
paid and nonassessable.
2.
When a series of Preferred Stock has been duly established in accordance with the terms of the Certificate of Incorporation and authorized
by all necessary corporate action of the Company, upon issuance, delivery and payment therefor in an amount not less than the par value
thereof in the manner contemplated by the applicable Prospectus and by such corporate action, and in total amounts and numbers of shares
that do not exceed the respective total amounts and numbers of shares (a) available under the Certificate of Incorporation, and (b) authorized
by the Board of Directors of the Company in connection with the offering contemplated by the applicable Prospectus, such shares of such
series of Preferred Stock will be validly issued, fully paid and nonassessable.
FAT
Brands Inc.
November 24, 2021
Page
3
3.
When the applicable Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular series of Debt Securities have been duly established in accordance with the terms of such Indenture
and authorized by all necessary corporate action of the Company, and such Debt Securities have been duly executed, authenticated by the
applicable Trustee, issued and delivered against payment therefor in accordance with the terms of such Indenture and in the manner contemplated
by the applicable Prospectus and by such corporate action, such Debt Securities will be the legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms.
4.
When the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company,
and when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of such warrant
agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed, authenticated,
issued and delivered against payment therefor in accordance with the terms of such warrant agreement and in the manner contemplated by
the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such Warrants have been duly
authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
5.
When the applicable subscription rights agreement has been duly authorized, executed and delivered by all necessary corporate action
of the Company, and when the specific terms of a particular issuance of Subscription Rights have been duly established in accordance
with the terms of such subscription rights agreement and authorized by all necessary corporate action of the Company, and such Subscription
Rights have been duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of such subscription
rights agreement and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities issuable
upon exercise of such Subscription Rights have been duly authorized and reserved for issuance by all necessary corporate action), such
Subscription Rights will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with
their terms.
6.
When the applicable unit agreement has been duly authorized, executed and delivered by all necessary corporate action of the Company,
and when the specific terms of a particular issuance of Units have been duly authorized in accordance with the terms of such unit agreement
and authorized by all necessary corporate action of the Company, and such Units have been duly executed, authenticated, issued and delivered
against payment therefor in accordance with the terms of such unit agreement and in the manner contemplated by the applicable Prospectus
and by such corporate action (assuming the securities issuable upon exercise of such Units have been duly authorized and reserved for
issuance by all necessary corporate action), such Units will be the legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
FAT
Brands Inc.
November 24, 2021
Page
4
The
foregoing opinions are subject to (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity,
whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief),
concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought;
and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of
or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy. Furthermore,
we express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole
premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, and (b) consents to, or restrictions
upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief.
We
hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm appearing
under the caption “Legal Matters” in the Prospectus. We further consent to the incorporation by reference of this opinion
letter and consent into any post-effective amendment to the Registration Statement with respect to the Securities. In giving such consent,
we do not thereby admit that we are a party whose consent is required to be filed with the Registration Statement under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated thereunder.
This
opinion letter is rendered as of the date hereof, and we do not undertake any obligation to advise you of any changes in our opinions
expressed herein resulting from matters that may arise after the date hereof or that may hereinafter come to our attention. We express
no opinions other than as expressly set forth herein, and no opinion may be inferred or implied beyond that expressly stated herein.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled
to rely upon it pursuant to the applicable provisions of the Securities Act.
|
|
Sincerely,
|
|
|
|
|
|
/s/
Greenberg Traurig, LLP
|
|
|
|
|
|
Greenberg
Traurig, LLP
|
Exhibit
4.10
INDENTURE
BY
AND BETWEEN
FAT
BRANDS INC.
AND
,
,
AS
TRUSTEE
DATED
AS OF , 20
SENIOR
DEBT SECURITIES
(Issuable
in Series)
Table
of Contents
|
ARTICLE
1
|
|
|
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
|
Section
1.1
|
Definitions
|
1
|
|
Section
1.2
|
Incorporation
by Reference of Trust Indenture Act
|
8
|
|
Section
1.3
|
Compliance
Certificates and Opinions
|
8
|
|
Section
1.4
|
Form
of Documents Delivered to Trustee
|
9
|
|
Section
1.5
|
Acts
of Holders; Record Dates
|
9
|
|
Section
1.6
|
Notices,
etc., to Trustee and Company
|
11
|
|
Section
1.7
|
Notice
to Holders; Waiver
|
11
|
|
Section
1.8
|
Conflict
with Trust Indenture Act
|
12
|
|
Section
1.9
|
Effect
of Headings and Table of Contents
|
12
|
|
Section
1.10
|
Successors
and Assigns
|
12
|
|
Section
1.11
|
Separability
Clause
|
12
|
|
Section
1.12
|
Benefits
of Indenture
|
12
|
|
Section
1.13
|
Governing
Law
|
12
|
|
Section
1.14
|
Legal
Holidays
|
13
|
|
Section
1.15
|
Indenture
and Securities Solely Corporate Obligations
|
13
|
|
Section
1.16
|
Indenture
May be Executed in Counterparts
|
13
|
|
|
|
|
|
ARTICLE
2
|
|
|
SECURITY
FORMS
|
|
|
|
|
|
|
Section
2.1
|
Forms
Generally
|
14
|
|
Section
2.2
|
Form
of Trustee’s Certificate of Authentication
|
14
|
|
Section
2.3
|
Global
Securities
|
14
|
|
Section
2.4
|
Form
of Legend for Global Securities
|
16
|
|
Section
2.5
|
Form
of Face of Security
|
17
|
|
Section
2.6
|
Form
of Reverse of Security
|
18
|
|
|
|
|
|
ARTICLE
3
|
|
|
THE
SECURITIES
|
|
|
|
|
|
|
Section
3.1
|
Amount
Unlimited; Issuable in Series
|
22
|
|
Section
3.2
|
Denominations
|
25
|
|
Section
3.3
|
Execution,
Authentication, Delivery and Dating
|
26
|
|
Section
3.4
|
Temporary
Securities
|
27
|
|
Section
3.5
|
Registration;
Registration of Transfer and Exchange
|
28
|
|
Section
3.6
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
29
|
|
Section
3.7
|
Payment
of Interest; Interest Rights Preserved
|
30
|
|
Section
3.8
|
Persons
Deemed Owners
|
31
|
|
Section
3.9
|
Cancellation
|
31
|
|
Section
3.10
|
Computation
of Interest
|
31
|
|
|
|
|
|
ARTICLE
4
|
|
|
SATISFACTION
AND DISCHARGE
|
|
|
|
|
|
|
Section
4.1
|
Satisfaction
and Discharge of Indenture
|
31
|
|
Section
4.2
|
Application
of Trust Money
|
33
|
|
Section
4.3
|
Reinstatement
|
33
|
|
ARTICLE
5
|
|
|
REMEDIES
|
|
|
|
|
|
|
Section
5.1
|
Events
of Default
|
33
|
|
Section
5.2
|
Acceleration
of Maturity; Rescission and Annulment
|
35
|
|
Section
5.3
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
36
|
|
Section
5.4
|
Trustee
May File Proofs of Claim
|
37
|
|
Section
5.5
|
Trustee
May Enforce Claims Without Possession of Securities
|
37
|
|
Section
5.6
|
Application
of Money Collected
|
37
|
|
Section
5.7
|
Limitation
on Suits
|
38
|
|
Section
5.8
|
Right
of Holders to Receive Principal, Premium and Interest
|
39
|
|
Section
5.9
|
Restoration
of Rights and Remedies
|
39
|
|
Section
5.10
|
Rights
and Remedies Cumulative
|
39
|
|
Section
5.11
|
Delay
or Omission Not Waiver
|
39
|
|
Section
5.12
|
Control
by Holders
|
40
|
|
Section
5.13
|
Waiver
of Past Defaults
|
40
|
|
Section
5.14
|
Undertaking
for Costs
|
40
|
|
|
|
|
|
ARTICLE
6
|
|
|
THE
TRUSTEE
|
|
|
|
|
|
|
Section
6.1
|
Certain
Duties and Responsibilities
|
41
|
|
Section
6.2
|
Notice
of Defaults
|
42
|
|
Section
6.3
|
Certain
Rights of Trustee
|
42
|
|
Section
6.4
|
Not
Responsible for Recitals or Issuance of Securities
|
44
|
|
Section
6.5
|
May
Hold Securities and Act as Trustee under Other Indentures
|
44
|
|
Section
6.6
|
Money
Held in Trust
|
44
|
|
Section
6.7
|
Compensation
and Reimbursement
|
44
|
|
Section
6.8
|
Conflicting
Interests
|
45
|
|
Section
6.9
|
Eligibility;
Disqualification
|
45
|
|
Section
6.10
|
Resignation
and Removal; Appointment of Successor
|
46
|
|
Section
6.11
|
Acceptance
of Appointment by Successor
|
47
|
|
Section
6.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
48
|
|
Section
6.13
|
Preferential
Collection of Claims Against Company
|
48
|
|
Section
6.14
|
Appointment
of Authenticating Agent
|
48
|
|
|
|
|
|
ARTICLE
7
|
|
|
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
Section
7.1
|
Company
to Furnish Trustee Names and Addresses of Holders
|
50
|
|
Section
7.2
|
Preservation
of Information; Communications to Holders
|
50
|
|
Section
7.3
|
Reports
by Trustee
|
50
|
|
Section
7.4
|
Reports
by Company
|
51
|
|
|
|
|
|
ARTICLE
8
|
|
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
Section
8.1
|
Company
May Consolidate, etc., Only on Certain Terms
|
51
|
|
Section
8.2
|
Successor
Substituted
|
51
|
|
ARTICLE
9
|
|
|
SUPPLEMENTAL
INDENTURES
|
|
|
|
|
|
|
Section
9.1
|
Supplemental
Indentures Without Consent of Holders
|
52
|
|
Section
9.2
|
Supplemental
Indentures with Consent of Holders
|
53
|
|
Section
9.3
|
Execution
of Supplemental Indentures
|
54
|
|
Section
9.4
|
Effect
of Supplemental Indentures
|
54
|
|
Section
9.5
|
Conformity
with Trust Indenture Act
|
55
|
|
Section
9.6
|
Reference
in Securities to Supplemental Indentures
|
55
|
|
|
|
|
|
ARTICLE
10
|
|
|
COVENANTS
|
|
|
|
|
|
|
Section
10.1
|
Payment
of Principal, Premium and Interest
|
55
|
|
Section
10.2
|
Maintenance
of Office or Agency
|
55
|
|
Section
10.3
|
Money
for Securities Payments to be Held in Trust
|
56
|
|
Section
10.4
|
Statement
by Officers as to Default
|
56
|
|
Section
10.5
|
Existence
|
57
|
|
Section
10.6
|
All
Securities to be Equally and Ratably Secured
|
57
|
|
Section
10.7
|
Maintenance
of Properties
|
57
|
|
Section
10.8
|
Payment
of Taxes and Other Claims
|
57
|
|
Section
10.9
|
Waiver
of Certain Covenants
|
57
|
|
Section
10.10
|
Additional
Amounts
|
58
|
|
|
|
|
|
ARTICLE
11
|
|
|
REDEMPTION
OF SECURITIES
|
|
|
|
|
|
|
Section
11.1
|
Applicability
of Article
|
58
|
|
Section
11.2
|
Election
to Redeem; Notice to Trustee
|
58
|
|
Section
11.3
|
Selection
by Trustee of Securities to Be Redeemed
|
59
|
|
Section
11.4
|
Notice
of Redemption
|
59
|
|
Section
11.5
|
Deposit
of Redemption Price
|
60
|
|
Section
11.6
|
Securities
Payable on Redemption Date
|
60
|
|
Section
11.7
|
Securities
Redeemed in Part
|
61
|
|
|
|
|
|
ARTICLE
12
|
|
|
SINKING
FUNDS
|
|
|
|
|
|
|
Section
12.1
|
Applicability
of Article
|
61
|
|
Section
12.2
|
Satisfaction
of Sinking Fund Payments with Securities
|
61
|
|
Section
12.3
|
Redemption
of Securities for Sinking Fund
|
62
|
|
|
|
|
|
ARTICLE
13
|
|
|
DEFEASANCE
AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
Section
13.1
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
62
|
|
Section
13.2
|
Defeasance
and Discharge
|
62
|
|
Section
13.3
|
Covenant
Defeasance
|
63
|
|
Section
13.4
|
Conditions
to Defeasance or Covenant Defeasance
|
63
|
|
Section
13.5
|
Deposited
Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions
|
65
|
|
Section
13.6
|
Reinstatement
|
65
|
|
ARTICLE
14
|
|
|
MISCELLANEOUS
|
|
|
|
|
|
|
Section
14.1
|
Counterpart
Signatures
|
65
|
|
Section
14.2
|
Patriot
Act
|
66
|
|
Section
14.3
|
Effect
of Headings
|
66
|
FAT
BRANDS INC.
This
Cross-Reference Sheet shows the location in the Indenture of the provisions inserted pursuant to Sections 3.10 through 3.18, inclusive,
of the Trust Indenture Act of 1939:
|
TIA Section
|
|
Indenture Section
|
|
Section
3.10
|
(a)
(1)
|
|
6.9
|
|
|
|
(a)
(2)
|
|
6.9
|
|
|
|
(a)
(3)
|
|
6.9
|
|
|
|
(a)
(4)
|
|
Not
Applicable
|
|
|
|
(a)
(5)
|
|
6.9
|
|
|
|
(b)
|
|
6.8,
6.10
|
|
|
|
(c)
|
|
Not
Applicable
|
|
|
Section
3.11
|
(a)
|
|
6.13
|
|
|
|
(b)
|
|
6.13
|
|
|
|
(c)
|
|
Not
Applicable
|
|
|
Section
3.12
|
(a)
|
|
7.1,
7.2
|
|
|
|
(b)
|
|
7.2
|
|
|
|
(c)
|
|
7.2
|
|
|
Section
3.13
|
(a)
|
|
7.3
|
|
|
|
(b)
|
|
7.3
|
|
|
|
(c)
|
|
7.3
|
|
|
|
(d)
|
|
7.3
|
|
|
Section
3.14
|
(a)
(1)
|
|
7.4
|
|
|
|
(a)
(2)
|
|
7.4
|
|
|
|
(a)
(3)
|
|
7.4
|
|
|
|
(a)
(4)
|
|
1.1,
10.4
|
|
|
|
(b)
|
|
Not
Applicable
|
|
|
|
(c)
(1)
|
|
1.3
|
|
|
|
(c)
(2)
|
|
1.3
|
|
|
|
(c)
(3)
|
|
Not
Applicable
|
|
|
|
(d)
|
|
Not
Applicable
|
|
|
|
(e)
|
|
1.3
|
|
|
TIA Section
|
|
Indenture Section
|
|
Section
3.15
|
(a)
|
|
6.1
|
|
|
|
(b)
|
|
6.2
|
|
|
|
(c)
|
|
6.1
|
|
|
|
(d)
|
|
6.1
|
|
|
|
(e)
|
|
5.14
|
|
|
Section
3.16
|
(a)
|
|
1.1
|
|
|
|
(a)
(1) (A)
|
|
5.2,
5.12
|
|
|
|
(a)
(1) (B)
|
|
5.13
|
|
|
|
(a)
(2)
|
|
Not
Applicable
|
|
|
|
(b)
|
|
5.8
|
|
|
|
(c)
|
|
1.5
|
|
|
Section
3.17
|
(a)
(1)
|
|
5.3
|
|
|
|
(a)
(2)
|
|
5.4
|
|
|
|
(b)
|
|
10.3
|
|
|
Section
3.18
|
(a)
|
|
1.8
|
|
NOTE:
This Cross-Reference Sheet is not part of the Indenture.
INDENTURE
INDENTURE,
dated as of , between FAT BRANDS INC., a Delaware corporation (the “Company”), having its principal office
at , and ,
as trustee, (the “Trustee”), the office of the Trustee at which at the date hereof its corporate trust business
is principally administered being.
RECITALS
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series as herein provided.
This
Indenture is subject to the provisions of the Trust Indenture Act and the rules and regulations of the Commission promulgated thereunder
that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
All
things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, each party agrees for
the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities, or of series thereof, issued under
this Indenture, as follows:
ARTICLE
1
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1 Definitions.
For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
|
|
(1)
|
the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
|
|
|
|
|
|
|
(2)
|
all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein expressly provided, the term “generally accepted
accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles
in the United States of America as are generally accepted as of the time when and for the period as to which such accounting principles
are to be applied;
|
|
|
|
|
|
|
(3)
|
“or”
is not exclusive;
|
|
|
|
|
|
|
(4)
|
any
reference to an “Article” or a “Section” refers to an Article or a Section, as the case may
be, of this Indenture;
|
|
|
|
|
|
|
(5)
|
the
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
|
|
|
|
|
|
|
(6)
|
certain
terms, used principally in Article 6, are defined in Section 1.2.
|
“Act”,
when used with respect to any Holder, has the meaning specified in Section 1.5.
“Additional
Amounts” means any additional amounts that are required by the express terms of a Security or by or pursuant to a Board Resolution,
under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Authenticating
Agent” means any Person, which may include the Company, authorized by the Trustee pursuant to Section 6.14 to act on
behalf of the Trustee to authenticate Securities of one or more series.
“Authorized
Newspaper” means a newspaper of general circulation in the New York, New York area, printed in the English language and customarily
published on each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in
an Authorized Newspaper are required hereunder, they may be made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or in different Authorized Newspapers.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board”
or “Board of Directors” means either the board of directors of the Company or any duly authorized committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business
Day,” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment, or the city in which the Corporate Trust Office is located, are authorized
or obligated by law or executive order to close.
“Commission”
means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Common
Shares” includes any shares of beneficial interest of any class of the Company which has no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company
Request” or “Company Order” means, respectively, a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its President or a Vice President, and by its principal financial officer,
its Controller, an Assistant Controller, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
“Conversion
Event” has the meaning specified in Section 5.1.
“Corporate
Trust Office” means the corporate trust office of the Trustee at , Attention: Corporate Trust Department, or such other
office, designated by the Trustee by written notice to the Company, at which at any particular time its corporate trust business
concerning the transactions contemplated by this Indenture shall be administered.
“Covenant
Defeasance” has the meaning specified in Section 13.3.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default”
means, with respect to the Securities of any series, any event, act or condition that is, or after notice or the passage of time or both
would be, an Event of Default with respect to Securities of such series.
“Defaulted
Interest” has the meaning specified in Section 3.7.
“Defeasance”
has the meaning specified in Section 13.2.
“Depositary”
means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency, or any successor, registered under the Exchange Act that is designated to
act as Depositary for such Securities as contemplated by Section 3.1.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall
be legal tender for the payment of public and private debts.
“Event
of Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Exchange
Rate” has the meaning specified in Section 3.2.
“Expiration
Date” has the meaning specified in Section 1.5.
“Global
Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section
2.4 (or such legend as may be specified as contemplated by Section 3.1 for such Securities).
“Holder”
means a Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established
as contemplated by Section 3.1; provided, however, that if at any time more than one Person is acting as Trustee under this Indenture
due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture”
shall mean, with respect to such series of Securities for which any such Person is Trustee, 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 pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.1, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee, but to which such
person, as such Trustee, was not a party; provided, further that in the event that this Indenture is supplemented or amended by one or
more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture”
for a particular series of Securities shall exclude provisions or terms which relate solely to other series of Securities.
“Interest”,
when used with respect to an Original Issue Discount Security, which by its terms bears interest only after Maturity, means interest
payable after Maturity.
“Interest
Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment
Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time
to time.
“Judgment
Currency” has the meaning specified in Section 5.6.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, repurchase at the option
of the Holder, call for redemption or otherwise.
“Mortgage”
means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar
encumbrance.
“Notice
of Default” means a written notice of the kind specified in Section 5.1(4).
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the principal financial officer, the Treasurer, the Controller, an Assistant Treasurer, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate
given pursuant to Section 10.4 shall be the principal executive, financial or accounting officer of the Company.
“Opinion
of Counsel” means a written opinion of legal counsel, who may be, without limitation, (a) an employee of the Company, or (b)
outside counsel designated by the Company, rendered, if applicable, in accordance with Section 314(c) of the Trust Indenture Act.
“Original
Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except
|
|
(1)
|
Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
|
|
|
|
|
|
|
(2)
|
Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
|
|
|
|
|
|
|
(3)
|
Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that unless otherwise provided with respect to any Securities of any series pursuant
to Section 3.1, in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A)
the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal
thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section
5.2, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal
amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by
Section 3.1, (C) the principal amount of a Security denominated in one or more non-U.S. dollar currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as
contemplated by Section 3.1, of the principal amount of such Security (or, in the case of a Security described in clause
(A) or (B) above, of the amount determined as provided in such clause), and (D) Securities owned by the Company or any
other obligor upon the Securities or any Subsidiary of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Subsidiary of the Company or of such other obligor.
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“Paying
Agent” means any Person, which may include the Company, authorized by the Company to pay the principal of or any premium or
interest on, or any Additional Amounts with respect to, any one or more series of Securities on behalf of the Company.
“Periodic
Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Maturity
thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or other entity
of any kind.
“Place
of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and any
premium and interest on, or any Additional Amounts with respect to, the Securities of that series are payable as specified as contemplated
by Section 3.1 and 10.2.
“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 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
“Preferred
Shares” as applied to the shares of beneficial interest of the Company means shares of beneficial interest of any class or
classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of the Company, over Common Shares of the Company.
“Record
Date” means any Regular Record Date or Special Record Date.
“Redemption
Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to the
terms of such Security and this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to the
terms of such Security and this Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means any date specified
for that purpose as contemplated by Section 3.1, or, if not so specified, the first day of the calendar month of the month of
such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month, or the fifteenth day of the calendar
month preceding such Interest Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day
shall be a Business Day.
“Required
Currency” has the meaning specified in Section 5.6.
“Responsible
Officer” means, when used with respect to the Trustee, an officer of the Trustee in the Corporate Trust Office assigned and
duly authorized by the Trustee to administer the transactions contemplated by this Indenture, and also means, with respect to a particular
corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his such officer’s
knowledge of and familiarity with the particular subject.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any debentures, notes or other evidences of
indebtedness of the Company authenticated and delivered under this Indenture.
“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security
Custodian” means, with respect to Securities of a series issued in global form, the Trustee for Securities of such series,
acting in its capacity as custodian with respect to the Securities of such series, or any successor entity thereto.
“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.5.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated
Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is
due and payable.
“Subsidiary”
means any Person of which the Company at the time owns or controls, directly or indirectly, more than 50% of the shares of outstanding
stock or other equity interests having general voting power under ordinary circumstances to elect a majority of the board of directors,
managers or trustees, as the case may be, of such Person (irrespective of whether or not at the time stock of any other class or classes
or other equity interests of such corporation shall have or might have voting power by reason of the happening of any contingency).
“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“United
States” means the United States of America (including the states thereof and the District of Columbia) and its “possessions”,
which include Puerto Rico, the U.S. Virgin Islands, Guam, American Somoa, Wake Island and the Northern Mariana Islands.
“United
States Alien” means any Person who, for United States federal income tax purposes, is a foreign corporation, a nonresident
alien individual, a nonresident alien or foreign fiduciary of an estate or trust, or a foreign partnership.
“U.S.
Government Obligation” means any security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at
the option of the issuer thereof.
“Vice
President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president”.
“Yield
to Maturity” means, when used with respect to any Original Issue Discount Security, the yield to maturity, if any, set forth
on the face thereof.
Section
1.2 Incorporation by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the Securities.
All
terms used in this Indenture that are defined by the Trust Indenture Act, defined by a Trust Indenture Act reference to another statue
or defined by Commission rule under the Trust Indenture Act and not otherwise defined herein have the meanings assigned to them therein.
Section
1.3 Compliance Certificates and Opinions.
Except
as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by
an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to
Section 10.4) shall include,
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(1)
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a
statement that each Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
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(2)
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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;
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(3)
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a
statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
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(4)
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a
statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with.
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Section
1.4 Form of Documents Delivered to Trustee.
In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any
certificate or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants employed or retained by the Company unless such officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations as
to such accounting matters are erroneous.
Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section
1.5 Acts of Holders; Record Dates.
Any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of
all such instrument or instruments delivered to the Trustee. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
The
ownership, date of holding, principal amount and serial numbers of Securities shall be proved by the Security Register.
Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company in reliance thereon, whether
or not notation of such action is made upon such Security. Any consent or waiver of the Holder of any Security shall be irrevocable for
a period of six months after the date of execution thereof, but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his Security or portion of his Security; provided, however, that
such revocation shall be effective only if the Trustee receives the notice of revocation before the date the Act becomes effective.
The
Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled
to give, make or take any request, demand, authorization, direction, vote, notice, consent, waiver or other action provided or permitted
by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record
date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request
or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities
of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.7.
The
Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled
to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.7(2) or (iv) any direction referred to in Section 5.12,
in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.7.
With
respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.7, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section 1.5, the party hereto which set such record date
shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal amount.
Section
1.6 Notices, etc., to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(1)
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the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
(or by facsimile transmissions, provided that oral confirmation of receipt shall have been received) to or with the Trustee at its
Corporate Trust Office, or
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(2)
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the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and furnished by certified mail, return receipt requested, personally delivered or furnished via overnight courier
to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the Company, Attention: Chief Financial Officer.
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Section
1.7 Notice to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or delivered by hand or overnight courier to each Holder affected by
such event, at its address as it appears in the Security Register (or while any Securities are represented by one or more Global Securities,
such notice shall be delivered to the Depositary for communication to entitled account Holders), not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of such notice. Neither the failure to mail or deliver by
hand or overnight courier any notice, nor any defect in any notice so mailed or delivered by hand or overnight courier, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.
In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice to
Holders of Securities by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to Holders of Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security, shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Section
1.8 Conflict with Trust Indenture Act.
If
any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act or another provision hereof required
to be included in this Indenture by any of the provisions of the Trust Indenture Act, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act, which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section
1.9 Effect of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section
1.10 Successors and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether or not so expressed. All agreements
of the Trustee in this Indenture shall bind its successor.
Section
1.11 Separability Clause.
In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section
1.12 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent or Security Registrar, and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section
1.13 Governing Law.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section
1.14 Legal Holidays.
Unless
otherwise provided with respect to any Security or Securities pursuant to Section 3.1, in any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, or Stated Maturity or Maturity or other payment date of any Security or the last date
on which a Holder has the right to convert a Security at a particular conversion price shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically
states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or, if applicable
to a particular series of Securities, conversion need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption
Date, at the Stated Maturity or on such last day for conversion, as the case may be.
Section
1.15 Indenture and Securities Solely Corporate Obligations.
No
recourse for the payment of the principal of or premium, if any, or interest on any Security, 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, directly or indirectly,
against any incorporator, subscriber to the shares of beneficial interest (or capital stock or membership interests (as applicable)),
shareholder, stockholder, member, employee, agent, manager, officer, trustee or director, as such, past, present or future, of the Company
or the Trustee or of any predecessor or successor corporation, either directly or through the Company or the Trustee or any 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, any incorporator, subscriber to the shares
of beneficial interest (or capital stock or membership interests (as applicable)), shareholder, stockholder, member, employee, agent,
manager, officer, trustee or director, as such, of the Company or the Trustee or of any predecessor or successor corporation, 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,
subscriber to the shares of beneficial interest (or capital stock or membership interests (as applicable)), shareholder, stockholder,
member, employee, agent, manager, officer, trustee 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, any supplemental indenture hereto, any
certificate or other writing delivered in connection herewith, 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.
By accepting a Security, each Holder agrees to the provisions of this Section 1.15 and waives and releases all such liability.
Such waiver and release shall be part of the consideration for the issuance of the Securities.
Section
1.16 Indenture May be Executed in Counterparts.
This
instrument 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.
ARTICLE
2
SECURITY
FORMS
Section
2.1 Forms Generally.
The
Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established
by or pursuant to one or more Board Resolutions and set forth in such Board Resolutions, or, to the extent established pursuant to, rather
than set forth in, such Board Resolutions, an Officers’ Certificate detailing such establishment, or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any applicable law or with any rules or regulations pursuant thereto, or any rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, or,
to the extent established pursuant to, rather than set forth in, such Board Resolutions, an Officers’ Certificate detailing such
establishment, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities. Any such Board Resolution, Officers’ Certificate or record of such action shall have attached
thereto a true and correct copy of the form of Security referred to therein approved by or pursuant to such Board Resolution or Officers’
Certificate.
The
definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section
2.2 Form of Trustee’s Certificate of Authentication.
Unless
otherwise provided in one or more Board Resolutions, Officers’ Certificate, or indentures supplemental hereto, the Trustee’s
certificates of authentication shall be in substantially the following form:
This
is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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[Trustee],
as Trustee
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By:
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Authorized
Officer
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Section
2.3 Global Securities.
If
the Company shall establish pursuant to Section 3.1 that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section
3.3 and the Company Order delivered to the Trustee thereunder, authenticate and deliver such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) may provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges, (iii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iv) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction and (v) shall bear a legend in accordance with the requirements of the Depositary.
Notwithstanding
any other provision of this Section or of Section 3.5, except as contemplated by the provisions of this Section 2.3 below,
unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual Securities,
a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.5, only to a nominee of
the Depositary for such Global Security, or to the Depositary, or to a successor Depositary for such Global Security selected or approved
by the Company, or to a nominee of such successor Depositary.
If
at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as the Depositary for
such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing
under the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of Securities of such series in the form of definitive certificates in exchange for such Global Security,
will authenticate and deliver Securities of such series in the form of definitive certificates of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Security in exchange for such Global Security. Such Securities will be issued
to and registered in the name of such Person or Persons as are specified by the Depositary.
The
Company may at any time and in its sole discretion determine that the Securities of any series issued or issuable in the form of one
or more Global Securities shall no longer be represented by such Global Security or Securities. In any such event the Company will execute,
and the Trustee, upon receipt of a Company Request for the authentication and delivery of Securities in the form of definitive certificates
in exchange in whole or in part for such Global Security, will authenticate and deliver without service charge to each Person specified
by the Depositary Securities in the form of definitive certificates of like tenor and terms in an aggregate principal amount equal to
the principal amount of such Global Security representing such series, or the aggregate principal amount of such Global Securities representing
such series, in exchange for such Global Security or Securities.
If
specified by the Company pursuant to Section 3.1 with respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for Securities in the form
of definitive certificates of like tenor and terms on such terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (A) to each Person specified by such Depositary
a new Security or Securities of the same series of like tenor and terms and any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security and (B) to such
Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
In
any exchange provided for in any of the preceding three paragraphs, the Company shall execute and the Trustee shall authenticate and
deliver Securities in the form of definitive certificates in authorized denominations. Upon the exchange of the entire principal amount
of a Global Security for Securities in the form of definitive certificates, such Global Security shall be canceled by the Trustee. Except
as provided in the immediately preceding subparagraph, Securities issued in exchange for a Global Security pursuant to this Section
2.3 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, acting pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Provided that the Company and the
Trustee have so agreed, the Trustee shall deliver such Securities to the Persons in whose names the Securities are so to be registered.
Any
endorsement of a Global Security to reflect the principal amount thereof, or any increase or decrease in such principal amount, or changes
in the rights of Holders of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as
shall be specified in or pursuant to any applicable letter of representations or other arrangement entered into with, or procedures of,
the Depositary with respect to such Global Security or in the Company Order delivered or to be delivered pursuant to Section 3.3
or Section 3.4 with respect thereto. Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, the
Trustee shall deliver and redeliver any such Global Security in the manner and upon instructions given by the Person or Persons specified
in or pursuant to any applicable letter of representations or other arrangement entered into with, or procedures of, the Depositary with
respect to such Global Security or in any applicable Company Order. If a Company Order pursuant to Section 3.3 or Section 3.4
is so delivered, any instructions by the Company with respect to such Global Security contained therein shall be in writing but need
not be accompanied by or contained in an Officers’ Certificate and need not be accompanied by an Opinion of Counsel.
The
Depositary or, if there be one, its nominee, shall be the Holder of a Global Security for all purposes under this Indenture; and beneficial
owners with respect to such Global Security shall hold their interests pursuant to applicable procedures of such Depositary. The Company,
the Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with such Depositary for all purposes of this Indenture
relating to such Global Security (including the payment of principal, premium, if any, and interest and any Additional Amounts with respect
to such Global Security and the giving of instructions or directions by or to the beneficial owners of such Global Security as the sole
Holder of such Global Security and shall have no obligations to the beneficial owners thereof (including any direct or indirect participants
in such Depositary). None of the Company, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security in or pursuant
to any applicable letter of representations or other arrangement entered into with, or procedures of, the Depositary with respect to
such Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section
2.4 Form of Legend for Global Securities.
Unless
otherwise specified as contemplated by Section 3.1 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section
2.5 Form of Face of Security.
[Insert
any legend required by the Internal Revenue Code and the regulations thereunder.]
FAT
BRANDS INC.
FAT
Brands Inc., a corporation duly organized and existing under the laws of Delaware (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered
assigns, the principal sum of Dollars on [if the Security is to bear interest prior to Maturity, insert -, and to pay interest
thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on and
in each year, commencing at the rate of % per annum, until the principal hereof is paid or made available for payment [if applicable,
insert -, and at the rate of % per annum on any overdue principal and premium and on any overdue installment of interest]. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the or (whether or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may
be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].
[If
the Security is not to bear interest prior to Maturity, insert – The principal of this Security shall not bear interest except
in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the rate of % per annum, which shall accrue from the date of such default in payment
to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per annum, which shall
accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]
Payment
of the principal of (and premium, if any) and [if applicable, insert - any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in , in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts [if applicable, insert – ; provided, however,
that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference
is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Dated:
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FAT
BRANDS INC.
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By:
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Name:
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Title:
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Attest:
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Section
2.6 Form of Reverse of Security.
This
Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of , 20 (herein called the “Indenture”), between the Company and
, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert
-, limited in aggregate principal amount to $ ].
[If
applicable, insert - Subject to and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled,
at his option, at any time on or before the close of business on , or in case this Security or a portion hereof is called for redemption,
then in respect of this Security or such portion hereof until and including, but (unless the Company defaults in making the payment due
upon redemption) not after, the close of business on the 10th calendar day before the Redemption Date, to convert this Security (or any
portion of the principal amount hereof which is $1,000 or an integral multiple thereof), at the principal amount hereof, or of such portion,
into fully paid and non-assessable shares (calculated as to each conversion to the nearest 1/100 of a share) of Common Stock of the Company
at a conversion price per share of Common Stock equal to $ per each share of Common Stock (or at the current adjusted conversion price
if an adjustment has been made as provided in the Indenture) by surrender of this Security, duly endorsed or assigned to the Company
or in blank, to the Company at its office or agency in , accompanied by written notice to the Company that the Holder hereof elects to
convert this Security, or if less than the entire principal amount hereof is to be converted, the portion hereof to be converted, and,
in case such surrender shall be made during the period from the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date (unless this Security or the portion thereof being converted has
been called for redemption on a Redemption Date within such period), also accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted.
Subject to the aforesaid requirement for payment and, in the case of a conversion after the Regular Record Date next preceding any Interest
Payment Date and on or before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of
record at such Regular Record Date to receive an installment of interest (with certain exceptions provided in the Indenture), no payment
or adjustment is to be made on conversion for interest accrued hereon or for dividends on the Common Stock issued on conversion. No fractions
of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest the Company
shall pay a cash adjustment as provided in the Indenture. The conversion price is subject to adjustment as provided in the Indenture.
In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the transfer
of substantially all of the assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities,
so that this Security, if then outstanding, will be convertible thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property receivable upon the consolidation, merger or transfer by
a holder of the number of shares of Common Stock into which this Security might have been converted immediately prior to such consolidation,
merger or transfer (assuming such holder of Common Stock failed to exercise any rights of election and received per share the kind and
amount received per share by a plurality of non-electing shares).]
[If
applicable, insert - The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail,(or
while any Securities are represented by one or more Global Notes, such notice shall be delivered to the Depositary for communication
to entitled account Holders) [if applicable, insert - (1) on in any year commencing with the year and ending with the year 20
through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time
[if applicable, insert - on or after , 20 ], as a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert - on or before , %, and if redeemed]
during the 12-month period beginning of the years indicated,
and
thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert
- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert - The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail (or
while any Securities are represented by one or more Global Notes, such notice shall be delivered to the Depositary for communication
to entitled account Holders), (1) on in any year commencing with the year and ending with the year through operation of the sinking fund
for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [if applicable, insert - on or after ], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
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Year
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Redemption Price For
Redemption Through
Operation of the
Sinking Fund
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Redemption Price For
Redemption Otherwise
Than Through
Operation of the
Sinking Fund
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and
thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert - The sinking fund for this series provides for the redemption on in each year beginning with the year and ending
with the year of [if applicable, insert - not less than $ (“mandatory sinking fund”) and not more than] $ aggregate
principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if
applicable, insert mandatory] sinking fund payments [if applicable, insert and Securities surrendered for conversion] may be credited
against subsequent [if applicable, insert - mandatory] sinking fund payments otherwise required to be made [if applicable, insert
- in the inverse order in which they become due].
[If
the Security is subject to redemption of any kind, insert - In the event of redemption or conversion of this Security in part only,
a new Security or Securities of this series and of like tenor for the unredeemed or unconverted portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If
applicable, insert - The Indenture contains provisions for defeasance at any time of [(1) the entire indebtedness of this Security
or (2)] certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.]
[If
the Security is not an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If
the Security is an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to-insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest all of the
Company’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall
terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company
and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series,
the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No
reference herein to the Indenture and no other provision of this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed or to convert this Security as provided in the Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where
the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The
Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior
to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All
terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE
3
THE
SECURITIES
Section
3.1 Amount Unlimited; Issuable in Series.
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. There shall be established in or pursuant to a Board Resolution and, subject to Section
3.3, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
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(1)
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the
title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
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(2)
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any
limit upon the aggregate principal amount of the Securities of the series which 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 the series pursuant to Section 2.3, 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities
which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
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(3)
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the
Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
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(4)
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the
date or dates on which the principal of and premium, if any, on any Securities of the series is payable or the method of determination
and/or extension of such date or dates; and the amount or amounts of such payments of principal and premium, if any, or the method
of determination thereof;
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(5)
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the
rate or rates (which may be fixed or variable), at which any Securities of the series shall bear interest, if any, whether and under
what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall be payable and, if other that as set forth in Section
1.1, the Regular Record Date for any such interest payable on any Interest Payment Date (or the method for determining the dates
and rates);
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(6)
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whether
any of such Securities will be subject to certain optional interest rate reset provisions;
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(7)
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the
place or places where the principal of and any premium and interest on, or any Additional Amounts with respect to, the Securities
of the series shall be payable, where the Securities of such series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served, and
the method of such payment, if by wire transfer, mail or other means;
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(8)
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(a)
the period or periods within which, the price or prices at which, the currency or currencies (including currency units) and the terms
and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company, (b) if
other than as provided in Section 11.3, the manner in which the particular Securities of such series (if less than all Securities
of such series are to be redeemed) are to be selected for redemption, and (c) if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be evidenced;
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(9)
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the
obligation, if any, of the Company to redeem, purchase or repay any Securities of the series pursuant to any sinking fund, amortization
or analogous provisions or upon the happening of a specified event or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation and any provisions for the remarketing of such Securities;
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(10)
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if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall
be issuable;
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(11)
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if
other than the Trustee, the identity of the Securities Registrar and/or the Paying Agent;
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(12)
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if
the amount of principal of or any premium or interest on or other payments, if any, on any Securities of the series may be determined
with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on the price
of one or more commodities, derivatives or securities; one or more securities, derivatives or commodities exchange indices or other
indices; a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated
or designated to be payable; or any other variable or the relationship between any variables or combination of variables), the index,
formula or other method by which such amounts shall be determined;
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(13)
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if
other than the currency of the United States of America, the currency, currencies or currency units (including composite currencies)
in which the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series
shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose,
including for purposes of the definition of “Outstanding” in Section 1.1;
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(14)
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if
the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series is to be
payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium
or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
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(15)
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if
other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
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(16)
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if
the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity
other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be determined);
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(17)
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if
applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.2
or Section 13.3 or both such Sections, or any other defeasance provisions applicable to any Securities of the series, and,
if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
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(18)
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the
terms, if any, upon which Securities of the series may be convertible into or exchanged for other Securities, Common Shares, Preferred
Shares, other debt securities, warrants to purchase any of the foregoing, or other securities of any kind of the Company or any other
obligor or any other property, and the terms and conditions upon which the conversion or exchange shall be effected, including the
initial conversion or exchange price or rate, the conversion or exchange period, and any other additional provisions;
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(19)
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if
applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in Section 2.4;
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(20)
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any
deletions, modifications of or additions to the definitions set forth in Section 1.1, the Events of Default which apply to
any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2;
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(21)
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any
addition to, deletion of or change in the covenants set forth in Article 10 which applies to Securities of the series;
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(22)
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any
Authenticating Agents, Paying Agents, Security Registrars or such other agents necessary in connection with the issuance of the Securities
of such series, including, without limitation, exchange rate agents and calculation agents;
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(23)
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if
applicable, the terms of any Mortgage that will be provided for a series of Securities, including any provisions regarding the circumstances
under which collateral may be released or substituted;
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(24)
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if
applicable, the terms of any guaranties for the Securities, including the terms of any subordination of such guaranties, and any
circumstances under which there may be additional obligors on the Securities;
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(25)
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provisions,
if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
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(26)
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whether
Securities of the series shall be issuable in registered form or bearer form (registrable or not registrable as to principal, and
with or without interest coupons), or both, and any restrictions applicable to the offering, sale or delivery of bearer securities
and the terms upon which bearer Securities of a series may be exchanged for registered Securities of the same series and vice versa;
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(27)
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the
forms of the Securities of the series;
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(28)
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any
terms which may be related to warrants, options or other rights to purchase and sell securities issued by the Company in connection
with, or for the purchase of, Securities of such series, including whether and under what circumstances the Securities of any series
may be used toward the exercise price of any such warrants, options or other rights;
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(29)
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if
the Securities of the series will be governed by, and the extent to which such Securities will be governed by, any law other than
the laws of the state of New York;
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(30)
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any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section
9.1(5)).
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All
Securities of any one series need not be identical but may vary as may be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officers’ Certificate referred
to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
Section
3.2 Denominations.
Except
as specified as contemplated by Section 3.1, the Securities of each series shall be issuable only in registered form without coupons.
The Securities of such series shall be issuable only in such denominations as shall be specified as contemplated by Section 3.1.
In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof. Unless otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, any Securities of a series denominated in a currency other than Dollars shall be issuable in
denominations that are the equivalent, as determined by the Company by reference to the noon buying rate in The City of New York for
cable transfers for such currency (“Exchange Rate”), as such rate is reported or otherwise made available by the Federal
Reserve Bank of New York, on the applicable issue date for such Securities, of $1,000 and any integral multiple thereof.
Section
3.3 Execution, Authentication, Delivery and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, and attested by its Treasurer, its Secretary or one of its Assistant Treasurers
or Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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 Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case
of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance
with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company
or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. Each Security shall be dated
the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions
or any other method permitted by Sections 2.1 and 3.1, 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
6.1) shall be fully protected in relying upon, a copy of such Board Resolution, the Officers’ Certificate setting forth the
terms of the series and an Opinion of Counsel, with such Opinion of Counsel stating,
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(1)
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if
the form or terms of such Securities have been established by or pursuant to Board Resolution or any other method permitted by Sections
2.1 and 3.1, that such form or terms have been, or in the case of Securities of a series offered in a Periodic Offering
will be, established in conformity with the provisions of this Indenture, subject in the case of Securities offered in a Periodic
Offering, to any conditions specified in such Opinion of Counsel; and
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(2)
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that
such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions,
exceptions and qualifications specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, except as such enforcement is subject to the effect of (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other laws relating to or affecting creditors’ rights and (ii) general principles of equity (regardless
of whether such enforcement is considered in a proceeding in equity or at law).
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Such
Opinion of Counsel need express no opinion as to the enforceability of Section 6.7 or as to whether a court in the United States
would render a money judgment in a currency other than that of the United States. Notwithstanding the provisions of Section 3.1
and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary
to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Notwithstanding
that such form or terms have been so established, the Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee of the Trustee), such action may not lawfully be taken
or if the Trustee in good faith by its board of trustees or trustees, executive committee or a trust committee of directors, trustees
or vice presidents shall determine that such action would expose the Trustee to personal liability to Holders of any Securities then
outstanding.
With
respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in connection
with the first authentication of Securities of such series.
No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent
by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The
Company in issuing Securities may use “CUSIP” numbers (if then generally in use), and if so, the Trustee may use the CUSIP
numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation
is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Securities, that reliance may be placed
only on the other identification numbers printed on the Securities, and any such redemption or exchange shall not be affected by any
defect or omission of such CUSIP numbers. The Company will promptly notify the Trustee of any change in CUSIP numbers known to an Officer
of the Company. Neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on
any Security, check, advice of payment or redemption notice, and any such document may contain a statement to the effect that CUSIP numbers
have been assigned by an independent service for convenience of reference and that neither the Company nor the Trustee shall be liable
for any inaccuracy in such numbers.
Section
3.4 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution
of such Securities. All or any portion of the temporary Securities of a series may be Global Securities.
If
temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable
delay. Except in the case of temporary Securities that are Global Securities, each of which shall be exchanged in accordance with the
provisions thereof, after the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such
series and tenor, except as otherwise specified as contemplated by Section 3.1.
Section
3.5 Registration; Registration of Transfer and Exchange.
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the Company
in accordance with Section 9.2 in a Place of Payment or in such other place or medium as may be specified pursuant to Section
3.1 a register for each series of Securities (each register maintained in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities of such series and of transfers of Securities
of such series. Unless otherwise contemplated by Section 3.1, the Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers of Securities, and for the purpose of maintaining the Security Register in respect
thereof, as herein provided.
Except
as set forth in Section 2.3 or as may be provided pursuant to Section 3.1, upon surrender for registration of transfer
of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute and
deliver a Company Order requesting the Trustee to authenticate and deliver, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
Unless
otherwise provided as contemplated by Section 3.1, at the option of the Holder, Securities of any series (other than Global Securities)
may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency, and upon payment, if the Company shall so require, of the
charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, Security Registrar
or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed, by the Holder thereof or its attorney duly authorized in writing.
Unless
otherwise provided as contemplated by Section 3.1, no service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6
or 11.7 not involving any transfer.
Unless
otherwise provided as contemplated by Section 3.1, if the Securities of any series (or of any series and specified tenor) are
to be redeemed in whole or in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities
of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days
before the day of the sending of a notice of redemption of any such Securities selected for redemption under Section 11.3 and
ending at the close of business on the day of such delivery, or (B) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Unless
otherwise provided as contemplated by Section 3.1, the Company shall not be required to register the transfer or exchange of Securities
between a Record Date and the next succeeding Interest Payment Date.
Section
3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If
any mutilated Security is surrendered to the Trustee, the Company shall execute and deliver a Company Order requesting the Trustee to
authenticate and deliver, and the Trustee shall authenticate and deliver, in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company
and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon the Company’s
request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding
the preceding paragraph, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon
the issuance of any new Security under this Section 3.6, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every
new Security of any series issued pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The
provisions of this Section 3.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
3.7 Payment of Interest; Interest Rights Preserved.
Except
as otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, interest on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest
at the office or agency maintained for such purpose pursuant to Section 9.2; provided, however, that at the option of the Company,
interest on any series of Registered Securities that bear interest may be paid (i) by check mailed to the address of the Person entitled
thereto as it shall appear on the Security Register of such series (unless, with respect to a Global Security, the rules of the Depositary
require payment of such amount by wire transfer) or (ii) by wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register of such series.
Unless
otherwise provided as contemplated by Section 3.1, any interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest
(and interest thereon, if any) proposed to be paid on each Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest (and interest thereon, if any) 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 (and interest thereon, if any) as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the 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 given to each Holder of Securities of such series in the manner set
forth in Section 1.7, not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be published at least once in an Authorized Newspaper, but such publication
shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted
Interest (and interest thereon, if any) and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2)
The Company may make payment of any Defaulted Interest (and interest thereon, if any) on the Securities of any series 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.
Subject
to the foregoing provisions of this Section 3.7, each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
3.8 Persons Deemed Owners.
Prior
to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 3.7) any interest and any Additional Amounts or other payments on such Security and
for all other purposes whatsoever, whether or not such Security shall be overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Except
as otherwise specified as contemplated by Section 3.1, none of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company or the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests
in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee)
as Holder of such Global Security.
Section
3.9 Cancellation.
The
Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered
shall be promptly canceled by the Trustee. The Security Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture or as otherwise specified as contemplated by Section 3.1. On request of the Company at the time of
surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such request, all canceled
Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section
3.10 Computation of Interest.
Except
as otherwise specified as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE
4
SATISFACTION
AND DISCHARGE
Section
4.1 Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further effect with respect to Securities of or within any series (except as to any
surviving rights of registration of transfer or exchange of such Securities and replacement of such Securities which may have been lost,
stolen or mutilated as herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
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(A)
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all
such Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Trustee or the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or
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(B)
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all
such Securities not theretofore delivered to the Trustee for cancellation
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(i)
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have
become due and payable, or
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(ii)
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will
become due and payable at their Stated Maturity within one year, or
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(iii)
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are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
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and the
Company, in the case of clause (i), (ii) or (iii) above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest and any Additional
Amounts to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
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(2)
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the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities
of such series;
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(3)
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the
Company has complied with any other conditions specified pursuant to Section 3.1 to be applicable to the Outstanding Securities
of such series; and
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(4)
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the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture as to such Securities have been complied with.
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If
any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the trust agreement evidencing the trust referred to in subclause
(B) of clause (1) of this Section 4.1 shall provide therefore and the Company shall make such arrangements as are satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section 4.1, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.
Section
4.2 Application of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest or Additional Amounts for whose payment such money has been deposited with the
Trustee.
Section
4.3 Reinstatement.
If
the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 4.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture with
respect to the Securities of such series and the Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.1 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 4.1; provided, however, that if the Company has made any payment of principal of, premium
(if any) or interest on, or any Additional Amounts with respect to, any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE
5
REMEDIES
Section
5.1 Events of Default.
“Event
of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be occasioned by the subordination provisions applicable to any Securities
or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the Board Resolution, supplemental indenture, Officers’ Certificate establishing such series, or form of
Security for such series:
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(1)
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default
in the payment of any interest on, or any Additional Amounts with respect to, any Security of that series when it becomes due and
payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company
with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or
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(2)
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default
in the payment of the principal of or any premium on any Security of that series at its Maturity; or
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(3)
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default
in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default
for a period of 30 days; or
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(4)
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default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section 5.1 specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
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(5)
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the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60 consecutive days; or
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(6)
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the
commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
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(7)
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any
other Event of Default provided with respect to Securities of that series in the Board Resolution, supplemental indenture or Officers’
Certificate establishing that series.
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Notwithstanding
the foregoing provisions of this Section 5.1, if the principal of, premium (if any) or any interest on, or any Additional Amounts
with respect to, any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency
or currencies are not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances
beyond the control of the Company (a “Conversion Event”), the Company will be entitled to satisfy its obligations
to Holders of the Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such
other currency, as determined by the Company by reference to the Exchange Rate, as such Exchange Rate is certified for customs purposes
by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 5.1, any payment made under such circumstances
in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture.
Promptly
after the occurrence of a Conversion Event with respect to the Securities of any series, the Company shall give written notice thereof
to the Trustee; and the Trustee, promptly after receipt of such notice, shall give notice thereof in the manner provided in Section
1.7 to the Holders of such series. Promptly after the making of any payment in Dollars as a result of a Conversion Event with respect
to the Securities of any series, the Company shall give notice in the manner provided in Section 1.7 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of such payments.
Section
5.2 Acceleration of Maturity; Rescission and Annulment.
Unless
the Board Resolution, supplemental indenture or Officers’ Certificate establishing such series provides otherwise, if an Event
of Default (other than an Event of Default specified in Section 5.1(5) or 5.1(6)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified
by the terms thereof) and premium, if any, together with accrued and unpaid interest, if any, thereon, and Additional Amounts, if any,
with respect thereto, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal amount (or specified amount) and premium, if any, together with accrued and unpaid interest,
if any, thereon, and Additional Amounts, if any, with respect thereto, shall become immediately due and payable. Unless the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series provides otherwise, if an Event of Default specified in
Section 5.1(5) or 5.1(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof) and premium, if any, together with accrued and unpaid interest,
if any, thereon, and Additional Amounts, if any, with respect thereto, shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and payable.
At
any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article 5 provided, the Holders of a majority
in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
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(1)
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the
Company has paid or deposited with the Trustee a sum sufficient to pay
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(A)
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all
overdue interest on, and any Additional Amounts with respect to, all Securities of that series (or of all series, as the case may
be),
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(B)
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the
principal of or premium (if any) on any Securities of that series (or of all series, as the case may be) which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities (in the
case of Original Issue Discount Securities, the Securities’ Yield to Maturity),
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(C)
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to
the extent that payment of such interest is lawful, interest upon overdue interest and any Additional Amounts at the rate or rates
prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities’ Yield to Maturity),
and
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(D)
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all
sums paid or advanced by the Trustee hereunder, the compensation, expenses, disbursements and advances due to Trustee under Section
6.7, and all other amounts due under Section 6.7;
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(2)
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all
Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the nonpayment of
the principal of Securities of that series (or of all series, as the case may be) which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13; and
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(3)
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the
rescission would not conflict with any final judgment or decree of a court of competent jurisdiction.
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No
such rescission shall affect any subsequent default or impair any right consequent thereon.
Section
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if
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(1)
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default
is made in the payment of any interest on, or any Additional Amounts with respect to, any Security of any series when such interest
or Additional Amounts shall become due and payable and such default continues for a period of 30 days, or
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(2)
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default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest on, and Additional Amounts with respect to, and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest or Additional
Amounts, at the rate or rates prescribed therefor in such Securities (or in the case of Original Issue Discount Securities, the Securities’
Yield to Maturity), and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other
amounts due the Trustee under Section 6.7.
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If
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
In
addition, if any other Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion
proceed, in its own name and as trustee of an express trust, to protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section
5.4 Trustee May File Proofs of Claim.
In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of Original Issue
Discount Securities) of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal of, premium (if any), interest
on, or any Additional Amounts with respect to, such Securities) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
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(1)
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to
file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
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(2)
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to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
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No
provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may,
on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
Section
5.5 Trustee May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding may be instituted by the
Trustee in its own name as trustee of an express trust.
Section
5.6 Application of Money Collected.
Subject
to the subordination provisions applicable to any series of Securities, any money collected by the Trustee pursuant to this Article shall
be applied and paid in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal or any premium or interest on, or any Additional Amounts with respect to, the Securities, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST:
To the payment of all amounts due the Trustee under Section 6.7 in connection with such series of Securities in respect of which
money or other property is collected;
SECOND:
Subject to the terms of any subordination entered into as contemplated by Section 3.1, to the payment of the amounts then due
and unpaid for principal of and any premium, if any, and interest on, and any Additional Amounts with respect to, the Securities 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 any premium, if any, interest on and Additional Amounts, respectively;
and
THIRD:
The balance, if any, to the Company or any other Person or Persons entitled thereto.
To
the fullest extent allowed under applicable law, if for the purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, premium (if any) or interest on, or any Additional Amounts with respect to, the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day in The City of New York next preceding
that on which final judgment is given. Neither the Company nor the Trustee shall be liable for any shortfall nor shall any of them benefit
from any windfall in payments to Holders of Securities under this Section 5.6 caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section 5.6 to Holders of Securities, but payment of such judgment shall discharge all amounts
owed by the Company on the claim or claims underlying such judgment.
Section
5.7 Limitation on Suits.
Subject
to Section 5.8, no Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
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(1)
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an
Event of Default with respect to such series of Securities shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
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(2)
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the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(3)
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such
Holder or Holders have offered and, if requested, provided to the Trustee reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
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(4)
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the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
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(5)
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no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series (or of all series, as the case may be).
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No
one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section
5.8 Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding
any other provision in this Indenture, the right of any Holder of any Security to receive payment of the principal of and any premium
and (subject to Section 3.7) interest on, or any Additional Amounts with respect to, such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment after the respective due dates, shall not be impaired without the consent of such Holder.
Section
5.9 Restoration of Rights and Remedies.
If
the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section
5.10 Rights and Remedies Cumulative.
Except
as otherwise provided in Section 5.7 or with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section
5.11 Delay or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 5 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section
5.12 Control by Holders.
With
respect to Securities of any series, the Holders of a majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in clause (1), (2),
(3), (4) or (7) of Section 5.1, and with respect to all Securities the Holders of a majority in principal
amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in
clause (5) or (6) of Section 5.1, provided that in each such case.
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(1)
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the
Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders
not taking part in such direction (it being understood that the Trustee shall not have an affirmative duty to ascertain whether such
direction is unjustly prejudicial to such Holders), and
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(2)
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the
Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction or this Indenture.
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Section
5.13 Waiver of Past Defaults.
Subject
to Section 5.8 and Section 9.2, the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 5.1 hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount of all Outstanding Securities may on behalf of the Holders
of all Securities waive any Event of Default described in clause (5) or (6) of Section 5.1 hereunder and its consequences,
except a default
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(1)
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in
the payment of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Security as and when
the same shall become due and payable by the terms thereof, otherwise than by acceleration (unless such default has been cured as
provided herein), or
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(2)
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in
respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
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Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section
5.14 Undertaking for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that in any
suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that
the provisions of this Section 5.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding
Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the
redemption date).
ARTICLE
6
THE
TRUSTEE
Section
6.1 Certain Duties and Responsibilities.
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(1)
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If
an Event of Default has occurred and is continuing, the Trustee shall exercise 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 individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
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(2)
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Except
during the continuance of an Event of Default:
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(A)
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The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
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(B)
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In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming
to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’
Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
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(3)
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The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
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(A)
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This
paragraph does not limit the effect of clause (2) of this Section 6.1.
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(B)
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The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
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(C)
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The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of
any series in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such
series 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 such series.
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(4)
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Every
provision of this Indenture that in any way relates to the Trustee is subject to clauses (1), (2) and (3) of
this Section 6.1.
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(5)
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The
Trustee may refuse to perform any duty or to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of Holder or Holders pursuant to this Indenture, unless such Holder or Holders shall have offered and, if requested,
provided to the Trustee security or indemnity reasonable in the sole discretion of the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
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(6)
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No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk is not reasonably assured to it.
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(7)
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The
Paying Agent, the Security Registrar and any Authenticating Agent shall be entitled to the protections, immunities and standard of
care as are set forth in clauses (1), (2) and (3) of this Section 6.1 with respect to the Trustee.
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Section
6.2 Notice of Defaults.
If
a default occurs hereunder and is continuing with respect to Securities of any series and it is known to a Responsible Officer of the
Trustee, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the
Trust Indenture Act; provided, however, that except in the case of a default in the payment of principal of (or premium, if any) or interest
on, or any Additional Amounts with respect to, any Securities of such series or in the payment of any sinking fund installment, the Trustee
shall be protected in withholding such notice if and so long as the board of trustees, 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 interests
of the holders of Securities of such series.
Section
6.3 Certain Rights of Trustee.
Subject
to the provisions of Section 6.1:
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(1)
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the
Trustee may rely and shall be protected in acting or refraining from acting upon, whether in its original or facsimile form, any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(2)
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the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or attorney, at the sole reasonable cost of the Company and
shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
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(3)
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any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (unless
other evidence is specifically required herein), and any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
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(4)
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whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed), in the absence
of bad faith on its part, is entitled to and may rely upon an Officers’ Certificate;
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(5)
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the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(6)
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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.
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(7)
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Except
as otherwise expressly provided for in this Indenture, the Trustee shall have no duty to inquire as to the performance of the Company’s
covenants in this Indenture and the Trustee shall not be charged with knowledge of any default or Event of Default with respect to
the Securities of any series for which it is acting as Trustee unless either (1) a Responsible Officer shall have actual knowledge
of such default or Event of Default or (2) written notice of such default or Event of Default shall have been given to the Trustee
by the Company or any other obligor on such Securities or by any Holder of such Securities;
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(8)
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the
Trustee shall not be liable for any action taken, suffered or omitted by it believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
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(9)
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the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, provided that the Trustee reasonably believes that the last such
certificate received from the Company or currently on file is no longer accurate;
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(10)
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In
no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
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(11)
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in
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss
or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
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Section
6.4 Not Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Security Registrar, Paying Agent or Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Security Registrar, Paying Agent or Authenticating Agent shall be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section
6.5 May Hold Securities and Act as Trustee under Other Indentures.
The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Subject
to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall prohibit the Trustee from becoming and acting
as trustee under other indentures under which other securities, or certificates of interest of participation in other securities, of
the Company are outstanding in the same manner as if it were not Trustee hereunder.
Section
6.6 Money Held in Trust.
Subject
to the provisions of Sections 10.3 and 13.5, all moneys received by the Trustee shall, until used or applied, as provided
herein, be held in trust uninvested for the purposes for which they were received. Money held by the Trustee in trust hereunder 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
money received by it hereunder except as otherwise agreed in writing with the Company. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid by the Company from time to time upon a Company Order. In the
event that the Paying Agent receives cash funds in advance of any due date hereunder, the Paying Agent shall be entitled to invest such
funds in or any substantially similar successor account, any earnings on which shall be for the account of the Company.
Section
6.7 Compensation and Reimbursement.
The
Company shall pay to the Trustee from time to time such reasonable compensation for its services as the Company and the Trustee may agree
in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred
by it in connection with the performance of its duties under this Indenture, except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct. Such expenses shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.
The
Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including
attorneys’ fees and expenses, and including taxes other than taxes based upon, measured by or determined by the income of the Trustee),
including without limitation the costs and expenses of defending itself against any third-party claim (whether asserted by any Holder
or any other Person (other than the Company to the extent of any claim brought by it against the Trustee that establishes a breach by
the Trustee in the observance or performance of its duties under this Indenture in accordance with a final, non-appealable order of a
court of competent jurisdiction)), incurred by it without negligence or willful misconduct arising out of or in connection with its acceptance
or administration of the trust or trusts hereunder, including the performance of its duties or the exercise of its powers hereunder.
With respect to any such claim other than a claim brought by the Company, (i) the Trustee shall notify the Company promptly of any claim
for which it may seek indemnity, (ii) the Company may at its option defend the claim, in which event the Trustee shall cooperate (at
the expense of the Company) in the defense and the Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel and (iii) the Company need not pay for any settlement made without its consent, which consent shall not
be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
To
secure the Company’s payment obligations in this Section 6.7, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on, or any
Additional Amounts with respect to, particular Securities of that series.
The
obligations of the Company under this Section 6.7 will survive the satisfaction and discharge of this Indenture and any resignation
or removal of the Trustee.
When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(5) or (6) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section 6.7 and any lien arising hereunder shall survive the resignation or removal of the Trustee or the discharge
of the Company’s obligations under this Indenture and the termination of this Indenture.
Section
6.8 Conflicting Interests.
If
the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such conflicting interest or resign, to the extent and in the manner and with the effect provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have
a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or any other
indenture.
Section
6.9 Eligibility; Disqualification.
There
shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series (which need not be the same
Trustee for all series). A Trustee may be Trustee hereunder for Securities of one or more series. Each Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has (or if the Trustee is a member of a bank holding company system,
its bank holding company has) a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal
or state (or the District of Columbia) authority. If any such Person or bank holding company publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section
6.9 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person or bank holding company
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section
6.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 6.
The
Indenture shall always have a Trustee who satisfies the requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5)
of the Trust Indenture Act.
Section
6.10 Resignation and Removal; Appointment of Successor.
No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the removed Trustee within 30 days after the receipt of such
notice of removal, the removed Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If
at any time:
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(1)
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the
Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
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(2)
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the
Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
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(3)
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the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed 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, (A) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company by a Board Resolution shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 6.11, the retiring Trustee may petition, or any Holder who has been a bona fide Holder of a
Security of such series for at least six months may petition, on behalf of himself and all others similarly situated, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided
in Section 1.7. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
Section
6.11 Acceptance of Appointment by Successor.
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.
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 (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the 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 all 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.
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 the first or second preceding paragraph, as the
case may be.
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 6.
Section
6.12 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 or acquiring all or substantially
all the corporate trust business of the Trustee (including the administration of the trust created by this Indenture), shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties hereto. 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, or by succession to or acquisition
of all or substantially all of the corporate trust business of, such successor 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
6.13 Preferential Collection of Claims Against Company.
If
and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities) as provided in the Trust
Indenture Act, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
Section
6.14 Appointment of Authenticating Agent.
The
Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as other specified as contemplated by Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (or if the Authenticating Agent is a member of a bank holding company system,
its bank holding company has) a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by
Federal or State (or the District of Columbia) authority. If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.14,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified
in this Section 6.14.
Any
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to or
acquiring the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this Section 6.14, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent for any series of Securities may resign at any time by giving written notice thereof to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee
for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment
in the manner provided in Section 1.7 to all Holders of Securities of the series with respect to which such Authenticating Agent
will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section 6.14.
The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.14,
and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.
If
an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have
endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in the following
form:
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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By:
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As
Authenticating Agent
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By:
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Authorized
Officer
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Notwithstanding
any provision of this Section 6.14 to the contrary, if at any time any Authenticating Agent appointed hereunder with respect to
any series of Securities shall not also be acting as the Security Registrar hereunder with respect to any series of Securities, then,
in addition to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall also be obligated: (i) to furnish
to the Security Registrar promptly all information necessary to enable the Security Registrar to maintain at all times an accurate and
current Security Register; and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from the Company
the units of such foreign currency that are required to be determined by the Company pursuant to Section 3.2.
ARTICLE
7
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.1 Company to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee
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(1)
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not
later than 15 days after the Regular Record Date for each respective series of Securities, or if there is no Regular Record Date
for such series of Securities, semi-annually on January 1 and July 1, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series as of such date, as the case may be, and
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(2)
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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;
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provided
that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as Security Registrar.
Section
7.2 Preservation of Information; Communications to Holders.
The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
The
rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every
Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section
7.3 Reports by Trustee.
The
Trustee shall transmit to Holders and any other required Persons such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
As
promptly as practicable after each January 1 beginning with the January 1 following the date of this Indenture, and in any event prior
to March 1 in each year, the Trustee shall mail to each Holder a brief report dated as of December 31 of the prior year if and to the
extent required by Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with Section 313(b) of the
Trust Indenture Act.
A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section
7.4 Reports by Company.
The
Company shall file with the Trustee and the Commission, and transmit to Holders and any other required Persons within 30 days after the
filing with the Trustee, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 30 days after the same is so required to be filed with the Commission.; provided, however, that any
such information, documents or reports electronically filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be deemed filed with, and delivered to, the Trustee and transmitted to the Holders at the same time as filed with
the Commission. The Trustee shall have no responsibility to determine if such filing has occurred. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which
the Trustee is entitled to conclusively rely exclusively on Officer’s Certificates).
ARTICLE
8
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
8.1 Company May Consolidate, etc., Only on Certain Terms.
The
Company may not merge or consolidate with or into any other Person, in a transaction in which it is not the surviving Person, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its assets to any Person, unless (i) the surviving or transferee
Person is organized and existing under the laws of the United States or a State thereof or the District of Columbia and such Person expressly
assumes by supplemental indenture all the obligations of the Company under the Securities and under this Indenture, (ii) immediately
thereafter, giving effect to such merger or consolidation, or such sale, conveyance, transfer or other disposition, no default or Event
of Default shall have occurred and be continuing and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel each stating that such merger, consolidation, sale, conveyance, transfer, lease or other disposition complies
with this Article 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section
8.2 Successor Substituted.
Upon
any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Securities.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section
9.1 Supplemental Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto for any of the following purposes:
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(1)
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to
evidence the succession of another Person to the Company, or successive successions, and the assumption by any such successor of
the covenants and obligations of the Company herein and in the Securities in compliance with Article 8; or
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(2)
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to
add to the covenants of the Company for the benefit of the Holders of any one or more series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or otherwise
secure any series of the Securities, including provisions regarding the circumstances under which collateral may be released or substituted,
to surrender any right or power herein conferred upon the Company or to comply with any requirement of the Commission or otherwise
in connection with the qualification of this Indenture or any supplemental indenture under the Trust Indenture Act; or
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(3)
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to
add any additional Events of Default for the benefit of the Holders of any one or more series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series); or
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(4)
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to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in global form or uncertificated form; or
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(5)
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to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to any Outstanding Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision, or (ii) modify the rights of any Holder of
any Outstanding Security with respect to such provision, or (B) shall become effective when there is no Security then Outstanding;
or
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(6)
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to
add or provide for a guaranty or guarantees of the Securities or additional obligors on the Securities; or
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(7)
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to
establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
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(8)
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to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
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(9)
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to
correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, to cure any ambiguity
or omission, to correct any mistake, or to conform to any prospectus pursuant to which Securities of any series were offered; or
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(10)
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to
make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely
affect the rights of any Holder of Securities of any series; or
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(11)
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to
make any change that does not adversely affect the rights of any Holder; or
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(12)
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to
supplement any of the provisions of the Indenture to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Articles 4 and 13, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect
as determined in good faith by the Board of Directors of the Company; or
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(13)
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make
such other provisions in regards to matters or questions arising under the Indenture or any supplemental indenture hereto as the
Board of Directors may deem necessary or desirable, and which does not in each case adversely affect the interest of the Holders
of Securities of any series as determined in good faith by the Board of Directors of the Company; or
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(14)
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comply
with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
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Section
9.2 Supplemental Indentures with Consent of Holders.
With
the consent of the Holders of a majority in principal amount of the Outstanding Securities of each series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture or any indenture supplemental hereto or of modifying
in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
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(1)
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change
the Stated Maturity of the principal of or any installment of principal of, or the date fixed for payment of interest on or any sinking
fund payment with respect to, any Security, or reduce the principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional
Amounts (except as contemplated by Section 8.1 and permitted by clause (1) of Section 9.1), or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the coin or currency
or currencies (including composite currencies) in which any Security or any premium or interest thereon or Additional Amounts with
respect thereto is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of a Security in a manner adverse to the holder thereof, or
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(2)
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reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
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(3)
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modify
any of the provisions of this Section 9.2, Section 5.13 or Section 10.8, except to increase any such percentage
or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to
that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of
such series (which provision may be made pursuant to Section 3.1 without the consent of any Holder) or to provide that certain
other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in
the references to “the Trustee” and concomitant changes in this Section 9.2 and Section 10.8, or
the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(8).
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A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section
9.3 Execution of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Sections 6.1 and 6.3)
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.
Section
9.4 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture under this Article 9, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby; provided that if such supplemental indenture makes any of the changes described
in clauses (1) through (3) of the first proviso to Section 9.2, such supplemental indenture shall bind each Holder
of a Security who has consented to it and every subsequent Holder of such Security or any part thereof.
Section
9.5 Conformity with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act.
Section
9.6 Reference in Securities to Supplemental Indentures.
Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE
10
COVENANTS
Section
10.1 Payment of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal
of and any premium and interest on, and any Additional Amounts with respect to, the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section
10.2 Maintenance of Office or Agency.
The
Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices 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, surrenders, notices and demands. Unless otherwise provided
in a supplemental indenture or pursuant to Section 3.1 hereof, the Place of Payment for any series of Securities shall be the
Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or agency.
Section
10.3 Money for Securities Payments to be Held in Trust.
If
the Company, any Subsidiary or any of their respective Affiliates shall at any time act as Paying Agent with respect to any series of
Securities, such Paying Agent will, on or before each due date of the principal of or any premium or interest on, or any Additional Amounts
with respect to, any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest, or any Additional Amounts, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on, or Additional Amounts with respect to, any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.3, that such Paying Agent
will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities
of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture, or with respect to one or more
series of Securities, or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on, or any Additional Amounts with respect to, any Security of any series and remaining unclaimed for a period ending
on the earlier of the date that is ten Business Days prior to the date such money would escheat to the State or two years after such
principal, premium or interest or Additional Amount has become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized
Newspaper in The Borough of Manhattan, The City of New York and in such other Authorized Newspapers as the Trustee shall deem appropriate,
notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be repaid to the Company.
Section
10.4 Statement by Officers as to Default.
At
any time at which there are Outstanding Securities of any series issued under this Indenture, the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate complying
with Section 314(a)(4) of the Trust Indenture Act and stating that a review of the activities of the Company during such year
and of performance under this Indenture has been made under the supervision of the signers thereof and stating whether or not to the
best knowledge of the signers thereof, based upon such review, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
One of the officers signing the Officers’ Certificate delivered pursuant to this Section 10.05 shall be the principal executive,
financial or accounting officer of the Company.
Section
10.5 Existence.
Subject
to Article 8, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence.
Section
10.6 All Securities to be Equally and Ratably Secured.
Unless
specified otherwise by the Company pursuant to Section 3.1 with respect to any series, the Company will not itself secure Securities
of any one or more series with any Mortgage, without effectively providing that the Securities of every other series shall be secured
equally and ratably by such Mortgage.
Section
10.7 Maintenance of Properties.
The
Company will cause all properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, and to the extent, in the judgment of the Company may be necessary or appropriate in connection with
its business; provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
Section
10.8 Payment of Taxes and Other Claims.
The
Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim
(i) whose amount, applicability or validity is being contested in good faith by appropriate proceedings or (ii) if the failure to pay
or discharge would not have a material adverse effect on the assets, business, operations, properties or financial condition of the Company
and its Subsidiaries, taken as a whole.
Section
10.9 Waiver of Certain Covenants.
Except
as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company may, with respect to the Securities
of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant
to Sections 3.1(22), 9.1(2), 8.1, 10.4, 10.5, 10.6, 10.7 or 10.8 for the benefit
of the Holders of such series if before or after the time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section
10.10 Additional Amounts.
If
the Securities of a series expressly provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security
of such series Additional Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of, or premium (if any) or interest on any Security of any series or the net proceeds received from the sale or exchange
of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this
Section 10.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section 10.10 and express mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
If
the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on
which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the
Company shall furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States Aliens
without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series.
If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities and the Company will pay to such Paying Agent the Additional Amounts required
by this Section 10.10. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against
any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this
Section 10.10.
ARTICLE
11
REDEMPTION
OF SECURITIES
Section
11.1 Applicability of Article.
Securities
of any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.1 for such Securities) in accordance with this Article 11.
Section
11.2 Election to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.1 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of
any series (including any such redemption affecting only a single Security), the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date,
of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction or condition.
Section
11.3 Selection by Trustee of Securities to Be Redeemed.
If
less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are
to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called
for redemption, on a pro-rata basis, or in the Trustee’s discretion, by lot, or by such other method as the Trustee shall deem
fair and appropriate, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such Security.
If
any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for
redemption.
The
Trustee shall promptly notify the Company and the Security Registrar in writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
Section
11.4 Notice of Redemption.
Notice
of redemption shall be given by first-class mail, postage prepaid, mailed (or while any Securities are represented by one or more Global
Notes, such notice shall be delivered to the Depositary for communication to entitled account Holders) not fewer than 30 nor more than
60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to each Holder of Securities
to be redeemed, at its address appearing in the Security Register.
All
notices of redemption shall state:
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(1)
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the
Redemption Date,
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(2)
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the
Redemption Price (including accrued interest, if any, to be paid),
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(3)
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if
less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed
and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
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(4)
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in
case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security, the Holder
of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
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(5)
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that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
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(6)
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the
place or places where each such Security is to be surrendered for payment of the Redemption Price,
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(7)
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if
applicable, the conversion price, the date on which the right to convert the principal of the Securities or the portions thereof
to be redeemed will terminate, and the place or places where such Securities may be surrendered for conversion,
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(8)
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that
the redemption is for a sinking fund, if such is the case,
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(9)
|
the
specific provision of this Indenture pursuant to which such Securities are to be redeemed, and
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(10)
|
the
CUSIP number or numbers and/or common codes of the Security being redeemed.
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Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request,
by the Trustee in the name and at the expense of the Company, provided that the Company shall have prepared and provided to the Trustee
the form of such notice, or, if acceptable to the Trustee, provided sufficient information to enable the Trustee to prepare such notice,
in each case on a timely basis.
Section
11.5 Deposit of Redemption Price.
On
or prior to 10:00 a.m., Eastern time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If
any Security called for redemption is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any right of any Holder of such Security to receive interest thereon)
be paid to the Company on Company Request, or if then held by the Company, shall be discharged from such trust.
Section
11.6 Securities Payable on Redemption Date.
Notice
of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional
Amounts) to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.1, installments
of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities’ Yield to Maturity.
Section
11.7 Securities Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and Stated Maturity
and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
Unless
otherwise specified as contemplated by Section 3.1, the Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company may be delivered
to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 3.9 shall
apply to all Securities so delivered.
ARTICLE
12
SINKING
FUNDS
Section
12.1 Applicability of Article.
The
provisions of this Article 12 shall be applicable to any sinking fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 3.1 for such Securities.
The
minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein
referred to as an “optional sinking fund payment.” Unless otherwise provided for by the terms of any Securities, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.
Section
12.2 Satisfaction of Sinking Fund Payments with Securities.
The
Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which 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 any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section
12.3 Redemption of Securities for Sinking Fund.
Not
fewer than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment
for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so delivered. Not fewer than 30 days prior to 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 11.3
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 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE
13
DEFEASANCE
AND COVENANT DEFEASANCE
Section
13.1 Company’s Option to Effect Defeasance or Covenant Defeasance.
The
Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series
of Securities, as the case may be, designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions
set forth below in this Article 13. Any such election shall be evidenced by one or more Board Resolutions, Officers’ Certificates,
indentures supplemental hereto, or in another manner specified as contemplated by Section 3.1 for such Securities.
Section
13.2 Defeasance and Discharge.
Upon
the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”).
For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged hereunder:
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(1)
|
the
rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on, or any Additional Amounts with respect
to, such Securities when payments are due,
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(2)
|
the
Company’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3,
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(3)
|
the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and
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|
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|
(4)
|
this
Article 13.
|
Subject
to compliance with this Article 13, the Company may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities.
Section
13.3 Covenant Defeasance.
Upon
the Company’s exercise of its option (if any) to have this Section 13.3 applied to any Securities or any series of Securities,
as the case may be,
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(1)
|
the
Company shall be released from their obligations under Sections 8.1, 10.4, 10.5, 10.6, 10.7 or
10.8 and any covenants provided pursuant to Sections 3.1(22) or 9.1(2) for the benefit of the Holders of such
Securities and
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(2)
|
the
occurrence of any event specified in Section 5.1(4) (with respect to any of Sections 8.1, 10.4, 10.5,
10.6, 10.7 or 10.8 and any such covenants provided pursuant to Sections 3.1(22) or 9.1(2)) and
the occurrence of any other Event of Default specified pursuant to Section 3.1 or Section 9.1(3) shall be deemed not
to be or result in an Event of Default, in each case with respect to such Securities or any series of Securities as provided in this
Section 13.3 on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit
to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section
or such other covenant (to the extent so specified in the case of Section 5.1(4) and the occurrence of any Event of Default
specified pursuant to Section 3.1 or Section 9.1(3)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any
other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
|
Section
13.4 Conditions to Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of
Securities, as the case may be:
(1)
The Company shall have deposited or caused to be deposited irrevocably with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the provisions of this Article 13 applicable
to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities,
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(A)
|
cash
in currency of the United States of America in an amount, or
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|
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(B)
|
U.S.
Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment, an amount in cash, or
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(C)
|
a
combination thereof,
|
in
each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities.
(2)
In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be,
the Company shall have delivered to the Trustee an Opinion of Counsel stating that
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(A)
|
the
Company has received from, or there has been published by, the Internal Revenue Service a ruling or
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(B)
|
since
the date of this instrument, there has been a change in the applicable Federal income tax law, in either case clause (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
|
(3)
In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be,
the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were not to occur.
(4)
The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5)
No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified
in Sections 5.1(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6)
Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of such Act).
(7)
Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt
from registration thereunder.
(9)
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section
13.5 Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 10.3, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 13.5 and Section 13.6, the
Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.4
in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of Outstanding Securities. Anything in this Article 13 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 13.4 with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
Section
13.6 Reinstatement.
If
the Trustee or the Paying Agent is unable to apply any money in accordance with this Article 13 with respect to any Securities
by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section
13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article 13 with respect
to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section
13.5 with respect to such Securities in accordance with this Article 13; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE
14
MISCELLANEOUS
Section
14.1 Counterpart Signatures.
This
Indenture may be executed in any number of counterparts, each of which will be an original, but such counterparts will together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
Section
14.2 Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the United States Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as they may request in order for the Trustee to satisfy the requirements
of the United States Patriot Act.
Section
14.3 Effect of Headings.
The
Article and Section headings herein are for convenience only and shall not affect the construction hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
Exhibit
4.12
INDENTURE
BY
AND BETWEEN
FAT
BRANDS INC.
AND
,
,
AS
TRUSTEE
DATED
AS OF , 20
SUBORDINATED
DEBT SECURITIES
(Issuable
in Series)
Table
of Contents
ARTICLE
1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
Section
1.1
|
Definitions
|
1
|
|
Section
1.2
|
Incorporation
by Reference of Trust Indenture Act
|
8
|
|
Section
1.3
|
Compliance
Certificates and Opinions
|
8
|
|
Section
1.4
|
Form
of Documents Delivered to Trustee
|
9
|
|
Section
1.5
|
Acts
of Holders; Record Dates
|
9
|
|
Section
1.6
|
Notices,
etc., to Trustee and Company
|
11
|
|
Section
1.7
|
Notice
to Holders; Waiver
|
11
|
|
Section
1.8
|
Conflict
with Trust Indenture Act
|
12
|
|
Section
1.9
|
Effect
of Headings and Table of Contents
|
12
|
|
Section
1.10
|
Successors
and Assigns
|
12
|
|
Section
1.11
|
Separability
Clause
|
12
|
|
Section
1.12
|
Benefits
of Indenture
|
12
|
|
Section
1.13
|
Governing
Law
|
13
|
|
Section
1.14
|
Legal
Holidays
|
13
|
|
Section
1.15
|
Indenture
and Securities Solely Corporate Obligations
|
13
|
|
Section
1.16
|
Indenture
May be Executed in Counterparts
|
14
|
ARTICLE
2
SECURITY FORMS
|
Section
2.1
|
Forms
Generally
|
14
|
|
Section
2.2
|
Form
of Trustee’s Certificate of Authentication
|
14
|
|
Section
2.3
|
Global
Securities
|
15
|
|
Section
2.4
|
Form
of Legend for Global Securities
|
17
|
|
Section
2.5
|
Form
of Face of Security
|
17
|
|
Section
2.6
|
Form
of Reverse of Security
|
18
|
ARTICLE
3
THE SECURITIES
|
Section
3.1
|
Amount
Unlimited; Issuable in Series
|
22
|
|
Section
3.2
|
Denominations
|
26
|
|
Section
3.3
|
Execution,
Authentication, Delivery and Dating
|
26
|
|
Section
3.4
|
Temporary
Securities
|
28
|
|
Section
3.5
|
Registration;
Registration of Transfer and Exchange
|
28
|
|
Section
3.6
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
29
|
|
Section
3.7
|
Payment
of Interest; Interest Rights Preserved
|
30
|
|
Section
3.8
|
Persons
Deemed Owners
|
31
|
|
Section
3.9
|
Cancellation
|
31
|
|
Section
3.10
|
Computation
of Interest
|
32
|
ARTICLE
4
SATISFACTION AND DISCHARGE
|
Section
4.1
|
Satisfaction
and Discharge of Indenture
|
32
|
|
Section
4.2
|
Application
of Trust Money
|
33
|
|
Section
4.3
|
Reinstatement
|
33
|
ARTICLE
5
REMEDIES
|
Section
5.1
|
Events
of Default
|
34
|
|
Section
5.2
|
Acceleration
of Maturity; Rescission and Annulment
|
35
|
|
Section
5.3
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
36
|
|
Section
5.4
|
Trustee
May File Proofs of Claim
|
37
|
|
Section
5.5
|
Trustee
May Enforce Claims Without Possession of Securities
|
38
|
|
Section
5.6
|
Application
of Money Collected
|
38
|
|
Section
5.7
|
Limitation
on Suits
|
39
|
|
Section
5.8
|
Right
of Holders to Receive Principal, Premium and Interest
|
39
|
|
Section
5.9
|
Restoration
of Rights and Remedies
|
39
|
|
Section
5.10
|
Rights
and Remedies Cumulative
|
39
|
|
Section
5.11
|
Delay
or Omission Not Waiver
|
40
|
|
Section
5.12
|
Control
by Holders
|
40
|
|
Section
5.13
|
Waiver
of Past Defaults
|
40
|
|
Section
5.14
|
Undertaking
for Costs
|
41
|
ARTICLE
6
THE TRUSTEE
|
Section
6.1
|
Certain
Duties and Responsibilities
|
41
|
|
Section
6.2
|
Notice
of Defaults
|
42
|
|
Section
6.3
|
Certain
Rights of Trustee
|
42
|
|
Section
6.4
|
Not
Responsible for Recitals or Issuance of Securities
|
44
|
|
Section
6.5
|
May
Hold Securities and Act as Trustee under Other Indentures
|
44
|
|
Section
6.6
|
Money
Held in Trust
|
44
|
|
Section
6.7
|
Compensation
and Reimbursement
|
45
|
|
Section
6.8
|
Conflicting
Interests
|
45
|
|
Section
6.9
|
Eligibility;
Disqualification
|
46
|
|
Section
6.10
|
Resignation
and Removal; Appointment of Successor
|
46
|
|
Section
6.11
|
Acceptance
of Appointment by Successor
|
47
|
|
Section
6.12
|
Merger,
Conversion, Consolidation or Succession to Business
|
48
|
|
Section
6.13
|
Preferential
Collection of Claims Against Company
|
48
|
|
Section
6.14
|
Appointment
of Authenticating Agent
|
49
|
ARTICLE
7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
Section
7.1
|
Company
to Furnish Trustee Names and Addresses of Holders
|
50
|
|
Section
7.2
|
Preservation
of Information; Communications to Holders
|
50
|
|
Section
7.3
|
Reports
by Trustee
|
51
|
|
Section
7.4
|
Reports
by Company
|
51
|
ARTICLE
8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
Section
8.1
|
Company
May Consolidate, etc., Only on Certain Terms
|
51
|
|
Section
8.2
|
Successor
Substituted
|
52
|
ARTICLE
9
SUPPLEMENTAL INDENTURES
|
Section
9.1
|
Supplemental
Indentures Without Consent of Holders
|
52
|
|
Section
9.2
|
Supplemental
Indentures with Consent of Holders
|
54
|
|
Section
9.3
|
Execution
of Supplemental Indentures
|
55
|
|
Section
9.4
|
Effect
of Supplemental Indentures
|
55
|
|
Section
9.5
|
Conformity
with Trust Indenture Act
|
55
|
|
Section
9.6
|
Reference
in Securities to Supplemental Indentures
|
55
|
ARTICLE
10
COVENANTS
|
Section
10.1
|
Payment
of Principal, Premium and Interest
|
55
|
|
Section
10.2
|
Maintenance
of Office or Agency
|
55
|
|
Section
10.3
|
Money
for Securities Payments to be Held in Trust
|
56
|
|
Section
10.4
|
Statement
by Officers as to Default
|
57
|
|
Section
10.5
|
Existence
|
57
|
|
Section
10.6
|
All
Securities to be Equally and Ratably Secured
|
57
|
|
Section
10.7
|
Maintenance
of Properties
|
57
|
|
Section
10.8
|
Payment
of Taxes and Other Claims
|
58
|
|
Section
10.9
|
Waiver
of Certain Covenants
|
58
|
|
Section
10.10
|
Additional
Amounts
|
58
|
ARTICLE
11
REDEMPTION OF SECURITIES
|
Section
11.1
|
Applicability
of Article
|
59
|
|
Section
11.2
|
Election
to Redeem; Notice to Trustee
|
59
|
|
Section
11.3
|
Selection
by Trustee of Securities to Be Redeemed
|
59
|
|
Section
11.4
|
Notice
of Redemption
|
60
|
|
Section
11.5
|
Deposit
of Redemption Price
|
61
|
|
Section
11.6
|
Securities
Payable on Redemption Date
|
61
|
|
Section
11.7
|
Securities
Redeemed in Part
|
61
|
ARTICLE
12
SINKING FUNDS
|
Section
12.1
|
Applicability
of Article
|
62
|
|
Section
12.2
|
Satisfaction
of Sinking Fund Payments with Securities
|
62
|
|
Section
12.3
|
Redemption
of Securities for Sinking Fund
|
62
|
ARTICLE
13
DEFEASANCE AND COVENANT DEFEASANCE
|
Section
13.1
|
Company’s
Option to Effect Defeasance or Covenant Defeasance
|
62
|
|
Section
13.2
|
Defeasance
and Discharge
|
63
|
|
Section
13.3
|
Covenant
Defeasance
|
63
|
|
Section
13.4
|
Conditions
to Defeasance or Covenant Defeasance
|
64
|
|
Section
13.5
|
Deposited
Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions
|
65
|
|
Section
13.6
|
Reinstatement
|
66
|
ARTICLE
14
SUBORDINATION
|
Section
14.1
|
Securities
Subordinated to Senior Debt
|
66
|
|
Section
14.2
|
Right
of Trustee to Hold Senior Debt
|
66
|
|
Section
14.3
|
Subordination
Not to Prevent Events of Default
|
66
|
|
Section
14.4
|
No
Fiduciary Duty of Trustee to Holders of Senior Debt
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67
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Section
14.5
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Article
Applicable to Paying Agent
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67
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ARTICLE
15
MISCELLANEOUS
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Section
15.1
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Counterpart
Signatures
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67
|
|
Section
15.2
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Patriot
Act
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67
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|
Section
15.3
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Effect
of Headings
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67
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FAT
BRANDS INC.
This
Cross-Reference Sheet shows the location in the Indenture of the provisions inserted pursuant to Sections 3.10 through 3.18, inclusive,
of the Trust Indenture Act of 1939:
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TIA
Section
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Indenture
Section
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Section
3.10
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(a)
(1)
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6.9
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(a)
(2)
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6.9
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(a)
(3)
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6.9
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(a)
(4)
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Not
Applicable
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(a)
(5)
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6.9
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(b)
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6.8,
6.10
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(c)
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Not
Applicable
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Section
3.11
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(a)
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6.13
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(b)
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6.13
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(c)
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Not
Applicable
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Section
3.12
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(a)
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7.1,
7.2
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(b)
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7.2
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(c)
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7.2
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Section
3.13
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(a)
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7.3
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(b)
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7.3
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(c)
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7.3
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(d)
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7.3
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Section
3.14
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(a)
(1)
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7.4
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(a)
(2)
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7.4
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(a)
(3)
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7.4
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(a)
(4)
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1.1,
10.4
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(b)
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Not
Applicable
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(c)
(1)
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1.3
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(c)
(2)
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1.3
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(c)
(3)
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Not
Applicable
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(d)
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Not
Applicable
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(e)
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1.3
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Section
3.15
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(a)
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6.1
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(b)
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6.2
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(c)
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6.1
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(d)
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6.1
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(e)
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5.14
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Section
3.16
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(a)
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1.1
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(a)
(1) (A)
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5.2,
5.12
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(a)
(1) (B)
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5.13
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(a)
(2)
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Not
Applicable
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(b)
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5.8
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(c)
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1.5
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Section
3.17
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(a)
(1)
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5.3
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(a)
(2)
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5.4
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(b)
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10.3
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Section
3.18
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(a)
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1.8
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NOTE:
This Cross-Reference Sheet is not part of the Indenture.
INDENTURE
INDENTURE,
dated as of , between FAT BRANDS INC., a Delaware corporation (the “Company”), having its principal office at
, and , as trustee, (the “Trustee”), the office of the Trustee at which at the date
hereof its corporate trust business is principally administered being.
RECITALS
The
Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series as herein
provided.
This
Indenture is subject to the provisions of the Trust Indenture Act and the rules and regulations of the Commission promulgated thereunder
that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
All
things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW,
THEREFORE, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, each party agrees for
the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities, or of series thereof, issued under
this Indenture, as follows:
ARTICLE
1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1 Definitions.
For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
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(1)
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the
terms defined in this Article have the meanings assigned to them in this Article and include
the plural as well as the singular;
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(2)
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all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the United States of America, and, except
as otherwise herein expressly provided, the term “generally accepted accounting principles”
with respect to any computation required or permitted hereunder shall mean such accounting
principles in the United States of America as are generally accepted as of the time when
and for the period as to which such accounting principles are to be applied;
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(3)
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“or”
is not exclusive;
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(4)
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any
reference to an “Article” or a “Section” refers to
an Article or a Section, as the case may be, of this Indenture;
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(5)
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the
words “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
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(6)
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certain
terms, used principally in Article 6, are defined in Section 1.2.
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“Act”,
when used with respect to any Holder, has the meaning specified in Section 1.5.
“Additional
Amounts” means any additional amounts that are required by the express terms of a Security or by or pursuant to a Board Resolution,
under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Authenticating
Agent” means any Person, which may include the Company, authorized by the Trustee pursuant to Section 6.14 to act on
behalf of the Trustee to authenticate Securities of one or more series.
“Authorized
Newspaper” means a newspaper of general circulation in the New York, New York area, printed in the English language and customarily
published on each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in
an Authorized Newspaper are required hereunder, they may be made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or in different Authorized Newspapers.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Board”
or “Board of Directors” means either the board of directors of the Company or any duly authorized committee thereof.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business
Day,” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment, or the city in which the Corporate Trust Office is located, are authorized
or obligated by law or executive order to close.
“Commission”
means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Common
Shares” includes any shares of beneficial interest of any class of the Company which has no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company
Request” or “Company Order” means, respectively, a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its President or a Vice President, and by its principal financial officer,
its Controller, an Assistant Controller, its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
“Conversion
Event” has the meaning specified in Section 5.1.
“Corporate
Trust Office” means the corporate trust office of the Trustee at , Attention: Corporate Trust
Department, or such other office, designated by the Trustee by written notice to the Company, at which at any particular time its corporate
trust business concerning the transactions contemplated by this Indenture shall be administered.
“Covenant
Defeasance” has the meaning specified in Section 13.3.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Default”
means, with respect to the Securities of any series, any event, act or condition that is, or after notice or the passage of time or both
would be, an Event of Default with respect to Securities of such series.
“Defaulted
Interest” has the meaning specified in Section 3.7.
“Defeasance”
has the meaning specified in Section 13.2.
“Depositary”
means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency, or any successor, registered under the Exchange Act that is designated to
act as Depositary for such Securities as contemplated by Section 3.1.
“Dollar”
or “$” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall
be legal tender for the payment of public and private debts.
“Event
of Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Exchange
Rate” has the meaning specified in Section 3.2.
“Expiration
Date” has the meaning specified in Section 1.5.
“Global
Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section
2.4 (or such legend as may be specified as contemplated by Section 3.1 for such Securities).
“Holder”
means a Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established
as contemplated by Section 3.1; provided, however, that if at any time more than one Person is acting as Trustee under this Indenture
due to the appointment of one or more separate Trustees for any one or more separate series of Securities, “Indenture”
shall mean, with respect to such series of Securities for which any such Person is Trustee, 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 pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.1, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee, but to which such
person, as such Trustee, was not a party; provided, further that in the event that this Indenture is supplemented or amended by one or
more indentures supplemental hereto which are only applicable to certain series of Securities, the term “Indenture”
for a particular series of Securities shall exclude provisions or terms which relate solely to other series of Securities.
“Interest”,
when used with respect to an Original Issue Discount Security, which by its terms bears interest only after Maturity, means interest
payable after Maturity.
“Interest
Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment
Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time
to time.
“Judgment
Currency” has the meaning specified in Section 5.6.
“Maturity,”
when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, repurchase at the option
of the Holder, call for redemption or otherwise.
“Mortgage”
means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar
encumbrance.
“Notice
of Default” means a written notice of the kind specified in Section 5.1(4).
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, and by the principal financial officer, the Treasurer, the Controller, an Assistant Treasurer, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate
given pursuant to Section 10.4 shall be the principal executive, financial or accounting officer of the Company.
“Opinion
of Counsel” means a written opinion of legal counsel, who may be, without limitation, (a) an employee of the Company, or (b)
outside counsel designated by the Company, rendered, if applicable, in accordance with Section 314(c) of the Trust Indenture Act.
“Original
Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except
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(1)
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Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
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(2)
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Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
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(3)
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Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the Company; provided, however, that unless
otherwise provided with respect to any Securities of any series pursuant to Section 3.1,
in determining whether the Holders of the requisite principal amount of the Outstanding Securities
have given, made or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 5.2, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not determinable, the principal
amount of such Security which shall be deemed to be Outstanding shall be the amount as specified
or determined as contemplated by Section 3.1, (C) the principal amount of a Security
denominated in one or more non-U.S. dollar currencies or currency units which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the
manner provided as contemplated by Section 3.1, of the principal amount of such Security
(or, in the case of a Security described in clause (A) or (B) above, of the
amount determined as provided in such clause), and (D) Securities owned by the Company or
any other obligor upon the Securities or any Subsidiary of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any Subsidiary
of the Company or of such other obligor.
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“Paying
Agent” means any Person, which may include the Company, authorized by the Company to pay the principal of or any premium or
interest on, or any Additional Amounts with respect to, any one or more series of Securities on behalf of the Company.
“Periodic
Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including,
without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Maturity
thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.
“Person”
means any individual, corporation, limited liability company, partnership, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or other entity
of any kind.
“Place
of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and any
premium and interest on, or any Additional Amounts with respect to, the Securities of that series are payable as specified as contemplated
by Section 3.1 and 10.2.
“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 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
“Preferred
Shares” as applied to the shares of beneficial interest of the Company means shares of beneficial interest of any class or
classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of the Company, over Common Shares of the Company.
“Record
Date” means any Regular Record Date or Special Record Date.
“Redemption
Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to the
terms of such Security and this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to the
terms of such Security and this Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means any date specified
for that purpose as contemplated by Section 3.1, or, if not so specified, the first day of the calendar month of the month of
such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month, or the fifteenth day of the calendar
month preceding such Interest Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day
shall be a Business Day.
“Required
Currency” has the meaning specified in Section 5.6.
“Responsible
Officer” means, when used with respect to the Trustee, an officer of the Trustee in the Corporate Trust Office assigned and
duly authorized by the Trustee to administer the transactions contemplated by this Indenture, and also means, with respect to a particular
corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his such officer’s
knowledge of and familiarity with the particular subject.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any debentures, notes or other evidences of
indebtedness of the Company authenticated and delivered under this Indenture.
“Securities
Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security
Custodian” means, with respect to Securities of a series issued in global form, the Trustee for Securities of such series,
acting in its capacity as custodian with respect to the Securities of such series, or any successor entity thereto.
“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.5.
“Senior
Debt” of the Company, means with respect to the Securities of a series as contemplated by Section 3.1, the indebtedness
specified in such Securities or in the supplemental indenture pursuant to which such Securities are issued. Different series of Securities
may be subordinated to different Senior Debt, and one series of Securities may be subordinated to another series of Securities, all as
and to the extent provided in the relevant documentation for each issue of Securities.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated
Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is
due and payable.
“Subsidiary”
means any Person of which the Company at the time owns or controls, directly or indirectly, more than 50% of the shares of outstanding
stock or other equity interests having general voting power under ordinary circumstances to elect a majority of the board of directors,
managers or trustees, as the case may be, of such Person (irrespective of whether or not at the time stock of any other class or classes
or other equity interests of such corporation shall have or might have voting power by reason of the happening of any contingency).
“Trust
Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“United
States” means the United States of America (including the states thereof and the District of Columbia) and its “possessions”,
which include Puerto Rico, the U.S. Virgin Islands, Guam, American Somoa, Wake Island and the Northern Mariana Islands.
“United
States Alien” means any Person who, for United States federal income tax purposes, is a foreign corporation, a nonresident
alien individual, a nonresident alien or foreign fiduciary of an estate or trust, or a foreign partnership.
“U.S.
Government Obligation” means any security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at
the option of the issuer thereof.
“Vice
President”, when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title “vice president”.
“Yield
to Maturity” means, when used with respect to any Original Issue Discount Security, the yield to maturity, if any, set forth
on the face thereof.
Section
1.2 Incorporation by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the Securities.
All
terms used in this Indenture that are defined by the Trust Indenture Act, defined by a Trust Indenture Act reference to another statue
or defined by Commission rule under the Trust Indenture Act and not otherwise defined herein have the meanings assigned to them therein.
Section
1.3 Compliance Certificates and Opinions.
Except
as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by
an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to
Section 10.4) shall include,
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(1)
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a
statement that each Person signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
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(2)
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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;
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(3)
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a
statement that, in the opinion of each such Person, such Person has made such examination
or investigation as is necessary to enable such Person to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
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(4)
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a
statement as to whether, in the opinion of each such Person, such condition or covenant has
been complied with.
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Section
1.4 Form of Documents Delivered to Trustee.
In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such
certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any
certificate or opinion of an officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of accountants employed or retained by the Company unless such officer or counsel,
as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations as
to such accounting matters are erroneous.
Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section
1.5 Acts of Holders; Record Dates.
Any
request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. The Trustee shall promptly deliver to the Company copies of
all such instrument or instruments delivered to the Trustee. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution
or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a
capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
The
ownership, date of holding, principal amount and serial numbers of Securities shall be proved by the Security Register.
Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company in reliance thereon, whether
or not notation of such action is made upon such Security. Any consent or waiver of the Holder of any Security shall be irrevocable for
a period of six months after the date of execution thereof, but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent or other Act as to his Security or portion of his Security; provided, however, that
such revocation shall be effective only if the Trustee receives the notice of revocation before the date the Act becomes effective.
The
Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled
to give, make or take any request, demand, authorization, direction, vote, notice, consent, waiver or other action provided or permitted
by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record
date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request
or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities
of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action
by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.7.
The
Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled
to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.7(2) or (iv) any direction referred to in Section 5.12,
in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.7.
With
respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.7, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section 1.5, the party hereto which set such record date
shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant
to such appointment with regard to all or any part of such principal amount.
Section
1.6 Notices, etc., to Trustee and Company.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(1)
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the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing (or by facsimile transmissions, provided that
oral confirmation of receipt shall have been received) to or with the Trustee at its Corporate
Trust Office, or
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(2)
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the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and furnished by certified mail, return
receipt requested, personally delivered or furnished via overnight courier to the Company
addressed to it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to the Trustee by
the Company, Attention: Chief Financial Officer.
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Section
1.7 Notice to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or delivered by hand or overnight courier to each Holder affected by
such event, at its address as it appears in the Security Register (or while any Securities are represented by one or more Global Securities,
such notice shall be delivered to the Depositary for communication to entitled account Holders), not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of such notice. Neither the failure to mail or deliver by
hand or overnight courier any notice, nor any defect in any notice so mailed or delivered by hand or overnight courier, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.
In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice to
Holders of Securities by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to Holders of Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security, shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Section
1.8 Conflict with Trust Indenture Act.
If
any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act or another provision hereof required
to be included in this Indenture by any of the provisions of the Trust Indenture Act, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act, which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section
1.9 Effect of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section
1.10 Successors and Assigns.
All
covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether or not so expressed. All agreements
of the Trustee in this Indenture shall bind its successor.
Section
1.11 Separability Clause.
In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
Section
1.12 Benefits of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent or Security Registrar, the Holders, and any holders of Senior Debt, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section
1.13 Governing Law.
THIS
INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section
1.14 Legal Holidays.
Unless
otherwise provided with respect to any Security or Securities pursuant to Section 3.1, in any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, or Stated Maturity or Maturity or other payment date of any Security or the last date
on which a Holder has the right to convert a Security at a particular conversion price shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically
states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) or, if applicable
to a particular series of Securities, conversion need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption
Date, at the Stated Maturity or on such last day for conversion, as the case may be.
Section
1.15 Indenture and Securities Solely Corporate Obligations.
No
recourse for the payment of the principal of or premium, if any, or interest on any Security, 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, directly or indirectly,
against any incorporator, subscriber to the shares of beneficial interest (or capital stock or membership interests (as applicable)),
shareholder, stockholder, member, employee, agent, manager, officer, trustee or director, as such, past, present or future, of the Company
or the Trustee or of any predecessor or successor corporation, either directly or through the Company or the Trustee or any 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, any incorporator, subscriber to the shares
of beneficial interest (or capital stock or membership interests (as applicable)), shareholder, stockholder, member, employee, agent,
manager, officer, trustee or director, as such, of the Company or the Trustee or of any predecessor or successor corporation, 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,
subscriber to the shares of beneficial interest (or capital stock or membership interests (as applicable)), shareholder, stockholder,
member, employee, agent, manager, officer, trustee 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, any supplemental indenture hereto, any
certificate or other writing delivered in connection herewith, 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.
By accepting a Security, each Holder agrees to the provisions of this Section 1.15 and waives and releases all such liability.
Such waiver and release shall be part of the consideration for the issuance of the Securities.
Section
1.16 Indenture May be Executed in Counterparts.
This
instrument 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.
ARTICLE
2
SECURITY FORMS
Section
2.1 Forms Generally.
The
Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established
by or pursuant to one or more Board Resolutions and set forth in such Board Resolutions, or, to the extent established pursuant to, rather
than set forth in, such Board Resolutions, an Officers’ Certificate detailing such establishment, or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any applicable law or with any rules or regulations pursuant thereto, or any rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, or,
to the extent established pursuant to, rather than set forth in, such Board Resolutions, an Officers’ Certificate detailing such
establishment, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication
and delivery of such Securities. Any such Board Resolution, Officers’ Certificate or record of such action shall have attached
thereto a true and correct copy of the form of Security referred to therein approved by or pursuant to such Board Resolution or Officers’
Certificate.
The
definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section
2.2 Form of Trustee’s Certificate of Authentication.
Unless
otherwise provided in one or more Board Resolutions, Officers’ Certificate, or indentures supplemental hereto, the Trustee’s
certificates of authentication shall be in substantially the following form:
This
is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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[Trustee],
as Trustee
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By:
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Authorized
Officer
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Section
2.3 Global Securities.
If
the Company shall establish pursuant to Section 3.1 that the Securities of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with Section
3.3 and the Company Order delivered to the Trustee thereunder, authenticate and deliver such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) may provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect exchanges, (iii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iv) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary’s instruction and (v) shall bear a legend in accordance with the requirements of the Depositary.
Notwithstanding
any other provision of this Section or of Section 3.5, except as contemplated by the provisions of this Section 2.3 below,
unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual Securities,
a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.5, only to a nominee of
the Depositary for such Global Security, or to the Depositary, or to a successor Depositary for such Global Security selected or approved
by the Company, or to a nominee of such successor Depositary.
If
at any time the Depositary for a Global Security notifies the Company that it is unwilling or unable to continue as the Depositary for
such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing
under the Exchange Act, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global Security is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of Securities of such series in the form of definitive certificates in exchange for such Global Security,
will authenticate and deliver Securities of such series in the form of definitive certificates of like tenor and terms in an aggregate
principal amount equal to the principal amount of the Global Security in exchange for such Global Security. Such Securities will be issued
to and registered in the name of such Person or Persons as are specified by the Depositary.
The
Company may at any time and in its sole discretion determine that the Securities of any series issued or issuable in the form of one
or more Global Securities shall no longer be represented by such Global Security or Securities. In any such event the Company will execute,
and the Trustee, upon receipt of a Company Request for the authentication and delivery of Securities in the form of definitive certificates
in exchange in whole or in part for such Global Security, will authenticate and deliver without service charge to each Person specified
by the Depositary Securities in the form of definitive certificates of like tenor and terms in an aggregate principal amount equal to
the principal amount of such Global Security representing such series, or the aggregate principal amount of such Global Securities representing
such series, in exchange for such Global Security or Securities.
If
specified by the Company pursuant to Section 3.1 with respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for Securities in the form
of definitive certificates of like tenor and terms on such terms as are acceptable to the Company and such Depositary. Thereupon the
Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (A) to each Person specified by such Depositary
a new Security or Securities of the same series of like tenor and terms and any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security and (B) to such
Depositary a new Global Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
In
any exchange provided for in any of the preceding three paragraphs, the Company shall execute and the Trustee shall authenticate and
deliver Securities in the form of definitive certificates in authorized denominations. Upon the exchange of the entire principal amount
of a Global Security for Securities in the form of definitive certificates, such Global Security shall be canceled by the Trustee. Except
as provided in the immediately preceding subparagraph, Securities issued in exchange for a Global Security pursuant to this Section
2.3 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, acting pursuant
to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. Provided that the Company and the
Trustee have so agreed, the Trustee shall deliver such Securities to the Persons in whose names the Securities are so to be registered.
Any
endorsement of a Global Security to reflect the principal amount thereof, or any increase or decrease in such principal amount, or changes
in the rights of Holders of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as
shall be specified in or pursuant to any applicable letter of representations or other arrangement entered into with, or procedures of,
the Depositary with respect to such Global Security or in the Company Order delivered or to be delivered pursuant to Section 3.3
or Section 3.4 with respect thereto. Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, the
Trustee shall deliver and redeliver any such Global Security in the manner and upon instructions given by the Person or Persons specified
in or pursuant to any applicable letter of representations or other arrangement entered into with, or procedures of, the Depositary with
respect to such Global Security or in any applicable Company Order. If a Company Order pursuant to Section 3.3 or Section 3.4
is so delivered, any instructions by the Company with respect to such Global Security contained therein shall be in writing but need
not be accompanied by or contained in an Officers’ Certificate and need not be accompanied by an Opinion of Counsel.
The
Depositary or, if there be one, its nominee, shall be the Holder of a Global Security for all purposes under this Indenture; and beneficial
owners with respect to such Global Security shall hold their interests pursuant to applicable procedures of such Depositary. The Company,
the Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with such Depositary for all purposes of this Indenture
relating to such Global Security (including the payment of principal, premium, if any, and interest and any Additional Amounts with respect
to such Global Security and the giving of instructions or directions by or to the beneficial owners of such Global Security as the sole
Holder of such Global Security and shall have no obligations to the beneficial owners thereof (including any direct or indirect participants
in such Depositary). None of the Company, the Trustee, any Paying Agent or the Security Registrar shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security in or pursuant
to any applicable letter of representations or other arrangement entered into with, or procedures of, the Depositary with respect to
such Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section
2.4 Form of Legend for Global Securities.
Unless
otherwise specified as contemplated by Section 3.1 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section
2.5 Form of Face of Security.
[Insert
any legend required by the Internal Revenue Code and the regulations thereunder.]
FAT
BRANDS INC.
FAT
Brands Inc., a corporation duly organized and existing under the laws of Delaware (herein called the “Company”, which
term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns,
the principal sum of Dollars on
[if the Security is to bear
interest prior to Maturity, insert -, and to pay interest thereon from
or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, semi-annually
on and in each year, commencing
at the rate of
% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert -, and at the rate of % per annum on any
overdue principal and premium and on any overdue installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which
shall be the or (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[If
the Security is not to bear interest prior to Maturity, insert -, The principal of this Security shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal
of this Security shall bear interest at the rate of % per annum, which shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear interest at the rate of % per
annum, which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment
of the principal of (and premium, if any) and [if applicable, insert - any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in , in such
coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [if
applicable, insert -; provided, however, that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].
Reference
is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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Dated:
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FAT
BRANDS INC.
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By:
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Name:
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Title:
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Attest:
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Section
2.6 Form of Reverse of Security.
This
Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be
issued in one or more series under an Indenture, dated as of , 20 (herein
called the “Indenture”), between the Company and , as Trustee (herein called the “Trustee”,
which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Debt, and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable,
insert -, limited in aggregate principal amount to $ ].
[If
applicable, insert - Subject to and upon compliance with the provisions of the Indenture, the Holder of this Security is entitled,
at his option, at any time on or before the close of business on , or in
case this Security or a portion hereof is called for redemption, then in respect of this Security or such portion hereof until and including,
but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the 10th calendar day
before the Redemption Date, to convert this Security (or any portion of the principal amount hereof which is $1,000 or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid and non-assessable shares (calculated as to each conversion
to the nearest 1/100 of a share) of Common Stock of the Company at a conversion price per share of Common Stock equal to $ per
each share of Common Stock (or at the current adjusted conversion price if an adjustment has been made as provided in the Indenture)
by surrender of this Security, duly endorsed or assigned to the Company or in blank, to the Company at its office or agency in ,
accompanied by written notice to the Company that the Holder hereof elects to convert this Security, or if less than the entire principal
amount hereof is to be converted, the portion hereof to be converted, and, in case such surrender shall be made during the period from
the close of business on any Regular Record Date next preceding any Interest Payment Date to the opening of business on such Interest
Payment Date (unless this Security or the portion thereof being converted has been called for redemption on a Redemption Date within
such period), also accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of this Security then being converted. Subject to the aforesaid requirement for payment and, in
the case of a conversion after the Regular Record Date next preceding any Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any Predecessor Security) of record at such Regular Record Date to receive an installment
of interest (with certain exceptions provided in the Indenture), no payment or adjustment is to be made on conversion for interest accrued
hereon or for dividends on the Common Stock issued on conversion. No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Indenture.
The conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party or the transfer of substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a holder of the number of shares of Common Stock into which this Security
might have been converted immediately prior to such consolidation, merger or transfer (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the kind and amount received per share by a plurality of non-electing shares).]
[If
applicable, insert - The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail,(or
while any Securities are represented by one or more Global Notes, such notice shall be delivered to the Depositary for communication
to entitled account Holders) [if applicable, insert - (1) on in any year commencing with the year
and ending with the year 20 through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount, and (2)] at any time [if applicable, insert - on or after ,
20 ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert - on or before , %, and
if redeemed] during the 12-month period beginning of the years indicated,
and
thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert
- (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert - The Securities of this series are subject to redemption upon not less than 30 days’ notice by mail
(or while any Securities are represented by one or more Global Notes, such notice shall be delivered to the Depositary for
communication to entitled account Holders), (1)
on in any year commencing with
the year and ending with the year
through operation of the sinking
fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [if applicable, insert - on or after
], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning of
the years
indicated,
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Year
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Redemption Price For Redemption Otherwise
Than Through Operation
of the Sinking Fund
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and
thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert - The sinking fund for this series provides for the redemption on in each year beginning
with the year and ending with the year of [if applicable, insert -
not less than $ (“mandatory sinking fund”) and not more than] $ aggregate
principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if
applicable, insert mandatory] sinking fund payments [if applicable, insert and Securities surrendered for conversion] may be credited
against subsequent [if applicable, insert - mandatory] sinking fund payments otherwise required
to be made [if applicable, insert - in the inverse order in which they become due].
[If
the Security is subject to redemption of any kind, insert - In the event of redemption or conversion of this Security in part only,
a new Security or Securities of this series and of like tenor for the unredeemed or unconverted portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
The
indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take action as may be necessary or appropriate to effectuate the subordination so provided, and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes.
[If
applicable, insert - The Indenture contains provisions for defeasance at any time of [(1) the entire indebtedness of this Security
or (2)] certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.]
[If
the Security is not an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If
the Security is an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to-insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest all of the
Company’s obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall
terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company
and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As
provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series,
the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
Subject
to the rights of holders of Senior Debt, as set forth in the Indenture, no other reference herein to the Indenture and no other provision
of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As
provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the
Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where
the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The
Securities of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior
to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All
terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE
3
THE SECURITIES
Section
3.1 Amount Unlimited; Issuable in Series.
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. There shall be established in or pursuant to a Board Resolution and, subject to Section
3.3, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
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(1)
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the
title of the Securities of the series (which shall distinguish the Securities of the series
from Securities of any other series);
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(2)
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any
limit upon the aggregate principal amount of the Securities of the series which 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 the series
pursuant to Section 2.3, 3.4, 3.5, 3.6, 9.6 or 11.7
and except for any Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder);
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(3)
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the
Person to whom any interest on a Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
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(4)
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the
date or dates on which the principal of and premium, if any, on any Securities of the series
is payable or the method of determination and/or extension of such date or dates; and the
amount or amounts of such payments of principal and premium, if any, or the method of determination
thereof;
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(5)
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the
rate or rates (which may be fixed or variable), at which any Securities of the series shall
bear interest, if any, whether and under what circumstances Additional Amounts with respect
to such Securities shall be payable, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable and, if other
that as set forth in Section 1.1, the Regular Record Date for any such interest payable
on any Interest Payment Date (or the method for determining the dates and rates);
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(6)
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whether
any of such Securities will be subject to certain optional interest rate reset provisions;
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(7)
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the
place or places where the principal of and any premium and interest on, or any Additional
Amounts with respect to, the Securities of the series shall be payable, where the Securities
of such series may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of such series and this Indenture
may be served, and the method of such payment, if by wire transfer, mail or other means;
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(8)
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(a)
the period or periods within which, the price or prices at which, the currency or currencies
(including currency units) and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the Company, (b) if other than
as provided in Section 11.3, the manner in which the particular Securities of such
series (if less than all Securities of such series are to be redeemed) are to be selected
for redemption, and (c) if other than by a Board Resolution, the manner in which any election
by the Company to redeem the Securities shall be evidenced;
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(9)
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the
Senior Debt to which the Securities of such series are subordinated, and the terms of such
subordination;
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(10)
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the
obligation, if any, of the Company to redeem, purchase or repay any Securities of the series
pursuant to any sinking fund, amortization or analogous provisions or upon the happening
of a specified event or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which any Securities
of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation and any provisions for the remarketing of such Securities;
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(11)
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if
other than denominations of $1,000 and any integral multiple thereof, the denominations in
which any Securities of the series shall be issuable;
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(12)
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if
other than the Trustee, the identity of the Securities Registrar and/or the Paying Agent;
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(13)
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if
the amount of principal of or any premium or interest on or other payments, if any, on any
Securities of the series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on the price of one or
more commodities, derivatives or securities; one or more securities, derivatives or commodities
exchange indices or other indices; a currency or currencies (including currency unit or units)
other than that in which the Securities of the series are denominated or designated to be
payable; or any other variable or the relationship between any variables or combination of
variables), the index, formula or other method by which such amounts shall be determined;
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(14)
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if
other than the currency of the United States of America, the currency, currencies or currency
units (including composite currencies) in which the principal of or any premium or interest
on, or any Additional Amounts with respect to, any Securities of the series shall be payable
and the manner of determining the equivalent thereof in the currency of the United States
of America for any purpose, including for purposes of the definition of “Outstanding”
in Section 1.1;
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(15)
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if
the principal of or any premium or interest on, or any Additional Amounts with respect to,
any Securities of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as to which such election
is made shall be payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in which such amount
shall be determined);
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(16)
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if
other than the entire principal amount thereof, the portion of the principal amount of any
Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2;
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(17)
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if
the principal amount payable at the Stated Maturity of any Securities of the series will
not be determinable as of any one or more dates prior to the Stated Maturity, the amount
which shall be deemed to be the principal amount of such Securities as of any such date for
any purpose thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall be deemed
to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be determined);
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(18)
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if
applicable, that the Securities of the series, in whole or any specified part, shall be defeasible
pursuant to Section 13.2 or Section 13.3 or both such Sections, or any other
defeasance provisions applicable to any Securities of the series, and, if other than by a
Board Resolution, the manner in which any election by the Company to defease such Securities
shall be evidenced;
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(19)
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the
terms, if any, upon which Securities of the series may be convertible into or exchanged for
other Securities, Common Shares, Preferred Shares, other debt securities, warrants to purchase
any of the foregoing, or other securities of any kind of the Company or any other obligor
or any other property, and the terms and conditions upon which the conversion or exchange
shall be effected, including the initial conversion or exchange price or rate, the conversion
or exchange period, and any other additional provisions;
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(20)
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if
applicable, that any Securities of the series shall be issuable in whole or in part in the
form of one or more Global Securities and, in such case, the respective Depositaries for
such Global Securities, the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 2.4;
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(21)
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any
deletions, modifications of or additions to the definitions set forth in Section 1.1,
the Events of Default which apply to any Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 5.2;
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(22)
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any
addition to, deletion of or change in the covenants set forth in Article 10 which
applies to Securities of the series;
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(23)
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any
Authenticating Agents, Paying Agents, Security Registrars or such other agents necessary
in connection with the issuance of the Securities of such series, including, without limitation,
exchange rate agents and calculation agents;
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(24)
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if
applicable, the terms of any Mortgage that will be provided for a series of Securities, including
any provisions regarding the circumstances under which collateral may be released or substituted;
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(25)
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if
applicable, the terms of any guaranties for the Securities, including the terms of any subordination
of such guaranties, and any circumstances under which there may be additional obligors on
the Securities;
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(26)
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provisions,
if any, granting special rights to the Holders of Securities of the series upon the occurrence
of such events as may be specified;
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(27)
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whether
Securities of the series shall be issuable in registered form or bearer form (registrable
or not registrable as to principal, and with or without interest coupons), or both, and any
restrictions applicable to the offering, sale or delivery of bearer securities and the terms
upon which bearer Securities of a series may be exchanged for registered Securities of the
same series and vice versa;
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(28)
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the
forms of the Securities of the series;
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(29)
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any
terms which may be related to warrants, options or other rights to purchase and sell securities
issued by the Company in connection with, or for the purchase of, Securities of such series,
including whether and under what circumstances the Securities of any series may be used toward
the exercise price of any such warrants, options or other rights;
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(30)
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if
the Securities of the series will be governed by, and the extent to which such Securities
will be governed by, any law other than the laws of the state of New York;
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(31)
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any
other terms of the series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.1(5)).
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All
Securities of any one series need not be identical but may vary as may be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officers’ Certificate referred
to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.
Section
3.2 Denominations.
Except
as specified as contemplated by Section 3.1, the Securities of each series shall be issuable only in registered form without coupons.
The Securities of such series shall be issuable only in such denominations as shall be specified as contemplated by Section 3.1.
In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof. Unless otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, any Securities of a series denominated in a currency other than Dollars shall be issuable in
denominations that are the equivalent, as determined by the Company by reference to the noon buying rate in The City of New York for
cable transfers for such currency (“Exchange Rate”), as such rate is reported or otherwise made available by the Federal
Reserve Bank of New York, on the applicable issue date for such Securities, of $1,000 and any integral multiple thereof.
Section
3.3 Execution, Authentication, Delivery and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its principal financial
officer, its President or one of its Vice Presidents, and attested by its Treasurer, its Secretary or one of its Assistant Treasurers
or Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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 Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case
of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance
with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company
or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company
Order delivered to the Trustee prior to the time of the first authentication of Securities of such series. Each Security shall be dated
the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’
Certificate. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions
or any other method permitted by Sections 2.1 and 3.1, 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
6.1) shall be fully protected in relying upon, a copy of such Board Resolution, the Officers’ Certificate setting forth the
terms of the series and an Opinion of Counsel, with such Opinion of Counsel stating,
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(1)
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if
the form or terms of such Securities have been established by or pursuant to Board Resolution
or any other method permitted by Sections 2.1 and 3.1, that such form or terms
have been, or in the case of Securities of a series offered in a Periodic Offering will be,
established in conformity with the provisions of this Indenture, subject in the case of Securities
offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and
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(2)
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that
such Securities, when authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions, exceptions and qualifications specified in such
Opinion of Counsel, will constitute legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, except as such enforcement is subject to the
effect of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other laws
relating to or affecting creditors’ rights and (ii) general principles of equity (regardless
of whether such enforcement is considered in a proceeding in equity or at law).
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Such
Opinion of Counsel need express no opinion as to the enforceability of Section 6.7 or as to whether a court in the United States
would render a money judgment in a currency other than that of the United States. Notwithstanding the provisions of Section 3.1
and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary
to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Notwithstanding
that such form or terms have been so established, the Trustee shall have the right to decline to authenticate such Securities if, in
the written opinion of counsel to the Trustee (which counsel may be an employee of the Trustee), such action may not lawfully be taken
or if the Trustee in good faith by its board of trustees or trustees, executive committee or a trust committee of directors, trustees
or vice presidents shall determine that such action would expose the Trustee to personal liability to Holders of any Securities then
outstanding.
With
respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in connection
with the first authentication of Securities of such series.
No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or an Authenticating Agent
by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The
Company in issuing Securities may use “CUSIP” numbers (if then generally in use), and if so, the Trustee may use the CUSIP
numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation
is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Securities, that reliance may be placed
only on the other identification numbers printed on the Securities, and any such redemption or exchange shall not be affected by any
defect or omission of such CUSIP numbers. The Company will promptly notify the Trustee of any change in CUSIP numbers known to an Officer
of the Company. Neither the Company nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on
any Security, check, advice of payment or redemption notice, and any such document may contain a statement to the effect that CUSIP numbers
have been assigned by an independent service for convenience of reference and that neither the Company nor the Trustee shall be liable
for any inaccuracy in such numbers.
Section
3.4 Temporary Securities.
Pending
the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution
of such Securities. All or any portion of the temporary Securities of a series may be Global Securities.
If
temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable
delay. Except in the case of temporary Securities that are Global Securities, each of which shall be exchanged in accordance with the
provisions thereof, after the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such
series and tenor, except as otherwise specified as contemplated by Section 3.1.
Section
3.5 Registration; Registration of Transfer and Exchange.
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the Company
in accordance with Section 9.2 in a Place of Payment or in such other place or medium as may be specified pursuant to Section
3.1 a register for each series of Securities (each register maintained in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities of such series and of transfers of Securities
of such series. Unless otherwise contemplated by Section 3.1, the Trustee is hereby appointed “Security Registrar”
for the purpose of registering Securities and transfers of Securities, and for the purpose of maintaining the Security Register in respect
thereof, as herein provided.
Except
as set forth in Section 2.3 or as may be provided pursuant to Section 3.1, upon surrender for registration of transfer
of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute and
deliver a Company Order requesting the Trustee to authenticate and deliver, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
Unless
otherwise provided as contemplated by Section 3.1, at the option of the Holder, Securities of any series (other than Global Securities)
may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency, and upon payment, if the Company shall so require, of the
charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
All
Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, Security Registrar
or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed, by the Holder thereof or its attorney duly authorized in writing.
Unless
otherwise provided as contemplated by Section 3.1, no service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6
or 11.7 not involving any transfer.
Unless
otherwise provided as contemplated by Section 3.1, if the Securities of any series (or of any series and specified tenor) are
to be redeemed in whole or in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities
of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days
before the day of the sending of a notice of redemption of any such Securities selected for redemption under Section 11.3 and
ending at the close of business on the day of such delivery, or (B) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Unless
otherwise provided as contemplated by Section 3.1, the Company shall not be required to register the transfer or exchange of Securities
between a Record Date and the next succeeding Interest Payment Date.
Section
3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If
any mutilated Security is surrendered to the Trustee, the Company shall execute and deliver a Company Order requesting the Trustee to
authenticate and deliver, and the Trustee shall authenticate and deliver, in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company
and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon the Company’s
request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding
the preceding paragraph, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon
the issuance of any new Security under this Section 3.6, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every
new Security of any series issued pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The
provisions of this Section 3.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
3.7 Payment of Interest; Interest Rights Preserved.
Except
as otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, interest on any Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest
at the office or agency maintained for such purpose pursuant to Section 9.2; provided, however, that at the option of the Company,
interest on any series of Registered Securities that bear interest may be paid (i) by check mailed to the address of the Person entitled
thereto as it shall appear on the Security Register of such series (unless, with respect to a Global Security, the rules of the Depositary
require payment of such amount by wire transfer) or (ii) by wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register of such series.
Unless
otherwise provided as contemplated by Section 3.1, any interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may
be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest (and
interest thereon, if any) proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest (and interest thereon, if any) 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
(and interest thereon, if any) as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the 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 given to each Holder of Securities of such series in the manner set forth in Section
1.7, not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense
of the Company, cause a similar notice to be published at least once in an Authorized Newspaper, but such publication shall not be a
condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest (and
interest thereon, if any) and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The
Company may make payment of any Defaulted Interest (and interest thereon, if any) on the Securities of any series 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.
Subject
to the foregoing provisions of this Section 3.7, each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
Section
3.8 Persons Deemed Owners.
Prior
to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 3.7) any interest and any Additional Amounts or other payments on such Security and
for all other purposes whatsoever, whether or not such Security shall be overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Except
as otherwise specified as contemplated by Section 3.1, none of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company or the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary
(or its nominee), as a Holder, with respect to such Global Security or impair, as between such Depositary and owners of beneficial interests
in such Global Security, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee)
as Holder of such Global Security.
Section
3.9 Cancellation.
The
Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee)
for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered
shall be promptly canceled by the Trustee. The Security Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture or as otherwise specified as contemplated by Section 3.1. On request of the Company at the time of
surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. In the absence of such request, all canceled
Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section
3.10 Computation of Interest.
Except
as otherwise specified as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE
4
SATISFACTION
AND DISCHARGE
Section
4.1 Satisfaction and Discharge of Indenture.
This
Indenture shall upon Company Request cease to be of further effect with respect to Securities of or within any series (except as to any
surviving rights of registration of transfer or exchange of such Securities and replacement of such Securities which may have been lost,
stolen or mutilated as herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
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(1)
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either
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(A)
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all
such Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Trustee or the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or
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(B)
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all
such Securities not theretofore delivered to the Trustee for cancellation
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(i)
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have
become due and payable, or
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(ii)
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will
become due and payable at their Stated Maturity within one year, or
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(iii)
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are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of clause (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest and any Additional Amounts to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
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(2)
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the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities
of such series;
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(3)
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the
Company has complied with any other conditions specified pursuant to Section 3.1 to be applicable to the Outstanding Securities
of such series; and
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(4)
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the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture as to such Securities have been complied with.
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If
any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the trust agreement evidencing the trust referred to in subclause
(B) of clause (1) of this Section 4.1 shall provide therefore and the Company shall make such arrangements as are satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section 4.1, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.
Section
4.2 Application of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall
be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and any premium and interest or Additional Amounts for whose payment such money has been deposited with the
Trustee.
Section
4.3 Reinstatement.
If
the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 4.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture with
respect to the Securities of such series and the Securities of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.1 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 4.1; provided, however, that if the Company has made any payment of principal of, premium
(if any) or interest on, or any Additional Amounts with respect to, any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE
5
REMEDIES
Section
5.1 Events of Default.
“Event
of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be occasioned by the subordination provisions applicable to any Securities
or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular series or it is specifically
deleted or modified in the Board Resolution, supplemental indenture, Officers’ Certificate establishing such series, or form of
Security for such series:
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(1)
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default
in the payment of any interest on, or any Additional Amounts with respect to, any Security of that series when it becomes due and
payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company
with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or
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(2)
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default
in the payment of the principal of or any premium on any Security of that series at its Maturity; or
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(3)
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default
in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default
for a period of 30 days; or
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(4)
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default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section 5.1 specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
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(5)
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the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60 consecutive days; or
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(6)
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the
commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
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(7)
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any
other Event of Default provided with respect to Securities of that series in the Board Resolution, supplemental indenture or Officers’
Certificate establishing that series.
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Notwithstanding
the foregoing provisions of this Section 5.1, if the principal of, premium (if any) or any interest on, or any Additional Amounts
with respect to, any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency
or currencies are not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances
beyond the control of the Company (a “Conversion Event”), the Company will be entitled to satisfy its obligations
to Holders of the Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such
other currency, as determined by the Company by reference to the Exchange Rate, as such Exchange Rate is certified for customs purposes
by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 5.1, any payment made under such circumstances
in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture.
Promptly
after the occurrence of a Conversion Event with respect to the Securities of any series, the Company shall give written notice thereof
to the Trustee; and the Trustee, promptly after receipt of such notice, shall give notice thereof in the manner provided in Section
1.7 to the Holders of such series. Promptly after the making of any payment in Dollars as a result of a Conversion Event with respect
to the Securities of any series, the Company shall give notice in the manner provided in Section 1.7 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of such payments.
Section
5.2 Acceleration of Maturity; Rescission and Annulment.
Unless
the Board Resolution, supplemental indenture or Officers’ Certificate establishing such series provides otherwise, if an Event
of Default (other than an Event of Default specified in Section 5.1(5) or 5.1(6)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified
by the terms thereof) and premium, if any, together with accrued and unpaid interest, if any, thereon, and Additional Amounts, if any,
with respect thereto, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal amount (or specified amount) and premium, if any, together with accrued and unpaid interest,
if any, thereon, and Additional Amounts, if any, with respect thereto, shall become immediately due and payable. Unless the Board Resolution,
supplemental indenture or Officers’ Certificate establishing such series provides otherwise, if an Event of Default specified in
Section 5.1(5) or 5.1(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount
of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof) and premium, if any, together with accrued and unpaid interest,
if any, thereon, and Additional Amounts, if any, with respect thereto, shall automatically, and without any declaration or other action
on the part of the Trustee or any Holder, become immediately due and payable.
At
any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article 5 provided, the Holders of a majority
in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
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(1)
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the
Company has paid or deposited with the Trustee a sum sufficient to pay
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(A)
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all
overdue interest on, and any Additional Amounts with respect to, all Securities of that series (or of all series, as the case may
be),
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(B)
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the
principal of or premium (if any) on any Securities of that series (or of all series, as the case may be) which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities (in the
case of Original Issue Discount Securities, the Securities’ Yield to Maturity),
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(C)
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to
the extent that payment of such interest is lawful, interest upon overdue interest and any Additional Amounts at the rate or rates
prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities’ Yield to Maturity),
and
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(D)
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all
sums paid or advanced by the Trustee hereunder, the compensation, expenses, disbursements and advances due to Trustee under Section
6.7, and all other amounts due under Section 6.7;
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(2)
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all
Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the nonpayment of
the principal of Securities of that series (or of all series, as the case may be) which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13; and
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(3)
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the
rescission would not conflict with any final judgment or decree of a court of competent jurisdiction.
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No
such rescission shall affect any subsequent default or impair any right consequent thereon.
Section
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if
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(1)
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default
is made in the payment of any interest on, or any Additional Amounts with respect to, any Security of any series when such interest
or Additional Amounts shall become due and payable and such default continues for a period of 30 days, or
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(2)
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default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest on, and Additional Amounts with respect to, and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest or Additional
Amounts, at the rate or rates prescribed therefor in such Securities (or in the case of Original Issue Discount Securities, the Securities’
Yield to Maturity), and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and all other
amounts due the Trustee under Section 6.7.
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If
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
In
addition, if any other Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion
proceed, in its own name and as trustee of an express trust, to protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section
5.4 Trustee May File Proofs of Claim.
In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of Original Issue
Discount Securities) of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal of, premium (if any), interest
on, or any Additional Amounts with respect to, such Securities) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
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(1)
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to
file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
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(2)
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to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
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No
provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may,
on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
Section
5.5 Trustee May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding may be instituted by the
Trustee in its own name as trustee of an express trust.
Section
5.6 Application of Money Collected.
Subject
to the subordination provisions applicable to any series of Securities, any money collected by the Trustee pursuant to this Article shall
be applied and paid in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money
on account of principal or any premium or interest on, or any Additional Amounts with respect to, the Securities, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST:
To the payment of all amounts due the Trustee under Section 6.7 in connection with such series of Securities in respect of which
money or other property is collected;
SECOND:
Subject to the terms of any subordination entered into as contemplated by Section 3.1, to the payment of the amounts then due
and unpaid for principal of and any premium, if any, and interest on, and any Additional Amounts with respect to, the Securities 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 any premium, if any, interest on and Additional Amounts, respectively;
and
THIRD:
The balance, if any, to the Company or any other Person or Persons entitled thereto.
To
the fullest extent allowed under applicable law, if for the purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, premium (if any) or interest on, or any Additional Amounts with respect to, the
Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day in The City of New York next preceding
that on which final judgment is given. Neither the Company nor the Trustee shall be liable for any shortfall nor shall any of them benefit
from any windfall in payments to Holders of Securities under this Section 5.6 caused by a change in exchange rates between the
time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section 5.6 to Holders of Securities, but payment of such judgment shall discharge all amounts
owed by the Company on the claim or claims underlying such judgment.
Section
5.7 Limitation on Suits.
Subject
to Section 5.8, no Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
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(1)
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an
Event of Default with respect to such series of Securities shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
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(2)
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the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
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(3)
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such
Holder or Holders have offered and, if requested, provided to the Trustee reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
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(4)
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the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
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(5)
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no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series (or of all series, as the case may be).
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No
one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over
any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section
5.8 Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding
any other provision in this Indenture, the right of any Holder of any Security to receive payment of the principal of and any premium
and (subject to Section 3.7) interest on, or any Additional Amounts with respect to, such Security on the Stated Maturity or Stated
Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment after the respective due dates, shall not be impaired without the consent of such Holder.
Section
5.9 Restoration of Rights and Remedies.
If
the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section
5.10 Rights and Remedies Cumulative.
Except
as otherwise provided in Section 5.7 or with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities
in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section
5.11 Delay or Omission Not Waiver.
No
delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article 5 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section
5.12 Control by Holders.
With
respect to Securities of any series, the Holders of a majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in clause (1), (2),
(3), (4) or (7) of Section 5.1, and with respect to all Securities the Holders of a majority in principal
amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in
clause (5) or (6) of Section 5.1, provided that in each such case.
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(1)
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the
Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Holders
not taking part in such direction (it being understood that the Trustee shall not have an affirmative duty to ascertain whether such
direction is unjustly prejudicial to such Holders), and
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(2)
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the
Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction or this Indenture.
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Section
5.13 Waiver of Past Defaults.
Subject
to Section 5.8 and Section 9.2, the Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default
described in clause (1), (2), (3), (4) or (7) of Section 5.1 hereunder with respect to such
series and its consequences, and the Holders of a majority in principal amount of all Outstanding Securities may on behalf of the Holders
of all Securities waive any Event of Default described in clause (5) or (6) of Section 5.1 hereunder and its consequences,
except a default
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(1)
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in
the payment of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Security as and when
the same shall become due and payable by the terms thereof, otherwise than by acceleration (unless such default has been cured as
provided herein), or
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(2)
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in
respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
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Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section
5.14 Undertaking for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that in any
suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that
the provisions of this Section 5.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding
Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the
redemption date).
ARTICLE
6
THE
TRUSTEE
Section
6.1 Certain Duties and Responsibilities.
(1)
If an Event of Default has occurred and is continuing, the Trustee shall exercise 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 individual would exercise or use under the circumstances in
the conduct of his or her own affairs.
(2)
Except during the continuance of an Event of Default:
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(A)
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The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
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(B)
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In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming
to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’
Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).
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(3)
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
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(A)
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This
paragraph does not limit the effect of clause (2) of this Section 6.1.
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(B)
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The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
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(C)
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The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of
any series in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such
series 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 such series.
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(4) Every provision of this Indenture that in any way relates to the Trustee is subject to clauses (1), (2) and (3) of this Section 6.1.
(5) The Trustee may refuse to perform any duty or to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of Holder or Holders pursuant to this Indenture, unless such Holder or Holders shall have offered and, if requested, provided to the Trustee security or indemnity reasonable in the sole discretion of the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(6) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
(7)
The Paying Agent, the Security Registrar and any Authenticating Agent shall be entitled to the protections, immunities and standard of
care as are set forth in clauses (1), (2) and (3) of this Section 6.1 with respect to the Trustee.
Section
6.2 Notice of Defaults.
If
a default occurs hereunder and is continuing with respect to Securities of any series and it is known to a Responsible Officer of the
Trustee, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the
Trust Indenture Act; provided, however, that except in the case of a default in the payment of principal of (or premium, if any) or interest
on, or any Additional Amounts with respect to, any Securities of such series or in the payment of any sinking fund installment, the Trustee
shall be protected in withholding such notice if and so long as the board of trustees, 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 interests
of the holders of Securities of such series.
Section
6.3 Certain Rights of Trustee.
Subject
to the provisions of Section 6.1:
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(1)
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the
Trustee may rely and shall be protected in acting or refraining from acting upon, whether in its original or facsimile form, any
resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
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(2)
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the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or attorney, at the sole reasonable cost of the Company and
shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
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(3)
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any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (unless
other evidence is specifically required herein), and any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
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(4)
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whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed), in the absence
of bad faith on its part, is entitled to and may rely upon an Officers’ Certificate;
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(5)
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the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(6)
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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.
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(7)
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Except
as otherwise expressly provided for in this Indenture, the Trustee shall have no duty to inquire as to the performance of the Company’s
covenants in this Indenture and the Trustee shall not be charged with knowledge of any default or Event of Default with respect to
the Securities of any series for which it is acting as Trustee unless either (1) a Responsible Officer shall have actual knowledge
of such default or Event of Default or (2) written notice of such default or Event of Default shall have been given to the Trustee
by the Company or any other obligor on such Securities or by any Holder of such Securities;
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(8)
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the
Trustee shall not be liable for any action taken, suffered or omitted by it believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
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(9)
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the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture, provided that the Trustee reasonably believes that the last such
certificate received from the Company or currently on file is no longer accurate;
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(10)
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In
no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action; and
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(11)
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in
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss
or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
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Section
6.4 Not Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Security Registrar, Paying Agent or Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Security Registrar, Paying Agent or Authenticating Agent shall be accountable for the use or application by the Company
of Securities or the proceeds thereof.
Section
6.5 May Hold Securities and Act as Trustee under Other Indentures.
The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
Subject
to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall prohibit the Trustee from becoming and acting
as trustee under other indentures under which other securities, or certificates of interest of participation in other securities, of
the Company are outstanding in the same manner as if it were not Trustee hereunder.
Section
6.6 Money Held in Trust.
Subject
to the provisions of Sections 10.3 and 13.5, all moneys received by the Trustee shall, until used or applied, as provided
herein, be held in trust uninvested for the purposes for which they were received. Money held by the Trustee in trust hereunder 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
money received by it hereunder except as otherwise agreed in writing with the Company. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid by the Company from time to time upon a Company Order. In the
event that the Paying Agent receives cash funds in advance of any due date hereunder, the Paying Agent shall be entitled to invest such
funds in or any substantially similar successor account, any earnings on which shall be for the account of the Company.
Section
6.7 Compensation and Reimbursement.
The
Company shall pay to the Trustee from time to time such reasonable compensation for its services as the Company and the Trustee may agree
in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred
by it in connection with the performance of its duties under this Indenture, except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct. Such expenses shall include the reasonable compensation and expenses of the
Trustee’s agents and counsel.
The
Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including
attorneys’ fees and expenses, and including taxes other than taxes based upon, measured by or determined by the income of the Trustee),
including without limitation the costs and expenses of defending itself against any third-party claim (whether asserted by any Holder
or any other Person (other than the Company to the extent of any claim brought by it against the Trustee that establishes a breach by
the Trustee in the observance or performance of its duties under this Indenture in accordance with a final, non-appealable order of a
court of competent jurisdiction)), incurred by it without negligence or willful misconduct arising out of or in connection with its acceptance
or administration of the trust or trusts hereunder, including the performance of its duties or the exercise of its powers hereunder.
With respect to any such claim other than a claim brought by the Company, (i) the Trustee shall notify the Company promptly of any claim
for which it may seek indemnity, (ii) the Company may at its option defend the claim, in which event the Trustee shall cooperate (at
the expense of the Company) in the defense and the Trustee may have one separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel and (iii) the Company need not pay for any settlement made without its consent, which consent shall not
be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
To
secure the Company’s payment obligations in this Section 6.7, the Trustee shall have a lien prior to the Securities of any
series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on, or any
Additional Amounts with respect to, particular Securities of that series.
The
obligations of the Company under this Section 6.7 will survive the satisfaction and discharge of this Indenture and any resignation
or removal of the Trustee.
When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.1(5) or (6) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section 6.7 and any lien arising hereunder shall survive the resignation or removal of the Trustee or the discharge
of the Company’s obligations under this Indenture and the termination of this Indenture.
Section
6.8 Conflicting Interests.
If
the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such conflicting interest or resign, to the extent and in the manner and with the effect provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have
a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or any other
indenture.
Section
6.9 Eligibility; Disqualification.
There
shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series (which need not be the same
Trustee for all series). A Trustee may be Trustee hereunder for Securities of one or more series. Each Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has (or if the Trustee is a member of a bank holding company system,
its bank holding company has) a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal
or state (or the District of Columbia) authority. If any such Person or bank holding company publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section
6.9 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person or bank holding company
shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section
6.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 6.
The
Indenture shall always have a Trustee who satisfies the requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5)
of the Trust Indenture Act.
Section
6.10 Resignation and Removal; Appointment of Successor.
No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The
Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the removed Trustee within 30 days after the receipt of such
notice of removal, the removed Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
If
at any time:
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(1)
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the
Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
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(2)
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the
Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company
or by any such Holder, or
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(3)
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the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed 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, (A) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
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If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company by a Board Resolution shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable requirements of Section
6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 6.11, the retiring Trustee may petition, or any Holder who has been a bona fide Holder of a
Security of such series for at least six months may petition, on behalf of himself and all others similarly situated, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided
in Section 1.7. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
Section
6.11 Acceptance of Appointment by Successor.
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.
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 (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the 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 all 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.
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 the first or second preceding paragraph, as the
case may be.
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 6.
Section
6.12 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 or acquiring all or substantially
all the corporate trust business of the Trustee (including the administration of the trust created by this Indenture), shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties hereto. 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, or by succession to or acquisition
of all or substantially all of the corporate trust business of, such successor 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
6.13 Preferential Collection of Claims Against Company.
If
and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities) as provided in the Trust
Indenture Act, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
Section
6.14 Appointment of Authenticating Agent.
The
Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as other specified as contemplated by Section 3.1, shall at all times be a bank or trust company or corporation
organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (or if the Authenticating Agent is a member of a bank holding company system,
its bank holding company has) a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by
Federal or State (or the District of Columbia) authority. If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.14,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified
in this Section 6.14.
Any
corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to or
acquiring the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this Section 6.14, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent for any series of Securities may resign at any time by giving written notice thereof to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee
for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment
in the manner provided in Section 1.7 to all Holders of Securities of the series with respect to which such Authenticating Agent
will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section 6.14.
The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 6.14,
and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.
If
an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have
endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternative certificate of authentication in the following
form:
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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[TRUSTEE], as Trustee
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By:
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As
Authenticating Agent
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By:
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Authorized
Officer
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Notwithstanding
any provision of this Section 6.14 to the contrary, if at any time any Authenticating Agent appointed hereunder with respect to
any series of Securities shall not also be acting as the Security Registrar hereunder with respect to any series of Securities, then,
in addition to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall also be obligated: (i) to furnish
to the Security Registrar promptly all information necessary to enable the Security Registrar to maintain at all times an accurate and
current Security Register; and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from the Company
the units of such foreign currency that are required to be determined by the Company pursuant to Section 3.2.
ARTICLE
7
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.1 Company to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee
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(1)
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not
later than 15 days after the Regular Record Date for each respective series of Securities, or if there is no Regular Record Date
for such series of Securities, semi-annually on January 1 and July 1, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series as of such date, as the case may be, and
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(2)
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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;
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provided
that no such list need be furnished by the Company to the Trustee so long as the Trustee is acting as Security Registrar.
Section
7.2 Preservation of Information; Communications to Holders.
The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a
new list so furnished.
The
rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every
Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section
7.3 Reports by Trustee.
The
Trustee shall transmit to Holders and any other required Persons such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
As
promptly as practicable after each January 1 beginning with the January 1 following the date of this Indenture, and in any event prior
to March 1 in each year, the Trustee shall mail to each Holder a brief report dated as of December 31 of the prior year if and to the
extent required by Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with Section 313(b) of the
Trust Indenture Act.
A
copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
Section
7.4 Reports by Company.
The
Company shall file with the Trustee and the Commission, and transmit to Holders and any other required Persons within 30 days after the
filing with the Trustee, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 30 days after the same is so required to be filed with the Commission.; provided, however, that any
such information, documents or reports electronically filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be deemed filed with, and delivered to, the Trustee and transmitted to the Holders at the same time as filed with
the Commission. The Trustee shall have no responsibility to determine if such filing has occurred. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which
the Trustee is entitled to conclusively rely exclusively on Officer’s Certificates).
ARTICLE
8
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
8.1 Company May Consolidate, etc., Only on Certain Terms.
The
Company may not merge or consolidate with or into any other Person, in a transaction in which it is not the surviving Person, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its assets to any Person, unless (i) the surviving or transferee
Person is organized and existing under the laws of the United States or a State thereof or the District of Columbia and such Person expressly
assumes by supplemental indenture all the obligations of the Company under the Securities and under this Indenture, (ii) immediately
thereafter, giving effect to such merger or consolidation, or such sale, conveyance, transfer or other disposition, no default or Event
of Default shall have occurred and be continuing and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel each stating that such merger, consolidation, sale, conveyance, transfer, lease or other disposition complies
with this Article 8 and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section
8.2 Successor Substituted.
Upon
any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Company in accordance with Section 8.1, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Securities.
ARTICLE
9
SUPPLEMENTAL
INDENTURES
Section
9.1 Supplemental Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto for any of the following purposes:
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(1)
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to
evidence the succession of another Person to the Company, or successive successions, and the assumption by any such successor of
the covenants and obligations of the Company herein and in the Securities in compliance with Article 8; or
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(2)
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to
add to the covenants of the Company for the benefit of the Holders of any one or more series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series), to convey, transfer, assign, mortgage or pledge any property to or with the Trustee or otherwise
secure any series of the Securities, including provisions regarding the circumstances under which collateral may be released or substituted,
to surrender any right or power herein conferred upon the Company or to comply with any requirement of the Commission or otherwise
in connection with the qualification of this Indenture or any supplemental indenture under the Trust Indenture Act; or
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(3)
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to
add any additional Events of Default for the benefit of the Holders of any one or more series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default
are expressly being included solely for the benefit of such series); or
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(4)
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to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in global form or uncertificated form; or
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(5)
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to
add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to any Outstanding Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision, or (ii) modify the rights of any Holder of
any Outstanding Security with respect to such provision, or (B) shall become effective when there is no Security then Outstanding;
or
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(6)
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to
add or provide for a guaranty or guarantees of the Securities or additional obligors on the Securities; or
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(7)
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to
establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
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(8)
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to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
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(9)
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to
correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, to cure any ambiguity
or omission, to correct any mistake, or to conform to any prospectus pursuant to which Securities of any series were offered; or
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(10)
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to
make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely
affect the rights of any Holder of Securities of any series; or
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(11)
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to
make any change that does not adversely affect the rights of any Holder; or
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(12)
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to
supplement any of the provisions of the Indenture to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Articles 4 and 13, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect
as determined in good faith by the Board of Directors of the Company; or
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(13)
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make
such other provisions in regards to matters or questions arising under the Indenture or any supplemental indenture hereto as the
Board of Directors may deem necessary or desirable, and which does not in each case adversely affect the interest of the Holders
of Securities of any series as determined in good faith by the Board of Directors of the Company; or
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(14)
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comply
with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
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Section
9.2 Supplemental Indentures with Consent of Holders.
With
the consent of the Holders of a majority in principal amount of the Outstanding Securities of each series affected by such supplemental
indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture or any indenture supplemental hereto or of modifying
in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
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(1)
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change
the Stated Maturity of the principal of or any installment of principal of, or the date fixed for payment of interest on or any sinking
fund payment with respect to, any Security, or reduce the principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional
Amounts (except as contemplated by Section 8.1 and permitted by clause (1) of Section 9.1), or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the coin or currency
or currencies (including composite currencies) in which any Security or any premium or interest thereon or Additional Amounts with
respect thereto is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of a Security in a manner adverse to the holder thereof, or
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(2)
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reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
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(3)
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modify
any of the provisions of this Section 9.2, Section 5.13 or Section 10.8, except to increase any such percentage
or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to
that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of
such series (which provision may be made pursuant to Section 3.1 without the consent of any Holder) or to provide that certain
other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in
the references to “the Trustee” and concomitant changes in this Section 9.2 and Section 10.8, or
the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.1(8).
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A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section
9.3 Execution of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Sections 6.1 and 6.3)
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.
Section
9.4 Effect of Supplemental Indentures.
Upon
the execution of any supplemental indenture under this Article 9, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby; provided that if such supplemental indenture makes any of the changes described
in clauses (1) through (3) of the first proviso to Section 9.2, such supplemental indenture shall bind each Holder
of a Security who has consented to it and every subsequent Holder of such Security or any part thereof.
Section
9.5 Conformity with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article 9 shall conform to the requirements of the Trust Indenture Act.
Section
9.6 Reference in Securities to Supplemental Indentures.
Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 9 may, and
shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee
in exchange for Outstanding Securities of such series.
ARTICLE
10
COVENANTS
Section
10.1 Payment of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal
of and any premium and interest on, and any Additional Amounts with respect to, the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section
10.2 Maintenance of Office or Agency.
The
Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices 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, surrenders, notices and demands. Unless otherwise provided
in a supplemental indenture or pursuant to Section 3.1 hereof, the Place of Payment for any series of Securities shall be the
Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place
of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or agency.
Section
10.3 Money for Securities Payments to be Held in Trust.
If
the Company, any Subsidiary or any of their respective Affiliates shall at any time act as Paying Agent with respect to any series of
Securities, such Paying Agent will, on or before each due date of the principal of or any premium or interest on, or any Additional Amounts
with respect to, any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest, or any Additional Amounts, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on, or Additional Amounts with respect to, any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.3, that such Paying Agent
will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any
default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities
of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture, or with respect to one or more
series of Securities, or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any
money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any
premium or interest on, or any Additional Amounts with respect to, any Security of any series and remaining unclaimed for a period ending
on the earlier of the date that is ten Business Days prior to the date such money would escheat to the State or two years after such
principal, premium or interest or Additional Amount has become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized
Newspaper in The Borough of Manhattan, The City of New York and in such other Authorized Newspapers as the Trustee shall deem appropriate,
notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable
escheat, or abandoned or unclaimed property law, be repaid to the Company.
Section
10.4 Statement by Officers as to Default.
At
any time at which there are Outstanding Securities of any series issued under this Indenture, the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate complying
with Section 314(a)(4) of the Trust Indenture Act and stating that a review of the activities of the Company during such year
and of performance under this Indenture has been made under the supervision of the signers thereof and stating whether or not to the
best knowledge of the signers thereof, based upon such review, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
One of the officers signing the Officers’ Certificate delivered pursuant to this Section 10.05 shall be the principal executive,
financial or accounting officer of the Company.
Section
10.5 Existence.
Subject
to Article 8, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence.
Section
10.6 All Securities to be Equally and Ratably Secured.
Unless
specified otherwise by the Company pursuant to Section 3.1 with respect to any series, the Company will not itself secure Securities
of any one or more series with any Mortgage, without effectively providing that the Securities of every other series shall be secured
equally and ratably by such Mortgage.
Section
10.7 Maintenance of Properties.
The
Company will cause all properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as, and to the extent, in the judgment of the Company may be necessary or appropriate in connection with
its business; provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation or maintenance
of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
Section
10.8 Payment of Taxes and Other Claims.
The
Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim
(i) whose amount, applicability or validity is being contested in good faith by appropriate proceedings or (ii) if the failure to pay
or discharge would not have a material adverse effect on the assets, business, operations, properties or financial condition of the Company
and its Subsidiaries, taken as a whole.
Section
10.9 Waiver of Certain Covenants.
Except
as otherwise specified as contemplated by Section 3.1 for Securities of such series, the Company may, with respect to the Securities
of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant
to Sections 3.1(22), 9.1(2), 8.1, 10.4, 10.5, 10.6, 10.7 or 10.8 for the benefit
of the Holders of such series if before or after the time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section
10.10 Additional Amounts.
If
the Securities of a series expressly provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security
of such series Additional Amounts as expressly provided therein. Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of, or premium (if any) or interest on any Security of any series or the net proceeds received from the sale or exchange
of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this
Section 10.10 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section 10.10 and express mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
If
the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on
which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the
Company shall furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States Aliens
without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series.
If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities and the Company will pay to such Paying Agent the Additional Amounts required
by this Section 10.10. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against
any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this
Section 10.10.
ARTICLE
11
REDEMPTION
OF SECURITIES
Section
11.1 Applicability of Article.
Securities
of any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 3.1 for such Securities) in accordance with this Article 11.
Section
11.2 Election to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.1 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of
any series (including any such redemption affecting only a single Security), the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date,
of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with
such restriction or condition.
Section
11.3 Selection by Trustee of Securities to Be Redeemed.
If
less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are
to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called
for redemption, on a pro-rata basis, or in the Trustee’s discretion, by lot, or by such other method as the Trustee shall deem
fair and appropriate, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such Security.
If
any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for
redemption.
The
Trustee shall promptly notify the Company and the Security Registrar in writing of the Securities selected for redemption as aforesaid
and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
Section
11.4 Notice of Redemption.
Notice
of redemption shall be given by first-class mail, postage prepaid, mailed (or while any Securities are represented by one or more Global
Notes, such notice shall be delivered to the Depositary for communication to entitled account Holders) not fewer than 30 nor more than
60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to each Holder of Securities
to be redeemed, at its address appearing in the Security Register.
All
notices of redemption shall state:
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(1)
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the
Redemption Date,
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(2)
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the
Redemption Price (including accrued interest, if any, to be paid),
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(3)
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if
less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed
and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
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(4)
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in
case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security, the Holder
of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
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(5)
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that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
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(6)
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the
place or places where each such Security is to be surrendered for payment of the Redemption Price,
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(7)
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if
applicable, the conversion price, the date on which the right to convert the principal of the Securities or the portions thereof
to be redeemed will terminate, and the place or places where such Securities may be surrendered for conversion,
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(8)
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that
the redemption is for a sinking fund, if such is the case,
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(9)
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the
specific provision of this Indenture pursuant to which such Securities are to be redeemed, and
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(10)
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the
CUSIP number or numbers and/or common codes of the Security being redeemed.
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Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request,
by the Trustee in the name and at the expense of the Company, provided that the Company shall have prepared and provided to the Trustee
the form of such notice, or, if acceptable to the Trustee, provided sufficient information to enable the Trustee to prepare such notice,
in each case on a timely basis.
Section
11.5 Deposit of Redemption Price.
On
or prior to 10:00 a.m., Eastern time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
If
any Security called for redemption is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any right of any Holder of such Security to receive interest thereon)
be paid to the Company on Company Request, or if then held by the Company, shall be discharged from such trust.
Section
11.6 Securities Payable on Redemption Date.
Notice
of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional
Amounts) to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.1, installments
of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If
any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities’ Yield to Maturity.
Section
11.7 Securities Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and Stated Maturity
and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
Unless
otherwise specified as contemplated by Section 3.1, the Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities in the open market or by private agreement. Such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company may be delivered
to the Trustee and, upon such delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 3.9 shall
apply to all Securities so delivered.
ARTICLE
12
SINKING
FUNDS
Section
12.1 Applicability of Article.
The
provisions of this Article 12 shall be applicable to any sinking fund for the retirement of Securities of any series except as
otherwise specified as contemplated by Section 3.1 for such Securities.
The
minimum amount of any sinking fund payment provided for by the terms of any Securities 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 such Securities is herein
referred to as an “optional sinking fund payment.” Unless otherwise provided for by the terms of any Securities, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall
be applied to the redemption of Securities as provided for by the terms of such Securities.
Section
12.2 Satisfaction of Sinking Fund Payments with Securities.
The
Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which 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 any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have
not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section
12.3 Redemption of Securities for Sinking Fund.
Not
fewer than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment
for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash
and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so delivered. Not fewer than 30 days prior to 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 11.3
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 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE
13
DEFEASANCE
AND COVENANT DEFEASANCE
Section
13.1 Company’s Option to Effect Defeasance or Covenant Defeasance.
The
Company may elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or any series
of Securities, as the case may be, designated pursuant to Section 3.1 as being defeasible pursuant to such Section 13.2
or 13.3, in accordance with any applicable requirements provided pursuant to Section 3.1 and upon compliance with the conditions
set forth below in this Article 13. Any such election shall be evidenced by one or more Board Resolutions, Officers’ Certificates,
indentures supplemental hereto, or in another manner specified as contemplated by Section 3.1 for such Securities.
Section
13.2 Defeasance and Discharge.
Upon
the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Defeasance”).
For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged hereunder:
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(1)
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the
rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on, or any Additional Amounts with respect
to, such Securities when payments are due,
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(2)
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the
Company’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3,
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(3)
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the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and
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(4)
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this
Article 13.
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Subject
to compliance with this Article 13, the Company may exercise its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 13.3 applied to such Securities.
Section
13.3 Covenant Defeasance.
Upon
the Company’s exercise of its option (if any) to have this Section 13.3 applied to any Securities or any series of Securities,
as the case may be,
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(1)
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the
Company shall be released from their obligations under Sections 8.1, 10.4, 10.5, 10.6, 10.7 or
10.8 and any covenants provided pursuant to Sections 3.1(22) or 9.1(2) for the benefit of the Holders of such
Securities and
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(2)
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the
occurrence of any event specified in Section 5.1(4) (with respect to any of Sections 8.1, 10.4, 10.5,
10.6, 10.7 or 10.8 and any such covenants provided pursuant to Sections 3.1(22) or 9.1(2)) and
the occurrence of any other Event of Default specified pursuant to Section 3.1 or Section 9.1(3) shall be deemed not
to be or result in an Event of Default, in each case with respect to such Securities or any series of Securities as provided in this
Section 13.3 on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit
to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section
or such other covenant (to the extent so specified in the case of Section 5.1(4) and the occurrence of any Event of Default
specified pursuant to Section 3.1 or Section 9.1(3)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of any reference in any such Section or such other covenant to any
other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
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Section
13.4 Conditions to Defeasance or Covenant Defeasance.
The
following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of
Securities, as the case may be:
(1)
The Company shall have deposited or caused to be deposited irrevocably with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.9 and agrees to comply with the provisions of this Article 13 applicable to it) as trust funds
in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits
of the Holders of such Securities,
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(A)
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cash
in currency of the United States of America in an amount, or
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(B)
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U.S.
Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment, an amount in cash, or
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(C)
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a
combination thereof,
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in
each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance
with the terms of this Indenture and such Securities.
(2)
In the event of an election to have Section 13.2 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
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(A)
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the
Company has received from, or there has been published by, the Internal Revenue Service a ruling or
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(B)
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since
the date of this instrument, there has been a change in the applicable Federal income tax law, in either case clause (A) or
(B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
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(3)
In the event of an election to have Section 13.3 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4)
The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5)
No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections
5.1(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day).
(6)
Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(7)
Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which it is bound.
(8)
Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(9)
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section
13.5 Deposited Money and U.S. Government Obligations to be Held in Trust; Miscellaneous Provisions.
Subject
to the provisions of the last paragraph of Section 10.3, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 13.5 and Section 13.6, the
Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.4
in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of Outstanding Securities. Anything in this Article 13 to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 13.4 with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
Section
13.6 Reinstatement.
If
the Trustee or the Paying Agent is unable to apply any money in accordance with this Article 13 with respect to any Securities
by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section
13.2 or 13.3 shall be revived and reinstated as though no deposit had occurred pursuant to this Article 13 with respect
to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section
13.5 with respect to such Securities in accordance with this Article 13; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE
14
SUBORDINATION
Section
14.1 Securities Subordinated to Senior Debt.
The
Company and each Holder of a Security, by his acceptance thereof, agree that (a) the payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to each and all the Securities and (b) any other payment in respect of the Securities,
including on account of the acquisition or redemption of Securities by the Company, is subordinated, to the extent and in the manner
provided in such Security or in the supplemental indenture pursuant to which such Security is issued, to the prior payment in full of
all Senior Debt specified in such Security or in such supplemental indenture.
Such
subordination provisions shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of,
or continue to hold, any of such Senior Debt, and such provisions are made for the benefit of the holders of such Senior Debt and any
one or more of them may enforce such provisions.
The
Trustee’s rights to compensation and indemnification as set forth in Section 6.7 herein shall not be subject to the subordination
provisions of this Indenture.
Section
14.2 Right of Trustee to Hold Senior Debt.
The
Trustee in its individual capacity shall be entitled to all of the rights set forth in this Article 14 in respect of any Senior
Debt at any time held by it to the same extent as any other holder of Senior Debt, and nothing in this Indenture shall be construed to
deprive the Trustee of any of its rights as such holder.
Section
14.3 Subordination Not to Prevent Events of Default.
The
failure to make a payment on account of principal of, premium (if any) or interest on the Securities by reason of any subordination provision
for the benefit of holders of Senior Debt shall not be construed as preventing the occurrence of a Default or an Event of Default under
Section 5.1 or in any way prevent the Holders of the Securities from exercising any right hereunder other than the right to receive
payment on the Securities.
Section
14.4 No Fiduciary Duty of Trustee to Holders of Senior Debt.
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not be liable to any such holders (other
than for its willful misconduct or negligence) if it shall in good faith mistakenly pay over or distribute to the Holders of the Securities
or the Company or any other Person, cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this
Article 14 or otherwise. Nothing in this Section 14.4 shall affect the obligation of any other such Person to hold such
payment for the benefit of, and to pay such payment over to, the holders of Senior Debt or their representative.
Section
14.5 Article Applicable to Paying Agent.
In
case at any time any Payment Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the
term “Trustee” as used in this Article 14 shall in such case (unless the context shall otherwise require) be construed
as extending to and including such Payment Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article 14 in addition to or in place of the Trustee; provided, however, that this Section 14.5 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
ARTICLE
15
MISCELLANEOUS
Section
15.1 Counterpart Signatures.
This
Indenture may be executed in any number of counterparts, each of which will be an original, but such counterparts will together constitute
but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.
Section
15.2 Patriot Act.
The
parties hereto acknowledge that in accordance with Section 326 of the United States Patriot Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as they may request in order for the Trustee to satisfy the requirements
of the United States Patriot Act.
Section
15.3 Effect of Headings.
The
Article and Section headings herein are for convenience only and shall not affect the construction hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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FAT
BRANDS INC.
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By:
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Title:
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[TRUSTEE]
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By:
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Title:
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Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-3 of FAT Brands Inc. of our report dated March 29,
2021, relating to the consolidated financial statements of FAT Brands Inc., appearing in the Annual Report on Form 10-K of FAT Brands
Inc. for the year ended December 27, 2020.
Our
report contains a going concern paragraph regarding the limited liquidity resources of FAT Brands Inc. and also a paragraph relating
to the adoption of new method of accounting for leases as of December 31, 2018.
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/s/
Baker Tilly US, LLP
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Los
Angeles, CA
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November
24, 2021
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Exhibit
23.2
Consent
of Independent Auditors
FAT
Brands Inc.
Beverly
Hills, California
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement on Form S-3 of
our report dated October 5, 2021, relating to the consolidated financial statements of GFG Holding, Inc. appearing in the Form 8-K/A
of FAT Brands Inc. filed on October 5, 2021.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
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/s/
BDO USA, LLP
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Atlanta,
Georgia
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November
24, 2021
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Exhibit
23.3
Consent
of Independent Auditors
FAT
Brands Inc.
Beverly
Hills, California
We
hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement on Form S-3 of
our report dated October 15, 2021, relating to the consolidated financial statements of Twin Restaurant Holding, LLC appearing in the
Form 8-K/A of FAT Brands Inc. filed on October 15, 2021.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
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/s/
BDO USA, LLP
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Dallas,
Texas
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November
24, 2021
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