As filed with the Securities and Exchange Commission
on June 29, 2023
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
_______________________
AMERICA’S
CAR-MART, INC.
(Exact name of registrant as specified in its charter)
Texas
(State or other jurisdiction of incorporation or organization) |
63-0851141
(IRS Employer Identification Number) |
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
(479) 464-9944
(Address including zip code, and telephone number,
including area code, of registrant’s principal
executive offices)
_______________________
Jeffrey A. Williams
Chief Executive Officer
America’s Car-Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
(479) 464-9944
(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
_______________________
Copies to:
Courtney C. Crouch, III
Mitchell, Williams, Selig, Gates & Woodyard, PLLC
425 West Capitol Avenue, Suite 1800
Little Rock, Arkansas 72201
Telephone: (501) 688-8822
_______________________
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, 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, 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 definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and
“emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer ☒ |
Non-accelerated filer ☐ |
Smaller reporting company ☐ |
|
Emerging growth company ☐ |
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 the Securities Act. ☐
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. This prospectus is included in a registration statement that we filed with the Securities and Exchange Commission. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED JUNE 29,
2023.
PROSPECTUS
![](https://www.sec.gov/Archives/edgar/data/799850/000117184323004261/logo.jpg)
America’s
Car-Mart, Inc.
$400 Million
of
Common Stock
Preferred Stock
Debt Securities
Rights
Warrants
We may offer and sell, from
time to time, in one or more offerings, any combination of securities that we describe in this prospectus having a total initial offering
price not exceeding $400 million.
This prospectus provides
you with a general description of the securities that we may offer. We will file prospectus supplements and may provide other offering
material at later dates that will contain specific terms of each issuance or sale of securities. These supplements may also add, update
or change information contained in this prospectus.
You should read this prospectus
and the applicable prospectus supplement carefully before you invest in the securities described in the applicable prospectus supplement.
This prospectus may not be used to consummate sales of securities unless accompanied by a prospectus supplement.
Our common stock is listed
on the NASDAQ Global Select Market under the symbol “CRMT.” On June 26, 2023, the last reported sale price of our common stock
on the NASDAQ Global Select Market was $95.30 per share.
Investing in our securities
involves a high degree of risk. See the section entitled “Risk Factors” on page 3 of this prospectus and in the documents
we filed with the Securities and Exchange Commission that are incorporated in this prospectus by reference for certain risks and uncertainties
you should consider.
We may sell securities to
or through underwriters, dealers or agents. For additional information on the method of sale, you should refer to the section entitled
“Plan of Distribution.” The names of any underwriters, dealers or agents involved in the sale of any securities and the specific
manner in which they may be offered will be set forth in the prospectus supplement covering the sale of these securities.
Neither the 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 in the United States.
This prospectus is dated , .
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part
of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (“SEC”) utilizing a “shelf”
registration process. Under this shelf registration process, we may from time to time sell the securities described in this prospectus
in one or more offerings.
The registration statement
containing this prospectus, including the exhibits to the registration statement, provides additional information about us and the securities
offered under this prospectus. The registration statement, including the exhibits and the documents incorporated herein by reference,
can be read on the SEC website mentioned under the heading “Where You Can Find More Information.”
We may provide a prospectus
supplement containing specific information about the amounts, prices and terms of the securities for a particular offering. The prospectus
supplement may add, update or change information in this prospectus. If the information in the prospectus is inconsistent with a prospectus
supplement, you should rely on the information in that prospectus supplement. You should read both this prospectus and, if applicable,
any prospectus supplement. See “Where You Can Find More Information” for more information.
We have not authorized any
dealer, salesperson or other person to give any information or to make any representation other than those contained or incorporated by
reference in this prospectus or any prospectus supplement. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or any prospectus supplement. This prospectus and any prospectus supplement do not constitute an offer
to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus
and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained
in this prospectus or any prospectus supplement is accurate on any date subsequent to the date set forth on the front of such document
or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by
reference, even though this prospectus and any prospectus supplement is delivered or securities are sold on a later date.
Unless otherwise stated or
the context otherwise requires, all references to “America’s Car-Mart, Inc.,” “the Company,” “we,”
“our,” “us” and similar terms refer to America’s Car-Mart, Inc. and its consolidated subsidiaries. Unless
otherwise indicated, currency amounts in this prospectus and in any applicable prospectus supplement are stated in U.S. dollars.
FORWARD-LOOKING STATEMENTS
Some of the statements and
assumptions in this Form S-3 are forward-looking statements. These statements identify prospective information. Important factors could
cause actual results to differ, possibly materially, from those in the forward-looking statements. In some cases you can identify forward-looking
statements by words such as “anticipate,” “expect,” “believe,” “estimate,” “plan,”
“intend,” “may,” “could,” “should,” “will” and “would” or other
similar words. You should read statements that contain these words carefully because they discuss our future expectations, events, objectives,
plans or goals or may contain projections of our future results of operations or financial position or state other “forward-looking”
information. Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be
accurate indications of the times at, or by which, such performance or results will be achieved. Forward-looking information is based
on information available at the time and/or management’s good faith belief with respect to future events, and is subject to risks
and uncertainties that could cause actual performance or results to differ materially from those expressed in the statements. For examples
of risks, uncertainties and events that may cause our actual results to differ materially from the expectations we describe in our forward-looking
statements, see the documents described in the section below captioned “Risk Factors.”
Forward-looking statements
speak only as of the date the statements are made. We assume no obligation to update forward-looking statements to reflect actual results,
changes in assumptions or changes in other factors affecting forward-looking information except to the extent required by applicable securities
laws. If we do update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect
thereto or with respect to other forward-looking statements.
WHERE YOU CAN FIND MORE
INFORMATION
We are subject to the information
requirements of the Securities Exchange Act of 1934, as amended (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 of 1933, as amended (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 may review the registration
statement and any document we file with the SEC by accessing the website maintained by the SEC at https://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 https://www.car-mart.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 internet 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 we electronically file such material with or furnish such documents to the SEC.
DOCUMENTS INCORPORATED BY
REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with the SEC into this prospectus, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference in this prospectus is considered part of this prospectus.
Any statement in this prospectus or incorporated by reference into this prospectus shall be automatically modified or superseded for purposes
of this prospectus to the extent that a statement contained in a subsequently filed document that is incorporated by reference in this
prospectus modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
We incorporate by reference
the following documents that we filed with the SEC (in each case excluding any portion of such documents that have been furnished to and
deemed not to be filed with the SEC):
| · | Our Annual Report on Form 10-K for the fiscal year ended April 30, 2023, filed with the SEC on June 26,
2023. |
| · | The description of our common stock contained our Registration Statement on Form 10 filed with the Commission
on December 23, 1986, as updated by the description of our common stock contained in Exhibit 4.1 to our Annual Report on Form 10-K for
the fiscal year ended April 30, 2021, filed with the SEC on July 2, 2021, including any amendment or report filed for the purpose of updating
such description. |
In addition, all documents
and reports that we subsequently file with the SEC (other than any portions of such filings that are furnished rather than filed under
applicable SEC rules) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial registration statement
of which this prospectus is a part and prior to effectiveness of the registration statement and (ii) after the effectiveness of such registration
statement until all of the securities to which this prospectus relates have been sold or the offering is otherwise terminated shall be
deemed to be incorporated in this prospectus by reference. Unless otherwise stated in the applicable reports, information furnished under
Item 2.02 or 7.01 of our Current Reports on Form 8-K is not incorporated by reference.
You may request a copy of
any documents incorporated by reference herein, at no cost, by writing or calling us at the following address:
America’s Car-Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
Attn: Corporate Secretary
(479) 464-9944
THE COMPANY
We
are one of the largest publicly held automotive retailers in the United States focused exclusively on the “Integrated Auto Sales
and Finance” segment of the used car market. We primarily sell older model used vehicles and provide financing for substantially
all of our customers. Many of our customers have limited financial resources and would not qualify for conventional financing as a result
of limited credit histories or past credit difficulties. As of April 30, 2023, we operated 156 dealerships located primarily in small
cities throughout the South-Central United States. Our operations are principally conducted through its two operating subsidiaries, America’s
Car Mart, Inc., an Arkansas corporation (“Car-Mart of Arkansas”), and Colonial Auto Finance, Inc., an Arkansas corporation
(“Colonial”).
We are a Texas corporation
with our corporate and administrative offices in Rogers, Arkansas.
Our principal executive offices
are located at 1805 North 2nd Street, Suite 401, Rogers, Arkansas 72756, and our telephone number is (479) 464-9944. Our website
is https://www.car-mart.com/. The information contained on, or accessible through, our website is not a part of this registration statement.
RISK FACTORS
An investment in our securities
involves significant risks. Our business, financial condition, and results of operations could be materially adversely affected by any
of these risks. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment.
Before you make an investment decision regarding the securities, you should carefully consider the risks and uncertainties described under
“Risk Factors” in the applicable prospectus supplement and in our most recent Annual Report on Form 10-K, and in any updates
to those Risk Factors in our Quarterly Reports on Form 10-Q, together with all of the other information appearing in this prospectus or
incorporated by reference into this prospectus and any applicable prospectus supplement, in light of your particular investment objectives
and financial circumstances. The risks described in those documents are not the only ones that we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial may also affect our business operations, our financial results and the
value of the securities. The prospectus supplement applicable to each series of securities we offer may contain a discussion of additional
risks applicable to an investment in us and the securities we are offering under that prospectus supplement.
USE OF PROCEEDS
Unless otherwise specified
in the applicable prospectus supplement, we intend to use the proceeds from the sale of the securities described in this prospectus for
general corporate purposes. Pending such use, we may temporarily invest the proceeds or use them to reduce indebtedness. We may also invest
funds which are not required immediately in short-term marketable securities. The applicable prospectus supplement will provide more details
on the use of proceeds of any specific offering.
DESCRIPTION OF SECURITIES
WE MAY OFFER
This prospectus contains
summary descriptions of our common stock, preferred stock, debt securities, rights and warrants that we may offer from time to time. These
summary descriptions are not meant to be complete descriptions of each security. The particular terms of any security will be described
in the accompanying prospectus supplement and other offering material. The accompanying prospectus supplement may add, update or change
the terms and conditions of the securities as described in this prospectus.
When we use the terms “security”
or “securities” in this prospectus, we mean any of the securities we may offer with this prospectus, unless we say otherwise.
DESCRIPTION OF CAPITAL STOCK
The following is a summary
of the material terms of our capital stock and certain provisions of the Company’s Articles of Incorporation, as amended (“Articles”),
Amended and Restated Bylaws, as amended (“Bylaws”), and certain provisions of applicable law. The following is only a summary
and is qualified by applicable law and by the provisions of the Company’s Articles and Bylaws, copies of which have been filed with
the SEC. It also summarizes relevant portions of the Texas Business Organizations Code, which we refer to as Texas law. Since the terms
of our Articles, Bylaws and Texas law are more detailed than the general information provided below, we urge you to read the actual provisions
of those documents and Texas law. The following summary of our capital stock is subject in all respects to Texas law, our Articles and
our Bylaws. If you would like to read our Articles or Bylaws, these documents are on file with the SEC, as described under the heading
“Where You Can Find More Information.”
General
The Company is authorized
to issue up to 50,000,000 shares of common stock, par value $0.01 per share, and up to 1,000,000 shares of preferred stock, par value
$0.01 per share. Each share of the Company’s common stock has the same relative rights as, and is identical in all respects to,
each other share of the Company’s common stock.
The Company’s common
stock is listed on the NASDAQ Global Select Market. The outstanding shares of the Company’s common stock are fully paid and non-assessable.
Common Stock
Dividend Rights. Subject
to such preferential rights as the Board of Directors of the Company (the “Board”) may grant in connection with future issuances
of preferred stock, holders of shares of common stock are entitled to receive such dividends as the Board may declare in its discretion
out of funds legally available therefor. Under the Company’s Bylaws, the Board may declare dividends at any regular or special meeting,
and dividends may be paid in cash, in property, or in shares of the capital stock, subject to any provisions of the Articles.
Voting Rights.
Holders of shares of common stock are entitled to elect all of the members of the Board, and such holders are entitled to vote as a class
on all matters required or permitted to be submitted to the shareholders of the Company. Each director shall be elected by a majority
of the votes cast with respect to that director at the annual meeting. However, if the number of nominees is greater than the number of
directors to be elected, the directors shall be elected by the vote of a plurality of the shares represented in person or by proxy at
the annual meeting. All other matters require the affirmative vote of the holders of a majority of the shares entitled to vote on, and
that voted for or against or expressly abstained with respect to, that matter at a meeting of shareholders at which a quorum is present.
Holders of the Company’s common stock do not have cumulative voting rights.
Liquidation and Dissolution. Holders
of shares of common stock are entitled to share ratably in any distribution made to holders of common stock in the event of a liquidation,
dissolution or winding up of the Company after payment of liabilities and any liquidation preference on any shares of preferred stock
then outstanding.
Other Rights. Holders
of shares of common stock have no preemptive rights, nor do they have any conversion, preemptive or other rights to subscribe for additional
shares or other securities. There are no redemption or sinking fund provisions with respect to such shares.
Modification of Rights. The
Board, acting by a majority vote of the members present and without shareholder approval, may amend the Company’s Bylaws and may
issue additional shares of the Company’s common stock and shares of the Company’s preferred stock under terms determined by
the Board as described below under “Preferred Stock.” Rights of holders of the Company’s common stock may not otherwise
be modified by less than a majority vote of the common stock outstanding.
Preferred Stock
The Board is authorized,
without further action of the shareholders of the Company, to issue up to 1,000,000 shares of preferred stock in one or more series and
to fix the number of shares constituting any such series and the rights and preferences thereof, including dividend rates, terms of redemption
(including sinking fund provisions), redemption price or prices, voting rights, conversion rights and liquidation preferences of the shares
constituting such series. The issuance of preferred stock by the Board could adversely affect the rights of holders of common stock. For
example, an issuance of preferred stock could result in a class of securities outstanding with preferences over the common stock with
respect to dividends and liquidations, and that could (upon conversion or otherwise) enjoy all of the rights appurtenant to common stock.
The Company has no present
plans to issue any shares of the preferred stock.
Anti-Takeover Provisions of the Company’s
Articles, Bylaws and Texas Law
The Company’s authorized
but unissued shares of common stock and preferred stock are available for future issuance without shareholder approval, subject to any
limitations imposed by the listing standards of the NASDAQ Stock Market. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence
of authorized but unissued shares of common stock and preferred stock could make it more difficult or discourage an attempt to obtain
control of a majority of the Company’s common stock by means of a proxy contest, tender offer, merger or otherwise.
As discussed above, the ability
to designate and issue preferred stock makes it possible for the Board, without approval of the shareholders, to issue preferred stock
with super voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of
any attempt to acquire the Company or otherwise effect a change in control of the Company. These and other provisions may have the effect
of deferring, delaying or discouraging hostile takeovers, or changes in control or management of the Company. Such provisions may also
impede or discourage transactions that some, or a majority, of the Company’s shareholders might believe to be in their best interests,
or in which the Company’s shareholders might receive a premium for their shares of common stock over the market price for such shares.
If the Company meets the
definition of an “issuing public corporation,” provisions of Texas law also may discourage, delay or prevent someone from
acquiring or merging with the Company, which may cause the market price of the Company’s common stock to decline. Under Title 2,
Chapter 21, Subchapter M of the Texas Business Organizations Code, a Texas issuing public corporation may not engage in specified types
of business combinations, including mergers, consolidations and asset sales, with an affiliated shareholder, or an affiliate or associate
of an affiliated shareholder, unless:
| · | the business combination or the acquisition of shares by the affiliated shareholder was approved by the
board of directors of the corporation before the affiliated shareholder became an affiliated shareholder; or |
| · | the business combination was approved by the affirmative vote of the holders of at least two-thirds of
the outstanding voting shares of the corporation not beneficially owned by the affiliated shareholder, at a meeting of shareholders called
for that purpose, not less than six months after the affiliated shareholder became an affiliated shareholder. |
Under Texas law, a shareholder
who beneficially owns more than 20% of the Company’s outstanding voting stock or who during the preceding three-year period was
the beneficial owner of 20% or more of the Company’s outstanding voting stock is an affiliated shareholder. An “issuing public
corporation” means a domestic corporation that has: (i) 100 or more shareholders of record as shown by the share transfer records
of the corporation; (ii) a class or series of the corporation’s voting shares registered under the Securities Exchange Act of 1934,
as amended; or (iii) a class or series of the corporation’s voting shares qualified for trading on a national securities exchange.
Other provisions of Texas
law and the Company’s Bylaws may have the effect of delaying or preventing a change in control or acquisition, whether by means
of a tender offer, business combination, proxy contest, or otherwise. Texas law requires that a change in control generally be approved
by the holders of two thirds of the outstanding votes, rather than a mere majority. The Company’s Bylaws include certain procedural
requirements governing the nomination of directors and proposals of other business by shareholders and shareholder meetings. These provisions
could have the effect of delaying or preventing a change in control or management of the Company.
Limitation of Liability and Indemnification
The Company’s Articles
provide that a director shall not be personally liable to the Company or its shareholders for monetary damages for an act or omission
in the director’s capacity as a director, except that such provision shall not eliminate or limit the liability of a director for
(a) a breach of the director’s duty of loyalty to the Company or its shareholders; (b) an act or omission not in good faith that
constitutes a breach of duty of the director to the Company or an act or omission that involves intentional misconduct or a knowing violation
of the law; (c) a transaction from which the director received an improper benefit, whether or not the benefit resulted from an action
taken within the scope of the director’s office; or (d) an act or omission for which the liability of a director is expressly provided
by an applicable statute. In appropriate circumstances, equitable remedies or non-monetary relief, such as an injunction, will remain
available to a shareholder seeking redress from a violation of fiduciary duty. In addition, the provision applies only to claims against
a director arising out of his or her role as a director and not in any other capacity (such as an officer or employee of the Company).
The Company’s Bylaws
provide that directors and officers of the Company will be indemnified by the Company to the fullest extent authorized by Texas law, as
it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred in connection with service for
or on behalf of the Company.
Transfer Agent and Registrar
Securities Transfer Corporation
acts as the transfer agent and registrar for the common stock.
DESCRIPTION OF DEBT SECURITIES
The following is a summary
of the general terms and provisions of the debt securities we may offer under this prospectus and one or more prospectus supplements.
When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a prospectus supplement.
The following description of debt securities will apply to the debt securities offered by this prospectus unless we provide otherwise
in the applicable prospectus supplement. The applicable prospectus supplement for a particular series of debt securities may specify different
or additional terms.
We may issue senior, senior
subordinated, or subordinated debt securities. Senior securities will be direct obligations of ours and will rank equally and ratably
in right of payment with other indebtedness of ours that is not subordinated. Senior subordinated securities will be subordinated in right
of payment to the prior payment in full of senior indebtedness, as defined in the applicable prospectus supplement, and may rank equally
and ratably with any other senior subordinated indebtedness. Subordinated securities will be subordinated in right of payment to senior
subordinated securities.
We need not issue all debt
securities of one series at the same time. Unless we provide otherwise, we may reopen a series, without the consent of the holders of
such series, for issuances of additional securities of that series.
We will issue the senior
debt securities and senior subordinated debt securities under a senior indenture, which we will enter into with the trustee to be named
in the senior indenture, and we will issue the subordinated debt securities under a subordinated indenture, which we will enter into with
the trustee to be named in the subordinated indenture. We use the term “indenture” or “indentures” to refer to
both the senior indenture and the subordinated indenture. Each indenture will be subject to and governed by the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”), and we may supplement the indenture from time to time. Any trustee under any
indenture may resign or be removed with respect to one or more series of debt securities, and we may appoint a successor trustee to act
with respect to that series. We have filed a form of indenture as an exhibit to this registration statement, of which this prospectus
forms a part. The terms of the senior indenture and subordinated indenture will be substantially similar, except that the subordinated
indenture will include provisions pertaining to the subordination of the subordinated debt securities and senior subordinated debt securities
to the senior debt securities and any of our other senior securities. The following statements relating to the debt securities and the
indenture are summaries only, are subject to change, and are qualified in their entirety to the detailed provisions of the indenture,
any supplemental indenture, and any prospectus supplements.
General
The debt securities will
be our direct obligations. We may issue debt securities from time to time and in one or more series as we may establish by resolution
or as we may establish in one or more supplemental indentures. The particular terms of each series of debt securities will be described
in a prospectus supplement relating to the series. We may issue debt securities with terms different from those of debt securities that
we previously issued.
We may issue debt securities
from time to time and in one or more series with the same or various maturities, at par, at a premium, or at a discount. We will set forth
in a prospectus supplement, relating to any series of debt securities being offered, the initial offering price and the following terms
of the debt securities:
| · | the
title of the debt securities; |
| · | the
series designation and whether they are senior securities, senior subordinated securities, or subordinated securities; |
| · | the
aggregate principal amount of the debt securities and any limit on the aggregate amount of the series of debt securities; |
| · | the
price or prices (expressed as a percentage of the aggregate principal amount) at which we will issue the debt securities and, if other
than the principal amount of the debt securities, the portion of the principal amount of the debt securities payable upon the maturity
of the debt securities; |
| · | the
date or dates on which we will pay the principal on the debt securities; |
| · | the
rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity,
commodity index, stock exchange index, or financial index) at which the debt securities will bear interest, the date or dates from which
interest will accrue, the date or dates on which interest will commence and be payable, and any regular record date for the interest
payable on any interest payment date; |
| · | the
place where principal, interest, and any additional amounts will be payable and where the debt securities can be surrendered for transfer,
exchange, or conversion; |
| · | the
terms, if any, by which holders of the debt securities may convert or exchange the debt securities for our common stock, preferred stock,
or any other security or property; |
| · | if
convertible, the initial conversion price, the conversion period, and any other terms governing such conversion; |
| · | any
subordination provisions or limitations relating to the debt securities; |
| · | any
sinking fund requirements; |
| · | any
obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of
a holder of debt securities; |
| · | the
dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities
and other detailed terms and provisions of these repurchase obligations; |
| · | the
denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
| · | the
portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal
amount; |
| · | whether
we will issue the debt securities in certificated or book-entry form; |
| · | whether
the debt securities will be in registered or bearer form and, if in registered form, the denominations if other than in even multiples
of $1,000 and, if in bearer form, the denominations and terms and conditions relating thereto; |
| · | the
designation of the currency, currencies, or currency units in which payment of principal of, premium, and interest on the debt securities
will be made; |
| · | if
payments of principal of, and interest and any additional amounts on, the debt securities will be made in one or more currencies or currency
units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these
payments will be determined; |
| · | the
manner in which the amounts of payment of principal of, and interest and any additional amounts on, the debt securities will be determined,
if these amounts may be determined by reference to an index based on a currency or currencies other than that in which the debt securities
are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index, or financial index; |
| · | any
applicability of the defeasance provisions described in this prospectus or any prospectus supplement; |
| · | whether
and under what circumstances, if any, we will pay additional amounts on any debt securities in respect of any tax, assessment, or governmental
charge and, if so, whether we will have the option to redeem the debt securities instead of making this payment; |
| · | any
addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and
any change in the acceleration provisions described in this prospectus or in the indenture with respect to the debt securities; |
| · | any
addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
| · | if
the debt securities are to be issued upon the exercise of debt warrants, the time, manner, and place for them to be authenticated and
delivered; |
| · | any
securities exchange on which we will list the debt securities; |
| · | any
restrictions on transfer, sale, or other assignment; |
| · | any
provisions relating to any security provided for the debt securities; |
| · | any
provisions relating to any guarantee of the debt securities; |
| · | any
other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series; and |
| · | any
depositaries, interest rate calculation agents, exchange rate calculation agents, or other agents with respect to the debt securities. |
We may issue debt securities
that are exchangeable for or convertible into shares of our common stock or other securities or property. The terms, if any, on which
the debt securities may be exchanged for or converted into shares of our common stock or other securities or property will be set forth
in the applicable prospectus supplement. Such terms may include provisions for conversion, either mandatory, at the option of the holder,
or at our option, in which case the number of shares of common stock or other securities or property to be received by the holders of
debt securities would be calculated as of a time and in the manner stated in the prospectus supplement.
We may issue debt securities
at less than the principal amount payable upon maturity. We refer to these securities as “original issue discount securities.”
If material or applicable, we will describe in the applicable prospectus supplement special U.S. federal income tax, accounting, and other
considerations applicable to original issue discount securities.
If we denominate the purchase
price of any of the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of, and
interest and any additional amounts on, any series of debt securities is payable in a foreign currency or currencies or a foreign currency
unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms, and other
information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in
the applicable prospectus supplement.
Except as may be set forth
in any prospectus supplement relating to the debt securities, an indenture will not contain any other provisions that would limit our
ability to incur indebtedness or that would afford holders of the debt securities protection in the event of a highly leveraged or similar
transaction involving us or in the event of a change in control. You should review carefully the applicable prospectus supplement for
information with respect to events of default and any covenants applicable to the debt securities being offered.
Payments and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of,
and interest and any additional amounts on, the debt securities of a particular series at the office of the paying agents designated by
us, except that, unless we otherwise indicate in the applicable prospectus supplement, we may make interest payments by check, which we
will mail to the holder, or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement, we will designate
the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will
name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series.
Form, Transfer, and Exchange
Each debt security will be
represented by either one or more global securities registered in the name of a depositary that will be named in the prospectus supplement
or a nominee of the depositary (as a “book-entry debt security”), or a certificate issued in definitive registered form (as
a “certificated debt security”), as described in the applicable prospectus supplement. Except as described under “Global
Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities.
Certificated debt securities may be transferred or exchanged by the holder at the trustee’s office or paying agencies in accordance
with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
Certificated debt securities
and the right to receive the principal of, and interest and any additional amounts on, certificated debt securities may be transferred
only by surrendering the old certificate representing those certificated debt securities and either we or the trustee will reissue the
old certificate to the new holder, or we or the trustee will issue a new certificate to the new holder.
Global Debt Securities
and Book-Entry System. Each global debt security representing book-entry debt securities will be deposited with, or on behalf of,
the depositary, and registered in the name of the depositary or a nominee of the depositary. Ownership of beneficial interests in book-entry
debt securities will be limited to persons that have accounts with the depositary for the related global debt security, whom we refer
to as participants, or persons that may hold interests through participants.
Except as described in this
prospectus or any applicable prospectus supplement, beneficial owners of book-entry debt securities will not be entitled to have securities
registered in their names, will not receive or be entitled to receive physical delivery of a certificate in definitive form representing
securities, and will not be considered the owners or holders of those securities under the indenture. Accordingly, to exercise any rights
of a holder under the indenture, each person beneficially owning book-entry debt securities must rely on the procedures of the depositary
for the related global debt security and, if that person is not a participant, on the procedures of the participant through which that
person owns its interest.
We understand, however, that
under existing industry practice, the depositary will authorize the persons on whose behalf it holds a global debt security to exercise
certain rights of holders of debt securities, and the indenture provides that we, the trustee, and our respective agents will treat as
the holder of a debt security the persons specified in a written statement of the depositary with respect to that global debt security
for purposes of obtaining any consents or directions required to be given by holders of the debt securities pursuant to the indenture.
We will make payments of
principal of, and interest and any additional amounts on, book-entry debt securities to the depositary or its nominee, as the case may
be, as the registered holder of the related global debt security. We, the trustee, and any other agent of ours or agent of the trustee
will not have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining, supervising, or reviewing any records relating to such beneficial ownership interests.
Any certificated debt securities
issued in exchange for a global debt security will be registered in such name or names as the depositary shall instruct the trustee. We
expect that such instructions will be based upon directions received by the depositary from participants with respect to ownership of
book-entry debt securities relating to such global debt security.
No Protection in the Event of a Change in Control
Unless we provide otherwise
in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities
protection in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction
results in a change in control).
Covenants
Unless we provide otherwise
in the applicable prospectus supplement, the debt securities will not contain any restrictive covenants, including covenants restricting
us or any of our subsidiaries from incurring, issuing, assuming, or guaranteeing any indebtedness secured by a lien on any of our or our
subsidiaries’ property or capital stock or restricting us or any of our subsidiaries from entering into any sale and leaseback transactions.
Merger, Consolidation, and Sale of Assets
Unless we provide otherwise
in the applicable prospectus supplement, we may not merge with or into or consolidate with, or convey, transfer, or lease all or substantially
all of our properties and assets to, any person (a “successor person”), and we may not permit any person to merge into, or
convey, transfer, or lease its properties and assets substantially as an entirety to us, unless the following applies:
| · | either (a) the Company is the surviving entity or (b) the successor person is a corporation,
partnership, trust, or other entity organized and validly existing under the laws of any United States domestic jurisdiction and expressly
assumes our obligations on the debt securities and under the indenture; |
| · | immediately after giving effect to the transaction, no event of default, and no event that, after notice
or lapse of time, or both, would become an event of default, shall have occurred and be continuing under the indenture; and |
| · | certain other conditions that may be set forth in the applicable prospectus supplement are met. |
This covenant would not apply
to any recapitalization transaction, a change in control of us, or a transaction in which we incur a large amount of additional debt unless
the transactions or change in control included a merger, consolidation, or transfer or lease of substantially all of our assets. Except
as may be described in the applicable prospectus supplement, there are no covenants or other provisions in the indenture providing for
a “put” right or increased interest or that would otherwise afford holders of debt securities additional protection in the
event of a recapitalization transaction, a change in control of us, or a transaction in which we incur a large amount of additional debt.
Events of Default under the Indenture
Unless we provide otherwise
in the applicable prospectus supplement, an “event of default” will mean, with respect to any series of debt securities, any
of the following:
| · | the Company defaults in the payment of interest on any security of that series or any coupon appertaining
thereto or any additional amount payable with respect to any security of that series when the same becomes due and payable and such default
continues for a period of 30 days; |
| · | the Company defaults in the payment of the principal of or any premium on any security of that series
when the same becomes due and payable at its maturity or on redemption or otherwise, or in the payment of a mandatory sinking fund payment
when and as due by the terms of the securities of that series, and in each case such default continues for a period of 10 days; |
| · | the Company defaults in the performance of, or breaches, any covenant or warranty of the Company in the
indenture with respect to any security of that series (other than a covenant or warranty a default in whose performance or whose breach
is specifically dealt with elsewhere in the events of default provisions of the indenture) and such default or breach continues 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; |
| · | the Company pursuant to or within the meaning of any bankruptcy law (A) commences a voluntary case, (B)
consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a custodian of it or
for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; |
| · | a court of competent jurisdiction enters an order or decree under any bankruptcy law that (A) is for relief
against the Company in an involuntary case, (B) appoints a custodian of the Company or for all or substantially all of its property, or
(C) orders the liquidation of the Company; and the order or decree remains unstayed and in effect for 90 days; or |
| · | any other event of default provided with respect to debt securities of that series that is included in
any supplemental indenture or is described in the applicable prospectus supplement accompanying this prospectus. |
No event of default with
respect to a particular series of debt securities (except as to certain events of bankruptcy, insolvency, or reorganization) necessarily
constitutes an event of default with respect to any other series of debt securities. An event of default may also be an event of default
under our bank credit agreements or other debt securities in existence from time to time and under certain guaranties by us of any subsidiary
indebtedness. In addition, certain events of default or an acceleration under the indenture may also be an event of default under some
of our other indebtedness outstanding from time to time.
Unless we provide otherwise
in the applicable prospectus supplement, if an event of default with respect to debt securities of any series at the time outstanding
occurs and is continuing (other than certain events of our bankruptcy, insolvency, or reorganization), then the trustee or the holders
of at least 25% in principal amount of the outstanding debt securities of that series may, by written notice to us (and to the trustee
if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are discount
securities, that portion of the principal amount as may be specified in the terms of that series) of and accrued and unpaid interest,
if any, of all debt securities of that series. In the case of an event of default resulting from certain events of bankruptcy, insolvency,
or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, of all outstanding debt securities
will become and be immediately due and payable without any declaration or other act by the trustee or any holder of outstanding debt securities.
At any time after an acceleration
with respect to debt securities of a series has been made, but before a judgment or decree for payment of the money due has been obtained
by the trustee, the holders of not less than a majority in principal amount of the outstanding debt securities of that series may cancel
the acceleration and annul its consequences if the rescission would not conflict with any judgment or decree and if all existing events
of default with respect to that series have been cured or waived except nonpayment of principal (or such lesser amount) or interest that
has become due solely because of the acceleration.
The indenture also provides
that the holders of not less than a majority in principal amount of the outstanding debt securities of any series may waive any past default
with respect to that series and its consequences, except a default involving the following:
| · | our failure to pay the principal of, and interest and any additional amounts on, any debt security; or |
| · | a covenant or provision contained in the indenture that cannot be modified or amended without the consent
of the holders of each outstanding debt security affected by the default. |
The trustee is generally
required to give notice to the holders of debt securities of each affected series within 90 days of a default actually known to a responsible
officer of the trustee unless the default has been cured or waived. The indenture provides that the trustee may withhold notice to the
holders of debt securities of any series of any default or event of default (except in payment on any debt securities of that series)
with respect to debt securities of that series if it in good faith determines that withholding notice is in the interest of the holders
of those debt securities.
Unless we provide otherwise
in the applicable prospectus supplement, the indenture will provide that the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request or discretion of any holder of any such outstanding debt securities unless the trustee
receives indemnity satisfactory to it against any loss, liability, or expense. Subject to certain rights of the trustee, the holders of
a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect
to the debt securities of that series. The trustee may, however, refuse to follow any discretion that conflicts with the indenture or
any law or which may be unduly prejudicial to the holders of the debt securities of the applicable series not joining in the discretion.
Unless we provide otherwise
in the applicable prospectus supplement, no holder of any debt security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
| · | that holder has previously given to the trustee written notice of a continuing event of default with respect
to debt securities of that series; and |
| · | the holders of at least 25% in principal amount of the outstanding debt securities of that series have
made written request, and offered reasonable indemnity, to the trustee to institute such proceeding as trustee, and the trustee shall
not have received from the holders of a majority in principal amount of the outstanding debt securities of that series a direction inconsistent
with that request and has failed to institute the proceeding within 60 days. |
Notwithstanding the foregoing,
except as provided in the subordination provisions, if any, the holder of any debt security will have an absolute and unconditional right
to receive payment of the principal of, and any interest or additional amounts on, that debt security on or after the due dates expressed
in that debt security and to institute suit for the enforcement of payment.
The indenture requires us,
within 120 days after the end of our fiscal year, to furnish to the trustee a certificate as to compliance with the indenture.
Modification of Indenture and Waiver
Except as specified below, modifications and amendments
to the indenture require the approval of not less than a majority in principal amount of our outstanding debt securities.
Changes Requiring Unanimous
Approval. We and the trustee may not make any modification or amendment to the indenture without the consent of the holder of each
affected debt security then outstanding if that amendment will have any of the following results:
| · | change the time for payment of principal of or interest on any debt security; |
| · | reduce the amounts of principal of or interest on any debt security; |
| · | reduce the amount of any premium payable upon the redemption of any debt security; |
| · | reduce the amount payable upon acceleration of the maturity of any original issue discount debt security
or any debt security payable in accordance with an index, formula or other method; |
| · | change the currency of payment on any debt security; |
| · | impair the right to initiate suit for the enforcement of any payment on or with respect to any debt security; |
| · | reduce the percentage of holders of debt securities whose consent is needed to modify or amend an indenture,
to waive compliance with certain provisions of an indenture, or to waive certain defaults; or |
| · | modify the provisions relating to waiver of certain defaults or modifications of the indenture and debt
securities, other than to increase any percentage of holders required for such waivers and modifications, or to provide that other provisions
of the indenture and debt securities may not be modified without consent of each affected holder. |
Changes Not Requiring
Approval of Debt Holders. We and the trustee may modify or amend an indenture, without the consent of any holder of debt securities,
for any of the following purposes:
| · | to evidence the succession of another person to us as obligor under the indenture; |
| · | to add to our existing covenants additional covenants for the benefit of the holders of all or any series
of debt securities, or to surrender any right or power conferred upon us in the indenture, or to comply with any SEC requirement in connection
with the qualification of the indenture; |
| · | to add events of default for the benefit of the holders of all or any series of debt securities; |
| · | to add or change any provisions of the indenture to facilitate the issuance of, or to liberalize the terms
of, debt securities in bearer form, or to permit or facilitate the issuance of debt securities in uncertificated form, provided that this
action will not adversely affect the interests of the holders of the debt securities of any series in any material respect; |
| · | to add, change, or eliminate any provisions of the indenture affecting debt securities not yet issued; |
| · | to secure previously unsecured debt securities; |
| · | to establish the form or terms of debt securities of any series, including the provisions and procedures,
if applicable, for the conversion or exchange of the debt securities into our common stock, preferred stock, or other securities or property; |
| · | to provide for the electronic delivery of supplemental indentures or debt securities of any series; |
| · | to evidence and provide for the acceptance or appointment of a successor trustee or facilitate the administration
of the trusts under the indenture by more than one trustee; |
| · | if allowed without penalty under applicable laws and regulations, to permit payment in respect of debt
securities in bearer form in the United States; |
| · | to correct or supplement any inconsistent provisions or to cure any ambiguity or correct any mistake in
the indenture or any debt securities; or |
| · | to make any other provisions with respect to matters or questions arising under the indenture, as long
as such action does not materially adversely affect holders of the debt securities. |
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. Unless
the terms of the applicable series of debt securities provide otherwise, we may be discharged from any and all obligations in respect
of the debt securities of any series (except for certain obligations to register the transfer or exchange of debt securities of the series;
to replace stolen, lost, or mutilated debt securities of the series; and to maintain paying agencies and certain provisions relating to
the treatment of funds held by paying agents). We will be so discharged upon the deposit with the trustee, in trust, of money and/or U.S.
government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, foreign government
obligations (as described below under the caption “Covenant Defeasance and Events of Default”), that, through the payment
of interest and principal in accordance with their terms, will provide money in an amount sufficient to pay and discharge each installment
of principal, interest, and any additional amounts on and any mandatory sinking fund payments in respect of the debt securities of that
series on the stated maturity of such payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur
only if, among other things, we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that we
have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the
indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that holders of the debt
securities of such series will not recognize income, gain, or loss for U.S. federal income tax purposes as a result of the deposit, defeasance,
and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would
have been the case if the deposit, defeasance, and discharge had not occurred.
Defeasance of Certain
Covenants. Unless the terms of the applicable series of debt securities provide otherwise, upon compliance with certain conditions,
we may omit to comply with the restrictive covenants contained in the indenture, as well as any additional covenants contained in the
applicable prospectus supplement. The conditions include, among others, the following:
| · | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities
denominated in a single currency other than U.S. dollars, foreign government obligations, that, through the payment of interest and principal
in accordance with their terms, will provide money in an amount sufficient, in the opinion of a nationally recognized independent accounting
or investment banking firm, to pay principal, interest, and any additional amounts on and any mandatory sinking fund payments in respect
of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those
debt securities; and |
| · | delivering to the trustee an opinion of counsel to the effect that the holders of the debt securities
of that series will not recognize income, gain, or loss for U.S. federal income tax purposes as a result of the deposit and related covenant
defeasance and will be subject to U.S. federal income tax in the same amount and in the same manner and at the same times as would have
been the case if the deposit and related covenant defeasance had not occurred. |
Covenant Defeasance and Events of Default
If we exercise our option,
as described above, not to comply with certain covenants of the indenture with respect to any series of debt securities, and the debt
securities of that series are declared due and payable because of the occurrence of any event of default, the amount of money and/or U.S.
government obligations or foreign government obligations on deposit with the trustee will be sufficient to pay amounts due on the debt
securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of
that series at the time of the acceleration resulting from the event of default. However, we will remain liable for those payments.
“Foreign government
obligations” means, with respect to debt securities of any series that are denominated in a currency other than United States dollars:
| · | direct obligations of the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged, which are not callable or redeemable at the option of the issuer thereof; or |
| · | obligations of a person controlled or supervised by or acting as an agency or instrumentality of that
government for the payment of which obligations the full faith and credit of that government is pledged, which are not callable or redeemable
at the option of the issuer thereof. |
Guarantees
Our payment obligations under
any series of debt securities may be guaranteed by us or one or more of our subsidiaries. The terms of any such guarantee will be set
forth in the applicable prospectus supplement.
Subordination
We will set forth in the
applicable prospectus supplement the terms and conditions, if any, upon which any series of senior subordinated securities or subordinated
securities is subordinated to debt securities of another series or to other indebtedness of ours. The terms will include a description
of the following:
| · | the indebtedness ranking senior to the debt securities being offered; |
| · | any restrictions on payments to the holders of the debt securities being offered while a default with
respect to the senior indebtedness is continuing; |
| · | any restrictions on payments to the holders of the debt securities being offered following an event of
default; and |
| · | provisions requiring holders of the debt securities being offered to remit some payments to holders of
senior indebtedness. |
Conversion and Exchange Rights
The applicable prospectus
supplement will describe the terms on which debt securities of any series may be convertible into or exchangeable for our common stock,
preferred stock, or other securities or property of our Company. These terms will include the following:
| · | the conversion or exchange price, or the manner of calculating the price; |
| · | the exchange or conversion period; |
| · | whether the conversion or exchange is mandatory, or voluntary at the option of the holder, or at our option; |
| · | any restrictions on conversion or exchange in the event of redemption of the debt securities and any restrictions
on conversion or exchange; and |
| · | the means of calculating the number of shares of our common stock, preferred stock, or other securities
or property of our Company to be received by the holders of debt securities. |
The conversion or exchange
price of any debt securities of any series that are convertible into our common stock or preferred stock may be adjusted for any stock
dividends, stock splits, reclassification, combinations, or similar transactions, as set forth in the applicable prospectus supplement.
Redemption of Debt Securities
The debt securities may be
subject to optional or mandatory redemption on terms and conditions described in the applicable prospectus supplement. Subject to such
terms, we may opt at any time to partially or entirely redeem the debt securities.
If less than all the debt
securities of any series are to be redeemed or purchased in an offer to purchase at any time, the trustee will select the debt securities
of that series to be redeemed or purchased in such manner as the trustee deems fair and appropriate.
Except as otherwise provided
as to any particular series of debt securities, at least 15 days but not more than 60 days before a redemption date, we or the trustee
will mail a notice of redemption to each holder whose debt securities are to be redeemed. From and after notice has been given as provided
in the applicable indenture, if funds for the redemption of any debt securities called for redemption shall have been made available on
the redemption date, the debt securities will cease to bear interest on the date fixed for the redemption specified in the notice, and
the only right of the holders of the debt securities will be to receive payment of the redemption price.
DESCRIPTION OF RIGHTS
In this section, we describe
the general terms and provisions of the rights to securities that we may offer to our shareholders. 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 rights. In connection
with any 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 person would purchase any offered securities remaining unsubscribed for
after such rights offering. Each series of rights will be issued under a separate rights agent agreement to be entered into between us
and a bank or trust company, as rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely
as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation
or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The prospectus supplement
relating to any rights we offer will include specific terms relating to the offering, including, among others, the date of determining
the shareholders entitled to the rights distribution, the aggregate number of rights issued and the aggregate amount of securities purchasable
upon exercise of the rights, the exercise price, the conditions to completion of the offering, the date on which the right to exercise
the rights will commence and the date on which the right will expire, and any applicable U.S. federal income tax considerations. To the
extent that any particular terms of the rights, rights agent agreements, or rights certificates described in a prospectus supplement differ
from any of the terms described here, then the terms described here will be deemed to have been superseded by that prospectus supplement.
Each right would entitle
the holder of the right to purchase for cash the principal amount of securities at the exercise price set forth in the applicable prospectus
supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable
prospectus supplement. After the close of business on the expiration date, all unexercised rights would become void and of no further
force or effect.
Holders may exercise rights
as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed
at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable,
forward the securities purchasable upon exercise of the rights. If less than all of the rights issued in any 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 rights we offer will not necessarily be complete and will be qualified in its
entirety by reference to the applicable rights agent agreement, which will be filed with the SEC if we offer rights. For more information
on how you can obtain copies of the applicable rights agent agreement if we offer rights, see “Documents Incorporated by Reference”
and “Where You Can Find More Information.” We urge you to read the applicable rights agent agreement and the applicable prospectus
supplement and any other offering material in their entirety.
DESCRIPTION OF WARRANTS
We may issue warrants from
time to time in one or more series for the purchase of our common stock or preferred stock or any combination of those securities. Warrants
may be issued independently or together with any shares of common stock or shares of preferred stock or offered by any prospectus supplement
and may be attached to or separate from common stock or preferred stock. Each series of warrants will be issued under a separate warrant
agreement to be entered into between us and a warrant agent, or any other bank or trust company specified in the related prospectus supplement
relating to the particular issue of warrants. The warrant agent will act 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. The specific terms
of a series of warrants will be described in the applicable prospectus supplement relating to that series of warrants along with any general
provisions applicable to that series of warrants.
The following is a general
description of the warrants we may issue. The applicable prospectus supplement will describe the specific terms of any issuance of warrants.
The terms of any warrants we offer may differ from the terms described in this prospectus. As a result, we will describe in the prospectus
supplement the specific terms of the particular series of warrants offered by that prospectus supplement. Accordingly, for a description
of the terms of a particular series of warrants, you should carefully read this prospectus, the applicable prospectus supplement, and
the applicable warrant agreement, which will be filed as an exhibit to the registration statement of which this prospectus forms a part.
Terms. If warrants
are offered by us, the prospectus supplement will describe the terms of the warrants, including the following if applicable to the particular
offering:
| · | the title of the warrants; |
| · | the total number of warrants; |
| · | the number of shares of common stock purchasable upon exercise of the warrants to purchase common stock
and the price at which such shares of common stock may be purchased upon exercise; |
| · | the designation and terms of the preferred stock with which the warrants are issued and the number of
warrants issued with each share of preferred stock; |
| · | the date on and after which the warrants and the related common stock or preferred stock will be separately
transferable; |
| · | if applicable, the date on which the right to exercise the warrants will commence and the date on which
this right will expire; |
| · | if applicable, the minimum or maximum amount of the warrants which may be exercised at any one time; |
| · | a discussion of federal income tax, accounting and other special considerations, procedures and limitations
relating to the warrants; and |
| · | any other terms of the warrants including terms, procedures and limitations relating to the exchange and
exercise of the warrants. |
Warrants may be exchanged
for new warrants of different denominations, may be presented for registration of transfer, and may be exercised at the office of the
warrant agent or any other office indicated in the prospectus supplement. Before the exercise of their warrants, holders of warrants will
not have any of the rights of holders of shares of common stock or shares of preferred stock purchasable upon exercise, including the
right to receive payments of dividends, if any, on the shares common stock or preferred stock purchasable upon such exercise or to exercise
any applicable right to vote.
Exercise of Warrants.
Each warrant will entitle the holder to purchase a number of shares of common stock or shares of preferred stock at an exercise price
as will in each case be set forth in, or calculable from, the prospectus supplement relating to those warrants. Warrants may be exercised
at the times set forth in the prospectus supplement relating to the warrants. After the close of business on the expiration date (or any
later date to which the expiration date may be extended by us), unexercised warrants will become void. Subject to any restrictions and
additional requirements that may be set forth in the prospectus supplement relating thereto, warrants may be exercised by delivery to
the warrant agent of the certificate evidencing the warrants properly completed and duly executed and of payment as provided in the prospectus
supplement of the amount required to purchase shares of common stock or shares of preferred stock purchasable upon such exercise. The
exercise price will be the price applicable on the date of payment in full, as set forth in the prospectus supplement relating to the
warrants. Upon receipt of the payment and the certificate representing the warrants to be exercised properly completed and duly executed
at the office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, issue
and deliver the shares of common stock or shares of preferred stock purchasable upon such exercise. If fewer than all of the warrants
represented by that certificate are exercised, a new certificate will be issued for the remaining amount of warrants.
The description in the applicable
prospectus supplement and other offering material of any warrants we offer will not necessarily be complete and will be qualified in its
entirety by reference to the applicable warrant agreement, which will be filed with the SEC if we offer warrants. For more information
on how you can obtain copies of the applicable warrant agreement if we offer warrants, see “Documents Incorporated by Reference”
and “Where You Can Find More Information.” We urge you to read the applicable warrant agreement and the applicable prospectus
supplement and any other offering material in their entirety.
[Remainder of this page left blank intentionally.]
PLAN OF DISTRIBUTION
We may sell the securities
described in this prospectus on a continuous or delayed basis directly to purchasers or through underwriters, broker-dealers or agents,
who may receive compensation in the form of discounts, concessions or commissions from us or the purchasers of the securities. These discounts,
concessions or commissions as to any particular underwriter, broker-dealer or agent may be in excess of those customary in the types of
transactions involved.
The securities may be sold
from time to time in one or more transactions at fixed prices, which may be changed from time to time, at prevailing market prices at
the time of sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be consummated in transactions,
which may involve crosses or block transactions:
| · | on any national securities exchange or quotation service on which the securities may be listed or quoted
at the time of sale, including, as of the date of this prospectus, the NASDAQ Stock Market in the case of our common stock; |
| · | in the over-the-counter market; |
| · | in transactions otherwise than on these exchanges or services or in the over-the-counter market; or |
| · | through the writing of options, whether the options are listed on an options exchange or otherwise. |
Each time that this prospectus
is used to sell our securities, we will also provide an accompanying prospectus supplement. For each series of securities, the applicable
prospectus supplement will set forth the terms of the offering including:
| · | the public offering price; |
| · | the name or names of any underwriters, dealers or agents; |
| · | the purchase price of the securities; |
| · | the proceeds from the sale of the securities to us; |
| · | any underwriting discounts, agency fees, or other compensation payable to underwriters or agents; |
| · | any discounts or concessions allowed or re-allowed or repaid to dealers; and |
| · | the securities exchanges on which the securities will be listed, if any. |
If underwriters are used
in the sale of securities, the securities will be acquired by the underwriters for their own account. The underwriters may then resell
the securities in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale or thereafter.
The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by
underwriters. The obligations of the underwriters to purchase the securities will be subject to certain conditions. The underwriters will
be obligated to purchase all the securities offered if they purchase any securities. The public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
If dealers are used in the
sale of securities, the securities will be sold to such dealers as principals. The dealers may then resell the securities to the public
at varying prices to be determined by such dealers at the time of resale. Offers to purchase the securities directly may be solicited,
and we may sell the securities directly to institutional or other investors, who may be deemed underwriters within the meaning of the
Securities Act with respect to any resales of those securities. The terms of these sales will be described in the applicable prospectus
supplement. If agents are used in the sale of securities, unless otherwise indicated in the prospectus supplement, they will use their
reasonable best efforts to solicit purchases for the period of their appointment. Unless otherwise indicated in a prospectus supplement,
if we sell directly, no underwriters, dealers or agents would be involved. We will not make an offer of securities in any jurisdiction
that does not permit such an offer.
We may grant underwriters
who participate in the distribution of securities an option to purchase additional securities to cover overallotments, if any, in connection
with the distribution. Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty
bids in accordance with SEC orders, rules and regulations and applicable law. Such transactions may be effected on the NASDAQ Stock Market
or otherwise. To the extent permitted by applicable law and SEC orders, rules and regulations, an overallotment involves sales in excess
of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long
as the stabilizing bids do not exceed a specified maximum. To the extent permitted by applicable law and SEC orders, rules and regulations,
short covering transactions involve purchases of the common stock in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the common stock originally sold by
the dealer is purchased in a covering transaction to cover short positions. Those activities may cause the price of the common stock to
be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters who are
qualified market makers on the NASDAQ Stock Market may engage in passive market making transactions in the common stock on the NASDAQ
Stock Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement
of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified
as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent
bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s
bid must then be lowered when certain purchase limits are exceeded.
Any underwriters, dealers
and agents that participate in any distribution of securities will be deemed to be underwriters as defined in the Securities Act. Any
discounts, commissions or profit they receive when they resell the securities may be treated as underwriting discounts and commissions
under the Securities Act.
Only underwriters named in
the prospectus supplement are underwriters of the securities offered in the prospectus supplement. We may have agreements with underwriters,
dealers and agents to indemnify them against certain civil liabilities, including certain liabilities under the Securities Act, or to
contribute with respect to payments that they may be required to make.
We may authorize underwriters,
dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities
from us on a future date at a specific price. This type of contract may be made only with institutions specially approved by us. Such
institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts.
Each series of securities
will be a new issue of securities. Our common stock is listed on the NASDAQ Stock Market. Unless otherwise specified in the applicable
prospectus supplement, the securities will not be listed on any exchange. It has not presently been established whether the underwriters,
if any, of the securities will make a market in the securities. If the underwriters make a market in the securities, such market making
may be discontinued at any time without notice.
Agents, dealers and underwriters
may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers or underwriters
may engage in transactions with or perform services for us and our subsidiaries in the ordinary course of business.
LEGAL MATTERS
The validity of the securities
offered by this prospectus has been passed upon for us by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, Arkansas.
If legal matters in connection with offerings made pursuant to this prospectus are passed upon by counsel for the underwriters, dealers
or agents, if any, such counsel will be named in the prospectus supplement relating to such offering.
EXPERTS
The audited financial statements
and management’s assessment of the effectiveness of internal control over financial reporting incorporated by reference in this
prospectus and elsewhere in the registration statement have been so incorporated by reference in reliance upon the reports of Grant Thornton
LLP, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
![](https://www.sec.gov/Archives/edgar/data/799850/000117184323004261/logo.jpg)
America’s
Car-Mart, Inc.
$400 Million
of
Common Stock
Preferred Stock
Debt Securities
Rights
Warrants
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets
forth the various expenses (other than underwriting discounts and commissions) in connection with offering of the securities registered
hereby. America’s Car-Mart, Inc. will bear all of these expenses, (other than underwriting discounts and commissions). All amounts
are estimated except for the SEC registration fee:
SEC registration fee | |
$ | 44,080 | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Miscellaneous fees and expenses | |
| * | |
Total expenses | |
$ | * | |
___________________
* Estimated expenses are not presently known.
Item 15. Indemnification of Directors and Officers.
As permitted by Section 7.001
of the Texas Business Organizations Code, the Articles of Incorporation of the Company provide for the elimination of monetary liability
of directors of the Company, except for (i) any breach of the director’s duty of loyalty to the Company or its shareholders, (ii)
any act or omission not in good faith that constitutes a breach of duty of the director to the Company or that involves intentional misconduct
or a knowing violation of law, (iii) any transaction from which the director derived any improper personal benefit, or (iv) any act or
omission where the liability of the director is expressly provided by statute.
The Company’s Bylaws
provide that to the extent that a director or officer has been successful in the defense of any proceeding to which he was a party by
virtue of his being a director or officer of the Company, the Company will indemnify the director or officer for reasonable expenses incurred
in connection with such proceeding.
In addition, the Company
may indemnify a director or officer of the Company who is or is threatened to be made a named defendant or respondent in a proceeding
because he is or was a director or officer against liability incurred in the proceeding if he acted in his official capacity and in a
manner he reasonably believed in good faith to be in or not opposed to the best interests of the Company and, in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful; except that, in general, no indemnification shall be made in
connection with a proceeding by or in the right of the Company in which the director or officer was adjudged liable to the Company or
in connection with any other proceeding in which a director or officer is adjudged liable on the basis that personal benefit was improperly
received by such director or officer. If the person is found liable to the Company on the basis that personal benefit was improperly received
by the person, the Company may indemnify that person, but such indemnification is limited to reasonable expenses actually incurred by
the person in connection with the proceeding and shall not be made in respect of any proceeding in which the person shall have been found
liable for willful or intentional misconduct in the performance of his or her duty to the Company.
Item 16. Exhibits.
Exhibit Number |
|
Description |
1.1* |
— |
Form of Underwriting Agreement |
4.1 |
— |
Articles of Incorporation of the Company, as amended (incorporated by reference to Exhibits 4.1-4.8 to the Company’s Registration Statement on Form S-8 filed with the SEC on November 16, 2005 (File No. 333-129727)). |
4.2 |
— |
Amended and Restated Bylaws of the Company dated December 4, 2007 (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended October 31, 2007, filed with the SEC on December 7, 2007). |
4.3 |
— |
Amendment No. 1 to the Amended and Restated Bylaws of the Company dated February 18, 2014 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on February 19, 2014). |
4.4* |
— |
Form of Certificate of Designations with respect to any series of preferred stock issued hereunder |
4.5* |
— |
Specimen Stock Certificate representing the Company’s Preferred Stock |
4.6 |
— |
Form of Indenture |
4.7* |
— |
Form of Debt Securities |
4.8* |
— |
Form of Rights Agreement |
4.9* |
__ |
Form of Warrant Agreement, including form of Warrant Certificate |
5.1 |
— |
Opinion of Mitchell, Williams, Selig, Gates & Woodyard, PLLC |
23.1 |
— |
Consent of Grant Thornton LLP, independent registered public accounting firm |
23.2 |
— |
Consent of Mitchell, Williams, Selig, Gates & Woodyard, PLLC (included in Exhibit 5.1) |
24.1 |
— |
Power of Attorney (on signature page) |
25.1** |
— |
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Debt Trustee (to be filed prior to any issuance of Debt Securities) |
107 |
— |
Calculation of Filing Fee Tables |
___________________
* To be filed by a post-effective amendment to
this registration statement or as an exhibit to a Current Report on Form 8-K and incorporated by reference herein.
** To be filed in accordance with the requirements
of Section 305(b)(2) of the Trust Indenture Act of 1939.
Item 17. Undertakings.
The undersigned registrant
hereby undertakes:
(1) To file, during
any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) to include
any prospectus required by Section 10(a)(3) of the Securities Act;
(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 the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” table in
the effective registration statement; and
(iii) to include
any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement;
Provided, however,
that paragraphs (1)(i), (1)(ii) and (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 SEC by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(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.
(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.
(4) That, for
the purpose of determining liability under the Securities Act, to any purchaser:
(i) Each prospectus
filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus
was deemed part of and included in the registration statement; and
(ii) Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating
to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a)
of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which
the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(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,
the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i) Any preliminary
prospectus or any prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing
prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion
of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(iv) Any other
communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) 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 the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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 provisions described in Item 15 above, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, that the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act, and will be governed by the final adjudication of such issue.
The undersigned
Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act 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, America’s Car-Mart, Inc. certifies that it has reasonable grounds to believe that it meets all 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 Rogers, Arkansas, on June 29, 2023.
|
AMERICA’S CAR-MART, INC. |
|
|
|
By: |
/s/ Jeffrey A. Williams |
|
|
Jeffrey A. Williams |
|
|
Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Jeffrey A. Williams and Vickie D. Judy, and each of
them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file
the same, with all exhibits thereto and all documents in connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each said attorneys-in-fact
and agents, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the date indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
|
|
|
|
/s/ Jeffrey A. Williams |
|
Chief Executive Officer |
|
June 29, 2023 |
Jeffrey A. Williams |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Vickie D. Judy |
|
Chief Financial Officer |
|
June 29, 2023 |
Vickie D. Judy |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Joshua G. Welch |
|
Chairman of the Board |
|
June 29, 2023 |
Joshua G. Welch |
|
|
|
|
|
|
|
|
|
/s/ Ann G. Bordelon |
|
Director |
|
June 29, 2023 |
Ann G. Bordelon |
|
|
|
|
|
|
|
|
|
/s/ Julia K. Davis |
|
Director |
|
June 29, 2023 |
Julia K. Davis |
|
|
|
|
|
|
|
|
|
/s/ Daniel J. Englander |
|
Director |
|
June 29, 2023 |
Daniel J. Englander |
|
|
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|
|
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/s/ William H. Henderson |
|
Director |
|
June 29, 2023 |
William H. Henderson |
|
|
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|
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/s/ Dawn C. Morris |
|
Director |
|
June 29, 2023 |
Dawn C. Morris |
|
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|
II-6
EXHIBIT 4.6
FORM OF
INDENTURE
between
AMERICA’S CAR-MART, INC.
and
[●],
as Trustee
Dated as of [●]
Providing for Issuance of
Debt Securities in Series
TABLE OF CONTENTS
|
|
Page |
ARTICLE 1 |
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
|
|
|
Section 1.1. |
Definitions |
1 |
Section 1.2. |
Compliance Certificates and Opinions |
6 |
Section 1.3. |
Form of Documents Delivered to Trustee |
6 |
Section 1.4. |
Acts of Holders |
7 |
Section 1.5. |
Notices, etc., to Trustee and Company |
8 |
Section 1.6. |
Notice to Holders; Waiver |
8 |
Section 1.7. |
Headings and Table of Contents |
9 |
Section 1.8. |
Successor and Assigns |
9 |
Section 1.9. |
Separability |
9 |
Section 1.10. |
Benefits of Indenture |
9 |
Section 1.11. |
Governing Law |
9 |
Section 1.12. |
Legal Holidays |
10 |
Section 1.13. |
No Recourse Against Others |
10 |
|
|
|
ARTICLE 2 |
SECURITY FORMS |
10 |
|
|
|
Section 2.1. |
Forms Generally |
10 |
Section 2.2. |
Form of Trustee’s Certificate of Authentication |
10 |
Section 2.3. |
Securities in Global Form |
11 |
Section 2.4. |
Form of Legend for Securities in Global Form |
11 |
|
|
|
ARTICLE 3 |
THE SECURITIES |
11 |
|
|
|
Section 3.1. |
Amount Unlimited; Issuable in Series |
11 |
Section 3.2. |
Denominations |
14 |
Section 3.3. |
Execution, Authentication, Delivery and Dating |
15 |
Section 3.4. |
Temporary Securities |
16 |
Section 3.5. |
Registration, Transfer and Exchange |
17 |
Section 3.6. |
Replacement Securities |
19 |
Section 3.7. |
Payment of Interest; Interest Rights Preserved |
20 |
Section 3.8. |
Persons Deemed Owners |
21 |
Section 3.9. |
Cancellation |
22 |
Section 3.10. |
Computation of Interest |
22 |
Section 3.11. |
Currency and Manner of Payment in Respect of Securities |
22 |
Section 3.12. |
Appointment and Resignation of Exchange Rate Agent |
25 |
Section 3.13. |
CUSIP Numbers |
26 |
|
|
|
ARTICLE 4 |
SATISFACTION, DISCHARGE AND DEFEASANCE |
26 |
|
|
|
Section 4.1. |
Termination of Company’s Obligations Under the Indenture |
26 |
Section 4.2. |
Application of Trust Funds |
27 |
Section 4.3. |
Applicability of Defeasance Provisions; Company’s Option to Effect Defeasance or Covenant Defeasance |
27 |
Section 4.4. |
Defeasance and Discharge |
27 |
Section 4.5. |
Covenant Defeasance |
28 |
Section 4.6. |
Conditions to Defeasance or Covenant Defeasance |
28 |
Section 4.7. |
Deposited Money and Government Obligations To Be Held in Trust |
29 |
Section 4.8. |
Repayment to Company |
29 |
Section 4.9. |
Indemnity for Government Obligations |
30 |
|
|
|
ARTICLE 5 |
DEFAULTS AND REMEDIES |
30 |
|
|
|
Section 5.1. |
Events of Default |
30 |
Section 5.2. |
Acceleration; Rescission and Annulment |
30 |
Section 5.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
31 |
Section 5.4. |
Trustee May File Proofs of Claim |
31 |
Section 5.5. |
Trustee May Enforce Claims Without Possession of Securities |
31 |
Section 5.6. |
Delay or Omission Not Waiver |
31 |
Section 5.7. |
Waiver of Past Defaults |
31 |
Section 5.8. |
Control by Majority |
32 |
Section 5.9. |
Limitation on Suits by Holders |
32 |
Section 5.10. |
Rights of Holders to Receive Payment |
32 |
Section 5.11. |
Application of Money Collected |
32 |
Section 5.12. |
Restoration of Rights and Remedies |
33 |
Section 5.13. |
Rights and Remedies Cumulative |
33 |
Section 5.14. |
Waiver of Stay, Extension or Usury Laws |
33 |
|
|
|
ARTICLE 6 |
THE TRUSTEE |
33 |
|
|
|
Section 6.1. |
Rights of Trustee |
33 |
Section 6.2. |
Trustee May Hold Securities |
34 |
Section 6.3. |
Money Held in Trust |
34 |
Section 6.4. |
Trustee’s Disclaimer |
34 |
Section 6.5. |
Notice of Defaults |
35 |
Section 6.6. |
Reports by Trustee to Holders |
35 |
Section 6.7. |
Security Holder Lists |
35 |
Section 6.8. |
Compensation and Indemnity |
35 |
Section 6.9. |
Replacement of Trustee |
36 |
Section 6.10. |
Acceptance of Appointment by Successor |
37 |
Section 6.11. |
Eligibility; Disqualification |
37 |
Section 6.12. |
Merger, Conversion, Consolidation or Succession to Business |
38 |
Section 6.13. |
Appointment of Authenticating Agent |
38 |
|
|
|
ARTICLE 7 |
CONSOLIDATION, MERGER OR SALE BY THE COMPANY |
39 |
|
|
|
Section 7.1. |
Consolidation, Merger or Sale of Assets Permitted |
39 |
|
|
|
ARTICLE 8 |
SUPPLEMENTAL INDENTURES |
39 |
|
|
|
Section 8.1. |
Supplemental Indentures Without Consent of Holders |
39 |
Section 8.2. |
With Consent of Holders |
40 |
Section 8.3. |
Compliance with Trust Indenture Act |
41 |
Section 8.4. |
Execution of Supplemental Indentures |
41 |
Section 8.5. |
Effect of Supplemental Indentures |
41 |
Section 8.6. |
Reference in Securities to Supplemental Indentures |
42 |
|
|
|
ARTICLE 9 |
COVENANTS |
42 |
|
|
|
Section 9.1. |
Payment of Principal, Premium, if any, and Interest |
42 |
Section 9.2. |
Maintenance of Office or Agency |
42 |
Section 9.3. |
Money for Securities To Be Held in Trust; Unclaimed Money |
43 |
Section 9.4. |
Corporate Existence |
43 |
Section 9.5. |
Insurance |
43 |
Section 9.6. |
Reports by the Company |
44 |
Section 9.7. |
Annual Review Certificate |
44 |
Section 9.8. |
Calculation of Original Issue Discount |
44 |
|
|
|
ARTICLE 10 |
REDEMPTION |
44 |
|
|
|
Section 10.1. |
Applicability of Article |
44 |
Section 10.2. |
Election to Redeem; Notice to Trustee |
44 |
Section 10.3. |
Selection of Securities To Be Redeemed |
45 |
Section 10.4. |
Notice of Redemption |
45 |
Section 10.5. |
Deposit of Redemption Price |
46 |
Section 10.6. |
Securities Payable on Redemption Date |
46 |
Section 10.7. |
Securities Redeemed in Part |
47 |
|
|
|
ARTICLE 11 |
SINKING FUNDS |
47 |
|
|
|
Section 11.1. |
Applicability of Article |
47 |
Section 11.2. |
Satisfaction of Sinking Fund Payments with Securities |
47 |
Section 11.3. |
Redemption of Securities for Sinking Fund |
47 |
INDENTURE, dated as of [●], between AMERICA’S
CAR-MART, INC., a Texas corporation (the “Company”), and [●], Trustee, a [●] (the “Trustee”).
RECITALS
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness
(“Securities”) to be issued in one or more series as herein provided.
All things necessary to make this Indenture a valid
and legally binding agreement of the Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders
of the Securities:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. (a) For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles;
and
(4) the
words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“Affiliate” of any specified Person
means any 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.
“Agent” means any Paying Agent or
Registrar.
“Authenticating Agent” means any
authenticating agent appointed by the Trustee pursuant to Section 6.13.
“Authorized Newspaper” means a newspaper
of general circulation, in the official language of the country of publication or in the English language, customarily published on each
Business Day whether or not published on Saturdays, Sundays or holidays. Whenever successive 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 different Authorized Newspapers.
“Bearer Security” means any Security
issued hereunder which is payable to bearer.
“Board” or “Board of Directors”
means the Board of Directors of the Company or the Executive Committee or any other duly authorized committee thereof.
“Board Resolution” means a copy
of a resolution of the Board of Directors, 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 the certificate, and delivered to the Trustee.
“Business Day”, when used with respect
to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or particular location are authorized or obligated by law or executive order to close.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after
the execution of this Indenture 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.
“Company” means the party named
as the Company in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter means such successors.
“Company Order” and “Company
Request” mean, respectively, a written order or request signed in the name of the Chairman of the Board, the Chief Executive
Officer, the President, signing alone, or any Executive Vice President signing together with the Secretary, any Assistant Secretary, or
the Treasurer or any Assistant Treasurer of the Company.
“Corporate Trust Office” means an
office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located
at [●] or such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate
trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Company).
“Currency Unit”, for all purposes
of this Indenture, shall include any composite currency.
“Default” means any event which
is, or after notice or passage of time, or both, would be, an Event of Default.
“Depositary”, when used with respect
to the Securities of or within any series issuable or issued in whole or in part in global form, means the Person designated as Depositary
by the Company pursuant to Section 3.1 until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than
one such Person, shall be a collective reference to such Persons.
“Dollar” or “$”
means the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts.
“Government Obligations” means securities
which are (i) direct obligations of the United States or, if specified as contemplated by Section 3.1, the government which issued the
currency in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or, if specified
as contemplated by Section 3.1, such government which issued the foreign currency in which the Securities of such series are payable,
for the payment of which the full faith and credit of the United States or such other government is pledged (whether by guaranty or otherwise),
which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt
issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depositary receipt.
“Guarantee”, when used with respect
to the Securities of or within any series, means a guarantee by the Guarantor of the obligations of the Company under such Securities,
which guarantee may be included in an indenture or indentures supplemental hereto or in a separate agreement.
“Guarantor” means [●], a [●],
and its successors and assigns.
“Holder” means, with respect to
a Bearer Security, a bearer thereof or of a coupon appertaining thereto and, with respect to a Registered Security, a Person in whose
name such Registered Security is registered on the Register.
“Indenture” means this Indenture
as originally executed or as amended or supplemented from time to time and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
“Indexed Security” means a Security
the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount
thereof at original issuance.
“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.
“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, call for redemption or otherwise.
“Officer” means the Chairman of
the Board, the Chief Executive Officer, the President, any Executive Vice President, the Treasurer or the Secretary of the Company.
“Officers’ Certificate” means
a certificate signed by the Chairman of the Board, the Chief Executive Officer, the President, signing alone, or any Executive Vice President
signing together with the Secretary, any Assistant Secretary, or the Treasurer or any Assistant Treasurer of the Company.
“Opinion of Counsel” means a written
opinion of (a) Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., or (b) other counsel designated by the Company.
“Original Issue Discount Security”
means any Security which provides for an amount less than the stated principal amount thereof to be due and payable upon 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:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption money or Government Obligations 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 and any coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provisions therefor satisfactory to the
Trustee have been made;
(iii) Securities,
except to the extent provided in Sections 4.4 and 4.5, with respect to which the Company has effected defeasance and/or covenant defeasance
as provided in Article IV; and
(iv) 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 any request, demand, authorization, direction, notice,
consent or waiver hereunder, or whether sufficient funds are available for redemption or for any other purpose, and for the purpose of
making the calculations required by Section 313 of the Trust Indenture Act, (w) the principal amount of any Original Issue Discount Securities
that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal
to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination,
upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, (x) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose
shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an
Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent, determined as of such date of original issuance, of the amount determined as provided in clause (w) above)
of such Security, (y) the principal amount of any Indexed Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance,
and (z) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually 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
Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person
authorized by the Company to pay the principal of, premium, if any, or interest and any other payments on any 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, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof or any other entity.
“Place of Payment”, when used with
respect to the Securities of or within any series, means the place or places where the principal of, premium, if any, and interest and
any other payments on such Securities are payable as specified as contemplated by Sections 3.1 and 9.2.
“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.
“Redemption Date”, when used with
respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with
respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security” means any
Security issued hereunder and registered as to principal and interest in the Register.
“Regular Record Date” for the interest
payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated
by Section 3.1, which date shall be, unless otherwise specified pursuant to Section 3.1, the fifteenth day preceding such Interest Payment
Date, whether or not such day shall be a Business Day.
“Responsible Officer”, when used
with respect to the Trustee, shall mean any Vice President, any Assistant Vice President, any Senior Trust Officer or Trust Officer, or
any officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject.
“Security” or “Securities”
has the meaning stated in the first recital of this Indenture and more particularly means a Security or Securities of the Company issued,
authenticated and delivered under this Indenture.
“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 or in a
coupon representing such installment of interest 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 effect on the date of this Indenture, except as provided in Section
8.3.
“Trustee” means the party named
as such in the first paragraph of this Indenture until a successor Trustee replaces it pursuant to the applicable provisions of this Indenture,
and thereafter means such successor Trustee and if, at any time, there is more than one Trustee, “Trustee” as used
with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.
“United States” means, unless otherwise
specified with respect to the Securities of any series as contemplated by Section 3.1, the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“U.S. Person” means, unless otherwise
specified with respect to the Securities of any series as contemplated by Section 3.1, an individual citizen or resident of the United
States, a corporation created or organized in or under the laws of the United States, any State thereof or the District of Columbia, or
a partnership, estate or trust treated as a domestic partnership, estate or trust for United States federal income tax purposes.
“Yield to Maturity” means the yield
to maturity, calculated by the Company at the time of issuance of a series of Securities or, if applicable, at the most recent determination
of interest on such series, in accordance with accepted financial practice.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term |
|
Section |
|
|
|
“Act” |
|
1.4(a) |
“Bankruptcy Law” |
|
5.1 |
“Claims” |
|
6.8(b) |
“Component Currency” |
|
3.11(h) |
“Conversion Date” |
|
3.11(d) |
“Conversion Event” |
|
3.11(h) |
“Custodian” |
|
5.1 |
“Defaulted Interest” |
|
3.7(a) |
“Dollar Equivalent of the Currency Unit” |
|
3.11(g) |
“Dollar Equivalent of the Foreign Currency” |
|
3.11(f) |
“Election Date” |
|
3.11(h) |
“Euro” |
|
3.11(h) |
“Event of Default” |
|
5.1 |
“Exchange Rate Agent” |
|
3.11(h) |
“Exchange Rate Officer’s Certificate” |
|
3.11(h) |
“Foreign Currency” |
|
3.11(h) |
“Market Exchange Rate” |
|
3.11(h) |
“Register” |
|
3.5 |
“Registrar” |
|
3.5 |
“Specified Amount” |
|
3.11(h) |
“Valuation Date” |
|
3.11(c) |
Section 1.2. Compliance Certificates
and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application
or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than pursuant to Sections 2.3 and 9.7) shall include:
(1) a
statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.3. 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 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 as 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 in the employ of 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 1.4. Acts of Holders. Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or
by 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. 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 conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(a) 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 the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his 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 which the Trustee deems sufficient.
(b) The
ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory.
The Trustee and the Company may assume that such ownership
of any Bearer Security continues until (i) another such certificate or affidavit bearing a later date issued in respect of the same Bearer
Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered
in exchange for a Registered Security or (iv) such Bearer Security is no longer outstanding. The ownership of Bearer Securities
may also be proved in any other manner which the Trustee deems sufficient.
(c) The
ownership of Registered Securities shall be proved by the Register.
(d) 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 or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) If
the Company shall solicit from the Holders of any series any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, fix in advance a record date for the determination of Holders of such series entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of such series of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities of such series have
authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities of such series shall be computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless taken on or prior to the applicable Expiration Date (as
defined below) by Holders of the requisite 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
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the
requisite amount of Outstanding Securities 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 Notes in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this
Section 1.4, the Company may designate any date 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 Trustee, and to each Holder of Securities of the applicable series in the manner set forth in Section 1.6 on or prior to
the existing Expiration Date. If an Expiration Date is not designated with respect to any record date pursuant to this Section,
the Company 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.
(f) 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.
(g) The
Company and the Trustee may make reasonable rules for action by or at a meeting of Holders.
Section 1.5. Notices, etc., to
Trustee and Company. (a) 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,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: [●], or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company addressed to it at America’s Car-Mart, Inc., 1805 N. 2nd
Street, Suite 401, Rogers, Arkansas 72756, Attention: Chief Financial Officer, or at any other address previously furnished in writing
to the Trustee by the Company.
(b) The
Trustee shall promptly furnish the Company with a copy of any report, demand, notice or written communication received by the Trustee
hereunder from, or sent or furnished by the Trustee hereunder to, any Holder.
Section 1.6. Notice to Holders;
Waiver. Where this Indenture provides for notice to Holders of any event, (i) if any of the Securities affected by such
event are Registered Securities, such notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms
of such Securities expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event,
at its address as it appears in the Register, within the time prescribed for the giving of such notice and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in
the terms of such Bearer Securities expressly provided) if published once in an Authorized Newspaper in New York, New York, and in such
other city or cities, if any, as may be specified as contemplated by Section 3.1.
In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In any case where notice is given to Holders by publication, neither the failure to publish such
notice, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
If by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice as provided above, then such notification as shall be made
with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every
purpose hereunder. If it is impossible or, in the opinion of the Trustee, impracticable to give any notice by publication in
the manner herein required, then such publication in lieu thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be
in an official language of the country of publication.
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 equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.7. 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 1.8. Successor and Assigns. All
covenants and agreements in this Indenture by the Company shall bind its successor and assigns, whether so expressed or not.
Any act or proceeding that is required or permitted
by any provision of this Indenture and that is authorized or required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that
shall at the time be the successor or assign of the Company.
Section 1.9. Separability. In
case any provision of this Indenture or 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 1.10. Benefits of Indenture. Nothing
in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. THIS
INDENTURE, THE SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE. This Indenture is subject to the Trust Indenture
Act and if any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required by the Trust
Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that 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, whether or not such provision of this Indenture refers
expressly to such provision of the Trust Indenture Act.
Section
1.12. 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, Stated Maturity or Maturity or
other payment date of any Security shall not be a Business Day at any Place of Payment, then, notwithstanding any other provision of this
Indenture or any Security or coupon, payment of principal, premium, if any or interest or other payments 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 such date; provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity or other payment date, as the case may be.
Section 1.13. No Recourse Against
Others. No past, present or future director, officer, employee, agent, member, manager, trustee or shareholder, as such,
of the Company, the Guarantor or any successor Person or any Affiliate of any thereof shall have any liability for any obligations of
the Company, the Guarantor or any successor Person or any Affiliate of any thereof, either directly or through the Company, the Guarantor
or any successor Person or any Affiliate of any thereof, under the Securities, this Indenture or any Guarantee or for any claim based
on, in respect of or by reason of such obligations or their creation, whether by virtue of any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise. By accepting a Security,
each Holder agrees to the provisions of this Section 1.13 and waives and releases all such liability. Such waiver and release
shall be part of the consideration for the issue of the Securities.
ARTICLE 2
SECURITY FORMS
Section 2.1. Forms Generally. The
Securities of each series and the coupons, if any, to be attached thereto shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may be required to comply with any applicable law, rule or
regulation or with the rules or usage of any securities exchange or Depositary therefor or as may, consistently herewith, be determined
by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any. If
temporary Securities of any series are issued as permitted by Section 3.4, the form thereof also shall be established as provided in the
preceding sentence. If the forms of Securities and coupons, if any, of any series are established by, or by action taken pursuant
to, a Board Resolution, a copy of the Board Resolution together with an appropriate record of any such action taken pursuant thereto,
including a copy of the approved form of Securities or coupons, if any, 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.
Unless otherwise specified as contemplated by Section
3.1, Bearer Securities shall have interest coupons attached.
The
definitive Securities and coupons, if any, may be typeset, printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner or medium, all as determined by the officers executing such Securities and coupons, if any, as evidenced by their
execution of such Securities and coupons, if any.
Section 2.2. Form of Trustee’s
Certificate of Authentication. Subject to Section 6.13, the Trustee’s certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein and issued
under the within-mentioned Indenture.
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[●], |
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as Trustee |
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Dated: _____________________________ |
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By |
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Authorized Signatory |
Section 2.3. Securities in Global
Form. If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide
that it shall represent the aggregate or specified amount of Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase or decrease in the 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
therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions of
Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.
The provisions of the last paragraph of Section 3.3
shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not comply with Section 1.2 and need not be accompanied by
an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and
3.7, unless otherwise specified as contemplated by Section 3.1, payment of principal of, premium, if any, and interest on any Security
in permanent global form shall be made to the Person or Persons specified therein.
Section 2.4. Form of Legend for
Securities in Global Form. Unless otherwise provided with respect to any Securities of any series pursuant to or required
by the Depositary, any Security of such series in global form authenticated and delivered hereunder shall bear a legend in substantially
the following form:
This
Security is in global form within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or
a nominee of a Depositary. Unless and until it is exchanged in whole or in part for Securities in certificated form, this Security
may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary. Every Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
this Security will be in global form, subject to the foregoing.
ARTICLE 3
THE SECURITIES
Section 3.1. Amount Unlimited;
Issuable in Series. (a) The aggregate principal amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued from time to time in one or more series.
(b) The
following matters shall be established with respect to each series of Securities issued hereunder (i) by a Board Resolution, (ii) by action
taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in an Officers’
Certificate or (iii) in one or more indentures supplemental hereto:
(1) the
title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);
(2) any
limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to 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 3.4, 3.5, 3.6, 8.6, or 10.7);
(3) the
date or dates on which the principal of and premium, if any, on the 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 principal and premium, if any, payments or the method of determination
thereof;
(4) the
rate or rates at which the Securities of the series shall bear interest, if any, or the method of calculating and/or resetting such rate
or rates of interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable and, with respect to Registered Securities, the Regular Record
Date, if any, for the interest payable on any Registered Security on any Interest Payment Date;
(5) the
circumstances, if any, in which payments of principal, premium, if any, or interest on the Securities of the series may be deferred;
(6) the
place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable;
(7) the
period or periods within which, the price or prices at which, the currency or currencies (including composite currencies or currency units)
in which, and the other terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option
of the Company and, if other than as provided in Section 10.3, 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;
(8) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions
or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices
at which, and the other terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if
other than denominations of $1,000 and any integral multiple thereof, if Registered Securities, and if other than the denomination of
$5,000 and any integral multiple thereof, if Bearer Securities, the denominations in which Securities of the series shall be issuable;
(10) the
amount of discount, if any, with which the Securities of the series will be issued;
(11) if
other than Dollars, the currency or currencies (including composite currency or currencies or currency units) in which any principal of,
premium, if any, and interest, if any, or other payments, if any, on the Securities of the series shall be payable, or in which the Securities
of the series shall be denominated, and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of
some or all of the provisions of Section 3.11;
(12) if
any payments of principal of, premium, if any, or interest, if any, or other payments, if any, on the Securities of the series are to
be made, at the election of the Company or a Holder, in a currency or currencies (including composite currency or currencies or currency
units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including composite
currency or currencies or currency units) in which such payments are to be made, the terms and conditions of such payments and the manner
in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto in accordance
with, in addition to, or in lieu of some or all of the provisions of Section 3.11;
(13) if
the amount of any payments of principal of, premium, if any, and interest, if any, or other payments, if any, on the Securities of the
series shall 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 composite currency or currencies or currency 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;
(14) if
other than the principal amount thereof, the portion of the principal amount of such Securities of the series or other amount which shall
be payable upon declaration of acceleration thereof pursuant to Section 5.2 or the method by which such portion or amount shall be determined;
(15) if
other than as provided in Section 3.7, the Person to whom any interest on any Registered Security of the series shall be payable and the
manner in which, or the Person to whom, any interest on any Bearer Securities of the series shall be payable;
(16) if
the principal amount payable at the Maturity of any Securities of the series will not be determinable as of one or more dates prior to
Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date hereunder or thereunder,
or, if other than as provided in the definition of the term “Outstanding”, 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);
(17) provisions,
if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
(18) any
deletions from, modifications of or additions to the Events of Default set forth in Section 5.1 or covenants of the Company set forth
in Article IX pertaining to the Securities of the series;
(19) under
what circumstances, if any, the Company will pay additional amounts on the Securities of that series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts (and the terms of any such option);
(20) whether
Securities of the series shall be issuable as Registered Securities or Bearer Securities (with or without interest coupons), or both,
and any restrictions applicable to the offering, sale or delivery of Bearer Securities and, if other than as provided in Section 3.5,
the terms upon which Bearer Securities of a series may be exchanged for Registered Securities of the same series and vice versa, and the
additions or changes, if any, to this Indenture, with respect to the Securities of such series as shall be necessary to permit or facilitate
the issuance of the Securities of such series;
(21) the
date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security of the series to be issued;
(22)
the forms of the Securities and coupons, if any, of the series, including if the Securities of the series will be executed
by more than one signatory of the Company;
(23) the
exclusion of Section 4.4 or 4.5, or both, with respect to the Securities of or within the series, or the applicability, if any, to the
Securities of or within the series of such means of defeasance or covenant defeasance other than those provided in Sections 4.4 and 4.5
as may be specified for the Securities and coupons, if any, of such series, and whether, for the purpose of any defeasance or covenant
defeasance pursuant to Section 4.4 or 4.5 or otherwise, the term “Government Obligations” shall include obligations referred
to in the definition of such term which are not obligations of the United States or an agency or instrumentality of the United States;
(24) if
other than the Trustee, the identity of the Registrar and any Paying Agent;
(25) any
terms which may be related to warrants 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;
(26) the
designation of the initial Exchange Rate Agent, if any;
(27) if
the Securities of the series shall be issued in whole or in part in global form, (i) the Depositary for such global Securities, (ii) the
form of any legend in addition to or in lieu of that in Section 2.4 which shall be borne by such global Securities, (iii) whether beneficial
owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series
and of like tenor of any authorized form and denomination, and (iv) if other than as provided in Section 3.5, the circumstances under
which any such exchange may occur;
(28) if
Securities in temporary global form are issued, any special terms and conditions for payments thereon and for exchanges or transfers of
beneficial interests therein;
(29) the
terms and conditions of any obligation or right on the part of the Company, or any option on the part of the Holders, to convert or exchange
Securities of the series into other securities, cash or property of the Company or any other Person, and any changes to this Indenture
to permit or facilitate such conversion or exchange;
(30) 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;
(31) whether
the Guarantor will guarantee the obligations of the Company under the Securities of such series and if so, the specific form of such Guarantee
or Guarantees, any related modifications, amendments, supplements or deletions of any of the terms of this Indenture, and a statement
that the Guarantor shall be an “obligor” as such term is defined in and solely for purposes of the Trust Indenture Act and
shall be required to comply with those provisions of this Indenture compliance with which is required by an “obligor” under
the Trust Indenture Act; and
(32) any
other terms of the series or any related Guarantee (which terms shall not be inconsistent with the provisions of the Trust Indenture Act,
but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series), including any terms which
may be required by or advisable under United States laws or regulations or advisable (as determined by the Company) in connection with
the marketing of Securities of the series;
provided, that if the Guarantor will guarantee the obligations of the Company
under the Securities of a series, such matters shall be established in one or more indenture supplements hereto to which the Company,
the Guarantor and the Trustee shall be a party.
(b) The
terms applicable to the Securities of any one series and coupons, if any, appertaining to any Bearer Securities of such series need not
be identical but may vary as may be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject
to Section 3.3) set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an 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.
(c) If
any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such
series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series
shall be delivered to the Trustee prior to the authentication and delivery thereof.
Section 3.2. Denominations. Unless
otherwise provided as contemplated by Section 3.1, any Registered Securities of a series shall be issuable in denominations of $1,000
and any integral multiple thereof and any Bearer Securities of a series shall be issuable in the denomination of $5,000 and any integral
multiple thereof.
Section 3.3. Execution, Authentication,
Delivery and Dating. Securities shall be executed on behalf of the Company by the Chairman of the Board, the Chief Executive
Officer, the President, or any Executive Vice President. The Company’s seal shall be reproduced (which may be via facsimile)
on the Securities and shall be attested by the Secretary or any Assistant Secretary. The signatures of any of these officers
on the Securities may be manual or facsimile. The coupons, if any, of Bearer Securities shall bear the facsimile signature
of the Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, the Treasurer or any Assistant
Treasurer of the Company.
Securities and coupons 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, the Company may
deliver Securities, together with any coupons appertaining thereto, 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 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.
If the form or terms of the Securities of a series
have been established by or pursuant to one or more Board Resolutions as 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 315(a) through (d) of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel
substantially to the effect that,
(1) if
the forms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 2.1, such
forms have been established in conformity with the provisions of this Indenture;
(2) if
the terms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 3.1, such
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
(3) such
Securities together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity
principles and except as may be further limited by or subject to certain exceptions and qualifications specified in such Opinion of Counsel,
including in the case of any Securities denominated in a Foreign Currency, (A) requirements that a claim with respect to any Securities
denominated other than in Dollars (or a foreign currency or foreign composite currency or currency unit judgment in respect of such claim)
be converted into Dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority
to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States.
Notwithstanding
that such form or terms have been so established, the Trustee shall have the right but not the obligation 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) reasonably acceptable
to the Company, the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or
immunities under this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of
the two preceding paragraphs, if all of the Securities of any series are not to be 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 the two preceding paragraphs in connection with the authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
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.
If the Company shall establish pursuant to Section
3.1 that the Securities of a series are to be issued in whole or in part in global form, then, unless otherwise provided with respect
to such Securities pursuant to Section 3.1, the Company shall execute and the Trustee shall, in accordance with this Section and the Company
Order with respect to such series, authenticate and deliver one or more Securities in global form that (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
Security or Securities in global form, (ii) shall be registered, if a Registered Security, in the name of the Depositary for such Security
or Securities in global form or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary’s instruction and (iv) shall bear the legend set forth in Section 2.4.
Unless otherwise established pursuant to Section 3.1,
each Depositary designated pursuant to Section 3.1 for a Registered Security in global form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. Neither the Company nor the Trustee shall have any responsibility to determine if the Depositary is
so registered.
Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depositary and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of
its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be
entitled to any benefits under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of
one of the authorized signatories of the Trustee or an Authenticating Agent and no coupon shall be valid until the Security to which it
appertains has been so authenticated. Such signature upon any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered under this Indenture and is entitled to the benefits of this Indenture. Except
as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled.
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 together with a written statement (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes
of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to
the benefits of this Indenture.
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 of such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor and form, with or without coupons, 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 conclusively evidenced by their execution of such Securities and coupons, if any. In the case of Securities
of any series, all or a portion of such temporary Securities may be in global form.
Except in the case of temporary Securities in global
form, each of which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared without unreasonable delay. After 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 pursuant to Section 9.2 in a Place of Payment
for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor;
provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided,
further, that no definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security unless the Trustee shall have
received from the Person entitled to receive the definitive Bearer Security a certificate substantially in the form approved in or pursuant
to the Board Resolutions relating thereto and such delivery shall occur only outside the United States. 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 except as otherwise specified as contemplated by Section 3.1.
Section 3.5. Registration, 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 (the “Register”) in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. The
Register shall be in written form or any other form capable of being converted into written form within a reasonable time. Unless
otherwise provided as contemplated by Section 3.1, the Trustee is hereby appointed “Registrar” for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency maintained pursuant to Section 9.2 in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount.
Unless otherwise provided with respect to any Securities
pursuant to Section 3.1, Bearer Securities (except for any temporary global Bearer Securities) or any coupons appertaining thereto (except
for coupons attached to any temporary global Bearer Security) shall be transferable by delivery.
Unless otherwise provided as contemplated by Section
3.1, at the option of the Holder, Registered Securities of any series (except a Registered Security in global form) may be exchanged for
other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount containing identical
terms and provisions, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified as contemplated by Section
3.1, Bearer Securities may not be issued in exchange for Registered Securities.
Unless otherwise specified as contemplated by Section
3.1, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities (if the Securities of such
series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series are issuable in more than one denomination
and such exchanges are permitted by such series) of the same series, of any authorized denominations and of like tenor and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment
in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise provided in Section 9.2, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding
the foregoing, in case any Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security
of the same series after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business
at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such coupon is so surrendered with such
Bearer Security, such coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due in
accordance with the provisions of this Indenture.
Unless otherwise specified pursuant to Section 3.1
with respect to a series of Securities or as otherwise provided below in this Section 3.5, owners of beneficial interests in Securities
of such series represented by a Security issued in global form will not be entitled to have Securities of such series registered in their
names, will not receive or be entitled to receive physical delivery of Securities of such series in certificated form and will not be
considered the Holders or owners thereof for any purposes hereunder. Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for Securities in certificated form in the circumstances described below, a Security in
global form representing all or a portion of the Securities of a series may not be transferred or exchanged except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of
a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of such series notifies the Company that it shall no longer be eligible under Section 3.3, the
Company shall appoint a successor Depositary with respect to the Securities of such series. Unless otherwise provided as contemplated
by Section 3.1, if a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.1(b)(27) shall no longer
be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities
of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal
amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global
form.
The Company may at any time in its sole discretion
determine that Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global
form. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor
in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.
If specified by the Company pursuant to Section 3.1
with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange
in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary. Thereupon,
the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to
each Person specified by such Depositary a new certificated Security or Securities of the same series of like tenor, of 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 Security in global form; and
(ii) to
such Depositary a new Security in global form of like tenor in a denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal amount of certificated Securities delivered to Holders thereof. Upon
the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be cancelled by the
Trustee. Unless expressly provided with respect to the Securities of any series that such Security may be exchanged for Bearer
Securities, Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of transfer
or upon any 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 Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by
the Holder thereof or his 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 for any 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 or 10.7 not involving any transfer.
Unless otherwise provided as contemplated by Section
3.1, the Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the
opening of business 15 days before any selection for redemption of Securities of like tenor and of the series of which such Security is
a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given
to all Holders of Securities of like tenor and of such series to be redeemed; (ii) to register the transfer of or exchange any Registered
Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part; or (iii)
to exchange any Bearer Security so selected for redemption, except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If
a mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper
cases, such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver a replacement Registered Security, if such surrendered Security was a Registered Security,
or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the surrendered Security, if such surrendered
Security was a Bearer Security, of the same series and date of maturity, if the Trustee’s requirements are met.
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 or Security with a destroyed, lost or stolen
coupon 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 proof satisfactory to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Company shall execute and the Trustee shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a replacement Registered Security, if such Holder’s claim appertains to a Registered Security, or a replacement Bearer
Security with coupons corresponding to the coupons appertaining to the destroyed, lost or stolen Bearer Security or the Bearer Security
to which such lost, destroyed or stolen coupon appertains, if such Holder’s claim appertains to a Bearer Security, of the same series
and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding with coupons corresponding
to the coupons, if any, appertaining to the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security
or coupon, pay such Security or coupon; provided, however, that payment of principal of and any premium or interest on Bearer Securities
shall, except as otherwise provided in Section 9.2, be payable only at an office or agency located outside the United States and, unless
otherwise specified as contemplated by Section 3.1, any interest on Bearer Securities shall be payable only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee, its agents and counsel) connected therewith.
Every new Security of any series with its coupons,
if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security and its coupon, if any, or the destroyed, lost or stolen coupon, 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 and
their coupons, if any, duly issued hereunder.
Unless otherwise provided as contemplated by Section
3.1, the provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 3.7. Payment of Interest;
Interest Rights Preserved. Unless otherwise provided as contemplated by Section 3.1, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose
name that 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 Register of Holders of Securities of such series or (ii) by wire transfer to an account maintained by
the Person entitled thereto as specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section
3.1, (A) (i) interest, if any, on Bearer Securities shall be paid only against presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) principal, original issue discount, if any, and premium, if any, on Bearer
Securities shall be paid only against presentation and surrender of such Securities; in either case at the office of a Paying Agent located
outside the United States, unless the Company shall have otherwise instructed the Trustee in writing, provided that any such instruction
for payment in the United States does not cause any Bearer Security to be treated as a “registration-required obligation”
under United States laws and regulations; (B) the interest, if any, on any temporary Bearer Security shall be paid, as to any installment
of interest evidenced by a coupon attached thereto only upon presentation and surrender of such coupon as provided in clause (A) above
and, as to other installments of interest, only upon presentation of such Security for notation thereon of the payment of such interest;
and (C) if at the time a payment of principal of, premium, if any, or interest, if any, on a Bearer Security or coupon shall become due,
the payment of the full amount so payable at the office or offices of all the Paying Agents outside the United States is illegal or effectively
precluded because of the imposition of exchange controls or other similar restrictions on the payment of such amount in Dollars, then
the Company may instruct the Trustee to make such payment at a Paying Agent located in the United States, provided that provision for
such payment in the United States would not cause such Bearer Security to be treated as a “registration-required obligation”
under United States laws and regulations.
(a) Unless
otherwise provided as contemplated by Section 3.1, any interest on any Registered Security of any series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (herein called “Defaulted Interest”) shall forthwith
cease to be payable to the 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 such Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) 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 mailed, first-class postage prepaid, to each Holder
of such Registered Securities of such series at his address as it appears in the Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names such Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The
Company may make payment of any Defaulted Interest to the Persons in whose names such Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a specified date in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such manner of
payment shall be deemed practicable by the Trustee.
(b) Subject
to the foregoing provisions of this Section and Section 3.5, 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 any Registered 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 Registered Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section 3.7) interest and any other payments on such Registered
Security and for all other purposes whatsoever, whether or not such Registered Security shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security
or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such
Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
None of the Company, the Trustee 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 Security in global form, or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, with respect to any Security in global form, 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 Security in global form or
impair, as between such Depositary and owners of beneficial interests in such Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Security in global form.
Unless otherwise provided with respect to any Securities
pursuant to Section 3.1, the Company, the Guarantor, any other obligor upon any Securities and any Affiliate of any thereof may acquire,
tender for, purchase, own, hold, become the pledgee of and otherwise deal with any Securities.
Section 3.9. Cancellation. The
Company at any time may deliver Securities and coupons to the Trustee for cancellation. The Registrar and any Paying Agent
shall forward to the Trustee any Securities and coupons surrendered to them for replacement, for registration of transfer, or for exchange
or payment. The Trustee shall cancel all Securities and coupons surrendered for replacement, for registration of transfer,
or for exchange, payment, redemption or cancellation and shall dispose of such cancelled Securities in its customary manner. The
Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 3.10. Computation of Interest. Except
as otherwise specified as contemplated by Section 3.1, interest on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 3.11. Currency and Manner
of Payment in Respect of Securities. (a) Unless otherwise specified with respect to any Securities pursuant to Section
3.1, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as
provided in paragraph (d) below, payment of the principal of, premium, if any, interest, if any, and other amounts, if any, on any Registered
Security or Bearer Security of such series will be made in the currency or currencies or currency unit or units in which such Registered
Security or Bearer Security, as the case may be, is payable. The provisions of this Section 3.11, including, without limitation,
any defined terms specified herein, may be modified or superseded in whole or in part pursuant to Section 3.1 with respect to any Securities.
(b) It
may be provided pursuant to Section 3.1, with respect to Registered Securities of any series, that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of, premium, if any, or interest, if any, on such Registered Securities
in any of the currencies or currency units which may be designated for such election by delivering to the Trustee (or the applicable Paying
Agent) a written election with signature guarantees and in the applicable form established pursuant to Section 3.1, not later than the
close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive
such payments in any such currency or currency unit, such election will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to the Trustee (or any applicable Paying Agent) for such series of Registered
Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date, and no such change of election may be made with respect
to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect
to which the Company has deposited funds pursuant to Article IV or with respect to which a notice of redemption has been given by or on
behalf of the Company). Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee
(or any applicable Paying Agent) not later than the close of business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant currency or currency unit as provided in Section 3.11(a). The Trustee (or the applicable
Paying Agent) shall notify the Company and the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal
amount of Registered Securities for which Holders have made such written election.
(c) If
the election referred to in paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with respect to any such Registered Securities, not later than the
fourth Business Day after the Election Date for each payment date for such Registered Securities, the Exchange Rate Agent will deliver
to the Company a written notice specifying, in the currency or currencies or currency unit or units in which Registered Securities of
such series are payable, the respective aggregate amounts of principal of, premium, if any, and interest, if any, on such Registered Securities
to be paid on such payment date, and specifying the amounts in such currency or currencies or currency unit or units so payable in respect
of such Registered Securities as to which the Holders of Registered Securities denominated in any currency or currencies or currency unit
or units shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above. If the election
referred to in paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to Section 3.1,
and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee (or the applicable Paying Agent) an Exchange Rate Officers’
Certificate in respect of the Dollar, Foreign Currency or Currencies or other currency unit payments to be made on such payment date. Unless
otherwise specified pursuant to Section 3.1, the Dollar, Foreign Currency or Currencies or other currency unit amount receivable by Holders
of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined
by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the “Valuation Date”)
immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If
a Conversion Event occurs with respect to a Foreign Currency or any other currency unit in which any of the Securities are denominated
or payable otherwise than pursuant to an election provided for pursuant to paragraph (b) above, then, unless otherwise specified pursuant
to Section 3.1, with respect to each date for the payment of principal of, premium, if any, and interest, if any, on the applicable Securities
denominated or payable in such Foreign Currency or such other currency unit occurring after the last date on which such Foreign Currency
or such other currency unit was used (the “Conversion Date”), the Dollar shall be the currency of payment for use on
each such payment date (but such Foreign Currency or such other currency unit that was previously the currency of payment shall, at the
Company’s election, resume being the currency of payment on the first such payment date preceded by 15 Business Days during which
the circumstances which gave rise to the Dollar becoming such currency of payment no longer prevail). Unless otherwise specified
pursuant to Section 3.1, the Dollar amount to be paid by the Company to the Trustee or any applicable Paying Agent and by the Trustee
or any applicable Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a Foreign Currency that is a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph
(f) or (g) below.
(e) Unless
otherwise specified pursuant to Section 3.1, if the Holder of a Registered Security denominated in any currency or currency unit shall
have elected to be paid in another currency or currency unit or in other currencies as provided in paragraph (b) above, and (i) a Conversion
Event occurs with respect to any such elected currency or currency unit, such Holder shall receive payment in the currency or currency
unit in which payment would have been made in the absence of such election and (ii) if a Conversion Event occurs with respect to the currency
or currency unit in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) of this Section 3.11 (but, subject to any contravening valid election pursuant to paragraph (b) above, the elected
payment currency or currency unit, in the case of the circumstances described in clause (i) above, or the payment currency or currency
unit in the absence of such election, in the case of the circumstances described in clause (ii) above, shall, at the Company’s election,
resume being the currency or currency unit of payment with respect to Holders who have so elected, but only with respect to payments on
payment dates preceded by 15 Business Days during which the circumstances which gave rise to such currency or currency unit, in the case
of the circumstances described in clause (i) above, or the Dollar, in the case of the circumstances described in clause (ii) above, becoming
the currency or currency unit, as applicable, of payment, no longer prevail).
(f) The
“Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by the Exchange Rate Agent by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The
“Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and, subject to the provisions
of paragraph (h) below, shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency (as each
such term is defined in paragraph (h) below) into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date
with respect to each payment.
(h) For
purposes of this Section 3.11, the following terms shall have the following meanings:
A “Component Currency” shall mean
any currency which, on the Conversion Date, was a component currency of the relevant currency unit.
“Conversion Event” shall mean the
cessation of use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within the international banking community, or (ii) any currency unit
for the purposes for which it was established.
“Election Date” shall mean the Regular
Record Date for the applicable series of Registered Securities as specified pursuant to Section 3.1 by which the written election referred
to in Section 3.11(b) may be made.
“Euro” means the lawful currency
of the participating member states of the European Union that adopt a single currency in accordance with the Treaty establishing the European
Community, as amended by the Treaty on European Union signed February 7, 1992.
“Exchange Rate Agent”, when used
with respect to Securities of or within any series, shall mean, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, a New York Clearing House bank designated pursuant to Section 3.1 or Section 3.12.
“Exchange Rate Officer’s Certificate”
shall mean a certificate setting forth (i) the applicable Market Exchange Rate or the applicable bid quotation and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount in the relevant currency or currency unit), payable with respect to a Security of any
series on the basis of such Market Exchange Rate or the applicable bid quotation, signed by the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Executive Vice President, the Treasurer or any Assistant Treasurer of the Company.
“Foreign Currency” shall mean any
currency issued by the government or governments of one or more countries other than the United States or by any recognized confederation
or association of such governments and shall include the Euro.
“Market Exchange Rate” shall mean,
unless otherwise specified with respect to any Securities pursuant to Section 3.1, as of any date of determination, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency
unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.1 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable transfers
quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one
Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located in New York City, London or any other principal market for Dollars
or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 3.1, in the event of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City,
London or other principal market for such currency or currency unit in question (which may include any such bank acting as Trustee under
this Indenture), or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by
the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations
or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities
designated in such currency or currency unit would purchase such currency or currency unit in order to make payments in respect of such
securities.
A “Specified Amount” of a Component
Currency shall mean the number of units of such Component Currency or fractions thereof which such Component Currency represented in the
relevant currency unit on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified
Amount and such single currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by specified amounts of
such two or more currencies, the sum of which, at the Market Exchange Rate of such two or more currencies on the date of such replacement,
shall be equal to the Specified Amount of such former Component Currency and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, a Conversion
Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect
on the Conversion Date of such Component Currency.
All decisions and determinations of the Exchange Rate
Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and
changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive
for all purposes and irrevocably binding upon the Company, the Trustee (and any applicable Paying Agent) and all Holders of Securities
denominated or payable in the relevant currency, currencies or currency units. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith
that a Conversion Event has occurred with respect to a Foreign Currency, the Company will promptly give written notice thereof to the
Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly thereafter
give notice in the manner provided in Section 1.6 to the affected Holders) specifying the Conversion Date. In the event the
Company so determines that a Conversion Event has occurred with respect to any currency unit in which Securities are denominated or payable,
the Company will promptly give written notice thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and
the Trustee (or such Paying Agent) will promptly thereafter give notice in the manner provided in Section 1.6 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the
Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount
above has occurred, the Company will similarly give written notice to the Trustee (or any applicable Paying Agent) and to the Exchange
Rate Agent.
The Trustee of the appropriate series of Securities
shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent
and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company
or the Exchange Rate Agent.
Section 3.12. Appointment and
Resignation of Exchange Rate Agent. (a) Unless otherwise specified pursuant to Section 3.1, if and so long as the Securities
of any series (i) are denominated in a currency or currency unit other than Dollars or (ii) may be payable in a currency or currency unit
other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange
Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.11 for
the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued currency or currencies
or currency unit or units into the applicable payment currency or currency unit for the payment of principal, premium, if any, and interest,
if any, pursuant to Section 3.11.
(b) No
resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company
and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange Rate Agent.
(c) If
the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Exchange
Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified
pursuant to Section 3.1, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series
that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same currency or currencies
or currency unit or units).
Section 3.13. CUSIP Numbers. 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.
ARTICLE 4
SATISFACTION, DISCHARGE AND DEFEASANCE
Section 4.1. Termination of Company’s
Obligations Under the Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to
Securities of or within any series and any coupons appertaining thereto (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 and any coupons appertaining thereto when
(1) either
(A) all
such Securities previously authenticated and delivered and all coupons appertaining thereto (other than (i) such coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required
or has been waived as provided in Section 3.5, (ii) such Securities and coupons which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6, (iii) such coupons appertaining to Bearer Securities called for redemption and maturing
after the relevant Redemption Date, surrender of which has been waived as provided in Section 10.6 and (iv) such Securities and coupons
for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 9.3) have been delivered to the Trustee for cancellation; or
(B) all
Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee
for 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 (i),
(ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount
in the currency or currencies or currency unit or units in which the Securities of such series are payable, or Government Obligations
or a combination thereof, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal, premium, if any, and interest, with respect thereto, 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;
(2) the
Company has paid or caused to be paid all other sums then payable hereunder by the Company; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligation
of the Company to the Trustee and any predecessor Trustee under Section 6.8, the obligations of the Company to any Authenticating Agent
under Section 6.13 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of Section 9.3 shall survive such satisfaction and discharge.
Section 4.2. Application
of Trust Funds. Subject to the provisions of the last paragraph of Section 9.3, 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, the coupons and this Indenture,
to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any, and any interest for whose payment such money has been
deposited with or received by the Trustee, but such money need not be segregated from other funds except to the extent required by law.
Section 4.3. Applicability
of Defeasance Provisions; Company’s Option to Effect Defeasance or Covenant Defeasance. Unless pursuant to Section
3.1 provision is made to exclude with respect to the Securities of a particular series either or both of (i) defeasance of the Securities
of or within such series under Section 4.4 or (ii) covenant defeasance of the Securities of or within such series under Section 4.5, then
the provisions of such Section or Sections, as the case may be, together with the provisions of Sections 4.6 through 4.9 inclusive, with
such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities of such series, shall be applicable
to such Securities and any coupons appertaining thereto, and the Company may at its option, at any time, with respect to such Securities
and any coupons appertaining thereto, elect to have Section 4.4 (if applicable) or Section 4.5 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article.
Section 4.4. Defeasance
and Discharge. Upon the Company’s exercise of the option specified in Section 4.3 applicable to this Section with
respect to the Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect
to such Securities and any coupons appertaining thereto on the date the conditions set forth in Section 4.6 are satisfied (hereinafter
“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 any coupons appertaining thereto, which Securities and coupons appertaining
thereto shall thereafter be deemed to be “Outstanding” only for the purposes of Section 4.7 and the other Sections of this
Indenture referred to in clause (ii) of this Section, and to have satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee,
at the expense of the Company, shall on Company Order execute proper instruments acknowledging the same), except the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Securities and any coupons appertaining
thereto to receive, solely from the trust funds described in Section 4.6(a) and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest, if any, on such Securities or any coupons appertaining thereto when such payments
are due; (ii) the Company’s obligations with respect to such Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to
the payment of additional amounts, if any, payable with respect to such Securities as specified pursuant to Section 3.1(b)(19); (iii)
the rights, powers, trusts, duties and immunities of the Trustee hereunder; and (iv) this Article IV. Subject to compliance
with this Article IV, the Company may exercise its option under this Section notwithstanding the prior exercise of its option under Section
4.5 with respect to such Securities and any coupons appertaining thereto. Following a defeasance, payment of such Securities
may not be accelerated because of a Default or an Event of Default.
Section 4.5. Covenant
Defeasance. Upon the Company’s exercise of the option specified in Section 4.3 applicable to this Section with respect
to any Securities of or within a series, the Company shall be released from its obligations under Sections 7.1, 9.4 and 9.5, and, if specified
pursuant to Section 3.1, its obligations under any other covenant, with respect to such Securities and any coupons appertaining thereto
on and after the date the conditions set forth in Section 4.6 are satisfied (hereinafter, “covenant defeasance”), and
such Securities and any coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of
any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 7.1,
9.4 and 9.5, or such other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such Securities and any coupons appertaining thereto, 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 Section or such
other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant
or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Section 5.1(3) or 5.1(6) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected
thereby.
Section 4.6. Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 4.4 or Section 4.5
to any Securities of or within a series and any coupons appertaining thereto:
(a) The
Company shall have deposited or caused to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 6.11 who shall agree to comply with, and shall be entitled to the benefits of, the provisions of Sections 4.3 through 4.9 inclusive
and the last paragraph of Section 9.3 applicable to the Trustee, for purposes of such Sections also a “Trustee”) as
trust funds in trust for the purpose of making the payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining thereto, with instructions
to the Trustee as to the application thereof, (A) money in an amount (in such currency, currencies or currency unit or units in which
such Securities and any coupons appertaining thereto are then specified as payable at Maturity), or (B) if Securities of such series are
not subject to repayment at the option of Holders, Government Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day before the due date of any payment referred to in clause (x)
or (y) of this Section 4.6(a), money in an amount or (C) a combination thereof in an amount, sufficient, in the opinion of a nationally
recognized independent accounting or investment banking firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee to pay and discharge, (x) the principal of, premium, if any, and interest,
if any, on such Securities and any coupons appertaining thereto on the Maturity of such principal or installment of principal or interest
and (y) any mandatory sinking fund payments applicable to such Securities on the day on which such payments are due and payable in accordance
with the terms of this Indenture and such Securities and any coupons appertaining thereto. Before such a deposit the Company
may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article
X which shall be given effect in applying the foregoing.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a Default or Event of Default under, this
Indenture or result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) In
the case of an election under Section 4.4, no Default or Event of Default under Section 5.1(4) or 5.1(5) with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing during the period commencing on the date of such deposit and
ending on the 91st day after such date (it being understood that this condition shall not be deemed satisfied until the expiration of
such period).
(d) In
the case of an election under Section 4.4, the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling,
or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(e) In
the case of an election under Section 4.5, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be) have been complied with
and an Opinion of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise
of the Company’s option under or Section 4.5 (as the case may be), registration is not required under the Investment Company Act
of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the trustee for such trust funds
or (ii) all necessary registrations under said act have been effected.
(g) Such
defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which
may be imposed on the Company in connection therewith as contemplated by Section 3.1.
Section 4.7. Deposited
Money and Government Obligations To Be Held in Trust. Subject to the provisions of the last paragraph of Section 9.3, all
money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 4.6 in respect of any Securities of any series and any coupons appertaining thereto shall be held
in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto 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 Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in Section 4.6(a) has been made, (i) the Holder of a Security in respect of which
such deposit was made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such Security to receive payment in
a currency or currency unit other than that in which the deposit pursuant to Section 4.6(a) has been made in respect of such Security,
or (ii) a Conversion Event occurs as contemplated in Section 3.11(d) or 3.11(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 4.6(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall
be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, premium, if any, and interest,
if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of such Security into the currency or currency unit in which
such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such currency
or currency unit in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such
currency or currency unit in effect (as nearly as feasible) at the time of the Conversion Event.
Section 4.8. Repayment
to Company. The Trustee (and any Paying Agent) shall promptly pay to the Company upon Company Request any excess money
or securities held by them at any time.
Section 4.9. Indemnity
for Government Obligations. The Company shall pay, and shall indemnify the Trustee against, any tax, fee or other charge
imposed on or assessed against Government Obligations deposited pursuant to this Article or the principal and interest received on such
government obligations, other than any such tax, fee or other charge that by law is for the account of the Holders of the Securities subject
to defeasance or covenant defeasance pursuant to this Article.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.1. Events
of Default. An “Event of Default” occurs with respect to the Securities of any series if (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) the
Company defaults in the payment of interest on any Security of that series or any coupon appertaining thereto or any additional amount
payable with respect to any Security of that series as specified pursuant to Section 3.1(b)(19) when the same becomes due and payable
and such default continues for a period of 30 days;
(2) the
Company defaults in the payment of the principal of or any premium on any Security of that series when the same becomes due and payable
at its Maturity or on redemption or otherwise, or in the payment of a mandatory sinking fund payment when and as due by the terms of the
Securities of that series, and in each case such default continues for a period of 10 days;
(3) the
Company defaults in the performance of, or breaches, any covenant or warranty of the Company in this Indenture with respect to any Security
of that series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with) and such default or breach continues 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;
(4) the
Company pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of an order
for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of
its property, or (D) makes a general assignment for the benefit of its creditors;
(5) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company in an involuntary
case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days; or
(6) there
occurs any other Event of Default provided as contemplated by Section 3.1 with respect to Securities of that series.
The term “Bankruptcy Law” means
Title 11, U.S. Code, or any similar federal or state law for the relief of debtors. The term “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 5.2. Acceleration;
Rescission and Annulment. If an Event of Default with respect to the Securities of any series at the time Outstanding occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of all of the Outstanding Securities of that
series, by written notice to the Company (and, if given by the Holders, to the Trustee), may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount or other
amount as may be specified in the terms of that series) of all the Securities of that series to be immediately due and payable and upon
any such declaration such principal amount (or, in the case of Original Issue Discount Securities or Indexed Securities, such specified
amount) shall be 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 provided, the holders of a majority in aggregate principal amount of the Outstanding Securities
of that series, by written notice to the Trustee, may rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.7. 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
(1) default
is made in the payment of any interest on any Security or coupon, if any, when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for
a period of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities or coupons, if any, the whole amount then due and payable on such Securities for principal, premium,
if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal,
premium, if any, and on any overdue interest, at the rate or rates prescribed therefor in such Securities or coupons, if any, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such principal, premium,
if any, and interest 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 such principal, premium, if any, and interest amounts so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the Company.
In addition, if an 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. The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders of Securities allowed in any judicial proceedings relating to the
Company, its creditors or its property.
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, in its own name and as trustee of an express trust, without the possession of any of the
Securities or the production thereof in any proceeding relating thereto.
Section 5.6. Delay
or Omission Not Waiver. No delay or omission by the Trustee or any Holder of any Securities to exercise any right or remedy
accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of or acquiescence in any such Event of
Default.
Section 5.7. Waiver
of Past Defaults. The Holders of a majority in aggregate principal amount of Outstanding Securities of any series by notice
to the Trustee may waive on behalf of the Holders of all Securities of such series a past Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default (i) in the payment of the principal of, premium, if any, or interest,
if any, on any Security of such series or any coupon appertaining thereto or (ii) in respect of a covenant or provision hereof which pursuant
to Section 8.2 cannot be amended or modified without the consent of the Holder of each Outstanding Security of such series adversely affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon. In case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Securities of such series, respectively.
Section 5.8. Control
by Majority. The Holders of a majority in aggregate principal amount of the Outstanding Securities of each series affected
(with each such series voting as a class) 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 it with respect to Securities of that series; provided,
however, that (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, (ii) the Trustee may refuse
to follow any direction that is unduly prejudicial to the rights of the Holders of Securities of such series not consenting, or that would
in the good faith judgment of the Trustee have a substantial likelihood of involving the Trustee in personal liability, (iii) the Trustee
may refuse to follow any direction unless security or indemnity is provided by the Holders of Securities as contemplated by Section 6.1(h),
and (iv) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 5.9. Limitation
on Suits by Holders. No Holder of any Security of any series or any coupons appertaining thereto shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
(1) the
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the
Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series have made a written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such
Holder or Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense
to be, or which may be, incurred by the Trustee in pursuing the remedy;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceedings; and
(5) during
such 60 day period, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series have not given
to the Trustee a direction inconsistent with such written request.
No one or more 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 5.10. Rights
of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, but subject to Section 8.2, the right
of any Holder of a Security or coupon to receive payment of principal of, premium, if any, and, subject to Sections 3.5 and 3.7, interest
on the Security, on or after the respective due dates expressed in the Security (or, in case of redemption, on the redemption dates),
and the right of any Holder of a coupon to receive payment of interest due as provided in such coupon, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 5.11. Application
of Money Collected. If the Trustee collects any money pursuant to this Article, it shall pay out the money 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, premium, if any,
or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof
if fully paid:
|
First: |
to the Trustee for amounts due under Section 6.8; |
|
Second: |
to Holders of Securities and coupons in respect of which or for the benefit of which such money has been collected for amounts due and unpaid on such Securities for principal of, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and |
The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 5.11. At least 15 days before such record date, the Trustee shall mail
to each Holder and the Company a notice that states the record date, the payment date and the amount to be paid.
Section 5.12. 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 5.13. Rights
and Remedies Cumulative. Except as otherwise provided 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
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 5.14. Waiver
of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any
usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Company from paying
all or any portion of the principal of (or premium, if any) or interest on the Securities contemplated herein or in the Securities or
that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1. Rights
of Trustee. Subject to the provisions of the Trust Indenture Act:
(a) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper party or parties. The Trustee need not investigate any fact or matter stated
in the document.
(b) Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section
3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution.
(c) Before
the Trustee acts or refrains from acting, it may consult with counsel of its own selection or require an Officers’ Certificate. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution, the advice of counsel,
a certificate of an Officer or Officers delivered pursuant to Section 1.2, an Officers’ Certificate or an Opinion of Counsel.
(d) The
Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(e) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its discretion
or rights or powers.
(f) Unless
otherwise expressly provided in this Indenture, the Trustee shall have no obligation to distribute to the Holders, the Company or any
third party any amounts to be paid to the Trustee until such amounts are collected by the Trustee.
(g) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(h) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to
the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Notwithstanding anything contained herein to the contrary,
in case an Event of Default with respect to the Securities of any series has occurred and is continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and shall 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.
Section 6.2. Trustee
May Hold Securities. The Trustee, any Paying Agent, any Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company, the Guarantor, an Affiliate or Subsidiary with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
Section 6.3. Money
Held in Trust. 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 with the Company.
Section 6.4. Trustee’s
Disclaimer. The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representation as to the validity or adequacy of this Indenture or the Securities or any coupon, except that the Trustee represents
and warrants that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and thereunder; that the statements made by it in a Statement of Eligibility on Form T-1 supplied or to be supplied to the Company
in connection with the registration of any Securities are and will be true and accurate subject to the qualifications set forth therein;
and that such Statement complies and will comply in all material respects with the requirements of the Trust Indenture Act and the Securities
Act. The Trustee shall not be accountable for the Company’s use of the proceeds from the Securities or for monies paid
over to the Company pursuant to the Indenture.
Section 6.5. Notice
of Defaults. If a Default occurs and is continuing with respect to the Securities of any series and if it is actually known
to a Responsible Officer of the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, notice of all uncured Defaults known to it; provided, however, that, except in
the case of a Default in payment on the Securities of any series, the Trustee may withhold the notice if and so long as a Responsible
Officer in good faith determines that withholding such notice is in the interests of Holders of Securities of that series; provided, further,
that in the case of any default or breach of the character specified in Section 5.1(3) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. The Trustee shall not
be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee.
Section 6.6. Reports
by Trustee to Holders. Within 60 days after each May 15 of each year commencing with the first May 15 after the first issuance
of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in Section 313(c)
of the Trust Indenture Act a brief report dated as of such May 15 if required by and in compliance with Section 313(a) of the Trust Indenture
Act. A copy of each report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange and of any delisting thereof.
Section 6.7. Security
Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders of Securities of each series. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee semiannually on or before the last day of June and December in each year, and at such other times as the
Trustee may request in writing, a list, in such form and as of such date as the Trustee may reasonably require, containing all the information
in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and addresses
of Holders of Securities of each such series. If there are Bearer Securities of any series Outstanding, even if the Trustee
is the Registrar, the Company shall furnish to the Trustee such a list containing such information with respect to Holders of such Bearer
Securities only.
Section 6.8. Compensation
and Indemnity. (a) The Company shall pay to the Trustee from time to time such 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 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 shall be determined to have been caused by its own negligence or willful misconduct. Such expenses
shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
(b) The
Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including
taxes other than taxes based upon, measured by or determined by the income of the Trustee), including 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)), incurred by it arising
out of or in connection with its acceptance or administration of the trust or trusts hereunder (collectively, “Claims”). The
Trustee shall notify the Company promptly of any Claim for which it may seek indemnity. The Company shall defend the Claim
and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
(c) The
Company need not reimburse any expense, disbursement or advance or indemnify against any Claim incurred by the Trustee through negligence
or bad faith.
(d) To
secure the payment obligations of the Company pursuant to this Section, 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, premium, if any, and interest on
particular Securities.
(e) When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(4) or Section 5.1(5),
the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
(f) The
provisions of this Section shall survive the termination of this Indenture and resignation or removal of the Trustee.
Section 6.9. Replacement
of Trustee. The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee’s acceptance of appointment as provided in Section 6.10.
(a) The
Trustee may resign at any time with respect to the Securities of any series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section 6.10 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.
(b) The
Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may remove the Trustee with respect to
that series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the Company’s consent. If
an instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the Trustee being removed 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.
(c) If
at any time:
(1) the
Trustee fails to comply with Section 310(b) of the Trust Indenture Act 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
(2) the
Trustee shall cease to be eligible under Section 6.11 hereof or Section 310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six
months; or
(3) the
Trustee becomes incapable of acting, is adjudged a bankrupt or an insolvent or a receiver or public officer takes charge of the Trustee
or its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect
to all Securities, or (ii) subject to Section 315(e) of the Trust Indenture Act, 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.
(d) If
the Trustee resigns or is removed or becomes incapable of acting or if a vacancy exists in the office of Trustee for any reason, with
respect to Securities of one or more series, the Company shall promptly appoint a successor Trustee 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
shall comply with the applicable requirements of Section 6.10. 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 6.10, 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 6.10, then, subject to Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
Section 6.10. Acceptance
of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee,
without further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein such successor Trustee
shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates, (ii) 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 (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust 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.
(c) Upon
request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under the Trust Indenture Act.
(e) 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 in the manner provided for notices to the Holders of Securities in
Section 1.6. 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. Eligibility;
Disqualification. There shall at all times be a Trustee hereunder with respect to each series of Securities (which need
not be the same Trustee for all series). Each Trustee hereunder shall be eligible to act as trustee under Section 310(a)(1)
of the Trust Indenture Act and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect
specified in this Article.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of the Trust Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act, any Trustee hereunder shall not be deemed to have a conflicting interest by virtue of being (i) the trustee under the Indenture
dated as of the date hereof between America’s Car-Mart, Inc. and [●], as Trustee, or the Indenture dated [●]
among the Company, [●], as Guarantor, and [●], as Trustee or (ii) the successor trustee under the Indenture dated [●]
between the Company and [●], as Trustee, and with respect to any or all series of securities issued or issuable under such indentures,
or with respect to any series of Securities, by virtue of being the Trustee with respect to any other series of Securities.
Section 6.12. Merger,
Conversion, Consolidation or Succession to Business. Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such Person 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 such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
Section 6.13. 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
exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. 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 may otherwise be provided pursuant to Section
3.1, shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia, authorized under such laws to act as Authenticating Agent, having
a combined capital and surplus of not less than $1,500,000 and subject to supervision or examination by Federal or State authorities. If
such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, 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. In case at
any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this Section.
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 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, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities
may at any time resign by giving written notice of resignation 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 of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in
case at any time 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
to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section
1.6. 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 herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time such reasonable compensation as the Company and such Authenticating Agent agree in writing from time to time including
reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated herein and issued
under the within-mentioned Indenture.
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[●], |
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as Trustee |
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By |
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as Authenticating Agent |
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By |
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Authorized Signatory |
ARTICLE 7
CONSOLIDATION, MERGER OR SALE BY THE COMPANY
Section 7.1. Consolidation,
Merger or Sale of Assets Permitted. The Company may merge or consolidate with or into any other Person or sell, convey,
transfer or otherwise dispose of all or substantially all of its assets to any Person, if (i) (A) in the case of a merger or consolidation,
the Company is the surviving Person or (B) in the case of a merger or consolidation where the Company is not the surviving Person and
in the case of any sale, conveyance, transfer or other disposition, the resulting, surviving or transferee Person is organized and existing
under the laws of the United States or a State thereof and such Person expressly assumes by supplemental indenture all the obligations
of the Company under the Securities and any coupons appertaining thereto 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 or other disposition complies with this Article and
that all conditions precedent herein provided for relating to such transaction have been complied with. In the event of the
assumption by a successor Person of the obligations of the Company as provided in clause (i) (B) of the immediately preceding sentence,
such successor Person shall succeed to and be substituted for the Company hereunder and under the Securities and any coupons appertaining
thereto and all such obligations of the Company shall terminate.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1. Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto or, if applicable, into agreements supplemental to any Guarantee, in
form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants and obligations of
the Company herein and in the Securities or, if applicable, to evidence the succession of another Person to the Guarantor and the assumption
by any such successor of the covenants of the Guarantor herein or of the Guarantor’s obligations under any Guarantee (in either
case with such changes herein and therein as may be necessary or advisable to reflect such Person’s legal status, if such Person
is not a corporation); or
(2) to
add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any 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) or to surrender any right or power herein conferred upon the Company or the Guarantor or to comply with any requirement
of the Commission in connection with the qualification of this Indenture or any Guarantee under the Trust Indenture Act or otherwise;
or
(3) to
add any additional Events of Default with respect to all or any series of Securities; or
(4) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the issuance of Bearer Securities
(including, without limitation, to provide that Bearer Securities may be registrable as to principal only) or to facilitate or provide
for the issuance of Securities in global form in addition to or in place of Securities in certificated form; or
(5) to
add to, or to change or eliminate, any of the provisions of this Indenture, including to make appropriate provisions for any Guarantee,
provided that any such change or elimination shall become effective only with respect to Securities which have not been issued as of the
execution of such supplemental indenture or when there is no Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision; or
(6) to
secure the Securities; or
(7) to
establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
(8) to
provide for the delivery of indentures supplemental hereto or the Securities of any series in or by means of any computerized, electronic
or other medium, including without limitation by computer diskette; or
(9) 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/or 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 Article VI; or
(10) if
allowed without penalty under applicable laws and regulations, to permit payment in the United States (including any of the states and
the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction of principal, premium, if any,
or interest, if any, on Bearer Securities or coupons, if any; or
(11) to
correct or supplement any provision herein, in any Securities or in any Guarantee which may be inconsistent with any other provision herein
or to cure any ambiguity or omission or to correct any mistake herein, in any Securities or in any Guarantee; or
(12) to
make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not materially
adversely affect the interests of the Holders of Securities of any series.
Section 8.2. With
Consent of Holders. With the written consent of the Holders of a majority of the aggregate principal amount of the Outstanding
Securities of each series adversely affected by such supplemental indenture (with the Securities of each series voting as a class), the
Company and the Trustee may enter into an indenture or indentures supplemental hereto to add any provisions to or to change or eliminate
any provisions of this Indenture or of any other indenture supplemental hereto or to modify the rights of the Holders of Securities of
each such series and, if applicable, the Guarantor and the Trustee may enter into an agreement or agreements supplemental hereto to add
to or to change or eliminate any provisions of a Guarantee; provided, however, that without the consent of the Holder of each Outstanding
Security affected thereby, a supplemental indenture under this Section may not:
(1) change
the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or Indexed Security that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the coin or currency in which any Securities or any premium or the interest thereon 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);
(2) 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;
(3) change
any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2; or
(4) make
any change in Section 5.7 or this 8.2 except to increase any percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived except with the consent of the Holders of each Outstanding Security affected thereby.
For the purposes of this Section 8.2, if the Securities
of any series are issuable upon the exercise of warrants, any holder of an unexercised and unexpired warrant with respect to such series
shall not be deemed to be a Holder of Outstanding Securities of such series in the amount issuable upon the exercise of such warrants.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture, or a supplemental agreement which changes or eliminates any covenant or other provision
of a Guarantee, 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 is not necessary under this Section 8.2 for the
Holders to consent to the particular form of any proposed supplemental indenture or supplemental agreement, but it is sufficient if they
consent to the substance thereof.
Section 8.3. Compliance
with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more series shall be set forth
in a supplemental indenture that complies with the Trust Indenture Act as then in effect.
Section 8.4. Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and 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 adversely
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise. The Trustee shall enter into
any such supplemental indenture if such supplemental indenture does not adversely affect the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
Section 8.5. Effect
of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound thereby;
provided that if such supplemental indenture makes any of the changes described in clauses (1) through (4) of the first proviso to Section
8.2, 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 8.6. Reference
in Securities to Supplemental Indentures. Securities, including any coupons, of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities including any coupons 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 including any coupons of such series.
ARTICLE 9
COVENANTS
Section 9.1. Payment
of Principal, Premium, if any, 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, premium, if any, and interest on the Securities of that series in
accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. An installment
of principal, premium, if any, or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay the installment.
Section 9.2. Maintenance
of Office or Agency. If Securities of a series are issued as Registered Securities, 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. If Securities of a series are issuable
as Bearer Securities, the Company will maintain, (i) subject to any laws or regulations applicable thereto, an office or agency in a Place
of Payment for that series which is located outside the United States where Securities of that series and related coupons may be presented
and surrendered for payment; and (ii) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment
for that series which is located outside the United States where Securities of that series may be surrendered for 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 specified as contemplated by Section
3.1, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United
States, by check mailed to any address in the United States, by transfer to an account located in the United States or upon presentation
or surrender in the United States of a Bearer Security or coupon for payment, even if the payment would be credited to an account located
outside the United States; provided, however, that, if the Securities of a series are denominated and payable in Dollars, payment of principal
of and any premium or interest on any such Bearer Security shall be made at an office of a Paying Agent of the Company in The City of
New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices
or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
Subject to the preceding paragraphs, the Company may
also from time to time designate one or more other offices or agencies where the Securities (including any coupons, if any) 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 (including any coupons, if any) 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.
Unless otherwise specified as contemplated by Section
3.1, the Trustee shall initially serve as Paying Agent. The Paying Agent may make reasonable rules not inconsistent herewith
for the performance of its functions.
Section 9.3. Money
for Securities To Be Held in Trust; Unclaimed Money. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the principal of, premium, if any, or interest on 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,
premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided
and will promptly notify the Trustee in writing of its action or failure so to act.
If the Company is not acting as its own Paying Agent,
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, that such Paying Agent
will:
(1) hold
all sums held by it for the payment of the principal of, premium, if any, or interest on Securities of that series in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give
the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment
of principal, premium, if any, or interest on the Securities; and
(3) at
any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money or Government Obligations (including the
proceeds thereof) deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal,
premium, if any, or interest or other amounts on any Security of any series and remaining unclaimed for two years after such principal,
premium, if any, or interest or other amounts 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 and coupon, if any, 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
a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New
York, or cause to be mailed to such Holder, notice that such money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 9.4. Corporate
Existence. Subject to Article VII, the Company will at all times do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and its rights and franchises; provided that nothing in this Section 9.4 shall
prevent the abandonment or termination of any right or franchise of the Company if, in the opinion of the Company, such abandonment or
termination is in the best interests of the Company.
Section 9.5. Insurance. The
Company covenants and agrees that it will maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations or through a program of self-insurance in such amounts and covering such risks as are consistent with
sound business practice for corporations engaged in the same or a similar business similarly situated.
Section 9.6. Reports
by the Company. The Company covenants:
(a) to
file with the Trustee, within 30 days after the Company is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to
file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided
for in this Indenture, as may be required from time to time by such rules and regulations; and
(c) to
transmit to all Holders of Securities within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 9.6, as may be required by rules and regulations prescribed from time to time by the
Commission.
Subject to the provisions of the Trust Indenture Act
and except as otherwise expressly provided in this Indenture, delivery of such reports, information and documents to the Trustee is for
informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder.
Section 9.7. Annual
Review Certificate. The Company covenants and agrees to deliver to the Trustee, within 120 days after the end of each fiscal
year of the Company, a brief certificate from the principal executive officer, principal financial officer, or principal accounting officer
as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture. For purposes
of this Section 9.7, such compliance shall be determined without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 9.8. Calculation
of Original Issue Discount. Except as the Company and the Trustee may otherwise agree, the Company shall file with the
Trustee promptly following the end of each calendar year (a) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (b) such other specific information
relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 10
REDEMPTION
Section 10.1. Applicability
of Article. Securities (including coupons, if any) of or within any series which 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 Securities of any series) in accordance with this Article.
Section 10.2. Election
to Redeem; Notice to Trustee. The election of the Company to redeem any Securities, including coupons, if any, shall be
evidenced by or pursuant to a Board Resolution or a Company Order. In the case of any redemption at the election of the Company
of less than all the Securities or coupons, if any, of any series having the same terms, the Company shall, at least 60 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 10.3. Selection
of Securities To Be Redeemed. Unless otherwise specified as contemplated by Section 3.1, if less than all the Securities
(including coupons, if any) of a series with the same terms are to be redeemed, the Trustee, not more than 45 days prior to the redemption
date, shall select the Securities of the series to be redeemed in such manner as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection from Securities of the series that are Outstanding and that have not previously been called for redemption
and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities, including coupons,
if any, of that series or any integral multiple thereof) of the principal amount of Securities, including coupons, if any, of such series
of a denomination larger than the minimum authorized denomination for Securities of that series. The Trustee shall promptly
notify the Company in writing of the Securities selected by the Trustee for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed. If the Securities (including coupons, if any) of a series
having different issue dates, interest rates and maturities (whether or not originally issued in a Periodic Offering) are to be redeemed,
the Company in its discretion may select the particular Securities or portions thereof to be redeemed and shall notify the Trustee thereof
by such time prior to the relevant redemption date or dates as the Company and the Trustee may agree.
For purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities (including coupons, if any) shall relate, in the case of any
Securities (including coupons, if any) redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities
(including coupons, if any) which has been or is to be redeemed.
Section 10.4. Notice
of Redemption. Unless otherwise specified as contemplated by Section 3.1, notice of redemption shall be given in the manner
provided in Section 1.6 not less than 15 days nor more than 60 days prior to the Redemption Date to the Holders of the Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption
Date;
(2) the Redemption
Price;
(3) if
less than all the Outstanding Securities of a series are to be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) in
case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(5) the
Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) that
Securities of the series called for redemption and all unmatured coupons, if any, appertaining thereto must be surrendered to the Paying
Agent to collect the Redemption Price;
(7) that,
on the Redemption Date, the Redemption Price will become due and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after said date;
(8) that
the redemption is for a sinking fund, if such is the case;
(9) that,
unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption
Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished; and
(10) the
CUSIP number, if any, of such Securities.
Notice of redemption of Securities to be redeemed shall
be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
Section 10.5. Deposit
of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article XI, segregate
and hold in trust as provided in Section 9.3) an amount of money in the currency or currencies (including currency units or composite
currencies) in which the Securities of such series are payable (except as otherwise specified pursuant to for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (unless the Redemption Date shall be an Interest Payment Date) interest
accrued to the Redemption Date on, all Securities or portions thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking
fund payment obligation from being satisfied by delivering and crediting Securities (including Securities redeemed otherwise than through
a sinking fund), the Company may deliver such Securities to the Trustee for crediting against such payment obligation in accordance with
the terms of such Securities and this Indenture.
Section 10.6. 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 and the coupons
for any such interest appertaining to any Bearer Security so to be redeemed, except to the extent provided below, shall be void. Except
as provided in the next succeeding paragraph, upon surrender of any such Security, including coupons, if any, for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
and the principal of, and premium, if any, on such Bearer Securities shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of coupons for such interest; and provided, further, that, unless otherwise specified as contemplated by Section
3.1, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such 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 Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date,
such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons,
or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made
from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside of the United States (except as otherwise provided in Section
9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
Section 10.7. Securities
Redeemed in Part. Upon surrender of a Security that is redeemed in part at any Place of Payment therefor (with, if the
Company or the Trustee so require, 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 his attorney duly authorized in writing), the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of that Security, without service charge a new Security or Securities of the same series, having
the same form, terms and Stated Maturity, in any authorized denomination equal in aggregate principal amount to the unredeemed portion
of the principal amount of the Security surrendered.
ARTICLE 11
SINKING FUNDS
Section 11.1. Applicability
of Article. Securities of a series shall not be subject to a sinking fund unless provided pursuant to Section 3.1. The
provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment
in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities. The Company (i) may deliver Outstanding Securities of a series (other than any
previously called for redemption) together, in the case of Bearer Securities of such series, with all unmatured coupons appertaining thereto
and (ii) 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 the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
Section 11.3. Redemption
of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 11.2 and will
also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 10.3
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
10.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 10.6 and 10.7.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
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AMERICA’S CAR-MART, INC. |
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By: |
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Jeffrey A. Williams
Chief Executive Officer |
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[_____], |
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as Trustee |
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48
Exhibit 5.1
![](https://www.sec.gov/Archives/edgar/data/799850/000117184323004261/mitchell.jpg)
425
WEST CAPITOL AVENUE, SUITE 1800
LITTLE
ROCK, ARKANSAS 72201-3525
TELEPHONE
501-688-8800
FAX
501-688-8807
June 29, 2023
Board of Directors
America’s Car-Mart, Inc.
1805 North 2nd Street, Suite 401
Rogers, Arkansas 72756
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to America’s Car-Mart,
Inc., a corporation organized under the laws of the State of Texas (the “Company”), in connection with the preparation and
filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), of a shelf Registration Statement on Form S-3 (the “Registration Statement”). The Registration Statement is being
filed under the Securities Act on the date hereof for the registration of the following securities (collectively, the “Securities”),
to be offered and sold from time to time in one or more offerings by the Company, as more fully described in the Registration Statement:
| (i) | common stock, par value $0.01 per share, of the Company; |
| (ii) | preferred stock, par value $0.01 per share, of the Company; |
| (iii) | debt securities of the Company; |
| (iv) | rights of the Company; and |
| (v) | warrants of the Company. |
This opinion letter is furnished to you at your request
to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the
Registration Statement.
In so acting we have examined originals, or copies certified
or otherwise identified to our satisfaction, of (a) an executed copy of the Registration Statement, including the prospectus filed therewith
constituting a part of the Registration Statement and the exhibits to the Registration Statement; (b) those exhibits that have been incorporated
by reference into the Registration Statement; (c) the Articles of Incorporation of the Company, as amended; (d) the Amended and Restated
Bylaws of the Company, as amended; (e) certain resolutions adopted by the Board of Directors of the Company (the “Board”)
with respect to the Registration Statement and the issuance of the Securities contemplated thereby; and (f) such other documents, records,
certificates and other instruments as in our judgment are necessary or appropriate for purposes of this opinion.
Mitchell, Williams,
Selig, Gates & Woodyard, P.L.L.C. | Attorneys at Law
MitchellWilliamsLaw.com
Board of Directors
America’s Car-Mart, Inc.
June 29, 2023
Page 2
In our examination of the aforesaid documents, we have
assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted
to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us
as copies. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely
on the Texas Business Organizations Code, as amended, and the federal laws of the United States. We express no opinion herein as to any
other laws, statutes, ordinances, rules or regulations.
We have assumed that (i) the Securities to be offered
by the Company will have been specifically authorized for issuance by the Board; (ii) any debt securities offered by the Company will
be issued pursuant to one or more indentures, each to be between the Company and a financial institution identified therein as the trustee;
(iii) any Securities issuable upon conversion, exchange, or exercise of any Securities being offered will have been duly authorized,
created, and, if appropriate, reserved for issuance upon such conversion, exchange, or exercise; (iv) the Commission will have entered
an appropriate order declaring effective the Registration Statement; (v) a prospectus supplement will have been filed with the Commission
describing the Securities offered thereby; (vi) all Securities will be offered and sold in compliance with applicable federal and state
securities laws and solely in the manner stated in the Registration Statement and the applicable prospectus supplement; (vii) to the
extent applicable, a definitive purchase, underwriting, guarantee, or similar agreement with respect to the Securities will have been
duly authorized and validly executed and delivered by the Company and the other parties thereto; and (viii) the terms of the Securities
will not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, and
will comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
With respect
to the issuance and sale of any capital stock by the Company, we have assumed that, at the time of issuance and sale, a sufficient number
of shares of common or preferred stock, as applicable, are authorized and reserved or available for issuance and that the consideration
for the issuance and sale of the capital stock, as approved by the Board or a committee thereof, is equal to or exceeds the par value
of such stock and such additional amount as determined by the Board or a committee thereof. We have also assumed that (i) with respect
to the issuance and sale of any debt securities by the Company, at the time of execution, authentication, issuance and delivery of such
debt securities, the applicable indenture will be the valid and legally binding obligation of the trustee named therein; (ii) with respect
to Securities being issued upon conversion of any convertible preferred stock, the applicable convertible preferred stock will be duly
authorized, validly issued, fully paid and nonassessable; and (iii) with respect to any Securities being issued upon exercise of any
warrants, the applicable warrants will be valid and legally binding obligations of the Company, enforceable against the Company in accordance
with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, rehabilitation, moratorium,
fraudulent conveyance, marshalling, or other laws relating to or affecting creditors’ rights and remedies generally and by general
principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
Board of Directors
America’s Car-Mart, Inc.
June 29, 2023
Page 3
Based upon, subject to and limited by the foregoing,
we are of the opinion that:
1. When issued
upon the terms and conditions set forth in the Registration Statement and upon approval of the issuance and sale of the Securities consisting
of capital stock, or any portion thereof, by the Board, such Securities will be validly issued, fully paid and nonassessable.
2. With respect
to any debt securities, when (i) the terms of the debt securities and of their issuance and sale have been duly established in conformity
with the applicable indenture so as not to violate any law or result in any default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction
over the Company; (ii) the Board has taken all necessary corporate action to approve the issuance and terms of such debt securities, the
terms of the offering thereof, and related matters; (iii) the applicable indenture and any supplemental indenture relating to the debt
securities have been duly authorized, executed and delivered by the Company and by the trustee thereunder; (iv) the debt securities have
been duly executed and authenticated in accordance with the indenture; and (v) the debt securities have been issued as contemplated in
the Registration Statement and any applicable prospectus supplement thereto, such debt securities will constitute valid and binding obligations
of the Company.
3. With respect
to any rights, when (i) the terms of the rights and of their issuance and sale have been duly authorized by the Company; (ii) the Board
has taken all necessary corporate action to approve the issuance and terms of such rights, the terms, execution and delivery of any rights
agreement relating to the rights, the terms of the offering thereof and related matters; (iii) the terms of such rights are set forth
or incorporated by reference in the applicable rights agreement or other instrument or instruments evidencing such rights; (iv) the applicable
rights agreement has been duly authorized, executed and delivered by the parties thereto; and (v) such rights have been duly executed
and delivered in accordance with the applicable rights agreement and issued and sold as contemplated in the Registration Statement and
any applicable prospectus supplement thereto, such rights will constitute valid and binding obligations of the Company.
4. With
respect to any warrants, when (i) the Board has taken all necessary corporate action to approve the issuance and terms of such warrants,
the terms, execution and delivery of any warrant agreement relating to the warrants, the terms of the offering thereof and related matters;
(ii) the terms of such warrants are set forth or incorporated by reference in the applicable warrant agreement or other instrument or
instruments evidencing such warrants; (iii) the warrant agreement has been duly authorized and validly executed and delivered; and (iv)
such warrants have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance with the
provisions of the applicable warrant agreement and the applicable definitive purchase, underwriting or similar agreement approved by
the Board, upon payment of the consideration provided for therein, such warrants will constitute valid and binding obligations of the
Company.
Board of Directors
America’s Car-Mart, Inc.
June 29, 2023
Page 4
Our opinion represents the reasoned judgment of Mitchell,
Williams, Selig, Gates & Woodyard, P.L.L.C., as to certain matters of law stated herein and should not be considered or construed
as a guaranty. This opinion letter speaks as of the date hereof. Our opinion is subject to future changes in law or fact, and we disclaim
any obligation to advise you of or update this opinion for any changes of applicable law or facts that may affect matters or opinions
set forth herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference
to us under the caption “Legal Matters” in the prospectus included in the Registration Statement. In giving this opinion
and consent, we do not admit that we are an “expert” within the meaning of the Securities Act.
Very truly yours,
/s/ Mitchell, Williams, Selig,
Gates & Woodyard, P.L.L.C.
mitchell, williams, selig,
gates & woodyard, p.l.l.c.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our reports dated June 26, 2023
with respect to the consolidated financial statements and internal control over financial reporting of America’s Car-Mart, Inc.
included in the Annual Report on Form 10-K for the year ended April 30, 2023, which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement, and to the use of
our name as it appears under the caption “Experts.”
/s/ GRANT THORNTON LLP
Tulsa, Oklahoma
June 29, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
AMERICA’S CAR-MART, INC.
(Exact name of registrant as specified in its charter)
Table 1: Newly Registered Securities and Carry Forward Securities
|
Security Type |
Security Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering Price
Per Unit (2) |
Maximum
Aggregate
Offering
Price |
Fee Rate |
Amount of
Registration
Fee (3) |
Fees to be Paid |
Equity |
Common Stock, par value $0.01 per share |
457(o) |
– |
– |
– |
– |
– |
|
Equity |
Preferred Stock, par value $0.01 per share |
457(o) |
– |
– |
– |
– |
– |
|
Debt |
Debt Securities |
457(o) |
– |
– |
– |
– |
– |
|
Other |
Rights |
457(o) |
– |
– |
– |
– |
– |
|
Other |
Warrants |
457(o) |
– |
– |
– |
– |
– |
|
Unallocated (Universal) Shelf |
– |
457(o) |
– |
– |
$400,000,000 |
0.00011020 |
$44,080 |
Fees Previously Paid |
– |
– |
– |
– |
– |
– |
|
– |
Carry Forward Securities |
– |
– |
– |
– |
|
– |
|
|
|
Total Offering Amounts |
|
$400,000,000 |
|
$44,080 |
|
Total Fees Previously Paid |
|
|
|
– |
|
Total Fee Offsets |
|
|
|
– |
|
Net Fee Due |
|
|
|
$44,080 |
| (1) | The amount to be registered consists of up to $400,000,000 of an indeterminate amount of each identified class of security as may
from time to time be issued at indeterminate prices. The securities registered include unspecified amounts and numbers of securities that
may be issued upon conversion of or exchange for securities that provide for conversion or exchange or pursuant to the anti-dilution provisions
of any such securities. Separate consideration may or may not be received for securities issuable upon exercise, conversion or exchange
of other securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
the securities being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect
to the registered securities as a result of stock splits, stock dividends, recapitalizations, or similar transactions. |
| (2) | The proposed maximum offering price per unit of security will be determined by the registrant from time to time in connection with
the issuance by the registrant of the securities registered hereunder and has been omitted pursuant to General Instruction 2.A.iii.b.
to Item 16 of Form S-3 under the Securities Act. |
| (3) | Calculated pursuant to Rule 457(o) under the Securities Act based on the proposed maximum aggregate
offering price of all securities listed. |
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