As filed with the Securities
and Exchange Commission on August 30, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RumbleOn, Inc.
(Exact name of registrant as specified in its charter)
Nevada |
|
46-3951329 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
901 W. Walnut Hill Lane,
Suite 110A
Irving, Texas 75038
(214) 771-9952
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brandy Treadway
Chief Legal Officer
RumbleOn, Inc.
901 W. Walnut Hill Lane,
Suite 110A
Irving, Texas 75038
(214) 771-9952
(Name, address including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Geoffrey L. Newton
Sarah J. Dodson
Baker Botts L.L.P.
2001 Ross Avenue, Suite
900
Dallas, Texas 75201
(214) 953-6500
Approximate date of commencement of proposed sale to the public:
From time to time after the registration statement becomes effective, as determined by the applicable registrant.
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. þ
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
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, please check the following box and list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule
413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated filer þ |
Non-accelerated filer ☐ |
Smaller reporting company þ |
|
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. We may not sell 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 we are not
soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to completion, dated August 30, 2024
PRELIMINARY
PROSPECTUS
RumbleOn,
Inc.
$250,000,000
Class
B Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Rights
We
may offer and sell up to $250,000,000 from time to time, in one or more offerings and in one or more series, our Class B common stock,
preferred stock, debt securities, warrants, units or rights. Our debt securities may consist of debentures, notes, or other types of
debt. The securities we offer may be convertible into or exercisable or exchangeable for other securities.
Each
time we sell securities pursuant to this prospectus, we will provide a prospectus supplement and attach it to this prospectus. Such prospectus
supplement will contain more specific information about the offering and the securities being offered. Each prospectus supplement may
also add, update or change information contained in this prospectus. This prospectus may not be used to sell securities unless accompanied
by a prospectus supplement describing the method and terms of the offering.
We
may sell securities, on a continuous or delayed basis, to or through underwriters, dealers or agents or directly to purchasers. If any
agents or underwriters are involved in the sale of any of these securities, the applicable prospectus supplement will provide their names
and any applicable fees, commissions or discounts. Any offer of securities will be in amounts, at prices and on terms to be determined
by market conditions at the time of the applicable offering.
You
should carefully read this prospectus and any accompanying prospectus supplement, together with the documents we incorporate by reference,
before you invest in our securities.
Our
principal executive offices are located at 901 W. Walnut Hill Lane, Suite 110A Irving, Texas 75038, and our telephone number at that
address is (214) 771-9952.
Investing
in our securities involves risks. You should carefully consider the “Risk Factors” referred to on page 2 of this
prospectus, in any applicable prospectus supplement and the documents incorporated or deemed incorporated by reference in this prospectus
or in any applicable prospectus supplement before investing in our securities.
Our
Class B common stock is listed on The Nasdaq Capital Market (“Nasdaq”) of the Nasdaq Stock Market LLC under the symbol “RMBL.”
On August 26, 2024, the last reported sale price of our Class B common stock on Nasdaq was $4.89 per share.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED
THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The
date of this prospectus is ,
2024
Table
of Contents
About
This Prospectus
This
prospectus is 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 offer and sell from time to time,
in one or more offerings and in one or more series, any combination of the securities described in this prospectus. This prospectus provides
you with a general description of the securities we may offer. Each time we sell securities pursuant to this prospectus, we will provide
a prospectus supplement and attach it to this prospectus. Each prospectus supplement will contain more specific information about the
terms of that offering and the securities being offered. Each prospectus supplement may also add to, update, supplement, change or clarify
information contained in this prospectus. Any statement that we make in this prospectus will be modified or superseded by any inconsistent
statement made by us in a prospectus supplement prepared by us. If the information in this prospectus is inconsistent with a prospectus
supplement, you should rely on the information in the prospectus supplement.
We
have not authorized anyone to give you any information or to make any representations other than those contained or incorporated by reference
in this prospectus or any applicable prospectus supplement. If you are given any information or representation about these matters that
is not contained or incorporated by reference in this prospectus or a prospectus supplement, you should not rely on that information.
This prospectus and the accompanying prospectus supplement do not constitute an offer to sell anywhere or to anyone where or to whom
we are not permitted to offer to sell securities under applicable law.
You
should not assume that the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement,
any related free writing prospectus, or any other offering materials is accurate as of any date other than the date on the front of such
document, regardless of the time of delivery of this prospectus, the accompanying prospectus supplement or any related free writing prospectus.
Our business, financial condition, results of operations, and prospects may have changed since those respective dates.
The
rules of the SEC allow us to incorporate by reference information into this prospectus. This means that important information is contained
in other documents that is considered to be a part of this prospectus. Additionally, information that we file later with the SEC will
automatically update and supersede this information. You should carefully read this prospectus, any accompanying prospectus supplement
and the information that is incorporated or deemed incorporated by reference in this prospectus. See “Documents Incorporated by
Reference into This Prospectus.” The registration statement, including the exhibits and the documents incorporated or deemed incorporated
by reference in this prospectus can be read on the SEC website mentioned under the heading “Where You Can Find More Information.”
This
prospectus may not be used to sell any securities unless accompanied by a prospectus supplement.
In
this prospectus, “RumbleOn,” “we,” “us,” “our,” and the “Company” refer to
RumbleOn, Inc. and its consolidated subsidiaries, unless otherwise indicated or the context otherwise requires.
Risk
Factors
An
investment in our securities involves risks. Before you make a decision to buy our securities, you should read and carefully consider
all of the information described in this prospectus, any applicable prospectus supplement and the documents incorporated by reference
herein, including our most recent Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q and our subsequent Current Reports on
Form 8-K, particularly under the heading “Risk Factors.” If any of the risks discussed in the foregoing documents were actually
to occur, our business, financial condition, results of operations or cash flow could be materially and adversely affected. In that case,
the trading price of our securities could decline and you could lose all or part of your investment. Additional risks not currently known
to us or that we currently deem immaterial may also have a material adverse effect on us. When we offer and sell any securities pursuant
to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
Forward-Looking
Statements
Some
statements contained in this prospectus (or statements otherwise made by us or on our behalf from time to time in other filings with
the SEC incorporated herein by reference) are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and the “safe harbor” provisions under the Private Securities Litigation Reform Act of 1995. These statements, which in some
cases you can identify by terms such as “anticipates,” “believes,” “contemplates,” “continues,”
“could,” “ensures,” “estimates,” “expects,” “intends,” “likely,”
“may,” “might,” “plans,” “potential,” “predicts,” “projects,”
“shall,” “should,” “strategy,” “targets,” “will,” “would,” and
similar expressions, are intended to identify forward-looking statements, relate to future events, or to our future operating or financial
performance, and involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or
achievements to be materially different from any future results, performance, or achievements expressed or implied by the forward-looking
statements. These statements include statements regarding our future strategy, operations, cash flows, financial position, and economic
performance including, in particular, future sales, competition, and the effect of economic conditions.
Although
we believe that the forward-looking statements contained or incorporated by reference in this prospectus are based upon reasonable assumptions,
these statements express opinions about future outcomes and non-historical information and are subject to a number of risks and uncertainties,
many of which are beyond our control. In addition, in many cases they assume or are contingent on future business decisions that are
subject to change and, therefore, there is no assurance that the outcomes expressed in these statements will be achieved. Some of the
assumptions, future results, and levels of performance expressed or implied in the forward-looking statements we have made or may make
in the future inevitably will not materialize, and unanticipated events may occur which will affect our results. Investors are cautioned
that forward-looking statements are not guarantees of future performance.
There
are a variety of factors that could cause actual results to differ from the forward-looking statements in this prospectus and the information
incorporated by reference herein, including the following factors:
| ● | the
material weaknesses in our internal control over financial reporting that we have identified in recent years, and our ability to remediate
such weaknesses and to ensure that they do not affect our ability to accurately report our financial results or prevent fraud; |
| ● | the
sensitivity of the powersports industry and our business to changes in general economic conditions and their effects on demand for our
products and services; |
| ● | highly
competitive conditions in the powersports industry, and competitive pressures arising from existing and new companies; |
| ● | our
ability to acquire vehicles that satisfy consumer demand; |
| ● | our
ability to grow our business organically and through strategic acquisitions; |
| ● | any
diversion of management’s attention in connection with acquisitions and other corporate transactions; |
| ● | difficulties
in integrating acquired businesses; |
| ● | our
significant indebtedness and the covenants in our debt agreements, which reduce our flexibility to respond to changing business and economic
conditions; |
| ● | the
fact that the interest rates payable under our debt agreements have increased in the past and may continue to increase, which could increase
our interest expense; |
| ● | our
ability to obtain additional financing or to refinance our outstanding indebtedness on satisfactory terms, if at all; |
| ● | any
inability to retain or attract qualified personnel; |
| ● | any
inability to develop, maintain, or market our brands; |
| ● | any
inability to drive traffic to our website; |
| ● | any
inability to grow our product offerings; |
| ● | any
failure of third parties to provide financing, extended protection products, or other products or services to our customers; |
| ● | changes
to the supply or prices of new or pre-owned vehicles; |
| ● | climate
change legislation or regulations restricting emission of greenhouse gases; |
| ● | any
failure to adequately protect personal information; |
| ● | any
failure to adequately protect our intellectual property, including our proprietary cash offer technology; |
| ● | any
failure to obtain or maintain adequate insurance coverage; |
| ● | adverse
conditions affecting one or more of the powersports manufacturers with which we hold franchises; |
| ● | any
change or deterioration in the relationship with the manufacturers of powersports vehicles we sell; |
| ● | any
reduction or discontinuation of sales incentive, warranty, or other promotional programs by manufacturers; |
| ● | seasonality
and weather trends; and |
| ● | other
factors in the cautionary statements included in this prospectus, particularly in the “Risk Factors” section, and in other
documents we file from time to time with the SEC, specifically our most recent Annual Report on Form 10-K, our Quarterly Reports
on Form 10-Q, and our Current Reports on Form 8-K, particularly under the heading “Risk Factors.” |
We
may not actually achieve the plans, intentions, or expectations disclosed in our forward-looking statements, and you should not
place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions,
and expectations disclosed in the forward-looking statements we make. We undertake no obligation to publicly update any forward-looking statement,
whether as a result of new information, future events, or otherwise, except as may be required under the securities laws of the United States.
You are advised, however, to consult any additional disclosures we make in our reports filed with the SEC.
The
Company
We
operate primarily through two operating segments: our powersports dealership group and our transportation services entity, Wholesale
Express, LLC (“Express”).
Powersports
Dealership Group. Our powersports dealership group is the largest powersports retail group in the United States (as measured by reported
revenue, major unit sales and dealership locations), offering a wide selection of new and pre-owned motorcycles, all-terrain vehicles
(“ATV”), utility terrain or side-by-side vehicles (“SXS”), personal watercraft (“PWC”), snowmobiles,
and other powersports products. We also offer parts, apparel, accessories, finance & insurance products and services, and aftermarket
products from a wide range of manufacturers. Additionally, we offer a full suite of repair and maintenance services. As of August 26,
2024, we operated 56 retail locations with powersports franchises (motorcycles, ATVs, SXSs, PWCs, snowmobiles, and other powersports
products) in Alabama, Arizona, California, Florida, Georgia, Kansas, Massachusetts, Nevada, North Carolina, Ohio, Oklahoma, South Dakota,
Texas, and Washington.
We
source high quality pre-owned inventory online via our proprietary Cash Offer technology, which allows us to purchase pre-owned units
directly from consumers.
We
seek to provide customers with a seamless experience, broad selection, and access to our specialized and experienced team members, including
sales staff and technicians. Our network of convenient retail locations allows us to offer services throughout the vehicle life cycle.
As a result of our growth to date, RumbleOn enjoys a leading position in the highly fragmented powersports market.
Transportation
Services. Express provides asset-light transportation brokerage services facilitating automobile transportation primarily between
and among dealers. We provide services focused on pre-owned vehicles to clients in all 50 states through our established network of pre-qualified
carriers.
General.
We were incorporated as a development stage company in the State of Nevada as Smart Server, Inc. in October 2013. We have grown primarily
through acquisitions, the largest to date being our 2021 acquisition of the RideNow business followed by our 2022 acquisition of the
Freedom entities. We are headquartered in the Dallas Metroplex and completed our initial public offering in 2017. In February 2017, we
changed our name to RumbleOn, Inc. Our principal executive offices are located at 901 W. Walnut Hill Lane, Suite 110A, Irving, Texas
75038 and our telephone number is (214) 771-9952.
Our
Class B common stock trades on Nasdaq under the symbol “RMBL.”
Additional
Information. Our Internet website is www.rumbleon.com. We make available free of charge on our website our annual report on Form
10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and any amendments thereto, as soon as reasonably practicable after
such material is filed with, or furnished to, the SEC. Information on our Investor Relations page and on our website is not part of this
prospectus or any of our other securities filings unless specifically incorporated herein by reference.
Use
of Proceeds
Unless
we inform you otherwise in a prospectus supplement, we anticipate using any net proceeds from the sale of our securities offered by this
prospectus for general corporate purposes. These purposes may include, but are not limited to:
| ● | The
repayment, refinancing, redemption or repurchase of indebtedness or other securities. |
Pending
any specific application, we may initially invest funds in short-term liquid investments or apply them to the reduction of short-term
indebtedness.
Description
of Capital Stock
The
following description of our capital stock is intended as a summary only and therefore is not a complete description of our capital stock.
This description is based upon, and is qualified by reference to, our articles of incorporation, as amended (which we refer to as our
“articles of incorporation”), our amended and restated bylaws, as amended (which we refer to as our “bylaws”),
and applicable provisions of Nevada corporate law. You should read our articles of incorporation and bylaws, copies of which have been
filed with the SEC and are incorporated by reference herein.
Overview
Our
articles of incorporation authorize the issuance of
| ● | 100,050,000 shares
of common stock, par value $0.001 per share, of which (1) 50,000 shares are designated
as Class A common stock and (2) 100,000,000 shares are designated as Class B
common stock; and |
| ● | 10,000,000 shares
of preferred stock, par value $0.001 per share. |
As
of August 26, 2024, we had approximately (i) two stockholders of record of 50,000 issued and outstanding shares of Class A
common stock, (ii) 49 stockholders of record of 35,284,921 issued and outstanding shares of Class B Common Stock, and (iii) no
shares of preferred stock outstanding.
Our
Class B common stock is registered pursuant to Section 12(b) of the Exchange Act and traded on Nasdaq under the symbol
“RMBL.”
Common
Stock
Annual
Meeting
Annual
meetings of our stockholders are held on the date designated by the board of directors. Written notice must be mailed to each stockholder
entitled to vote not less than ten nor more than 60 days before the date of the meeting. The presence in person or by proxy of the
holders of record of one-third (33%) of our issued and outstanding shares entitled to vote at such meeting constitutes a quorum
for the transaction of business at meetings of the stockholders, except as otherwise provided by statute or the articles of incorporation.
Special meetings of the stockholders may be called for any purpose by the chairman and shall be called by the chairman or secretary at
the request in writing of a majority of the board of directors, or at the request in writing of stockholders holding shares in the aggregate
entitled to cast not less than a majority of the votes at any such meeting. Except as may be otherwise provided by applicable law, our
articles of incorporation or our bylaws, all elections of directors shall be decided by a plurality, and all other questions shall be
decided by a majority, of the votes cast by stockholders entitled to vote thereon at a duly held meeting of stockholders at which a quorum
is present.
Issuance
of Common Stock
Shares
of our Class A common stock and Class B common stock may be issued from time to time as our board of directors may determine
and on such terms and for such consideration as may be fixed by the board of directors.
Voting
Rights
The
Class A common stock is identical as to voting rights in all respects to the Class B common stock, except that holders of the
Class A common stock are entitled to ten votes per share of Class A common stock issued and outstanding.
Dividends
Holders
of shares of Class A common stock and Class B common stock are entitled to share ratably in dividends, if any, as may be declared,
from time to time by our board of directors, in its discretion, from funds legally available to be distributed.
Liquidation,
Dissolution, and Winding Up
In
the event of a liquidation, dissolution or winding up of our company, the holders of shares of Class A common stock and Class B
common stock are entitled to share pro rata all assets remaining after payment in full of all liabilities and the prior payment to the
preferred stockholders if any.
Other
Rights
Holders
of the Class A common stock and Class B common stock have no right to:
| ● | have
their stock redeemed; |
| ● | purchase
additional shares of Class A common stock or Class B common stock; or |
| ● | convert
their shares of Class A common stock or Class B common stock into any other security. |
There
are no sinking fund provisions applicable to the Class A common stock or Class B common stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for our Class A common stock and Class B common stock is Broadridge, Inc.
Preferred
Stock
We
are authorized to issue “blank check” preferred stock, which may be issued in one or more series upon authorization of our
board of directors without stockholder approval, unless such action is required by applicable law or the Nasdaq rules. Our board of directors
is authorized to fix the designations, number of shares, powers, preferences, and rights and the qualifications, limitations, or restrictions
of the shares of each series of preferred stock. Our board of directors may determine voting rights, conversion rights into common stock,
dividend rights, and preferences with respect to dissolutions and liquidations of each series of preferred stock. The rights, preferences,
and restrictions of the preferred stock of each series will be fixed by the certificate of designation relating to that series, which
such certificate of designation will further amend our articles of incorporation.
The
issuance of shares of preferred stock will affect, and may adversely affect, the rights of holders of our Class A common stock and
Class B common stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock on the rights
of holders of our Class A common stock and Class B common stock until our board of directors determines the specific powers,
preferences and rights attached to that preferred stock. The effects of issuing additional preferred stock could include one or more
of the following:
| ● | restricting
dividends on the Class A common stock and Class B common stock; |
| ● | diluting
the voting power of the Class A common stock and Class B common stock; |
| ● | impairing
the liquidation rights of the Class A common stock and Class B common stock; or |
| ● | delaying
or preventing changes in control or management of our company. |
Certain
Provisions of our Articles of Incorporation and Bylaws and Nevada Law
Board
of Directors
Our
bylaws provide that each member of our board of directors will be elected annually for a one-year term. Our bylaws also provide that
directors may be removed only by the vote of stockholders representing not less than two-thirds of the voting power of the issued and
outstanding shares entitled to vote. The stockholders may elect a director or directors at any time to fill any vacancy or vacancies
not filled by the directors, but any such election by written consent shall require the consent of a majority of the outstanding shares
entitled to vote.
Amendment
of Bylaws
Our
bylaws may be altered or repealed, and new bylaws may be adopted, by the board of directors by a majority vote of the whole board of
directors.
Nevada
Laws
Nevada
corporate law contains a provision governing “Acquisition of Controlling Interest.” This law provides generally that any
person or entity that acquires 20% or more of the outstanding voting shares of a publicly-held Nevada corporation in the secondary
public or private market may be denied voting rights with respect to the acquired shares, unless a majority of the disinterested stockholders
of the corporation elects to restore such voting rights in whole or in part. The control share acquisition act provides that a person
or entity acquires a “controlling interest” whenever it acquires shares that, but for the operation of the control share
acquisition act, would bring its voting power within any of the following three ranges:
A
“control share acquisition” is generally defined as the direct or indirect acquisition of either ownership or voting power
associated with issued and outstanding control shares (as defined in Section 78.3784 of the Nevada Revised Statutes (“NRS”)).
The stockholders or board of directors of a corporation may elect to exempt the stock of the corporation from the provisions of the control
share acquisition act through adoption of a provision to that effect in the articles of incorporation or bylaws of the corporation. Our
articles of incorporation and bylaws exempt our Class A common stock and Class B common stock from the control share acquisition
act.
Exclusive
Forum
Our
articles of incorporation and bylaws do not contain an exclusive forum provision.
Description
of Debt Securities
This
section summarizes the general terms of the debt securities that we may offer. The prospectus supplement relating to any particular debt
securities offered will describe the specific terms of the debt securities, which may be in addition to or different from the general
terms summarized in this section. Senior and subordinated debt securities offered pursuant to this prospectus may be issued under an
indenture (the “Indenture”), to be entered into between us and a trustee to be determined at that time (the “Trustee”),
forms of which are filed herewith as Exhibits 4.4 and 4.5. Such Indenture, and any supplemental Indentures thereto, will be subject to,
and governed by, the Trust Indenture Act of 1939, or the TIA. Each of the Indentures will be filed with the SEC as an exhibit to the
registration statement of which this prospectus forms a part, and you should read any Indentures for provisions that may be important
to you. For more information on how you can obtain a copy of the form of the Indenture, see “Where You Can Find More Information.”
In this discussion, the terms “RumbleOn,” “we,” “us” and “our” refer only to RumbleOn,
Inc. and not to any of its subsidiaries.
We
may issue debt securities in one or more series, with the same or different terms and up to an aggregate principal amount as we may authorize
from time to time, as described in a prospectus supplement. As used in this prospectus, “debt securities” means our direct
general obligations and may include debentures, notes, bonds or other evidences of indebtedness that we may issue and which the Trustee
authenticates and delivers under the applicable Indenture.
Unless
otherwise specified in the applicable prospectus supplement, the debt securities will represent general, unsecured obligations of RumbleOn
and will rank equally with all of our other unsecured indebtedness. The debt securities will be effectively subordinated to, and thus
have a junior position to, any secured indebtedness we may have with respect to the assets securing that indebtedness.
You
should read the particular terms of the debt securities, which will be described in more detail in the prospectus supplement.
The
following summary of our debt securities is not complete and may not contain all of the information you should consider. This description
is subject to and qualified in its entirety by reference to the Indentures and any form of certificates evidencing the debt securities.
General
In
the discussion that follows, we summarize certain provisions of the Indentures and describe the general terms that will apply to any
debt securities that may be offered by us pursuant to this prospectus. This discussion is not complete and is qualified by reference
to all the provisions of the Indentures, including definitions of terms used in the Indentures. At the time that we offer debt securities,
we will describe in the related prospectus supplement the specific terms of the offered debt securities and the extent to which the general
terms described in this section apply to such debt securities.
The
prospectus supplement relating to any series of debt securities will describe the specific terms of the debt securities offered thereby,
including some or all of the following, as applicable:
| ● | the
title of the series (which will distinguish the debt securities of that particular series from the debt securities of any other series
but which may be part of a series of debt securities previously issued); |
| ● | the
price or prices (expressed as a percentage of the principal amount thereof) at which the debt securities of the series will be issued; |
| ● | if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the debt securities of the series will
be issuable; |
| ● | any
limit upon the aggregate principal amount of the debt securities of the series that may be authenticated and delivered under the Indenture
(except for debt securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other debt
securities of the series pursuant to the Indenture); |
| ● | the
identity of the Trustee; |
| ● | whether
the debt securities of the series will be issuable as global securities, the terms and conditions, if any, upon which such global securities
may be exchanged in whole or in part for debt securities of such series in definitive certificates registered in the names of the individual
holders thereof, the depositary for such global securities, and the form of any legend or legends to be borne by any such global securities
in addition to or in lieu of the legend set forth in the Indenture; |
| ● | the
date or dates on which the principal of the debt securities of the series is payable, and the right, if any, to extend such date or dates; |
| ● | (i)
the rate or rates, if any, at which the debt securities of the series will bear interest (which may be fixed or variable); (ii) the manner
in which the amounts of payment of principal (including amount payable in excess thereof) or interest, if any, on the debt securities
of the series will be determined, if such amounts may be determined by reference to any commodity, security or basket of securities,
or commodity, currency, stock exchange or financial index; (iii) the date or dates from which interest, if any, will accrue and/or the
method by which such rate or rates or date or dates shall be determined; (iv) the date or dates on which interest, if any, of the debt
securities of the series will commence and be payable; and (v) any regular or special record date for the payment of interest, if any,
on the debt securities of the series; |
| ● | if
our legal defeasance or covenant defeasance options under the Indentures are inapplicable to debt securities of such series; |
| ● | whether
and under what circumstances we will pay additional amounts on the debt securities of any series in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether we will have the option to redeem such debt securities rather than pay such
additional amounts; |
| ● | if
the debt securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form
and terms of such certificates, documents or conditions; |
| ● | the
place or places where the principal of and interest, if any, on the debt securities of the series shall be payable, or the method of
such payment, if by wire transfer, mail or other means; |
| ● | if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the debt securities
of the series may be redeemed, purchased or repaid, in whole or in part, at our option; |
| ● | our
obligation, if any, to redeem, purchase or repay the debt securities of the series pursuant to any mandatory redemption, sinking fund
or analogous provisions or at the option of a holder thereof upon the happening of any event and the period or periods within which,
the price or prices at which and the terms and conditions upon which debt securities of the series will be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation; |
| ● | if
other than the principal amount thereof, the portion of the principal amount of the debt securities of the series that will be payable
upon acceleration of the maturity thereof pursuant to the Indenture; |
| ● | any
covenants (and related defined terms) set forth in the Indenture that apply to debt securities of the series; |
| ● | any
events of default that apply to any debt securities of the series and any right of the Trustee or the requisite holders of such debt
securities to declare the principal amount thereof due and payable pursuant to the Indenture; |
| ● | the
provisions relating to any security provided for the debt securities of the series; |
| ● | with
respect to any subordinated debt securities, the subordination, if any, of the debt securities of the series pursuant to the Indenture; |
| ● | if
and as applicable, the terms and conditions of any right to exchange for or convert debt securities of the series into shares of our
common stock or other securities or another person; and |
| ● | any
other terms of the debt securities of the series. |
The
terms of any series of debt securities may vary from the terms described here. Thus, this summary also is subject to and qualified by
reference to the description of the particular terms of the debt securities to be described in the applicable prospectus supplement.
Payment
and Paying Agents
We
will pay interest to holders listed in the Trustee’s records at the close of business on the regular record date, even if such
holders no longer own the debt security on the interest due date. We may choose to pay interest, principal and any other money due on
the debt securities at the corporate trust office of the Trustee. Payments in any other manner will be specified in the prospectus supplement.
We
may also arrange for additional payment offices, and may cancel or change these offices, including our use of the Trustee’s corporate
trust office. These offices are called “paying agents.” We may also choose to act as our own paying agent.
Merger,
Consolidation or Sale of Assets
Unless
otherwise specified in the applicable prospectus supplement, we will not: (a) consolidate or merge with or into another person or (b)
sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of our or our subsidiaries’ properties or
assets taken as a whole, in one or more related transactions, to another person, unless:
| ● | either:
(i) we are the surviving entity; or (ii) the person formed by or surviving any such consolidation or merger (if other than us) or to
which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation, limited partnership or
limited liability company organized or existing under the laws of the United States, any state of the United States or the District of
Columbia; |
| ● | the
person formed by or surviving any such consolidation or merger (if other than us) or to which such sale, assignment, transfer, conveyance,
lease or other disposition has been made assumes all of our obligations under the debt securities and the Indenture pursuant to a supplemental
Indenture or other agreements delivered to the Trustee; |
| ● | immediately
before and after giving pro forma effect to such transaction, no event of default, and no event which, after notice or lapse of time
or both, would become an event of default, has occurred and is continuing; and |
| ● | several
other conditions, including any additional conditions with respect to any particular debt securities specified in the applicable prospectus
supplement, are met. |
Modification
of the Indentures
Unless
otherwise specified in the applicable prospectus supplement, we and the Trustee may amend or supplement any Indenture or the debt securities
of a series without the consent of any holder of debt securities:
| ● | to
cure any ambiguity, defect or inconsistency, provided that no such action shall materially and adversely affect the interests of the
holders; |
| ● | to
provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| ● | to
make any change that does not materially and adversely affect the rights of any holder; |
| ● | to
comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA; |
| ● | to
add covenants for the benefit of the holders, to surrender any of our rights or to add circumstances under which we will pay additional
interest on the debt securities; |
| ● | to
add any additional events of default; |
| ● | to
make any change to the debt securities of any series so long as no debt securities of such series are outstanding; |
| ● | to
secure our obligations under the debt securities and the Indenture; or |
| ● | to
evidence and provide for the acceptance of appointment under the Indenture by a successor Trustee with respect to the debt securities
of one or more series and to add to or change any of the provisions of the Indenture as may be necessary to provide for or facilitate
the administration of the trusts under the Indenture by more than one Trustee. |
Unless
otherwise specified in the applicable prospectus supplement, we and the Trustee may, with the consent of the holders of a majority in
aggregate principal amount of the debt securities of a series, voting as a single class, amend or supplement the Indenture or the debt
securities of a series or the rights of the holders of the debt securities of such series. Unless otherwise indicated for a particular
series of debt securities by the applicable prospectus supplement establishing such series, without the consent of the holder of each
security affected, no amendment, supplemental Indenture or waiver may be made that, as to any non-consenting holders:
| ● | reduces
the percentage of principal amount of outstanding securities whose holders must consent to an amendment, supplemental Indenture or waiver; |
| ● | reduces
the rate of interest on any debt security |
| ● | reduces
the principal amount of or premium, if any, on the securities or changes the stated maturity of any of the securities; |
| ● | changes
the currency of payment of principal of, or premium, if any, or interest on the securities; |
| ● | makes
any change in the provisions of the Indenture relating to seniority or subordination of any security that adversely affects the rights
of any holder under such provisions; |
| ● | reduces
the principal amount of discount securities payable upon acceleration of the maturity thereof; |
| ● | reduce
the percentage in principal amount of outstanding debt securities of any series necessary for waiver of compliance with certain provisions
of the indenture or for waiver of certain defaults; |
| ● | makes
any change in the provisions of the Indenture relating to waivers of past defaults or the rights of holders of securities to receive
payments of principal of or premium, if any, or interest on the securities or the right to institute suit for the enforcement of any
such payments; or |
| ● | makes
any change in the amendment and waiver provisions of the Indenture requiring the consent of the holder of each security affected thereby. |
Events
of Default and Remedies
Unless
otherwise specified in the applicable prospectus supplement, the Indenture provides that events of default regarding the debt securities
of any series will be:
| ● | default
for 30 days in the payment when due of interest on debt securities of that series; |
| ● | default
in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the debt securities
of that series; |
| ● | failure
to perform any of our other covenants in the Indenture (other than a covenant included in such indenture solely for the benefit of a
series other than that series), continued for 60 days after written notice has been given to us by the applicable indenture trustee,
or the holders of at least 25% in principal amount of the outstanding debt securities of that series, as provided in such indenture; |
| ● | certain
events of bankruptcy or insolvency described in the Indenture with respect to us; and |
| ● | any
other event of default provided with respect to debt securities of that series, which is specified in the applicable prospectus supplement. |
If
an event of default (other than pursuant to the bankruptcy or insolvency provisions of the Indenture with respect to us) regarding debt
securities of any series issued under the Indenture should occur and be continuing, either the Trustee or the holders of at least 25%
in the principal amount (or, if such securities are discount securities, such portion of the principal amount as specified in the applicable
prospectus supplement) of the then outstanding debt securities of such series by notice in writing to us (and also to the Trustee if
given by holders) may declare each debt security of that series due and payable immediately without further action. If a bankruptcy or
insolvency event occurs with respect to us, the debt securities of such series will immediately become due and payable without any declaration
or other act on the part of the Trustee or the holders of the debt securities of such series. The holders of a majority in principal
amount of debt securities of such series may rescind any acceleration and its consequences (other than with respect to an event of default
pursuant to the bankruptcy or insolvency provisions of the Indenture with respect to us) if (1) the rescission would not conflict with
any judgment or decree, (2) we have paid or deposited with the Trustee a sum sufficient to pay in the currency in which the debt securities
of that series are payable (A) all overdue interest, if any, on all outstanding debt securities of that series, (B) all unpaid principal
of and premium, if any, any outstanding debt securities of that series which has become due otherwise than by such a declaration of acceleration,
and interest on such unpaid principal or premium at the rate or rates prescribed therefor, (C) to the extent that payment of such interest
is enforceable under applicable law, interest upon overdue interest to that date of such payment or deposit at the rate or rates prescribed
therefor in such debt securities, and (D) all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and (3) all existing events of default (other than for nonpayment
of principal, premium, if any, or interest that has become due solely because of the acceleration) have been cured or waived.
The
holders of a majority in aggregate principal amount of the then outstanding debt securities of any series may direct the time, method
and place of conducting any proceeding for exercising any remedy available to the Trustee under the Indenture. The holders of a majority
in aggregate principal amount of the then outstanding debt securities of any series also will be entitled to waive past defaults regarding
such debt securities, except for a default in payment of principal of or premium, if any, or interest on such debt securities or in respect
of a covenant or provision that cannot be modified or amended hereunder without the consent of the holder of each such debt security.
The Trustee generally may not be ordered or directed by any of the holders of debt securities to take any action unless one or more of
the holders shall have offered to the Trustee indemnity or security satisfactory to it. Prior to taking such actions, the Trustee may
refuse to take any action ordered by the holders if such action conflicts with law or the Indenture or would involve the Trustee in personal
liability.
If
the Trustee collects any money in connection with an event of default regarding the debt securities of any series, the Trustee may use
any sums that it holds under the applicable Indenture for its own reasonable compensation, expenses, and disbursements, and advances
and those of its agents and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as
a result of negligence or bad faith incurred prior to paying the holders of debt securities of such series.
Before
any holder of any series of debt securities may institute action for any remedy, except payment on the holder’s debt security when
due, the holders of not less than 25% in principal amount of the debt securities of that series outstanding must request the Trustee
to act. Holders must also offer and give the Trustee security or indemnity satisfactory to it against liabilities incurred by the Trustee
for taking such action.
Legal
Defeasance and Covenant Defeasance
Unless
otherwise specified in the applicable prospectus supplement, we may at any time elect to have all of our obligations and certain other
provisions discharged with respect to the outstanding debt securities, or “Legal Defeasance”, except for the rights of holders
of outstanding debt securities to receive payments in respect of the principal of or premium, if any, or interest on, such debt securities
when such payments are due from the trust referred to below, certain other of our obligations and certain other rights of the Trustee
under the Indenture.
In
addition, we may at any time elect to have our obligations released with respect to certain covenants and thereafter any omission to
comply with those covenants will not constitute a default or event of default with respect to the debt securities, or “Covenant
Defeasance”. In the event Covenant Defeasance occurs, certain events described under “—Events of default and remedies”
(not including non-payment) will no longer constitute an event of default with respect to the debt securities.
In
order to exercise either Legal Defeasance or Covenant Defeasance in respect of any series of debt securities, in addition to the satisfaction
of other conditions, we must irrevocably deposit with the Trustee for the benefit of the holders of such debt securities to be defeased
money in amounts as will be sufficient to pay the principal of and premium, if any, and interest on the outstanding debt securities of
such series on the stated date for payment thereof or on the applicable redemption date, as the case may be. In addition, we must deliver
to the Trustee an opinion of counsel and officer’s certificate in connection with such defeasance, and we may not exercise such
defeasance if certain defaults or events of default with respect to debt securities of such series have occurred and are continuing on
the date of such deposit or if such defeasance would result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than the Indenture) to which we or any of our subsidiaries is a party or by which we or any of our subsidiaries
is bound.
Satisfaction
and Discharge
Unless
otherwise specified in the applicable prospectus supplement, the Indenture will be discharged and will cease to be of further effect
with respect to the debt securities of a particular series, when:
| o | all
debt securities of such series that have been authenticated and, except for lost, stolen or destroyed debt securities of such series
that have been replaced or paid and debt securities of such series for whose payment money has been deposited in trust or segregated
and held in trust by us and thereafter repaid to us, have been delivered to the Trustee for cancellation; or |
| o | all
debt securities of such series that have not been delivered to the Trustee for cancellation (1) have become due and payable, (2) will
become due and payable at their stated maturity within one year or (3) if redeemable in accordance with the terms of such debt securities,
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in our name, and at our expense; |
and
we have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the holders
of debt securities of such series, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness (including all principal, premium, if any, and interest) on such series of debt securities not delivered
to the Trustee for cancellation (in the case of debt securities of such series that have become due and payable on or prior to the date
of such deposit) or to the stated maturity or redemption date, as the case may be:
| ● | we
have paid or caused to be paid all other sums payable by us under the Indenture in respect of the debt securities of such series; and |
| ● | we
must deliver an officer’s certificate and an opinion of counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied. |
Subordination
If
specified in the applicable prospectus supplement, the debt securities of a series may be subordinated, which we refer to as subordinated
debt securities, to senior indebtedness (as defined in the applicable prospectus supplement) to the extent set forth in the prospectus
supplement relating thereto. To the extent we conduct operations through subsidiaries, the holders of debt securities (whether or not
subordinated debt securities) will be structurally subordinated to the creditors and any preferred equity holders of such subsidiaries.
Conversion
and Exchange Rights
If
specified in the applicable prospectus supplement, the debt securities of a series may be convertible into or exchangeable for common
stock or other securities or other property. We will describe in the applicable prospectus supplement, among other things, the conversion
or exchange rate or price and any adjustments thereto, the conversion or exchange period or periods, provisions as to whether conversion
or exchange will be mandatory, at our option or at the option of the holders of that series of debt securities, and provisions affecting
conversion or exchange in the event of the redemption of that series of debt securities.
Reporting
Documents
filed by us with the SEC via the EDGAR system will be deemed filed with the Trustee as of the time such documents are filed via EDGAR.
Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including our compliance with any of the covenants under the Indenture. We will also comply with Section 314(a) of the TIA.
Further
Issues
Unless
specified otherwise with respect to a series of debt securities in a prospectus supplement, we may from time to time, without notice
to or the consent of the registered holders of a series of debt securities, create and issue further debt securities of ranking equally
with the debt securities of any series in all respects (or in all respects other than the payment of interest accruing prior to the issue
date of such further debt securities or except for the first payment of interest following the issue date of such further debt securities).
Such further debt securities may be consolidated and form a single series with, and have the same terms as to status or otherwise as,
such previously issued debt securities, provided that, if any additional notes subsequently issued are not fungible for U.S. federal
income tax purposes with any notes previously issued, such additional notes shall be issued under a separate CUSIP, ISIN and/or any other
identifying number, but shall otherwise be treated as a single class with all other notes issued under the Indenture.
Form,
Exchange, Registration and Transfer
The
debt securities will be issued only in registered form. The Indentures provide that we may issue debt securities of a series in temporary
or permanent global form and as book-entry securities. Procedures relating to global securities are described below under “Book-Entry
Procedures and Settlement.” Unless otherwise provided in the applicable prospectus supplement, debt securities will be denominated
in United States dollars.
Book-Entry
Procedures and Settlement
The
debt securities initially will be issued in book-entry form only and represented by one or more global securities registered in the name
of, and deposited with a custodian for, The Depository Trust Company (“DTC”), or its nominee, or another depositary named
by us and identified in a prospectus supplement with respect to that series. DTC or its nominee will be the sole registered holder of
the debt securities for all purposes under the Indenture. Owners of beneficial interests in the debt securities represented by the global
securities will hold their interests pursuant to the procedures and practices of DTC. As a result, beneficial interests in these securities
will be shown on, and may only be transferred through, records maintained by DTC and its direct and indirect participants and any such
interest may not be exchanged for certificated securities, except in limited circumstances. Owners of beneficial interests must exercise
any rights in respect of their interests in accordance with the procedures and practices of DTC. Beneficial owners will not be holders
and will not be entitled to any rights provided to the holders of debt securities under the global securities or the Indenture. We and
the Trustee, and any of our respective agents, may treat DTC as the sole holder and registered owner of the global securities under the
terms of the Indenture.
Concerning
the Trustee
The
Trustee undertakes to perform only those duties as are specifically set forth in the applicable Indenture. The Trustee must use the same
degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by an Indenture at the request or direction of any of the applicable holders pursuant
to such 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.
Governing
Law
The
debt securities and the Indentures will be governed by, and construed in accordance with, the laws of the State of New York without regard
to conflicts of laws principles thereof.
Description
of Warrants
We
may issue warrants to purchase Class B common stock, preferred stock, debt securities or any combination thereof. Such warrants may be
issued independently or together with any such securities and may be attached or separate from such securities. We will issue each series
of warrants under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as
our agent and will not assume any obligation or relationship of agency for or with holders or beneficial owners of warrants. The following
summary of certain provisions of the warrants does not purport to be complete and is subject to, and qualified in its entirety by reference
to, the provisions of the warrant agreement that will be filed with the SEC in connection with any offering of such warrants.
General
The
prospectus supplement relating to any offering of warrants will describe the particular terms of the warrants being offered, including
the following:
| ● | the
title of such warrants; |
| ● | the
aggregate number of such warrants; |
| ● | the
price or prices at which such warrants will be issued; |
| ● | the
currency or currencies, including composite currencies, in which the price of such warrants may be payable; |
| ● | the
designation and terms of the securities purchasable upon exercise of such warrants and the number of such securities issuable upon exercise
of such warrants; |
| ● | the
price at which and the currency or currencies, including composite currencies, in which the securities purchasable upon exercise of such
warrants may be purchased; |
| ● | the
date on which the right to exercise such warrants shall commence and the date on which such right will expire; |
| ● | whether
such warrants will be issued in registered form or bearer form; |
| ● | if
applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
| ● | if
applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with
each such security; |
| ● | if
applicable, the date on and after which such warrants and the related securities will be separately transferable; |
| ● | information
with respect to book-entry procedures, if any; and |
| ● | any
other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. |
Amendments
and Supplements to Warrant Agreement
We
and the warrant agent may amend or supplement the warrant agreement for a series of warrants without the consent of the holders of the
warrants issued thereunder to effect changes that are not inconsistent with the provisions of the warrants and that do not materially
and adversely affect the interests of the holders of the warrants.
Description
of Units
We
may issue units of securities consisting of one or more of the following securities: common stock, preferred stock, debt securities,
warrants, and rights. We may evidence each series of units issued by unit certificates that we will issue under a separate unit agreement.
We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust company that we select. You should read
the particular terms of these documents, which will be described in more detail in a prospectus supplement.
The
prospectus supplement relating to any offering of units will describe the particular terms of that series of units, including the following:
| ● | the
title of the series of units; |
| ● | identification
and description of the separate constituent securities comprising the units; |
| ● | the
price or prices at which the units will be issued; |
| ● | the
date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
| ● | if
appropriate, a discussion of material U.S. federal income tax consequences; and |
| ● | any
other terms of the units and their constituent securities. |
Description
of Rights
We
may issue rights to our stockholders for the purchase of Class B common stock. Each series of rights will be issued under rights agreements
to be entered into between us and a bank or trust company, as rights agent. You should read the particular terms of the rights, which
will be described in more detail in the applicable prospectus supplement. The particular terms of any rights offered by any prospectus
supplement, and the extent to which the general provisions summarized below may apply to the offered securities, will be described in
the prospectus supplement.
The
prospectus supplement relating to any offering of any series of rights will describe the particular terms of that series of rights, including
the following:
| ● | the
date for determining the stockholders entitled to the rights distribution; |
| ● | the
aggregate number of shares of Class B common stock purchasable upon exercise of such rights and the exercise price; |
| ● | the
aggregate number of rights being issued; |
| ● | the
date, if any, on and after which such rights may be transferable separately; |
| ● | the
date on which the right to exercise such rights shall commence and the date on which such right shall expire; |
| ● | if
appropriate, a discussion of material U.S. federal income tax consequences; and |
| ● | any
other specific terms of the rights. |
Plan
of Distribution
We
may sell our securities in any one or more of the following ways from time to time: (i) through agents; (ii) to or through underwriters;
(iii) through brokers or dealers; (iv) directly by us to purchasers, including through a specific bidding, auction or other process;
or (v) through a combination of any of these methods of sale. The applicable prospectus supplement will contain the terms of the transaction,
name or names of any underwriters, dealers, agents and the respective amounts of securities underwritten or purchased by them, the initial
public offering price of the securities, and the applicable agent’s commission, dealer’s purchase price or underwriter’s
discount. Any dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and compensation
received by them on resale of the securities may be deemed to be underwriting discounts.
Any
initial offering price, dealer purchase price, discount or commission may be changed from time to time.
The
securities may be distributed from time to time in one or more transactions, at negotiated prices, at a fixed price or fixed prices (that
may be subject to change), at market prices prevailing at the time of sale, at various prices determined at the time of sale or at prices
related to prevailing market prices.
Offers
to purchase securities may be solicited directly by us or by agents designated by us from time to time. Any such agent may be deemed
to be an “underwriter,” as that term is defined in the Securities Act, of the securities so offered and sold.
If
underwriters are utilized in the sale of any securities in respect of which this prospectus is being delivered, such securities will
be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices determined by the underwriters at the time of sale. Securities may
be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more underwriters.
If any underwriter or underwriters are utilized in the sale of securities, unless otherwise indicated in the applicable prospectus supplement,
the obligations of the underwriters are subject to certain conditions precedent, and the underwriters will be obligated to purchase all
such securities if they purchase any of them.
If
a dealer is utilized in the sale of the securities in respect of which this prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer
at the time of resale. Transactions through brokers or dealers may include block trades in which brokers or dealers will attempt to sell
shares as agent but may position and resell as principal to facilitate the transaction or in cross trades, in which the same broker or
dealer acts as agent on both sides of the trade. Any such dealer may be deemed to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold.
Offers
to purchase securities may be solicited directly by us and the sale thereof may be made by us directly to institutional investors or
others, who may be deemed to be “underwriters” within the meaning of the Securities Act with respect to any resale thereof.
Agents,
underwriters and dealers may be entitled under relevant agreements with us to indemnification by us against certain liabilities, including
liabilities under the Securities Act, or to contribution with respect to payments which such agents, underwriters and dealers may be
required to make in respect thereof. The terms and conditions of any indemnification or contribution will be described in the applicable
prospectus supplement.
We
may enter into derivative, sale or forward sale transactions with third parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those transactions,
the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions
and by issuing securities not covered by this prospectus but convertible into, exchangeable for or representing beneficial interests
in securities covered by this prospectus, or the return of which is derived in whole or in part from the value of such securities. The
third parties may use securities received under derivative, sale or forward sale transactions or securities pledged by us or borrowed
from us or others to settle those sales or to close out any related open borrowings of stock and may use securities received from us
in settlement of those transactions to close out any related open borrowings of stock. The third party in such sale transactions will
be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment).
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from us. Underwriters, broker-dealers
or agents may also receive compensation from the purchasers of shares for whom they act as agents or to whom they sell as principals,
or both. Compensation as to a particular underwriter, broker-dealer or agent will be in amounts to be negotiated in connection with transactions
involving shares and might be in excess of customary commissions. In effecting sales, broker-dealers engaged by us may arrange for other
broker-dealers to participate in the resales.
Other
than the Class B common stock, which is listed on Nasdaq, each series of offered securities will have no established trading market.
We may elect to list any series of securities on an exchange, and in the case of the common stock, on any additional exchange, but, unless
otherwise specified in the applicable prospectus supplement, we shall not be obligated to do so. No assurance can be given as to the
liquidity of the trading market for any of the securities.
Agents,
underwriters and dealers may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of business.
Any
underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation
M under the Exchange Act. 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. Short covering transactions
involve purchases of the securities 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 securities originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of the activities at any time. An underwriter may carry out these transactions on
Nasdaq, in the over-the-counter market or otherwise.
The
place and time of delivery for securities will be set forth in the accompanying prospectus supplement for such securities.
Legal
Matters
Unless
we state otherwise in the applicable prospectus supplement, the validity of the securities being offered by this prospectus will be passed
upon for us by Baker Botts L.L.P., Dallas, Texas, and Snell & Wilmer L.L.P., Las Vegas, Nevada. Any underwriters or agents will be
represented by their own legal counsel, who will be identified in the applicable prospectus supplement.
Experts
The
consolidated financial statements of RumbleOn, Inc. as of and for the year ended December 31, 2023 and management’s assessment
of the effectiveness of internal control over financial reporting as of December 31, 2023 incorporated by reference in this prospectus
and in the registration statement have been so incorporated by reference in reliance upon the reports of BDO USA, P.C., an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. The report on the effectiveness
of internal control over financial reporting expresses an adverse opinion on the effectiveness of the Company’s internal control
over financial reporting as of December 31, 2023.
The
financial statements and management’s assessment of the effectiveness of internal control over financial reporting of RumbleOn,
Inc. as of and for the year ended December 31, 2022 incorporated by reference in this prospectus and elsewhere in the registration statement
have been so incorporated by reference in reliance upon the report of Grant Thornton, LLP, independent registered public accountants,
upon the authority of said firm as experts in accounting and auditing.
Where
You Can Find More Information
We
file annual, quarterly and current reports, proxy statements, and other information with the SEC. The SEC maintains an Internet site
that contains reports, proxy and information statements and other information regarding issuers, including RumbleOn, Inc., that file
electronically with the SEC at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website
at www.rumbleon.com. Our website is not a part of this prospectus.
Documents
Incorporated by Reference into This Prospectus
We
are incorporating by reference in this prospectus the documents we file with the SEC. This means that we are disclosing important information
to you by referring to these filings. The information we incorporate by reference is considered a part of this prospectus, and subsequent
information that we file with the SEC may automatically update and supersede this information.
Any
statement contained in this prospectus or in any document incorporated or deemed to be incorporated by reference into this prospectus
will be deemed modified or superseded for the purposes of this prospectus to the extent that a statement contained in this prospectus
or any subsequently filed document which also is, or is deemed to be, incorporated by reference into this prospectus modifies or supersedes
that statement. Accordingly, we incorporate by reference the specific documents listed below and any future filings made with the SEC
after the date hereof under Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, which will be deemed to be incorporated by reference
into this prospectus and to be part of this prospectus from the date we subsequently file such reports and documents until the termination
of this offering, except that any such reports or portions thereof which are furnished and not filed shall not be deemed incorporated
by reference herein:
| ● | Our
Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 28, 2024, including
those sections incorporated therein by reference from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 24,
2024; |
| ● | Our
Quarterly Reports on Form 10-Q (i) for the fiscal quarter ended March 31, 2024, filed with the SEC on May 8, 2024, and (ii) for the fiscal
quarter ended June 30, 2024, filed with the SEC on August 8, 2024; |
| ● | Our
Current Reports on Form 8-K filed with the SEC on January 4, 2024, March 28, 2024, April 10, 2024, April 19, 2024,
April 22, 2024, June 4, 2024, and June 5, 2024 (other than the portions of those documents deemed to be furnished and not filed); and |
| ● | The
description of our common stock contained in the Company’s Registration Statement on Form 8-A, filed with the SEC on
October 18, 2017, as updated by the description of registrant’s securities contained in Exhibit 4.11 to the
Annual Report on Form 10-K for the year ended December 31, 2019, filed on May 29, 2020, and the Certificate of Amendment
filed as Exhibit 3.1 to the Quarterly Report on Form 10-Q for the quarter ended June 30, 2021, filed on August 4,
2021. |
We
will provide, upon written or oral request, to each person, including any beneficial owner to whom a prospectus is delivered, a copy
of these filings (other than exhibits to such documents unless such exhibits are specifically incorporated by reference in any such documents)
at no cost by writing to us at the following mailing address or telephoning us at the following number:
RumbleOn,
Inc.
Attn: Investor Relations
901 W. Walnut Hill Lane, Suite 110A
Irving,
Texas 75038
(214)
771-9952
PART
II—INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM
14. Other Expenses of Issuance and Distribution.
SEC Registration Fee | |
$ | 36,900.00 | |
Printing | |
| * | |
Accounting Fees and Expenses | |
| * | |
Legal Fees and Expenses | |
| * | |
Trustee Fees and Expenses | |
| * | |
Rating Agency Fees and Expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | 36,900.00 | |
| * | These
fees and expenses are calculated based on the number of issuances and amount of securities offered and, accordingly, cannot be estimated
at this time. |
ITEM
15. Indemnification of Directors and Officers.
No
director of RumbleOn will have personal liability to us or any of our stockholders for monetary damages for breach of fiduciary duty
as a director involving any act or omission of any such director since provisions have been made in our articles of incorporation limiting
such liability. The foregoing provisions shall not eliminate or limit the liability of a director for:
| ● | acts
or omissions which involve intentional misconduct, fraud, or a knowing violation of law; or |
| ● | unlawful
distributions in violation of Section 78.300 of the NRS. |
We
are a corporation organized under the laws of the State of Nevada. Section 78.138 of the NRS provides that, unless the corporation’s
articles of incorporation provide otherwise, a director or officer will not be individually liable unless (a) the presumption that
a director or officer acted in good faith, on an informed bases and with a view to the interest of the corporation is rebutted; and (b) it
is proven that (i) the director’s or officer’s acts or omissions constituted a breach of his or her fiduciary duties,
and (ii) such breach involved intentional misconduct, fraud, or a knowing violation of the law.
Section 78.7502
of the NRS permits a company to indemnify its directors and officers against expenses, judgments, fines, and amounts paid in settlement
actually and reasonably incurred in connection with a threatened, pending, or completed action, suit, or proceeding, if the officer or
director (i) is not liable pursuant to Section 78.138 of the NRS, or (ii) acted in good faith and in a manner the officer
or director reasonably believed to be in or not opposed to the best interests of the corporation and, if a criminal action or proceeding,
had no reasonable cause to believe the conduct of the officer or director was unlawful. Section 78.751 of the NRS requires a corporation
to indemnify a director or officer that has been successful on the merits or otherwise in defense of any action or suit. Section 78.7502
of the NRS precludes indemnification by the corporation if the officer or director has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only
to the extent that the court determines that in view of all the circumstances, the person is fairly and reasonably entitled to indemnity
for such expenses. Section 78.751 of the NRS requires a corporation to indemnify its officers and directors if they have been successful
on the merits or otherwise in defense of any claim, issue, or matter resulting from their service as a director or officer.
Section 78.751
of the NRS permits a Nevada company to indemnify its officers and directors against expenses incurred by them in defending a civil or
criminal action, suit, or proceeding as they are incurred and in advance of final disposition thereof, upon receipt of an undertaking
by or on behalf of the director or officer to repay the amount if it is ultimately determined by a court of competent jurisdiction that
the director or officer is not entitled to be indemnified by the corporation. Under Section 78.751 of the NRS, if so provided in
the corporation’s articles of incorporation, bylaws, or other agreement, a corporation may be required to advance expenses as incurred
upon receipt of an undertaking by or on behalf of the officer or director to repay the amount if it is ultimately determined by a court
of competent jurisdiction that such officer or director is not entitled to be indemnified by the company. Section 78.751 of the
NRS further permits the company to grant its directors and officers additional rights of indemnification under its articles of incorporation,
bylaws, or other agreement.
Section 78.752
of the NRS provides that a Nevada company may purchase and maintain insurance or make other financial arrangements on behalf of any person
who is or was a director, officer, employee, or agent of the company, or is or was serving at the request of the company as a director,
officer, employee, or agent of another company, partnership, joint venture, trust, or other enterprise, for any liability asserted against
him and liability and expenses incurred by him in his capacity as a director, officer, employee, or agent, or arising out of his status
as such, whether or not the company has the authority to indemnify him against such liability and expenses.
Article VI
of our amended bylaws provides for indemnification of our directors, officers, and employees in most cases for any liability suffered
by them or arising out of their activities as directors, officers, and employees if they were not engaged in willful misfeasance or malfeasance
in the performance of his or her duties. Our bylaws, therefore, limit the liability of directors consistent with Section 78.7502
and Section 78.751 of the NRS.
Our
officers and directors are accountable to us as fiduciaries, which means they are required to exercise good faith and fairness in all
dealings affecting RumbleOn. In the event a stockholder believes the officers or directors have violated their fiduciary duties, the
stockholder may, subject to applicable rules of civil procedure, be able to bring a class action or derivative suit to enforce the stockholder’s
rights, including rights under certain federal and state securities laws and regulations to recover damages from and require an accounting
by management. Stockholders who have suffered losses in connection with the purchase or sale of their interest in RumbleOn in connection
with such sale or purchase, including the misapplication by any such officer or director of proceeds from a sale of securities may be
able to recover such losses from us.
We
have been advised that in the opinion of the SEC, insofar as indemnification for liabilities arising under the Securities Act may be
permitted to our directors, officers and other persons pursuant to the foregoing provisions, or otherwise, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable. In the event a claim for indemnification against such
liabilities (other than payment of expenses incurred or paid by a director or officer in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or other person in connection with the securities being registered, we will, unless
in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
ITEM
16. Exhibits and Financial Statement Schedules.
(a)
Exhibits
Exhibit No. |
|
Description |
1.1** |
|
Form
of Underwriting Agreement |
3.1 |
|
Articles
of Incorporation filed on October 24, 2013 (Incorporated by reference to Exhibit 3(i)(a) in the Company’s Registration
Statement on Form S-1/A, filed on March 20, 2014). |
3.2 |
|
Certificate
of Amendment to Articles of Incorporation, filed on February 13, 2017 (Incorporated by reference to Exhibit 3.3 in the Company’s
Annual Report on Form 10-K, filed on February 14, 2017). |
3.3 |
|
Certificate
of Amendment to Articles of Incorporation, filed on June 25, 2018 (Incorporated by reference to Exhibit 3.1 in the Company’s
Current Report on Form 8-K, filed on June 28, 2018). |
3.4 |
|
Certificate
of Designation for the Series B Preferred Stock (Incorporated by reference to Exhibit 3.1 in the Company’s Current Report
on Form 8-K, filed on October 31, 2018). |
3.5 |
|
Certificate
of Change (Incorporated by reference to Exhibit 3.1 in the Company’s Current Report on Form 8-K, filed on May 19,
2020). |
3.6 |
|
Certificate
of Amendment to Articles of Incorporation, filed on August 3, 2021 (Incorporated by reference to Exhibit 3.1 in the Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30, 2021, filed on August 4, 2021). |
3.7 |
|
Amended and Restated Bylaws of RumbleOn, Inc., dated October 8, 2021 (Incorporated by reference to Exhibit 3.1 in the Company’s Current Report on Form 8-K, filed on October 8, 2021). |
3.8 |
|
Amendment
to Amended and Restated Bylaws of RumbleOn, Inc., dated May 9, 2023 (Incorporated by reference to Exhibit 3.1 to the Company’s
Current Report on Form 8-K filed with the SEC on May 10, 2023). |
3.9 |
|
Amendment
No. 2 to Amended and Restated Bylaws of RumbleOn, Inc., dated April 16, 2024 (Incorporated by reference to Exhibit 3.1 in the Company’s
Current Report on Form 8-K, filed on April 19, 2024). |
4.1 |
|
See
Exhibits 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, and 3.8 for provisions of the Articles of Incorporation, as amended, and the Amended
and Restated Bylaws, as amended, which define the rights of the stockholders of Class B Common Stock. |
4.2 |
|
Sample
Stock Certificate – Class B Common Stock (Incorporated by reference to Exhibit 4.4 in the Company’s Registration
Statement on Form S-1/A filed on September 27, 2017). |
4.3** |
|
Form
of Certificate of Designations for Preferred Stock. |
4.4* |
|
Form of Senior Indenture, to be entered into by RumbleOn, Inc. |
4.5* |
|
Form of Subordinated Indenture, to be entered into by RumbleOn, Inc. |
4.6** |
|
Form
of Warrant Agreement (including Form of Warrant Certificate). |
4.7** |
|
Form
of Rights Agreement (including Form of Rights Certificate). |
4.8** |
|
Form
of Unit Agreement. |
4.9 |
|
Indenture,
dated January 14, 2020, between RumbleOn, Inc. and Wilmington Trust National Association (Incorporated by reference to Exhibit
4.1 in the Company’s Current Report on Form 8-K, filed on January 16, 2020). |
4.10 |
|
First
Supplemental Indenture, dated August 31, 2021 (Incorporated by reference to Exhibit 10.2 to the Company’s Current Report on
Form 8-K filed with the SEC on September 7, 2021). |
5.1* |
|
Opinion of Snell & Wilmer L.L.P. |
5.2* |
|
Opinion of Baker Botts L.L.P. |
23.1* |
|
Consent of Snell & Wilmer L.L.P. (included in Exhibit 5.1). |
23.2* |
|
Consent of Baker Botts L.L.P. (included in Exhibit 5.2). |
23.3* |
|
Consent of BDO USA, P.C. |
23.4* |
|
Consent of Grant Thornton LLP |
24.1* |
|
Power of Attorney (included on signature pages). |
25.1*** |
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior
Indenture. |
25.2*** |
|
Form
T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated
Indenture. |
107* |
|
Filing Fee Table |
| ** | To
be filed by amendment or as an exhibit to a Current Report on Form 8-K. |
| *** | To
be filed in accordance with the requirements of Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder. |
ITEM
17. Undertakings
| (a) | 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 of 1933; |
| (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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation
of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective registration statement; |
| (iii) | To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; |
Provided,
however, that:
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and
Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
| (2) | That,
for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933 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 of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date. |
| (5) | That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 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 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. |
| (b) | The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. |
| (c) | Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue. |
| (d) | 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, or the Act, in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933 the undersigned registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, State of Texas, on the 30th day of August, 2024.
|
RUMBLEON, INC. |
|
|
|
|
By: |
/s/ Michael Kennedy |
|
|
Name: Michael Kennedy |
|
|
Title: Chief Executive Officer |
SIGNATURES
AND POWER OF ATTORNEY
We,
the undersigned officers and directors of RumbleOn, Inc., hereby severally constitute and appoint Brandy Treadway and Michael Kennedy,
and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us
and in our names in the capacities indicated below the registration statement on Form S-3 filed herewith and any and all amendments
(including post-effective amendments) to said registration statement and to file or cause to be filed the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things
in our name and on our behalf in our capacities as officers and directors to enable RumbleOn, Inc. to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming
all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Michael Kennedy |
|
Chief
Executive Officer and |
|
August
30, 2024 |
Michael
Kennedy |
|
Director
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/
Tiffany Kice |
|
Chief
Financial Officer |
|
August
30, 2024 |
Tiffany
Kice |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/
Steven Pully |
|
Director |
|
August
30, 2024 |
Steven
Pully |
|
|
|
|
|
|
|
|
|
/s/
William Coulter |
|
Director |
|
August
30, 2024 |
William
Coulter |
|
|
|
|
|
|
|
|
|
/s/
Mark Tkach |
|
Director |
|
August
30, 2024 |
Mark
Tkach |
|
|
|
|
|
|
|
|
|
/s/
Rebecca Polak |
|
Director |
|
August
30, 2024 |
Rebecca
Polak |
|
|
|
|
|
|
|
|
|
/s/
Mark Cohen |
|
Director |
|
August
30, 2024 |
Mark
Cohen |
|
|
|
|
|
|
|
|
|
/s/
Michael Quartieri |
|
Director |
|
August
30, 2024 |
Michael
Quartieri |
|
|
|
|
II-6
Exhibit 4.4
RUMBLEON, INC.
AND
[TRUSTEE]
Trustee
_______________
INDENTURE
DATED AS OF ___________, 20__
_______________
SENIOR DEBT SECURITIES
RUMBLEON, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE
ACT OF 1939,
AS AMENDED, AND INDENTURE, DATED AS OF ________,
20__
TRUST INDENTURE ACT SECTION |
INDENTURE SECTION |
Section 310(a)(1) |
6.9 |
(a)(2) |
6.9 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
6.9 |
(b) |
6.8 |
Section 311 |
6.13 |
Section 312(a) |
7.1, 7.2(a) |
(b) |
7.2(b) |
(c) |
7.2(c) |
Section 313(a) |
7.3 |
(b) |
* |
(c) |
* |
(d) |
7.3 |
Section 314(a) |
7.4 |
(a)(4) |
10.5 |
(b) |
Not Applicable |
(c)(1) |
1.3 |
(c)(2) |
1.3 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
1.3 |
Section 315(a) |
6.1(a) |
(b) |
6.2 |
(c) |
6.1(b) |
(d) |
6.1(c) |
(d)(1) |
6.1(a)(1) |
(d)(2) |
6.1(c)(2) |
(d)(3) |
6.1(c)(3) |
(e) |
5.14 |
Section 316(a) |
1.1, 1.2 |
(a)(1)(A) |
5.2, 5.12 |
(a)(1)(B) |
5.13 |
(a)(2) |
Not Applicable |
(b) |
5.8 |
(c) |
1.5(f) |
Section 317(a)(1) |
5.3 |
(a)(2) |
5.4 |
(b) |
10.3 |
Section 318(a) |
1.8 |
NOTE: This reconciliation and tie shall not, for
any purpose, be deemed to be a part of the Indenture.
* | Deemed included pursuant to Section 318(c) of the Trust Indenture
Act |
TABLE OF CONTENTS
Article One |
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
1.1 |
Definitions |
1 |
1.2 |
Incorporation by Reference of Trust Indenture Act |
5 |
1.3 |
Compliance Certificates and Opinions |
6 |
1.4 |
Form of Documents Delivered to Trustee |
6 |
1.5 |
Acts of Holders; Record Dates |
6 |
1.6 |
Notices, Etc., to Trustee and Company |
7 |
1.7 |
Notice to Holders; Waiver |
7 |
1.8 |
Conflict with Trust Indenture Act |
8 |
1.9 |
Effect of Headings and Table of Contents |
8 |
1.10 |
Successors and Assigns |
8 |
1.11 |
Separability Clause |
8 |
1.12 |
Benefits of Indenture |
8 |
1.13 |
Governing Law |
8 |
1.14 |
Legal Holidays |
8 |
1.15 |
Securities in a Composite Currency, Currency Unit or Foreign Currency |
8 |
1.16 |
Payment in Required Currency; Judgment Currency |
9 |
1.17 |
Language of Notices, Etc |
9 |
1.18 |
Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability |
9 |
Article Two |
SECURITY FORMS |
9 |
2.1 |
Forms Generally |
9 |
2.2 |
Form of Face of Security |
9 |
2.3 |
Form of Reverse of Security |
11 |
2.4 |
Global Securities |
14 |
2.5 |
Form of Trustee’s Certificate of Authentication |
14 |
Article Three |
THE SECURITIES |
14 |
3.1 |
Amount Unlimited; Issuable in Series |
14 |
3.2 |
Denominations |
16 |
3.3 |
Execution, Authentication, Delivery and Dating |
16 |
3.4 |
Temporary Securities |
17 |
3.5 |
Registration, Registration of Transfer and Exchange |
17 |
3.6 |
Mutilated, Destroyed, Lost and Stolen Securities |
19 |
3.7 |
Payment of Interest; Interest Rights Preserved |
19 |
3.8 |
Persons Deemed Owners |
20 |
3.9 |
Cancellation |
20 |
3.10 |
Computation of Interest |
20 |
3.11 |
CUSIP or CINS Numbers |
20 |
Article Four |
SATISFACTION AND DISCHARGE |
21 |
4.1 |
Satisfaction and Discharge of Indenture |
21 |
4.2 |
Application of Trust Money |
21 |
Article Five |
REMEDIES |
21 |
5.1 |
Events of Default |
21 |
5.2 |
Acceleration of Maturity; Rescission and Annulment |
22 |
5.3 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
23 |
5.4 |
Trustee May File Proofs of Claim |
23 |
5.5 |
Trustee May Enforce Claims Without Possession of Securities |
23 |
5.6 |
Application of Money Collected |
23 |
5.7 |
Limitation on Suits |
24 |
5.8 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
24 |
5.9 |
Restoration of Rights and Remedies |
24 |
5.10 |
Rights and Remedies Cumulative |
24 |
5.11 |
Delay or Omission Not Waiver |
24 |
5.12 |
Control by Holders |
25 |
5.13 |
Waiver of Past Defaults |
25 |
5.14 |
Undertaking for Costs |
25 |
5.15 |
Waiver of Stay or Extension Laws |
25 |
Article Six |
THE TRUSTEE |
25 |
6.1 |
Certain Duties and Responsibilities |
25 |
6.2 |
Notice of Defaults |
26 |
6.3 |
Certain Rights of Trustee |
26 |
6.4 |
Not Responsible for Recitals or Issuance of Securities |
27 |
6.5 |
May Hold Securities |
27 |
6.6 |
Money Held in Trust |
27 |
6.7 |
Compensation and Reimbursement |
27 |
6.8 |
Disqualification; Conflicting Interests |
28 |
6.9 |
Corporate Trustee Required; Eligibility |
28 |
6.10 |
Resignation and Removal; Appointment of Successor |
28 |
6.11 |
Acceptance of Appointment by Successor |
29 |
6.12 |
Merger, Conversion, Consolidation or Succession to Business |
29 |
6.13 |
Preferential Collection of Claims Against Company |
29 |
6.14 |
Appointment of Authenticating Agent |
30 |
Article Seven |
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
31 |
7.1 |
Company to Furnish Trustee Names and Addresses of Holders |
31 |
7.2 |
Preservation of Information; Communications to Holders |
31 |
7.3 |
Reports by Trustee |
31 |
7.4 |
Reports by Company |
32 |
Article Eight |
CONSOLIDATION, AMALGAMATION, MERGER AND SALE |
32 |
8.1 |
Company May Consolidate, Etc., Only on Certain Terms |
32 |
8.2 |
Successor Substituted |
32 |
Article Nine |
AMENDMENT, SUPPLEMENT AND WAIVER |
33 |
9.1 |
Without Consent of Holders |
33 |
9.2 |
With Consent of Holders |
34 |
9.3 |
Execution of Supplemental Indentures |
35 |
9.4 |
Effect of Supplemental Indentures |
35 |
9.5 |
Conformity with Trust Indenture Act |
35 |
9.6 |
Reference in Securities to Supplemental Indentures |
35 |
Article Ten |
COVENANTS |
35 |
10.1 |
Payment of Principal, Premium and Interest |
35 |
10.2 |
Maintenance of Office or Agency |
35 |
10.3 |
Money for Securities Payments to Be Held in Trust |
35 |
10.4 |
Existence |
36 |
10.5 |
Statement by Officer as to Default |
36 |
10.6 |
Additional Amounts |
36 |
Article Eleven |
REDEMPTION OF SECURITIES |
37 |
11.1 |
Applicability of Article |
37 |
11.2 |
Election to Redeem; Notice to Trustee |
37 |
11.3 |
Selection by Trustee of Securities to Be Redeemed |
37 |
11.4 |
Notice of Redemption |
37 |
11.5 |
Deposit of Redemption Price |
38 |
11.6 |
Securities Payable on Redemption Date |
38 |
11.7 |
Securities Redeemed in Part |
38 |
Article Twelve |
SINKING FUNDS |
38 |
12.1 |
Applicability of Article |
38 |
12.2 |
Satisfaction of Sinking Fund Payments with Securities |
38 |
12.3 |
Redemption of Securities for Sinking Fund |
38 |
Article Thirteen |
DEFEASANCE |
39 |
13.1 |
Option to Effect Legal Defeasance or Covenant Defeasance |
39 |
13.2 |
Legal Defeasance and Discharge |
39 |
13.3 |
Covenant Defeasance |
39 |
13.4 |
Conditions to Legal or Covenant Defeasance |
39 |
13.5 |
Deposited Money and U.S. Government Obligations to be Held in Trust, Other Miscellaneous Provisions |
40 |
13.6 |
Repayment |
41 |
13.7 |
Reinstatement |
41 |
INDENTURE
INDENTURE, dated as of __________,
20__, between RUMBLEON, INC., a corporation duly organized and existing under the laws of the State of Nevada (herein called the “Company”)
and [TRUSTEE], a banking corporation organized under the laws of the United States, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company has duly
authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured senior debentures,
notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as provided
in this Indenture;
WHEREAS, all things necessary
to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; and
WHEREAS, this Indenture is
subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent applicable, shall
be governed by such provisions.
NOW, THEREFORE, in consideration
of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
Article
One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1
Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise
requires:
(a)
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)
all terms used in this Indenture that are defined in the Trust Indenture Act, defined by a Trust Indenture Act reference to another
statute or defined by an SEC rule under the Trust Indenture Act have the meanings so assigned to them;
(c)
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(d)
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;
(e)
the words “Article” and “Section” refer to an Article and Section, respectively, of this
Indenture; and
(f)
the word “includes” and its derivatives means “includes, but is not limited to” and corresponding
derivative definitions.
Certain terms, used principally
in Article Six, are defined in that Article.
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.5.
“Additional Defeasible
Provision” means a covenant or other provision contained that is (a) made part of this Indenture pursuant to a supplemental
indenture hereto, a Board Resolution or an Officer’s Certificate delivered pursuant to Section 3.1, and (b) pursuant to the
terms set forth in such supplemental indenture, Board Resolution or Officer’s Certificate, made subject to the provisions of Article
Thirteen.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Authenticating Agent”
means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities.
“Banking Day”
means, in respect of any city, any date on which commercial banks are open for business in that city.
“Bankruptcy Law”
means any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law.
“Board of Directors”
means the board of directors of the Company or any duly authorized committee of that board to which the powers of that board have been
lawfully delegated.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company, the principal financial officer of the
Company, any other authorized officer of the Company, or a person duly authorized by any of them, in each case as applicable, to have
been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the
Trustee. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment
of any series of the Securities and the forms and terms thereof), such action may be taken by any committee, officer or employee of the
Company authorized to take such action by the Board of Directors as evidenced by a Board Resolution.
“Business Day,”
when used with respect to any Place of Payment or other location, means, except as otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment or other location are authorized or obligated by law, executive order or regulation to close.
“CINS”
means the CUSIP International Numbering System.
“Code”
means the United States Internal Revenue Code of 1986, as amended.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor or resulting corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor
or resulting corporation.
“Company Request”
or “Company Order” means, in the case of the Company, a written request or order signed in the name of the Company
by its Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer, its Chief Operating Officer, its President, any
of its Vice Presidents or any other duly authorized officer of the Company or any person duly authorized by any of them, and delivered
to the Trustee.
“Corporate Trust
Office” means the office of the Trustee at its address specified in Section 1.6 or such other address as to which the
Trustee may give notice to the Company.
“corporation”
includes corporations, companies, associations, partnerships, limited partnerships, limited liability companies, joint-stock companies
and trusts.
“Covenant Defeasance”
has the meaning specified in Section 13.3.
“CUSIP”
means the Committee on Uniform Securities Identification Procedures.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Debt”
means any obligation created or assumed by any Person for the repayment of money borrowed and any purchase money obligation created or
assumed by such Person and any guarantee of the foregoing.
“Default”
means, with respect to a series of Securities, any event that is, or after notice or lapse of time or both would be, an Event of Default.
“Defaulted Interest”
has the meaning specified in Section 3.7.
“Definitive Security”
means a security other than a Global Security or a temporary Security.
“Depositary”
means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities,
a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by 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 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 of America, which at the time of payment is legal tender for
the payment of public and private debts.
“Event of Default”
has the meaning specified in Section 5.1.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means a currency used by the government of a country other than the United States of America.
“GAAP”
means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and computations based on GAAP contained in this Indenture will be computed in conformity
with GAAP.
“Global Security”
means a Security in global form that evidences all or part of a series of Securities and is authenticated and delivered to, and registered
in the name of, the Depositary for the Securities of such series or its nominee.
“Holder”
means a Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” also shall include the terms of a particular series of Securities established
as contemplated by Section 3.1.
“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.
“Judgment Currency”
has the meaning specified in Section 1.16.
“Legal Defeasance”
has the meaning specified in Section 13.2.
“mandatory sinking
fund payment” has the meaning specified in Section 12.1.
“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.
“Notice of Default”
means a written notice of the kind specified in Section 5.1(e).
“Officer’s
Certificate” means, in the case of the Company, a certificate signed by the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the Chief Operating Officer, the President, any Vice President or any other duly authorized officer of the
Company, or a person duly authorized by any of them, and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may be an employee of or counsel for the Company and who shall be reasonably acceptable to the
Trustee.
“optional sinking
fund payment” has the meaning specified in Section 12.1.
“Original Issue Discount
Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 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:
(a)
Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(c)
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; and
(d)
Securities, except to the extent provided in Section 13.2 and Section 13.3, with respect to which the Company has
effected Legal Defeasance or Covenant Defeasance as provided in Article Thirteen, which Legal Defeasance or Covenant Defeasance then continues
in effect; provided, however, that 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, (i) the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the Maturity thereof on such date pursuant to Section 5.2, (ii) the principal
amount of a Security denominated in one or more currencies or currency units other than U.S. dollars shall be the U.S. dollar equivalent
of such currencies or currency units, determined in the manner provided as contemplated by Section 3.1 on the date of original
issuance of such Security or by Section 1.15, if not otherwise so provided pursuant to Section 3.1, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent (as so determined) on the date of original issuance
of such Security of the amount determined as provided in clause (i) above) of such Security, and (iii) 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 relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned
as described in clause (iii) of the immediately preceding sentence 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 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 and any premium or interest 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 Stated Maturity or Stated
Maturities thereof, the original issue date or dates thereof, the redemption provisions, if any, with respect thereto, and any other terms
specified as contemplated by Section 3.1 with respect thereto, are to be determined by the Company upon the issuance of such Securities.
“Person”
means any individual, corporation, company, limited liability company, partnership, limited partnership, joint venture, association, joint-stock
company, trust, other entity, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,”
when used with respect to the Securities of any series, means, unless otherwise specifically provided for with respect to such series
as contemplated by Section 3.1, the office or agency of the Company in the City of New York and such other place or places where,
subject to the provisions of Section 10.2, the principal of and any premium and interest on the Securities of that series are payable
as contemplated by Section 3.1.
“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, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated
by Section 3.1.
“Required Currency”
has the meaning specified in Section 1.16.
“Responsible Officer”
when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
“SEC” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.5.
“Significant Subsidiary”
means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation
S-X promulgated by the SEC.
“Special Record Date”
for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated Maturity,”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary”
means (a) a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other Subsidiaries or (b) any partnership or similar business organization
more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned. For the purposes of this
definition, “voting stock” means capital stock or equity interests which ordinarily have voting power for the election
of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who
is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except
as provided in Section 9.5; provided, however, that if the Trust Indenture Act of 1939 is amended after such date,
“Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“U.S. Person”
shall have the meaning assigned to such term in Section 7701(a)(30) of the Code.
“U.S. Government
Obligations” means securities which are (a) direct obligations of the United States for the payment of which its full faith
and credit is pledged, or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, each of which are
not callable or redeemable at the option of the issuer thereof.
“Vice President,”
when used with respect to the Company or the Trustee, means any vice president, regardless of whether designated by a number or a word
or words added before or after the title “vice president.”
1.2
Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in
this Indenture have the following meanings:
“commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the indenture securities.
All terms used in this Indenture
that are defined by the Trust Indenture Act, defined by a Trust Indenture Act reference to another statute or defined by an SEC rule under
the Trust Indenture Act have the meanings so assigned to them.
1.3
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 Officer’s 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 except as required under Section 314(c) of the Trust
Indenture Act.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section
10.5) shall include:
(a)
a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b)
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;
(c)
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 such covenant or condition has been complied with; and
(d)
a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
1.4
Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows or, in the exercise of reasonable care, should know that the certificate or opinion or representations
with respect to the matters upon which his 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 that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
1.5
Acts of Holders; Record Dates.
(a)
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically
or by means of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities
of a Depositary) 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 (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section.
(b) 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.
(c)
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Person’s
holding of same, shall be proved by the Security 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, regardless
of whether notation of such action is made upon such Security.
(e)
Without limiting the foregoing, a Holder entitled to give or 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 different part of such principal amount.
(f) The Company may set
any day as the record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver or other Act provided or permitted by this Indenture to
be given or taken by Holders of Securities of such series, but the Company shall have no obligation to do so. With regard to any
record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action, regardless of whether
such Holders remain Holders after such record date.
1.6
Notices, Etc., to Trustee and Company.
(a)
Any notice or communication by the Company or the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, to the others’ address:
If to the Company:
RumbleOn, Inc.
901 W. Walnut Hill Lane, Suite 110A
Irving, Texas 75038
Attention: Corporate Secretary
If to the Trustee:
[Trustee]
_________________
_________________
Facsimile: ________
(b)
The Company or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or
communications.
(c)
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
1.7
Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders 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.
Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, regardless
of whether such Holder actually receives such notice.
Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
1.8
Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such 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 excluded, as the case may be.
1.9
Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
1.10
Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
1.11
Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.12
Benefits of Indenture. Nothing in this Indenture or in the Securities express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
1.13
Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
1.14
Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not
be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than
a provision of the Securities of any series that specifically states that such provision shall apply in lieu of this Section 1.14))
payment of interest or principal and any premium need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at
the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
1.15
Securities in a Composite Currency, Currency Unit or Foreign Currency. Unless otherwise specified in an Officer’s
Certificate delivered pursuant to Section 3.1 of this Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities
of any series which are denominated in a coin, currency or currencies other than Dollars (including, but not limited to, any composite
currency, currency units or Foreign Currency), then the principal amount of Securities of such series which shall be deemed to be Outstanding
for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 1.15, the term “Market Exchange Rate” shall mean the noon Dollar buying rate in
The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York, as of the
most recent available date. If such Market Exchange Rate is not so available for any reason with respect to such currency, the Trustee
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 or rates of exchange from one or more major banks in The City of New York or in the country
of issue of the currency in question, which for purposes of euros shall be Brussels, Belgium, or such other quotations or rates of exchange
as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.
All decisions and determinations
of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Issuer and all Holders.
1.16
Payment in Required Currency; Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect
of the principal of or interest on the Securities of any series (the “Required Currency”) into a currency in which
a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is not a Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the Banking Day next preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any judgment (regardless of whether entered in accordance with subclause (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture.
1.17
Language of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or Act 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.
1.18
Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of or contained in this Indenture or of or contained in any Security or for any claim based
thereon or otherwise in respect thereof, or in any Security or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, member, officer, manager or director, as such, past, present or future, of the Company or
any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a part of the consideration for, the execution of this Indenture and the
issue of the Securities.
Article
Two
SECURITY FORMS
2.1
Forms Generally. The Securities of each series shall be in substantially the form set forth in this Article Two, or in such
other form or forms 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 the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities
as evidenced by their execution thereof.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an authorized officer
or other authorized person on behalf 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.
The forms of Global Securities
of any series shall have such provisions and legends as are customary for Securities of such series in global form, including without
limitation any legend required by the Depositary for the Securities of such series.
2.2
Form of Face of Security. [If the Security is an Original Issue Discount Security, insert—FOR PURPOSES OF SECTION
1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS , THE ISSUE DATE IS
, 20 [AND] [,] THE YIELD TO MATURITY IS [,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS AND THE METHOD USED TO DETERMINE
THE YIELD THEREFOR IS ]]
[Insert any other legend required by the
Code or the regulations thereunder.]
[If a Global Security,—insert legend
required by Section 2.4 of the Indenture] [If applicable, insert —UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
RUMBLEON, INC.
[TITLE OF SECURITY]
No ________________ |
|
U.S. $__________ |
[CUSIP No. _________]
RUMBLEON, INC., a company duly incorporated under
the laws of the State of Nevada (herein called the “Company,” which term includes any successor or resulting Person
under the Indenture hereinafter referred to), for value received, hereby promises to pay to _______________, or registered assigns, the
principal sum of _______________ United States Dollars on _______________ [If the Security is to bear interest prior to Maturity, insert—,
and to pay interest thereon from _______________ or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _______________ and _______________ in each year, commencing _______________, at the rate of _____% per
annum, until the principal hereof is paid or made available for payment [if applicable, insert—, and at the rate of _____% per annum
on any overdue principal and premium and on any installment of interest (to the extent that the payment of such interest shall be legally
enforceable)]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the _______________ or _______________ (regardless of whether a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture].
[If the Security is not to bear interest
prior to Maturity, insert—The principal of this Security shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at
the rate of _____% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the
date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal
shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of
_____% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on
demand.]
[If a Global Security, insert—Payment
of the principal of (and premium, if any) and [if applicable, insert—any such] interest on this Security will be made by transfer
of immediately available funds to a bank account in _______________ designated by the Holder in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and private debts [state other currency].]
[If a Definitive Security, insert—Payment
of the principal of (and premium, if any) and [if applicable, insert—any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in _______________, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts] [state other currency] [or subject to any laws
or regulations applicable thereto and to the right of the Company (as provided in the Indenture) to rescind the designation of any such
Paying Agent, at the [main] offices of _______________ in _______________, or at such other offices or agencies as the Company may
designate, by [United States Dollar] [state other currency] check drawn on, or transfer to a [United States Dollar] account
maintained by the payee with, a bank in The City of New York (so long as the applicable Paying Agency has received proper transfer instructions
in writing at least _____ days prior to the payment date)] [if applicable, insert—; provided, however, that payment
of interest may be made at the option of the Company by [United States Dollar] [state other currency] check mailed to the addresses
of the Persons entitled thereto as such addresses shall appear in the Security Register] [or by transfer to a [United States Dollar]
[state other currency] account maintained by the payee with a bank in The City of New York [state other Place of Payment]
(so long as the applicable Paying Agent has received proper transfer instructions in writing by the record date prior to the applicable
Interest Payment Date)].]
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the certificate of authentication hereon
has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed.
Dated: |
|
|
RUMBLEON, INC. |
|
|
|
By: |
|
2.3
Form of Reverse of Security. This Security is one of a duly authorized issue of senior securities of the Company (herein
called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of _______________,
20__ (herein called the “Indenture”), between the Company and U.S. Bank, National Association, as Trustee (herein called
the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement, of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may
be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be
subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is
one of the series designated on the face hereof [, limited in aggregate principal amount to $_______________].
This security is the general,
unsecured, senior obligation of the Company.
[If applicable, insert The Securities of this
series are subject to redemption upon not less than _____ days’ notice by mail, [if applicable, insert, (1) on _______________ in
any year commencing with the year _____ and ending with the year _____ through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2) ] at any time [on or after _______________, 20__], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed [on
or before _______________, _____%, and if redeemed] during the 12-month period beginning _______________ of the years indicated,
Year |
|
Redemption Price |
|
Year |
|
Redemption Price |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and thereafter at a Redemption Price equal to
_____% of the principal amount, together in the case of any such redemption [if applicable, insert—(whether through operation
of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert—The Securities
of this series are subject to redemption upon not less than _____ nor more than _____ days’ notice by mail, (1) on _______________
in any year commencing with the year _____ and ending with the year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [on or after _______________], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning _______________ of the years indicated,
Year |
|
Redemption Price for
Redemption Through
Operation of the Sinking
Fund |
|
Redemption Price for
Redemption Otherwise
Than Through Operation of
the Sinking Fund |
|
|
|
|
|
|
|
|
|
|
and thereafter at a Redemption Price equal to
__% of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise)
with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant
record dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert—Notwithstanding
the foregoing, the Company may not, prior to _______________, redeem any Securities of this series as contemplated by [clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than _____%
per annum.]
[If applicable, insert—The sinking fund
for this series provides for the redemption on _______________ in each year beginning with the year _____ and ending with the year _____
of [not less than] $_______________ [(“mandatory sinking fund”) and not more than $_______________] aggregate principal
amount of Securities of this series. [Securities of this series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made [If applicable,
insert— in the inverse order in which they become due].]
[If the Securities are subject to redemption
in part of any kind, insert—In the event of redemption of this Security in part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert—The Securities
of this series are not redeemable prior to Stated Maturity.]
[If the Security is not an Original Issue
Discount Security, insert—If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal
of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert—If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal
of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to —insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall
be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and interest, if any, on
the Securities of this series shall terminate.]
The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the
rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series
at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof, regardless of whether notation of such consent or waiver
is made upon this Security.
No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place(s) and rate, and in
the coin or currency, herein prescribed.
[If a Global Security, insert—This
Global Security or portion hereof may not be exchanged for Definitive Securities of this series except in the limited circumstances provided
in the Indenture. The holders of beneficial interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a Definitive Security, insert—As
provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [if applicable, insert—any
place where the principal of and any premium and interest on this Security are payable] [if applicable, insert—The City of New York
[, or, subject to any laws or regulations applicable thereto and to the right of the Company (limited as provided in the Indenture) to
rescind the designation of any such transfer agent, at the [main] offices of _______________ in _______________ or at such other offices
or agencies as the Company may designate]], duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.]
The Securities of this series
are issuable only in registered form without coupons in denominations of U.S. $________ and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be
made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of
this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person
in whose name this Security is registered as the owner hereof for all purposes, regardless of whether this Security be overdue, and none
of the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon
any obligation, covenant or agreement of or contained in the Indenture or of or contained in any Security, or for any claim based thereon
or otherwise in respect thereof, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, member, officer, manager or director, as such, past, present or future, of the Company or of any
successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that all such liability is hereby
expressly waived and released by the acceptance hereof and as a condition of, and as part of the consideration for, the Securities and
the execution of the Indenture.
The Indenture provides that
the Company (a) will be discharged from any and all obligations in respect of the Securities (except for certain obligations described
in the Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each case if the Company deposits, in
trust, with the Trustee money or U.S. Government Obligations (or a combination thereof) which through the payment of interest thereon
and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal of and interest
on the Securities, but such money need not be segregated from other funds except to the extent required by law.
Except as otherwise defined
herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
[If a Definitive Security, insert as a separate
page—
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address
of Assignee)
the within instrument of RUMBLEON, INC. and
does hereby irrevocably constitute and appoint _______________ Attorney to transfer said instrument on the books of the within-named Company,
with full power of substitution in the premises.
Please Insert Social Security or Other Identifying
Number of Assignee:
NOTICE: The signature to this assignment
must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement
or any change whatever.]
2.4
Global Securities. Every Global Security authenticated and delivered hereunder shall bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A
NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON
REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT
IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series
are issuable in whole or in part in the form of one or more Global Securities, as specified as contemplated by Section 3.1, then,
notwithstanding clause (i) of Section 3.1 and the provisions of Section 3.2, any Global Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby shall be made in such manner and
upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Section
3.3, Section 3.4 and Section 3.5, the Trustee shall deliver and redeliver any Global Security 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 Global Security shall be in a Company Order (which need not comply with Section
1.3 and need not be accompanied by an Opinion of Counsel).
The provisions of the last
sentence of Section 3.3 shall apply to any Security represented by a Global Security if such Security was never issued and sold
by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which need not comply with Section
1.3 and need not be accompanied by an Opinion of Counsel) with regard to the reduction or increase, as the case may be, in the principal
amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.3.
2.5
Form of Trustee’s Certificate of Authentication. The Trustee’s certificate(s) of authentication shall be in
substantially the following form:
This is one of the Securities
of the series designated [insert title of applicable series] referred to in the within-mentioned Indenture.
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as Trustee |
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By: |
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As Authenticating Officer |
Article
Three
THE SECURITIES
3.1
Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued
in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth, or determined in the manner provided,
in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of
any series,
(a)
the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities and which
may be part of a series of Securities previously issued);
(b) any limit upon the aggregate
principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 and except for any Securities
which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security
of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest;
(d)
the date or dates on which the principal of the Securities of the series is payable or the method of determination thereof;
(e)
the rate or rates at which the Securities of the series shall bear interest, if any, or the formula, method or provision pursuant
to which such rate or rates are determined, the date or dates from which such interest shall accrue or the method of determination thereof,
the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest
Payment Date;
(f) the
place or places where, subject to the provisions of Section 10.2, the principal of and any premium and interest on Securities
of the series shall be payable, Securities of the series may be surrendered for registration of transfer, Securities of the series may
be surrendered for exchange and notices, and demands to or upon the Company in respect of the Securities of the series and this Indenture
may be served;
(g)
the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(h)
the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i)
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall
be issuable;
(j) whether payment of principal of and premium, if any, and interest, if any, on the Securities of the series shall be without deduction
for taxes, assessments or governmental charges paid by Holders of the series;
(k)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(l)
if the amount of payments of principal of and any premium or interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(m)
if and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other
than those set forth in Section 3.5 in which any such Global Security may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such Global Security or a nominee thereof and in which any such transfer
may be registered;
(n)
any deletions from, modifications of or additions to the Events of Default set forth in Section 5.1 or the covenants of
the Company set forth in Article Ten with respect to the Securities of such series;
(o)
whether and under what circumstances the Company will pay additional amounts on the Securities of the series held by a Person who
is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will
have the option to redeem the Securities of the series rather than pay such additional amounts;
(p)
if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and
terms of such certificates, documents or conditions;
(q)
if the Securities of the series are to be convertible into or exchangeable for any other security or property of the Company,
including, without limitation, securities of another Person held by the Company or its Affiliates and, if so, the terms thereof;
(r)
if other than as provided in Section 13.2 and Section 13.3, the means of Legal Defeasance or Covenant Defeasance
as may be specified for the Securities of the series;
(s)
if other than the Trustee, the identity of the initial Security Registrar and any initial Paying Agent; and
(t) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officer’s
Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders,
for increases in the aggregate principal amount of such series of Securities and issuances of additional Securities of such series or
for the establishment of additional terms with respect to the Securities of such series.
If any of the terms of the
series are established by action taken by or pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified
by an authorized officer or other authorized person on behalf of the Company and delivered to the Trustee at or prior to the delivery
of the Officer’s Certificate setting forth, or providing the manner for determining, the terms of the series.
With respect to Securities
of a series subject to a Periodic Offering, such Board Resolution or Officer’s Certificate may provide general terms for Securities
of such series and provide either that the specific terms of particular Securities of such series shall be specified in a Company Order
or that such terms shall be determined by the Company or one or more agents thereof designated in an Officer’s Certificate, in accordance
with a Company Order.
3.2
Denominations. The Securities of each series shall be issuable in registered form without coupons in such denominations
as shall be specified as contemplated by Section 3.1. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
3.3
Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, its Chief Financial Officer or any of its Vice Presidents and need not be attested.
The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company notwithstanding
that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time
to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to
the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities
offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company or its duly
authorized agents, thereafter 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 forms or terms of the
Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.1 and
Section 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 such documents as it may reasonably request. The Trustee shall also be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a)
if the form or forms of such Securities has been established in or pursuant to a Board Resolution as permitted by Section 2.1,
that each such form has been established in conformity with the provisions of this Indenture;
(b)
if the terms of such Securities have been, or in the case of Securities of a series offered in a Periodic Offering will be, established
in or pursuant to a Board Resolution as permitted by Section 3.1, that 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 of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and
(c)
that such Securities when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any
conditions and assumptions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to the following limitations: (i) bankruptcy, insolvency, moratorium, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws of general applicability relating to or affecting the enforcement
of creditors’ rights, or to general equity principles, (ii) the availability of equitable remedies being subject to the discretion
of the court to which application therefor is made; and (iii) such other usual and customary matters as shall be specified in such Opinion
of Counsel.
If such form or forms or terms
have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions
of Section 3.1 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such
series to be issued.
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, on
the form or forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel
and the other documents delivered pursuant to Section 2.1 and Section 3.1 and this Section, as applicable, in connection
with the first authentication of Securities of such series.
Each Security shall be dated
the date of its authentication.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9 for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
3.4
Temporary Securities. Pending the preparation of Definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of
any series are issued, the Company will cause Definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of Definitive Securities of such series, the temporary Securities of such series shall be exchangeable for Definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Securities
of the same series and tenor of authorized denominations. 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.
3.5
Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the office or agency of the Company
in the Borough of Manhattan, the City of New York or in any other office or agency of the Company in a Place of Payment required by Section
10.2 a register (the register maintained in such office being herein sometimes referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed as the initial “Security Registrar” for the purpose of
registering Securities and transfers of Securities as herein provided, and its corporate trust office in New York City, which, at the
date hereof, is located at [_____________________], New York, New York [_____], is the initial office or agency in the Borough of Manhattan
where the Securities Register will be maintained. The Company may at any time replace such Security Registrar, change such office or agency
or act as its own Security Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar
or of the location of such office or agency.
Upon surrender for registration
of transfer of any Security of any series at the office or agency maintained pursuant to Section 10.2 for such purpose, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of the same series and tenor, of any authorized denominations and of a like aggregate principal amount.
At the option of the Holder,
Securities of any series (except a Global Security) may be exchanged for other Securities of the same series and tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so 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 exchange of Securities shall be the valid obligations of the Company evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be
made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving any transfer.
The Company shall not be required
(a) to issue, register the transfer of or exchange Securities of any series during a period beginning at, the opening of business 15 days
before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.3
and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other
provisions of this Indenture and except as otherwise specified with respect to any particular series of Securities as contemplated by
Section 3.1, a Global Security representing all or a portion of the Securities of a series may not be transferred, 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. Every Security authenticated and delivered upon registration of, transfer of, or in exchange for or in lieu of, a Global Security
shall be a Global Security except as provided in the two paragraphs immediately following.
If at any time the Depositary
for any Securities of a series represented by one or more Global Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such Securities or if at any time the Depositary for such Securities shall no longer be eligible to continue as Depositary
under Section 3.1 or ceases to be a clearing agency registered under the Exchange Act, the Company shall appoint a successor Depositary
with respect to such Securities. If a successor Depositary for such Securities 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 that
such Securities be represented by one or more Global Securities shall no longer be effective and the Company will execute and the Trustee,
upon receipt of a Company Order for the authentication and delivery of Definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing such Securities in exchange for such Global Security or
Securities registered in the names of such Persons as the Depositary shall direct.
The Company may at any time
and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer
be represented by a Global Security or Securities. In such event, the Company will execute and the Trustee, upon receipt of a Company
Order for the authentication and delivery of the Definitive Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such Securities in exchange for such Global Security or Securities registered
in the names of such Persons as the Depositary shall direct.
If specified by the Company
pursuant to Section 3.1 with respect to Securities represented by a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for Securities of the same series and tenor in definitive registered form
on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of Securities in definitive registered form, shall authenticate and
deliver, without service charge,
(a)
to the Person specified by such Depositary, a new Security or Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in
the Global Security; and
(b)
to such Depositary, a new Global Security in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (a) above.
Every Person who takes or
holds any beneficial interest in a Global Security agrees that:
(a)
the Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized representative
of such Person;
(b)
such Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those
established by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary;
(c)
the Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit distributions
of principal and interest on the Global Securities to, such Persons in accordance with their own procedures; and
(d)
none of the Company, the Trustee, nor any agent of any of them will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
3.6
Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security 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 and any agent of any
of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the
same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any
series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company regardless of whether the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section
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.
3.7
Payment of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
Any interest on any Security
of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to
make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall 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
Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b)
The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
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.
3.8
Persons Deemed Owners. Except as otherwise provided as contemplated by Section 3.1 with respect to any series of
Securities, prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent thereof may treat
the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 3.5 and Section 3.7) any interest on such Security and for all other purposes whatsoever,
regardless of whether such Security be overdue, and none of the Company, the Trustee nor any agent of any of them shall be affected by
notice to the contrary.
No holder of any beneficial
interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global
Security, and such Depositary may be treated by the Company, the Trustee and any agent of thereof as the owner of such Global Security
for all purposes whatsoever.
3.9
Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of in accordance with its customary practices, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition from time to time upon written request.
3.10
Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months.
3.11
CUSIP or CINS Numbers. The Company in issuing the Securities may use “CUSIP” or “CINS” numbers (if
then generally in use, and in addition to the other identification numbers printed on the Securities), and, if so, the Trustee shall use
“CUSIP” or “CINS” numbers in notices of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such “CUSIP” or “CINS” numbers either
as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such “CUSIP”
or “CINS” numbers.
Article
Four
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge
of Indenture. This Indenture shall cease to be of further effect and will be discharged with respect to the Securities of any series
(except as to any surviving rights of registration of transfer or exchange of Securities and certain rights of the Trustee, in each case,
herein expressly provided for), and the Trustee, upon Company Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when:
(a)
either
(i)
all such Securities theretofore authenticated and delivered (other than (A) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6, and (B) such Securities 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 10.3) have been delivered to the Trustee for cancellation; or
(ii)
all such Securities not theretofore delivered to the Trustee for cancellation
(A)
have become due and payable, or
(B)
will become due and payable at their Stated Maturity within one year, or
(C)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C)
above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest 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, together with instructions from the Company irrevocably directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; and
(c)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, which, taken together, state
that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities
have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture with respect to the Securities of any series, (x) the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section
6.10 shall survive, and (y) if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the obligations
of the Company and the Trustee under Section 4.2, Section 6.6 and Section 10.2 and the last paragraph of Section
10.3 shall survive.
4.2
Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.3, all money deposited
with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money
has been deposited with the Trustee.
Article
Five
REMEDIES
5.1
Events of Default. “Event of Default,” wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such Event of Default and whether it shall be 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):
(a)
default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(b)
default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(c)
default in the deposit of any sinking fund payment when due; or
(d)
default in the performance, or breach, of the covenant set forth in Section 8.1; or
(e)
default in the performance, or breach, of any covenant in this Indenture (other than the covenant in Section 8.1 or any
other covenant a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(f)
the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary
case or proceeding, (ii) consents to the entry of any order for relief against it in an involuntary case or proceeding, (iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the
benefit of its creditors, (v) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it,
(vi) takes any corporate action to authorize or effect any of the foregoing, or (vii) takes any comparable action under any
foreign laws relating to insolvency; or
(g)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company
or any Significant Subsidiary in an involuntary case, (ii) appoints a Custodian of the Company or any Significant Subsidiary for
all or substantially all of its property, or (iii) orders the liquidation or winding up of the Company or any Significant Subsidiary;
and the order or decree remains unstayed and in effect for 30 consecutive days; or
(h)
any other Event of Default provided with respect to Securities of that series in accordance with Section 3.1.
5.2
Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in the terms of that series), together with any accrued
and unpaid interest thereon, of all of the Securities of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together
with any accrued and unpaid interest thereon, shall become immediately due and payable. Notwithstanding the foregoing, if an Event of
Default specified in clause (f) or (g) of Section 5.1 occurs, the Securities of any series at the time Outstanding shall be due
and payable immediately without further action or notice.
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 Five provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences
if:
(a)
the Company has paid or deposited with the Trustee a sum sufficient to pay:
(i)
all overdue interest on all Securities of that series,
(ii)
the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(iii)
to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(iv)
all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b)
all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
5.3
Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a)
default is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the
payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and any premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay
such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with
respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of 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.
5.4
Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities, their
property or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a)
to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b)
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, if the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.7.
No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
compromise, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
5.5
Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
5.6
Application of Money Collected. Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any
premium 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 payment of all
amounts due the Trustee under Section 6.7;
SECOND: To the payment of the
amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any,
to the Company.
5.7
Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a)
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b)
the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e)
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other 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 such Holders.
5.8
Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium
and (subject to Section 3.5 and Section 3.7) interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
5.9
Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
5.10
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 to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
5.11
Delay or Omission Not Waiver. To fullest extent permitted by applicable law, no delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
5.12
Control by Holders. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that:
(a)
such direction shall not be in conflict with any rule of law or with this Indenture;
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c)
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability.
5.13
Waiver of Past Defaults. By written notice to the Company and the Trustee, the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except:
(a)
a continuing default in the payment of the principal of or any premium or interest on any Security of such series, or
(b)
a default in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
5.14
Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant,
other than the Trustee, in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
5.15
Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all 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
Six
THE TRUSTEE
6.1
Certain Duties and Responsibilities.
(a)
Except during the continuance of an Event of Default,
(i)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and as are provided
by the Trust Indenture Act, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether they conform to the requirements of this Indenture.
(b)
In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i)
this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(ii)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, given pursuant to Section
5.12, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(iv)
no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)
Regardless of whether therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
6.2
Notice of Defaults. Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series,
the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register,
notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the principal of or any premium or interest on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of such series, the Trustee may withhold from Holders of Securities
notice of any continuing Default or Event of Default if the Trustee in good faith determines that the withholding of such notice is in
the interest of the Holders of Securities of such series; and, provided, further, that in the case of any Default of the
character specified in Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given until
at least 90 days after the occurrence thereof and that in the case of any Default of the character specified in Section 5.1(e)
with respect to Securities of such series, no such notice to Holders shall be given until at least 180 days after the occurrence thereof.
6.3
Certain Rights of Trustee. Subject to the provisions of Section 6.1:
(a)
the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(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 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)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be
entitled to receive and may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(d)
the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder and shall not be responsible for the supervision of officers and employees of such agents or attorneys;
(h)
the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed
by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate
previously delivered and not superseded;
(i)
the Trustee shall be entitled to the rights and protections afforded to the Trustee pursuant to this Article Six in acting as a
Paying Agent or Security Registrar hereunder; and
(j)
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, and such notice references the Notes and this Indenture.
6.4
Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the
Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
6.5
May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent
of the Company in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b)
and 311 of the Trust Indenture Act and Section 6.8, Section 6.9 and Section 6.13, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
6.6
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 in writing with the Company.
6.7
Compensation and Reimbursement. The Company agrees:
(a)
to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b)
except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(c)
to indemnify each of the Trustee and its officers, directors, agents and employees for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance
of the obligations of the Company under this Section the Trustee shall have a lien prior to the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities.
Without limiting any rights
available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1(f) or Section 5.1(g), the expenses (including the reasonable charges and expenses of its counsel)
and the compensation for the services of the Trustee are intended to constitute expenses of administration under any applicable Bankruptcy
Law.
The provisions of this Section
6.7 shall survive the satisfaction and discharge of this Indenture and the Legal Defeasance of the Securities.
6.8
Disqualification; Conflicting Interests. Reference is made to Section 310(b) of the Trust Indenture Act. There shall
be excluded from the operation of Section 310(b)(1) of the Trust Indenture Act this Indenture with respect to the Securities of
more than one series.
6.9
Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized
and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus required by the Trust Indenture Act, subject to supervision
or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this Section, 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.
The Trustee shall not be an obligor upon the Securities or an Affiliate thereof. 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 hereinafter specified
in this Article Six.
6.10
Resignation and Removal; Appointment of Successor.
(a)
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(b)
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(c)
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d)
If at any time:
(i)
the Trustee shall fail 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
(ii)
the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign,
be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, 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.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in
the manner provided in Section 1.7. Each notice shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
6.11
Acceptance of Appointment by Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee
relates, (ii) 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 this Article and the Trust Indenture Act.
6.12
Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, 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.
6.13
Preferential Collection of Claims Against Company. Reference is made to Section 311 of the Trust Indenture Act. For
purposes of Section 311(b) of the Trust Indenture Act,
(a)
the term “cash transaction” means any transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable
upon demand;
(b)
the term “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
6.14
Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate
of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, 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 all or substantially
all of 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 any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
Except with respect to an
Authenticating Agent appointed at the request of the Company, the Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, and the Trustee shall be entitled to be reimbursed by the Company
for such payments, subject to the provisions of Section 6.7.
If an appointment with respect
to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition
to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities
of the series designated therein referred to in the within-mentioned Indenture.
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Article
Seven
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1
Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a)
semi-annually, not more than 15 days after each Regular Record Date for a series of Securities, a list for such series of Securities,
in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of such
Regular Record Date, and
(b)
at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however,
that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished with respect to such series of Securities.
7.2
Preservation of Information; Communications to Holders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b)
If three or more Holders (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under
this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(i)
afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.2(a),
or
(ii)
inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.2(a), and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall
elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to
each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.2(a)
a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file with the SEC, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of
the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the SEC, after
opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more of such objections, the SEC shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise
the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c)
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company
nor the Trustee nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 7.2(b), regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.2(b).
7.3 Reports by Trustee.
Any Trustee’s report required pursuant to Section 313(a) of the Trust Indenture Act shall be dated as of May 15, and shall
be transmitted within 60 days after May 15 of each year (but in all events at intervals of not more than 12 months), commencing with
the year 20__, by mail to all Holders, as their names and addresses appear in the Security Register. A copy of each such report shall,
at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with
the SEC and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
7.4
Reports by Company. The Company shall:
(a)
file with the Trustee, within 15 days after the Company files the same with the SEC, 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 SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary
and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act 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)
file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(c)
transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to clauses
(a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the SEC.
Article
Eight
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
8.1
Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate or merge with or into any other
Person or sell, convey, transfer, lease or otherwise dispose of all or substantially all of the properties and assets of the Company on
a consolidated basis to any other Person, and shall not permit any Person to consolidate or merge into the Company, unless:
(a)
either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation, amalgamation
or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of the
United States, any state of the United States or the District of Columbia;
(b)
the Person formed by or surviving any such conversion, consolidation, amalgamation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company
under the Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; provided that, unless such Person
is a corporation, a corporate co-issuer of the Securities will be added to this Indenture by agreements reasonably satisfactory to the
Trustee;
(c)
immediately before and after giving pro forma effect to such transaction, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(d)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
amalgamation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Article Eight and
that all conditions precedent herein provided for relating to such transaction have been complied with.
8.2
Successor Substituted. Upon any consolidation or merger of the Company with or into any other Person or any sale, conveyance,
transfer, lease or other disposition of all or substantially all of the properties and assets of the Company on a consolidated basis in
accordance with Section 8.1, the successor or resulting Person formed by or resulting upon such consolidation or merger (if other
than the Company) or to which such sale, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations
and covenants under this Indenture and the Securities.
Article
Nine
AMENDMENT, SUPPLEMENT AND WAIVER
9.1
Without Consent of Holders. The Company and the Trustee may amend or supplement this indenture or the Securities without
the consent of any holder of a Security:
(a)
to cure any ambiguity or to correct or supplement any provision herein that may be inconsistent with any other provision herein
in a manner that does not adversely affect the rights of any Holder of Securities in any material respect; or
(b)
to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and, to the extent applicable, to the Securities; or
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities; provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the Code, or in the manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code; or
(d)
to secure the Securities of any series; or
(e)
to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company shall consider
to be appropriate for the benefit of the Holders of all or any series of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein conferred upon the Company and to make the occurrence, or the
occurrence and continuance, of a Default in any such additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect
of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit
the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
or
(f)
to make any change to any provision of this Indenture that does not adversely affect the rights or interests of any Holder of Securities;
or
(g)
to provide for the issuance of additional Securities in accordance with the provisions set forth in this Indenture on the date
of this Indenture; or
(h)
to add any additional Defaults or Events of Default in respect of all or any series of Securities; or
(i)
to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or
(j)
to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision; or
(k)
to establish the form or terms of Securities of any series as permitted by Section 2.1 and Section 3.1, including
to reopen any series of any Securities as permitted under Section 3.1; or
(l)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or
(m)
to conform the text of this Indenture (and/or any supplemental indenture) or any debt securities issued thereunder to any provision
of a description of such debt securities appearing in a prospectus or prospectus supplement or an offering memorandum or offering circular
to the extent that such provision was intended to be a verbatim recreation of a provision of the indenture (and/or any supplemental indenture)
or any debt securities issued thereunder; or
(n)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the Trust Indenture Act or under any similar federal statute subsequently enacted, and to add to this Indenture
such other provisions as may be expressly required under the Trust Indenture Act.
After an amendment under this
Section 9.1 becomes effective, the Company shall mail to Holders a notice briefly describing such amendment. The failure to give
such notice to Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.1.
Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be therein contained and to accept the conveyance, transfer, assignment, mortgage, charge or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.
9.2
With Consent of Holders. The Company and the Trustee may amend or supplement this Indenture and the Securities with the
consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities of each series of Securities affected
by such amendment or supplemental indenture, with each such series voting as a separate class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer for Securities) and, subject to Section 5.8 and Section
5.13 hereof, any existing Default or Event of Default or compliance with any provision of this Indenture or the Securities may be
waived with respect to each series of Securities with the consent of the Holders of a majority in principal amount of the Outstanding
Securities of such series voting as a separate class (including consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Securities).
Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon
the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon
receipt by the Trustee of the documents described in Section 6.3 hereof, the Trustee will join with the Company in the execution
of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
It is not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed amendment or waiver,
but it is sufficient if such consent approves the substance of the proposed amendment or waiver.
After an amendment, supplement
or waiver under this Section 9.2 becomes effective, the Company will mail to the Holders of Securities affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Section 5.8
and Section 5.13 hereof, the application of or compliance with, either generally or in any particular instance, of any provision
of this Indenture or the Securities may be waived as to each series of Securities by the Holders of a majority in aggregate principal
amount of the Outstanding Securities of such series. However, without the consent of each Holder affected, an amendment or waiver under
this Section 9.2 may not (with respect to any Securities held by a non-consenting Holder):
(a)
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 that would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change any Place of Payment where, or the coin or currency in which, any Security 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), or
(b)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c)
modify any of the provisions of this Section 9.2, Section 5.8, Section 5.13 or Section 10.6, except
to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, provided, however, that this clause (c) shall not be deemed
to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes
in this Section, or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and Section 9.1(l);
or
(d)
waive a redemption payment with respect to any Security; provided, however, that any purchase or repurchase of Securities shall
not be deemed a redemption of the Securities; or
(e)
make any change in the foregoing amendment and waiver provisions.
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one
or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary
for any Act of Holders under this Section 9.2 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
9.3
Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
9.4
Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article Nine, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
9.5
Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the Trust Indenture Act as then in effect.
9.6
Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article
Ten
COVENANTS
10.1
Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
10.2
Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York, an office
or agency (which may be an office of the Trustee or Registrar or agent of the Trustee or Registrar) where Securities of that series may
be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of 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.
The Company may also from
time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New
York 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.
Except as otherwise specified
with respect to a series of Securities as contemplated by Section 3.1, the Company hereby initially designates the office of the
Trustee located at [_____________], New York, New York [_____], as the Company’s office or agency for each such purpose for each
series of Securities.
10.3
Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent, with respect
to any series of Securities, it will, on or before each due date of the principal of and any premium 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 and
any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall
have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of and any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. For purposes of this Section
10.3, should a due date for principal of and any premium or interest on, or sinking fund payment with respect to any series of Securities
not be on a Business Day, such payment shall be due on the next Business Day without any interest for the period from the due date until
such Business Day.
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:
(a)
hold all sums held by it for the payment of the principal of and any premium 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;
(b)
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 and any premium or interest on the Securities of that series; and
(c)
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.
Subject to any applicable
escheat or abandoned property laws, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of and any premium or interest on any Security of any series and remaining unclaimed for one year after such
principal and any premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan,
The City of New York, 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.
10.4
Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company.
10.5
Statement by Officer as to Default. Annually, within 150 days after the close of each fiscal year beginning with the first
fiscal year during which one or more series of Securities are Outstanding, the Company will deliver to the Trustee a brief certificate
(which need not include the statements set forth in Section 1.3) from the principal executive officer, principal financial officer
or principal accounting officer of the Company as to his or her knowledge of the Company’s compliance (without regard to any period
of grace or requirement of notice provided herein) with all conditions and covenants under the Indenture and, if the Company shall be
in Default, specifying all such Defaults and the nature and status thereof of which such officer has knowledge.
10.6
Additional Amounts. If the Securities of a series provide for the payment of additional amounts (as provided in Section
3.1(o)), at least 10 days prior to the first Interest Payment Date with respect to that series of Securities and at least 10 days
prior to each date of payment of principal of, premium, if any, or interest on the Securities of that series if there has been a change
with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee and
the principal Paying Agent, if other than the Trustee, an Officer’s Certificate instructing the Trustee and such Paying Agent whether
such payment of principal of, premium, if any, or interest on the Securities of that series shall be made to holders of the Securities
of that series without withholding or deduction for or on account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding or deduction shall be required, then such Officer’s Certificate shall specify
by country the amount, if any, required to be withheld or deducted on such payments to such holders and shall certify the fact that additional
amounts will be payable and the amounts so payable to each holder, and the Company shall pay to the Trustee or such Paying Agent the additional
amounts required to be paid by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section
10.6.
Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on, or in respect of,
any Securities of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms
of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof
shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Article
Eleven
REDEMPTION OF SECURITIES
11.1
Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article Eleven.
11.2
Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall,
at least 15 days prior to the last date for the giving of notice of such redemption (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and 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 (a) prior to the expiration
of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (b) pursuant to an election
of the Company that is subject to a condition specified in the terms of the Securities of the series to be redeemed, the Company shall
furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
11.3
Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called
for redemption, by lot, pro rata or by another method as the Trustee shall deem fair and appropriate, including any method required by
the Depository with respect to any Global Securities (and in such manner as is not prohibited by applicable legal requirements) and which
may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities 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 for redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities having different dates
on which the principal is payable or different rates of interest, or different methods by which interest may be determined or have any
other different tenor or terms, then the Company may, by written notice to the Trustee, direct that the Securities of such series to be
redeemed shall be selected from among the groups of such Securities having specified tenor or terms and the Trustee shall thereafter select
the particular Securities to be redeemed in the manner set forth in the preceding paragraph from among the group of such Securities so
specified.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
11.4
Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security
Register.
All notices of redemption
shall state:
(a)
the Redemption Date,
(b)
the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(c)
if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(d)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e)
the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(f)
that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.
11.5
Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
11.6
Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however, that unless otherwise specified with respect
to Securities of any series as contemplated in Section 3.1, installments of interest 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 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.
11.7
Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities
of the same series and tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
Article
Twelve
SINKING FUNDS
12.1
Applicability of Article. The provisions of this Article Twelve 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 12.2. 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.
12.2
Satisfaction of Sinking Fund Payments with Securities. The Company (a) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (b) 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.
12.3
Redemption of Securities for Sinking Fund. Not less than 45 days prior to each sinking fund payment date for any series
of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s
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 12.2 and stating the basis for such credit and that such Securities
have not been previously so credited, 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 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6 and Section 11.7.
Article
Thirteen
DEFEASANCE
13.1
Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officer’s Certificate, and at any time, elect to have either Section 13.2 or Section 13.3
hereof be applied to all outstanding Securities upon compliance with the conditions set forth below in this Article Thirteen, unless otherwise
established with respect to the Securities of a series pursuant to Section 3.1.
13.2
Legal Defeasance and Discharge. Upon the Company’s exercise under Section 13.1 hereof of the option applicable
to this Section 13.2, the Company will, subject to the satisfaction of the conditions set forth in Section 13.4 hereof,
be deemed to have been discharged from their obligations with respect to all outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will
be deemed to have paid and discharged the entire Debt represented by the outstanding Securities, which will thereafter be deemed to be
“outstanding” only for the purposes of Section 13.5 hereof and the other sections of this Indenture referred to in
clauses (a) and (b) below, and to have satisfied all their other obligations under such Securities and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions
which will survive until otherwise terminated or discharged hereunder:
(a)
the rights of Holders of Outstanding Securities to receive payments in respect of the principal of, or interest or premium, if
any, on such Securities when such payments are due from the trust referred to in Section 13.4 hereof;
(b)
the Company’s obligations with respect to such Securities under Section 3.4, Section 3.5, Section 3.6,
Section 10.2 and Section 10.3 hereof;
(c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
and
(d)
this Article Thirteen.
Subject to compliance with
this Article Thirteen, the Company may exercise its option under this Section 13.2 notwithstanding the prior exercise of its option
under Section 13.3 hereof.
13.3
Covenant Defeasance. Upon the Company’s exercise under Section 13.1 hereof of the option applicable to this
Section 13.3, the Company will, subject to the satisfaction of the conditions set forth in Section 13.4 hereof, be released
from each of their obligations under the covenants contained in Section 7.4, Section 8.1 and Section 10.4 hereof
as well as any Additional Defeasible Provisions (such release and termination hereinafter referred to as “Covenant Defeasance”),
and the Securities will thereafter be deemed 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 such covenants, but will continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Securities will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 5.1 hereof,
but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby. In addition, upon the
Company’s exercise under Section 13.1 hereof of the option applicable to this Section 13.3 hereof, subject to the
satisfaction of the conditions set forth in Section 13.4 hereof, Sections 5.1(c), 5.1(d), 5.1(e), 5.1(g)
and 5.1(h) hereof and will not constitute Events of Default.
13.4
Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance under either
Section 13.2 or Section 13.3 hereof:
(a)
the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities, cash in U.S.
dollars, non-callable U.S. Government Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government Obligations,
in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent
public accountants to pay the principal of, or interest and premium, if any, on the Outstanding Securities on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Securities are being defeased
to such stated date for payment or to a particular redemption date;
(b)
in the case of an election under Section 13.2 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming
that:
(i)
the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(ii)
since the Issue Date, there has been a change in the applicable federal income tax law,
in either case to the effect that, and
based thereon such Opinion of Counsel will confirm that, the Holders of the Outstanding Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(c)
in the case of an election under Section 13.3 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming
that the Holders of the Outstanding Securities 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;
(d)
no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);
(e)
[reserved];
(f)
such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(g)
the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company or others;
(h)
the Company must deliver to the Trustee an Officer’s Certificate, stating that all conditions precedent set forth in clauses
(a) through (g) of this Section 13.4 have been complied with; and
(i)
the Company must deliver to the Trustee an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions,
qualifications and exclusions), stating that all conditions precedent set forth in clauses (b), (c) and (f) of this Section 13.4
have been complied with; provided that the Opinion of Counsel with respect to clause (f) of this Section 13.4 may be to the knowledge
of such counsel.
13.5
Deposited Money and U.S. Government Obligations to be Held in Trust, Other Miscellaneous Provisions. Subject to Section
13.6 hereof, all money and non-callable U.S. Government Obligation (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 13.5, the “Trustee”) pursuant to Section
13.4 hereof in respect of the Outstanding Securities will be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited
pursuant to Section 13.4 hereof or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Securities.
Notwithstanding anything in
this Article Thirteen to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable U.S. Government Obligations held by it as provided in Section 13.4 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 13.4(a) hereof), are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
13.6
Repayment. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment
of the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium,
if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged
from such trust; and the Holder of such Security will thereafter be permitted to 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,
will 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 the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date
of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
13.7
Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable U.S. Government
Obligations in accordance with Section 13.2 or Section 13.3 hereof, as the case may be, by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations
under this Indenture and the Securities will be revived and reinstated as though no deposit had occurred pursuant to Section 13.2
or Section 13.3 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section
13.2 or Section 13.3 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of,
premium, if any, or interest on any Note following the reinstatement of its obligations, the Company will be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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.
|
RUMBLEON, INC. |
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By; |
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Name: |
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Title: |
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[TRUSTEE] |
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By; |
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Name: |
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Title: |
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41
Exhibit
4.5
RUMBLEON,
INC.
AND
[TRUSTEE]
Trustee
_______________
INDENTURE
DATED
AS OF __________, 20__
_______________
SUBORDINATED
DEBT SECURITIES
RUMBLEON,
INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND INDENTURE, DATED AS OF __________, 20__
TRUST
INDENTURE ACT SECTION |
INDENTURE
SECTION |
Section 310(a)(1) |
6.9 |
(a)(2) |
6.9 |
(a)(3) |
Not Applicable |
(a)(4) |
Not Applicable |
(a)(5) |
6.9 |
(b) |
6.8 |
Section 311 |
6.13 |
Section 312(a) |
7.1, 7.2(a) |
(b) |
7.2(b) |
(c) |
7.2(c) |
Section 313(a) |
7.3 |
(b) |
* |
(c) |
* |
(d) |
7.3 |
Section 314(a) |
7.4 |
(a)(4) |
10.5 |
(b) |
Not Applicable |
(c)(1) |
1.3 |
(c)(2) |
1.3 |
(c)(3) |
Not Applicable |
(d) |
Not Applicable |
(e) |
1.3 |
Section 315(a) |
6.1(a) |
(b) |
6.2 |
(c) |
6.1(b) |
(d) |
6.1(c) |
(d)(1) |
6.1(a)(1) |
(d)(2) |
6.1(c)(2) |
(d)(3) |
6.1(c)(3) |
(e) |
5.14 |
Section 316(a) |
1.1, 1.2 |
(a)(1)(A) |
5.2, 5.12 |
(a)(1)(B) |
5.13 |
(a)(2) |
Not Applicable |
(b) |
5.8 |
(c) |
1.5(f) |
Section 317(a)(1) |
5.3 |
(a)(2) |
5.4 |
(b) |
10.3 |
Section 318(a) |
1.8 |
NOTE:
This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
| * | Deemed
included pursuant to Section 318(c) of the Trust Indenture Act |
TABLE
OF CONTENTS
Article One |
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION |
1 |
1.1 |
Definitions |
1 |
1.2 |
Incorporation by Reference of Trust Indenture Act |
7 |
1.3 |
Compliance Certificates and Opinions |
7 |
1.4 |
Form of Documents Delivered to Trustee |
7 |
1.5 |
Acts of Holders; Record Dates |
8 |
1.6 |
Notices, Etc., to Trustee and Company |
9 |
1.7 |
Notice to Holders; Waiver |
9 |
1.8 |
Conflict with Trust Indenture Act |
9 |
1.9 |
Effect of Headings and Table of Contents |
9 |
1.10 |
Successors and Assigns |
10 |
1.11 |
Separability Clause |
10 |
1.12 |
Benefits of Indenture |
10 |
1.13 |
Governing Law |
10 |
1.14 |
Legal Holidays |
10 |
1.15 |
Securities in a Composite Currency, Currency
Unit or Foreign Currency |
10 |
1.16 |
Payment in Required Currency; Judgment Currency |
11 |
1.17 |
Language of Notices, Etc |
11 |
1.18 |
Incorporators, Shareholders, Officers and Directors
of the Company Exempt from Individual Liability |
11 |
Article Two |
SECURITY FORMS |
11 |
2.1 |
Forms Generally |
11 |
2.2 |
Form of Face of Security |
12 |
2.3 |
Form of Reverse of Security |
13 |
2.4 |
Global Securities |
16 |
2.5 |
Form of Trustee’s Certificate of Authentication |
17 |
Article Three |
THE SECURITIES |
17 |
3.1 |
Amount Unlimited; Issuable in Series |
17 |
3.2 |
Denominations |
19 |
3.3 |
Execution, Authentication, Delivery and Dating |
19 |
3.4 |
Temporary Securities |
21 |
3.5 |
Registration, Registration of Transfer and
Exchange |
21 |
3.6 |
Mutilated, Destroyed, Lost and Stolen Securities |
23 |
3.7 |
Payment of Interest; Interest Rights Preserved |
23 |
3.8 |
Persons Deemed Owners |
24 |
3.9 |
Cancellation |
24 |
3.10 |
Computation of Interest |
25 |
3.11 |
CUSIP or CINS Numbers |
25 |
Article Four |
SATISFACTION AND DISCHARGE |
25 |
4.1 |
Satisfaction and Discharge of Indenture |
25 |
4.2 |
Application of Trust Money |
26 |
Article Five |
REMEDIES |
26 |
5.1 |
Events of Default |
26 |
5.2 |
Acceleration of Maturity; Rescission and Annulment |
27 |
5.3 |
Collection of Indebtedness and Suits for Enforcement
by Trustee |
27 |
5.4 |
Trustee May File Proofs of Claim |
28 |
5.5 |
Trustee May Enforce Claims Without Possession of Securities |
28 |
5.6 |
Application of Money Collected |
29 |
5.7 |
Limitation on Suits |
29 |
5.8 |
Unconditional Right of Holders to
Receive Principal, Premium and Interest |
29 |
5.9 |
Restoration of Rights and Remedies |
29 |
5.10 |
Rights and Remedies Cumulative |
29 |
5.11 |
Delay or Omission Not Waiver |
30 |
5.12 |
Control by Holders |
30 |
5.13 |
Waiver of Past Defaults |
30 |
5.14 |
Undertaking for Costs |
30 |
5.15 |
Waiver of Stay or Extension Laws |
31 |
Article Six |
THE TRUSTEE |
31 |
6.1 |
Certain Duties and Responsibilities |
31 |
6.2 |
Notice of Defaults |
32 |
6.3 |
Certain Rights of Trustee |
32 |
6.4 |
Not Responsible for Recitals or Issuance of Securities |
33 |
6.5 |
May Hold Securities |
33 |
6.6 |
Money Held in Trust |
33 |
6.7 |
Compensation and Reimbursement |
33 |
6.8 |
Disqualification; Conflicting Interests |
34 |
6.9 |
Corporate Trustee Required; Eligibility |
34 |
6.10 |
Resignation and Removal; Appointment of Successor |
34 |
6.11 |
Acceptance of Appointment by Successor |
35 |
6.12 |
Merger, Conversion, Consolidation or Succession to
Business |
36 |
6.13 |
Preferential Collection of Claims Against Company |
36 |
6.14 |
Appointment of Authenticating Agent |
36 |
Article Seven |
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
37 |
7.1 |
Company to Furnish Trustee Names and Addresses of Holders |
37 |
7.2 |
Preservation of Information; Communications to Holders |
38 |
7.3 |
Reports by Trustee |
38 |
7.4 |
Reports by Company |
39 |
Article Eight |
CONSOLIDATION, AMALGAMATION, MERGER AND SALE |
39 |
8.1 |
Company May Consolidate, Etc., Only on Certain Terms |
39 |
8.2 |
Successor Substituted |
39 |
Article Nine |
AMENDMENT, SUPPLEMENT AND WAIVER |
40 |
9.1 |
Without Consent of Holders |
40 |
9.2 |
With Consent of Holders |
41 |
9.3 |
Execution of Supplemental Indentures |
42 |
9.4 |
Effect of Supplemental Indentures |
42 |
9.5 |
Conformity with Trust Indenture Act |
43 |
9.6 |
Reference in Securities to Supplemental Indentures |
43 |
Article Ten |
COVENANTS |
43 |
10.1 |
Payment of Principal, Premium and Interest |
43 |
10.2 |
Maintenance of Office or Agency |
43 |
10.3 |
Money for Securities Payments to be Held in Trust |
43 |
10.4 |
Existence |
44 |
10.5 |
Statement by Officer as to Default |
44 |
10.6 |
Additional Amounts |
44 |
Article Eleven |
REDEMPTION OF SECURITIES |
45 |
11.1 |
Applicability of Article |
45 |
11.2 |
Election to Redeem; Notice to Trustee |
45 |
11.3 |
Selection by Trustee of Securities to be Redeemed |
45 |
11.4 |
Notice of Redemption |
46 |
11.5 |
Deposit of Redemption Price |
46 |
11.6 |
Securities Payable on Redemption Date |
46 |
11.7 |
Securities Redeemed in Part |
46 |
Article Twelve |
SINKING FUNDS |
46 |
12.1 |
Applicability of Article |
46 |
12.2 |
Satisfaction of Sinking Fund Payments with
Securities |
47 |
12.3 |
Redemption of Securities for Sinking Fund |
47 |
Article Thirteen |
DEFEASANCE |
47 |
13.1 |
Option to Effect Legal Defeasance or Covenant Defeasance |
47 |
13.2 |
Legal Defeasance and Discharge |
47 |
13.3 |
Covenant Defeasance |
48 |
13.4 |
Conditions to Legal or Covenant Defeasance |
48 |
13.5 |
Deposited Money and U.S. Government Obligations to
be Held in Trust, Other Miscellaneous Provisions |
49 |
13.6 |
Repayment |
49 |
13.7 |
Reinstatement |
50 |
Article Fourteen |
SUBORDINATION OF SECURITIES |
50 |
14.1 |
Securities Subordinated to Senior Debt |
50 |
14.2 |
No Payment on Securities in Certain Circumstances |
50 |
14.3 |
Payment over Proceeds upon Dissolution, Etc. |
51 |
14.4 |
Subrogation |
52 |
14.5 |
Obligations of Company Unconditional |
52 |
14.6 |
Notice to Trustee |
53 |
14.7 |
Reliance on Judicial Order or Certificate of Liquidating
Agent |
53 |
14.8 |
Trustee’s Relation to Senior Debt |
53 |
14.9 |
Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt |
54 |
14.10 |
Holders Authorize Trustee to Effectuate Subordination
of Securities |
54 |
14.11 |
Not to Prevent Events of Default |
54 |
14.12 |
Trustee’s Compensation Not Prejudiced |
54 |
14.13 |
No Waiver of Subordination Provisions |
54 |
14.14 |
Payments May Be Paid Prior to Dissolution |
54 |
14.15 |
Trust Moneys Not Subordinated |
55 |
INDENTURE
INDENTURE,
dated as of _________, 20__, between RUMBLEON, INC., a corporation duly organized and existing under the laws of the State of Nevada
(herein called the “Company”) and [TRUSTEE], a banking corporation organized under the laws of the United States,
as trustee (the “Trustee”).
RECITALS
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in
one or more series as provided in this Indenture;
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done; and WHEREAS,
this Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
Article
One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
1.1
Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) all
terms used in this Indenture that are defined in the Trust Indenture Act, defined by a Trust Indenture Act reference to another statute
or defined by an SEC rule under the Trust Indenture Act have the meanings so assigned to them;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(d) 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;
(e) the
words “Article” and “Section” refer to an Article and Section, respectively, of this Indenture;
and
(f) the
word “includes” and its derivatives means “includes, but is not limited to” and corresponding derivative
definitions.
Certain
terms, used principally in Article Six, are defined in that Article.
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.5.
“Additional
Defeasible Provision” means a covenant or other provision contained that is (a) made part of this Indenture pursuant to a supplemental
indenture hereto, a Board Resolution or an Officer’s Certificate delivered pursuant to Section 3.1, and (b) pursuant to
the terms set forth in such supplemental indenture, Board Resolution or Officer’s Certificate, made subject to the provisions of
Article Thirteen.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.
“Authenticating
Agent” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities.
“Banking
Day” means, in respect of any city, any date on which commercial banks are open for business in that city.
“Bankruptcy
Law” means any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law.
“Board
of Directors” means the board of directors of the Company or any duly authorized committee of that board to which the powers
of that board have been lawfully delegated.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company, the principal
financial officer of the Company, any other authorized officer of the Company, or a person duly authorized by any of them, in each case
as applicable, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Securities and the forms and terms thereof), such action may be taken by any committee, officer
or employee of the Company authorized to take such action by the Board of Directors as evidenced by a Board Resolution.
“Business
Day,” when used with respect to any Place of Payment or other location, means, except as otherwise provided as contemplated
by Section 3.1 with respect to any series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are authorized or obligated by law, executive order or regulation
to close.
“CINS”
means the CUSIP International Numbering System.
“Code”
means the United States Internal Revenue Code of 1986, as amended.
“Company”
means the Person named as the “Company” in the first paragraph of this instrument until a successor or resulting corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such
successor or resulting corporation.
“Company
Request” or “Company Order” means, in the case of the Company, a written request or order signed in the
name of the Company by its Chairman of the Board, its Chief Executive Officer, its Chief Financial Officer, its Chief Operating Officer,
its President, any of its Vice Presidents or any other duly authorized officer of the Company or any person duly authorized by any of
them, and delivered to the Trustee.
“Corporate
Trust Office” means the office of the Trustee at its address specified in Section 1.6 or such other address as to which
the Trustee may give notice to the Company.
“corporation”
includes corporations, companies, associations, partnerships, limited partnerships, limited liability companies, joint-stock companies
and trusts.
“Covenant
Defeasance” has the meaning specified in Section 13.3.
“CUSIP”
means the Committee on Uniform Securities Identification Procedures.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Debt”
means any obligation created or assumed by any Person for the repayment of money borrowed and any purchase money obligation created or
assumed by such Person and any guarantee of the foregoing.
“Default”
means, with respect to a series of Securities, any event that is, or after notice or lapse of time or both would be, an Event of Default.
“Defaulted
Interest” has the meaning specified in Section 3.7.
“Definitive
Security” means a security other than a Global Security or a temporary Security.
“Depositary”
means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities,
a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by 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 a Depositary hereunder, and if at any time there is more than one such Person, shall be a
collective reference to such Persons.
“Designated
Senior Debt” shall have the meaning given to such term in any Board Resolution or indenture supplemental hereto.
“Dollar”
or “$” means the coin or currency of the United States of America, which at the time of payment is legal tender for
the payment of public and private debts.
“Event
of Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means a currency used by the government of a country other than the United States of America.
“GAAP”
means generally accepted accounting principles in the United States of America as in effect from time to time, including those set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and computations based on GAAP contained in this Indenture will be computed in conformity
with GAAP.
“Global
Security” means a Security in global form that evidences all or part of a series of Securities and is authenticated and delivered
to, and registered in the name of, the Depositary for the Securities of such series or its nominee.
“Holder”
means a Person in whose name a Security is registered in the Security Register.
“Indenture”
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” also shall include the terms of a particular series of Securities established
as contemplated by Section 3.1.
“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.
“Judgment
Currency” has the meaning specified in Section 1.16.
“Legal
Defeasance” has the meaning specified in Section 13.2.
“mandatory
sinking fund payment” has the meaning specified in Section 12.1.
“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.
“Notice
of Default” means a written notice of the kind specified in Section 5.1(d).
“Officer’s
Certificate” means, in the case of the Company, a certificate signed by the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the Chief Operating Officer, the President, any Vice President or any other duly authorized officer of the
Company, or a person duly authorized by any of them, and delivered to the Trustee.
“Opinion
of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Trustee.
“optional
sinking fund payment” has the meaning specified in Section 12.1.
“Original
Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 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:
(a) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided, however, that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(c) 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; and
(d)
Securities, except to the extent provided in Section 13.2 and Section 13.3, with respect to which the Company has
effected Legal Defeasance or Covenant Defeasance as provided in Article Thirteen, which Legal Defeasance or Covenant Defeasance then
continues in effect; provided, however, that 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, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof on such date
pursuant to Section 5.2, (ii) the principal amount of a Security denominated in one or more currencies or currency units
other than U.S. dollars shall be the U.S. dollar equivalent of such currencies or currency units, determined in the manner provided
as contemplated by Section 3.1 on the date of original issuance of such Security or by Section 1.15, if not otherwise
so provided pursuant to Section 3.1, of the principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent (as so determined) on the date of original issuance of such Security of the amount determined as provided in
clause (i) above) of such Security, and (iii) 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 relying upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned as described in clause
(iii) of the immediately preceding sentence 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 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 and any premium or interest 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 Stated
Maturity or Stated Maturities thereof, the original issue date or dates thereof, the redemption provisions, if any, with respect thereto,
and any other terms specified as contemplated by Section 3.1 with respect thereto, are to be determined by the Company upon the
issuance of such Securities.
“Person”
means any individual, corporation, company, limited liability company, partnership, limited partnership, joint venture, association,
joint-stock company, trust, other entity, unincorporated organization or government or any agency or political subdivision thereof.
“Place
of Payment,” when used with respect to the Securities of any series, means, unless otherwise specifically provided for with
respect to such series as contemplated by Section 3.1, the office or agency of the Company in the City of New York and such other
place or places where, subject to the provisions of Section 10.2, the principal of and any premium and interest on the Securities
of that series are payable as contemplated by Section 3.1.
“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, means the price at which it is to be redeemed pursuant to this
Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
“Required
Currency” has the meaning specified in Section 1.16.
“Responsible
Officer” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the particular subject.
“SEC”
means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Securities”
has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
“Security
Register” and “Security Registrar” have the respective meanings specified in Section 3.5.
“Senior
Debt” means (a) all Debt of the Company, whether currently outstanding or hereafter issued, unless, by the terms of the instrument
creating or evidencing such Debt, it is provided that such Debt is not superior in right of payment to the Securities, and (b) any modifications,
refunding, deferrals, renewals or extensions of any such Debt or securities, notes or other evidence of Debt issued in exchange for such
Debt; provided that in no event shall “Senior Debt” include (i) Debt of the Company owed or owing to any Subsidiary of the
Company or any officer, director or employee of the Company or any Subsidiary of the Company, (ii) Debt to trade creditors or (iii) any
liability for taxes owned or owing by the Company.
“Significant
Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of
Rule 1-02 under Regulation S-X promulgated by the SEC.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.
“Stated
Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is
due and payable.
“Subsidiary”
means (a) a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other Subsidiaries or (b) any partnership or similar business organization
more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned. For the purposes of this
definition, “voting stock” means capital stock or equity interests which ordinarily have voting power for the election
of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.5; provided, however, that if the Trust Indenture Act of 1939 is amended after such
date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
“U.S.
Person” shall have the meaning assigned to such term in Section 7701(a)(30) of the Code.
“U.S.
Government Obligations” means securities which are (a) direct obligations of the United States for the payment of which its
full faith and credit is pledged, or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States,
each of which are not callable or redeemable at the option of the issuer thereof.
“Vice
President,” when used with respect to the Company or the Trustee, means any vice president, regardless of whether designated
by a number or a word or words added before or after the title “vice president.”
1.2
Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in
this Indenture have the following meanings:
“commission”
means the SEC.
“indenture
securities” means the Securities.
“indenture
security holder” means a Holder.
“indenture
to be qualified” means this Indenture.
“indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the indenture securities.
All
terms used in this Indenture that are defined by the Trust Indenture Act, defined by a Trust Indenture Act reference to another statute
or defined by an SEC rule under the Trust Indenture Act have the meanings so assigned to them.
1.3
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 Officer’s 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 except as required under Section
314(c) of the Trust Indenture Act.
Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates
provided for in Section 10.5) shall include:
(a) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) 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;
(c) 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 such covenant or condition has been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
1.4
Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as
to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows or, in the exercise of reasonable care, should know that the certificate
or opinion or representations with respect to the matters upon which his 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 that the certificate
or opinion or representations with respect to such matters are erroneous.
Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
1.5
Acts of Holders; Record Dates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically or by means
of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a Depositary)
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 (subject to Section 315 of the Trust Indenture
Act) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section.
(b) 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.
(c) The
ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Person’s
holding of same, shall be proved by the Security 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, regardless
of whether notation of such action is made upon such Security.
(e) Without
limiting the foregoing, a Holder entitled to give or 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 different part of such principal amount.
(f) The
Company may set any day as the record date for the purpose of determining the Holders of Outstanding Securities of any series entitled
to give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided or permitted by this Indenture
to be given or taken by Holders of Securities of such series, but the Company shall have no obligation to do so. With regard to any record
date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to give or take the relevant action, regardless of whether such Holders remain
Holders after such record date.
1.6
Notices, Etc., to Trustee and Company.
(a) Any
notice or communication by the Company or the Trustee to the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery,
to the others’ address:
If
to the Company:
RumbleOn,
Inc.
901 W. Walnut Hill Lane, Suite 110A
Irving, Texas 75038
Attention: Corporate Secretary
If
to the Trustee:
[TRUSTEE],
as Trustee
_______________
_______________
Facsimile:_______
(b) The
Company or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
(c) All
notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; three Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
1.7
Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where notice to Holders 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. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by
such Holder, regardless of whether such Holder actually receives such notice.
Where
this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
1.8
Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such 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 excluded, as the case may be.
1.9
Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
1.10
Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind their respective successors
and assigns, whether so expressed or not.
1.11
Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.12
Benefits of Indenture. Nothing in this Indenture or in the Securities express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the holders of Senior Debt and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
1.13
Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
1.14
Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not
be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than
a provision of the Securities of any series that specifically states that such provision shall apply in lieu of this Section 1.14))
payment of interest or principal and any premium need not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
1.15
Securities in a Composite Currency, Currency Unit or Foreign Currency. Unless otherwise specified in an Officer’s
Certificate delivered pursuant to Section 3.1 of this Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities
of any series which are denominated in a coin, currency or currencies other than Dollars (including, but not limited to, any composite
currency, currency units or Foreign Currency), then the principal amount of Securities of such series which shall be deemed to be Outstanding
for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate.
For purposes of this Section 1.15, the term “Market Exchange Rate” shall mean the noon Dollar buying rate in
The City of New York for cable transfers of such currency or currencies as published by the Federal Reserve Bank of New York, as of the
most recent available date. If such Market Exchange Rate is not so available for any reason with respect to such currency, the Trustee
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 or rates of exchange from one or more major banks in The City of New York or in the country
of issue of the currency in question, which for purposes of euros shall be Brussels, Belgium, or such other quotations or rates of exchange
as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in
respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.
All
decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for
all purposes and irrevocably binding upon the Issuer and all Holders.
1.16 Payment
in Required Currency; Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities of any series (the “Required Currency”) into a currency in which a
judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a Banking Day, then, to the extent permitted by applicable law, the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Banking Day next preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (regardless of whether entered in accordance with subclause (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under this Indenture.
1.17
Language of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or Act 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.
1.18
Incorporators, Shareholders, Officers and Directors of the Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of or contained in this Indenture or of or contained in any Security or for any claim based
thereon or otherwise in respect thereof, or in any Security or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, member, officer, manager or director, as such, past, present or future, of the Company
or any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a part of the consideration for, the execution of this Indenture and
the issue of the Securities.
Article
Two
SECURITY FORMS
2.1
Forms Generally. The Securities of each series shall be in substantially the form set forth in this Article Two, or in such
other form or forms 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 the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities
as evidenced by their execution thereof.
The
definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by an
authorized officer or other authorized person on behalf 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.
The
forms of Global Securities of any series shall have such provisions and legends as are customary for Securities of such series in global
form, including without limitation any legend required by the Depositary for the Securities of such series.
2.2
Form of Face of Security. [If the Security is an Original Issue Discount Security, insert—FOR PURPOSES OF SECTION
1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF THE
ORIGINAL ISSUE DISCOUNT IS __________, THE ISSUE DATE IS __________, 20____ [AND] [__________ ,] THE YIELD TO MATURITY IS ____________________[
__________,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS ____________________ AND THE METHOD USED TO DETERMINE THE
YIELD THEREFOR IS _______________]]
[Insert
any other legend required by the Code or the regulations thereunder.]
[If
a Global Security,—insert legend required by Section 2.4 of the Indenture] [If applicable, insert —UNLESS THIS SECURITY
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
RUMBLEON,
INC.
[TITLE
OF SECURITY]
No
__________ | U.S. $__________ |
[CUSIP
No. __________]
RUMBLEON,
INC., a company duly incorporated under the laws of the State of Nevada (herein called the “Company,” which term includes
any successor or resulting Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to __________,
or registered assigns, the principal sum of __________ United States Dollars on __________ [If the Security is to bear interest prior
to Maturity, insert—, and to pay interest thereon from __________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on __________ and __________ in each year, commencing __________,
at the rate of _____% per annum, until the principal hereof is paid or made available for payment [if applicable, insert—, and
at the rate of _____% per annum on any overdue principal and premium and on any installment of interest (to the extent that the payment
of such interest shall be legally enforceable)]. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest, which shall be the __________ or __________ (regardless
of whether a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If
the Security is not to bear interest prior to Maturity, insert—The principal of this Security shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal
of this Security shall bear interest at the rate of _____% per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of _____% per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
[If
a Global Security, insert—Payment of the principal of (and premium, if any) and [if applicable, insert—any such] interest
on this Security will be made by transfer of immediately available funds to a bank account in __________ designated by the Holder in
such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts
[state other currency].]
[If
a Definitive Security, insert—Payment of the principal of (and premium, if any) and [if applicable, insert—any such] interest
on this Security will be made at the office or agency of the Company maintained for that purpose in __________, in such coin or currency
of the United States of America as at the time of payment is legal tender for payment of public and private debts] [state other currency]
[or subject to any laws or regulations applicable thereto and to the right of the Company (as provided in the Indenture) to rescind the
designation of any such Paying Agent, at the [main] offices of __________ in __________, or at such other offices or agencies as
the Company may designate, by [United States Dollar] [state other currency] check drawn on, or transfer to a [United States
Dollar] account maintained by the payee with, a bank in The City of New York (so long as the applicable Paying Agency has received
proper transfer instructions in writing at least _____ days prior to the payment date)] [if applicable, insert—; provided,
however, that payment of interest may be made at the option of the Company by [United States Dollar] [state other currency] check
mailed to the addresses of the Persons entitled thereto as such addresses shall appear in the Security Register] [or by transfer to
a [United States Dollar] [state other currency] account maintained by the payee with a bank in The City of New York [state other
Place of Payment] (so long as the applicable Paying Agent has received proper transfer instructions in writing by the record date
prior to the applicable Interest Payment Date)].]
Reference
is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: |
|
|
RUMBLEON, INC. |
|
|
|
| |
|
|
|
By:
| |
2.3
Form of Reverse of Security. This Security is one of a duly authorized issue of subordinated securities of the Company
(herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of __________,
20__ (herein called the “Indenture”), between the Company and [TRUSTEE] (herein called the “Trustee,”
which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement, of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or permitted. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $__________].
This
security is the general, unsecured, subordinated obligation of the Company.
[If
applicable, insert—The Securities of this series are subject to redemption upon not less than _____ days’ notice by mail,
[if applicable, insert, —1) on __________ in any year commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2) ] at any time [on or
after __________, 20__], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [on or before__________, _____%, and if redeemed] during the 12-month
period beginning __________ of the years indicated,
Year | |
Redemption Price | |
Year | |
Redemption Price |
| |
| |
| |
|
| |
| |
| |
|
and
thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable,
insert—(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided
in the Indenture.]
[If
applicable, insert—The Securities of this series are subject to redemption upon not less than _____ nor more than _____ days’
notice by mail, (1) on __________ in any year commencing with the year _____ and ending with the year _____ through operation of the
sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning __________ of the years indicated,
Year | |
Redemption Price for
Redemption Through Operation
of the Sinking Fund | |
Redemption Price for
Redemption Otherwise Than
Through Operation of the
Sinking Fund |
| |
| |
|
| |
| |
|
and
thereafter at a Redemption Price equal to __% of the principal amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If
applicable, insert—Notwithstanding the foregoing, the Company may not, prior to __________, redeem any Securities of this series
as contemplated by [clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial
practice) of less than _____% per annum.]
[If
applicable, insert—The sinking fund for this series provides for the redemption on __________ in each year beginning with the year
_____ and ending with the year _____ of [not less than] $__________ [(“mandatory sinking fund”) and not more than
$__________] aggregate principal amount of Securities of this series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments
otherwise required to be made [If applicable, insert— in the inverse order in which they become due].]
[If
the Securities are subject to redemption in part of any kind, insert—In the event of redemption of this Security in part only,
a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.]
[If
applicable, insert—The Securities of this series are not redeemable prior to Stated Maturity.]
[If
the Security is not an Original Issue Discount Security, insert—If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If
the Security is an Original Issue Discount Security, insert—If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to —insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the
payment of the principal of and interest, if any, on the Securities of this series shall terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company
and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, regardless of whether notation of
such consent or waiver is made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place(s)
and rate, and in the coin or currency, herein prescribed.
[If
a Global Security, insert—This Global Security or portion hereof may not be exchanged for Definitive Securities of this series
except in the limited circumstances provided in the Indenture. The holders of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Definitive Securities except as described in the Indenture and will not be considered the Holders
thereof for any purpose under the Indenture.]
[If
a Definitive Security, insert—As provided in the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in [If applicable, insert—any place where the principal of and any premium and interest on
this Security are payable] [If applicable, insert—The City of New York [, or, subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer
agent, at the [main] offices of __________ in __________ or at such other offices or agencies as the Company may designate]], duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
The
Securities of this series are issuable only in registered form without coupons in denominations of U.S. $__________ and any integral
multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior
to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner hereof for all purposes, regardless of whether this Security
be overdue, and none of the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This
Security is subordinated in right of payment to Senior Debt, to the extent and in the manner provided in the Indenture.
No
recourse under or upon any obligation, covenant or agreement of or contained in the Indenture or of or contained in any Security, or
for any claim based thereon or otherwise in respect thereof, or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, member, officer, manager or director, as such, past, present or future,
of the Company or of any successor Person, either directly or through the Company or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released by the acceptance hereof and as a condition of, and as part of the consideration for, the Securities
and the execution of the Indenture.
The
Indenture provides that the Company (a) will be discharged from any and all obligations in respect of the Securities (except for certain
obligations described in the Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each case if
the Company deposits, in trust, with the Trustee money or U.S. Government Obligations (or a combination thereof) which through the payment
of interest thereon and principal thereof in accordance with their terms will provide money, in an amount sufficient to pay all the principal
of and interest on the Securities, but such money need not be segregated from other funds except to the extent required by law.
Except
as otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them
in the Indenture.
[If
a Definitive Security, insert as a separate page—
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
Print or Typewrite Name and Address of Assignee)
the
within instrument of RUMBLEON, INC. and does hereby irrevocably constitute and appoint __________ Attorney to transfer said instrument
on the books of the within-named Company, with full power of substitution in the premises.
Please
Insert Social Security or Other Identifying Number of Assignee:
NOTICE:
The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular,
without alteration or enlargement or any change whatever.]
2.4
Global Securities. Every Global Security authenticated and delivered hereunder shall bear a legend in substantially
the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY
PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If
Securities of a series are issuable in whole or in part in the form of one or more Global Securities, as specified as contemplated by
Section 3.1, then, notwithstanding clause (i) of Section 3.1 and the provisions of Section 3.2, any Global Security
shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby shall be made
in such manner and upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to
the provisions of Section 3.3, Section 3.4 and Section 3.5, the Trustee shall deliver and redeliver any Global Security
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 Global Security shall be in a Company Order (which need not
comply with Section 1.3 and need not be accompanied by an Opinion of Counsel).
The
provisions of the last sentence of Section 3.3 shall apply to any Security represented by a Global Security if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order (which
need not comply with Section 1.3 and need not be accompanied by an Opinion of Counsel) with regard to the reduction or increase,
as the case may be, in the principal amount of Securities represented thereby, together with the written statement contemplated by the
last sentence of Section 3.3.
2.5
Form of Trustee’s Certificate of Authentication. The Trustee’s certificate(s) of authentication shall be in
substantially the following form:
This
is one of the Securities of the series designated [insert title of applicable series] referred to in the within-mentioned Indenture.
| |
| as Trustee |
| | |
| By:
| |
| | As Authenticating Officer |
Article
Three
THE SECURITIES
3.1
Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth, or determined
in the manner provided, in an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(a) the
title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities and which may be
part of a series of Securities previously issued);
(b) any
limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or Section 11.7 and except
for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(c) the
Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the
date or dates on which the principal of the Securities of the series is payable or the method of determination thereof;
(e) the
rate or rates at which the Securities of the series shall bear interest, if any, or the formula, method or provision pursuant to which
such rate or rates are determined, the date or dates from which such interest shall accrue or the method of determination thereof, the
Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Interest Payment
Date;
(f) the
place or places where, subject to the provisions of Section 10.2, the principal of and any premium and interest on Securities
of the series shall be payable, Securities of the series may be surrendered for registration of transfer, Securities of the series may
be surrendered for exchange and notices, and demands to or upon the Company in respect of the Securities of the series and this Indenture
may be served;
(g) the
period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(h) the
obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(j) whether
payment of principal of and premium, if any, and interest, if any, on the Securities of the series shall be without deduction for taxes,
assessments or governmental charges paid by Holders of the series;
(k) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(l) if
the amount of payments of principal of and any premium or interest on the Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(m) if
and as applicable, that the Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security or Global Securities and any circumstances other than those
set forth in Section 3.5 in which any such Global Security may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such Global Security or a nominee thereof and in which any such transfer
may be registered;
(n) any
deletions from, modifications of or additions to the Events of Default set forth in Section 5.1 or the covenants of the Company
set forth in Article Ten with respect to the Securities of such series;
(o) whether
and under what circumstances the Company will pay additional amounts on the Securities of the series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option
to redeem the Securities of the series rather than pay such additional amounts;
(p)
if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form
and terms of such certificates, documents or conditions;
(q) if
the Securities of the series are to be convertible into or exchangeable for any other security or property of the Company, including,
without limitation, securities of another Person held by the Company or its Affiliates and, if so, the terms thereof;
(r) if
other than as provided in Section 13.2 and Section 13.3, the means of Legal Defeasance or Covenant Defeasance as may be
specified for the Securities of the series;
(s) if
other than the Trustee, the identity of the initial Security Registrar and any initial Paying Agent; and
(t) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
All
Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 3.3) set forth, or determined in the manner provided,
in the Officer’s Certificate referred to above or in any such indenture supplemental hereto.
All
Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional Securities
of such series or for the establishment of additional terms with respect to the Securities of such series.
If
any of the terms of the series are established by action taken by or pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by an authorized officer or other authorized person on behalf of the Company and delivered to the Trustee
at or prior to the delivery of the Officer’s Certificate setting forth, or providing the manner for determining, the terms of the
series.
With
respect to Securities of a series subject to a Periodic Offering, such Board Resolution or Officer’s Certificate may provide general
terms for Securities of such series and provide either that the specific terms of particular Securities of such series shall be specified
in a Company Order or that such terms shall be determined by the Company or one or more agents thereof designated in an Officer’s
Certificate, in accordance with a Company Order.
3.2
Denominations. The Securities of each series shall be issuable in registered form without coupons in such denominations
as shall be specified as contemplated by Section 3.1. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
3.3
Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial Officer or any of its Vice Presidents and need
not be attested. The signature of any of these officers on the Securities may be manual or facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however,
that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time
to time in accordance with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, thereafter 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 forms or terms of the Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Section 2.1 and Section 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 such
documents as it may reasonably request. The Trustee shall also be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if
the form or forms of such Securities has been established in or pursuant to a Board Resolution as permitted by Section 2.1, that
each such form has been established in conformity with the provisions of this Indenture;
(b) if
the terms of such Securities have been, or in the case of Securities of a series offered in a Periodic Offering will be, established
in or pursuant to a Board Resolution as permitted by Section 3.1, that 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 of a series offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel; and
(c) that
such Securities when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
and assumptions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, subject to the following limitations: (i) bankruptcy, insolvency, moratorium, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws of general applicability relating to or affecting the enforcement of creditors’
rights, or to general equity principles, (ii) the availability of equitable remedies being subject to the discretion of the court to
which application therefor is made; and (iii) such other usual and customary matters as shall be specified in such Opinion of Counsel.
If
such form or forms or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding
the provisions of Section 3.1 and of the preceding paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.1 or the
Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
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, on the form or forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon
the Opinion of Counsel and the other documents delivered pursuant to Section 2.1 and Section 3.1 and this Section, as applicable,
in connection with the first authentication of Securities of such series.
Each
Security shall be dated the date of its authentication.
No
Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and
the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
3.4
Temporary Securities. Pending the preparation of Definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If
temporary Securities of any series are issued, the Company will cause Definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of Definitive Securities of such series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
Definitive Securities of the same series and tenor of authorized denominations. 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.
3.5
Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the office or agency of
the Company in the Borough of Manhattan, the City of New York or in any other office or agency of the Company in a Place of Payment required
by Section 10.2 a register (the register maintained in such office being herein sometimes referred to as the “Security
Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed as the initial “Security Registrar”
for the purpose of registering Securities and transfers of Securities as herein provided, and its corporate trust office in New York
City, which, at the date hereof, is located at [__________], New York, New York [____], is the initial office or
agency in the Borough of Manhattan where the Securities Register will be maintained. The Company may at any time replace such Security
Registrar, change such office or agency or act as its own Security Registrar. The Company will give prompt written notice to the Trustee
of any change of the Security Registrar or of the location of such office or agency.
Upon
surrender for registration of transfer of any Security of any series at the office or agency maintained pursuant to Section 10.2
for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series and tenor, of any authorized denominations and of a like aggregate principal
amount.
At
the option of the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series
and tenor, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so 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 exchange of Securities shall be the valid obligations of the Company evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving
any transfer.
The
Company shall not be required (a) to issue, register the transfer of or exchange Securities of any series during a period beginning at,
the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 11.3 and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding
any other provisions of this Indenture and except as otherwise specified with respect to any particular series of Securities as contemplated
by Section 3.1, a Global Security representing all or a portion of the Securities of a series may not be transferred, 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. Every Security authenticated and delivered upon registration of, transfer of, or in exchange for or in lieu of, a Global
Security shall be a Global Security except as provided in the two paragraphs immediately following.
If
at any time the Depositary for any Securities of a series represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such Securities or if at any time the Depositary for such Securities shall no longer
be eligible to continue as Depositary under Section 3.1 or ceases to be a clearing agency registered under the Exchange Act, the
Company shall appoint a successor Depositary with respect to such Securities. If a successor Depositary for such Securities 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 that such Securities be represented by one or more Global Securities shall no longer be effective and
the Company will execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of Definitive Securities
of such series, will authenticate and deliver, Securities of such series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities registered in the names of such Persons as the Depositary shall direct.
The
Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities. In such event, the Company will execute and the Trustee,
upon receipt of a Company Order for the authentication and delivery of the Definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities representing such Securities in exchange for such Global Security
or Securities registered in the names of such Persons as the Depositary shall direct.
If
specified by the Company pursuant to Section 3.1 with respect to Securities represented by a Global Security, the Depositary for
such Global Security may surrender such Global Security in exchange in whole or in part for Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of Securities in definitive registered
form, shall authenticate and deliver, without service charge,
(a) to
the Person specified by such Depositary, a new Security or Securities of the same series and tenor, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the
Global Security; and
(b) to
such Depositary, a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (a) above.
Every
Person who takes or holds any beneficial interest in a Global Security agrees that:
(a) the
Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized representative of such
Person;
(b) such
Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those established
by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary;
(c) the
Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit distributions of principal
and interest on the Global Securities to, such Persons in accordance with their own procedures; and
(d) none
of the Company, the Trustee, nor any agent of any of them will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
3.6
Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security 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 and any agent of any
of them harmless, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the
same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If
there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security
and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In
case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon
the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every
new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company regardless of whether the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The
provisions of this Section 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.
3.7
Payment of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest.
Any
interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall 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 Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The
Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject
to the foregoing provisions of this Section, 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.
3.8
Persons Deemed Owners. Except as otherwise provided as contemplated by Section 3.1 with respect to any series
of Securities, prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent thereof may
treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal
of and any premium and (subject to Section 3.5 and Section 3.7) any interest on such Security and for all other purposes
whatsoever, regardless of whether such Security be overdue, and none of the Company, the Trustee nor any agent of any of them shall be
affected by notice to the contrary.
No
holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture
with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent thereof as the owner
of such Global Security for all purposes whatsoever.
3.9
Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of in accordance with its customary practices, and the Trustee shall thereafter deliver to the Company
a certificate with respect to such disposition from time to time upon written request.
3.10
Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months.
3.11
CUSIP or CINS Numbers. The Company in issuing the Securities may use “CUSIP” or “CINS” numbers (if
then generally in use, and in addition to the other identification numbers printed on the Securities), and, if so, the Trustee shall
use “CUSIP” or “CINS” numbers in notices of redemption as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness of such “CUSIP” or “CINS” numbers
either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such “CUSIP”
or “CINS” numbers.
Article
Four
SATISFACTION AND DISCHARGE
4.1
Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect and will be discharged with
respect to the Securities of any series (except as to any surviving rights of registration of transfer or exchange of Securities and
certain rights of the Trustee, in each case, herein expressly provided for), and the Trustee, upon Company Request and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities,
when:
(a) either
| (i) | all
such Securities theretofore authenticated and delivered (other than (A) such Securities which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
3.6, and (B) such Securities 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 10.3) have been delivered to
the Trustee for cancellation; or |
| (ii) | all
such Securities not theretofore delivered to the Trustee for cancellation |
| (A) | have
become due and payable, or |
| (B) | will
become due and payable at their Stated Maturity within one year, or |
| (C) | are
to be called for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the expense, of
the Company, |
and
the Company, in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest 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, together with instructions from the Company
irrevocably directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, which, taken together, state that all
conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities
have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Securities of any series, (x) the obligations of the Company to
the Trustee under Section 6.7, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and the right
of the Trustee to resign under Section 6.10 shall survive, and (y) if money shall have been deposited with the Trustee pursuant
to clause (a) of this Section, the obligations of the Company and the Trustee under Section 4.2, Section 6.6 and Section
10.2 and the last paragraph of Section 10.3 shall survive.
4.2
Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.3, all money deposited
with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money
has been deposited with the Trustee.
Article
Five
REMEDIES
5.1
Events of Default. “Event of Default,” wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be 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):
(a) default
in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for
a period of 30 days (regardless of whether such payment is prohibited by the provisions of Article Fourteen hereof); or
(b) default
in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity (regardless of whether such payment
is prohibited by the provisions of Article Fourteen hereof); or
(c) default
in the performance, or breach, of the covenant set forth in Section 8.1; or
(d) default
in the performance, or breach, of any covenant in this Indenture (other than the covenant in Section 8.1 or any other covenant
a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other than that series), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(e) the
Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case or proceeding,
(ii) consents to the entry of any decree or order for relief against it in an involuntary case or proceeding, (iii) consents to the appointment
of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors,
(v) consents to or acquiesces in the institution of a bankruptcy or an insolvency proceeding against it, (vi) takes any corporate action
to authorize or effect any of the foregoing, or (vii) takes any comparable action under any foreign laws relating to insolvency; or
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company or any
Significant Subsidiary in an involuntary case, (ii) appoints a Custodian of the Company or any Significant Subsidiary for all or substantially
all of its property, or (iii) orders the liquidation or winding up of the Company or any Significant Subsidiary; and the order or decree
remains unstayed and in effect for 30 consecutive days; or
(g) default
in the deposit of any sinking fund payment when due; or
(h) any
other Event of Default provided with respect to Securities of that series in accordance with Section 3.1.
5.2
Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series), together with any accrued
and unpaid interest thereon, of all of the Securities of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together
with any accrued and unpaid interest thereon, shall become immediately due and payable. Notwithstanding the foregoing, if an Event of
Default specified in clause (e) or (f) of Section 5.1 occurs, the Securities of any series at the time Outstanding shall be due
and payable immediately without further action or notice.
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 Five provided, the Holders of a majority
in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(a) the
Company has paid or deposited with the Trustee a sum sufficient to pay:
| (i) | all
overdue interest on all Securities of that series, |
| (ii) | the
principal of (and premium, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities, |
| (iii) | to
the extent that payment of such interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and |
| (iv) | all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel; and |
(b) all
Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No
such rescission shall affect any subsequent default or impair any right consequent thereon.
5.3
Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a) default
is made in the payment of any installment of interest on any Security when such interest becomes due and payable and such default continues
for a period of 30 days (regardless of whether such payment is prohibited by the provisions of Article Fourteen hereof), or
(b) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof (regardless of whether such
payment is prohibited by the provisions of Article Fourteen hereof),
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and any premium and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
If
the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If
an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of 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.
5.4
Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities, their property or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to
file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, if the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.7.
No
provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, compromise, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
5.5
Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
5.6
Application of Money Collected. Any money collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or
any premium 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 payment of all amounts due the Trustee under Section 6.7;
SECOND:
Subject to Article Fourteen, to the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
THIRD:
The balance, if any, to the Company.
5.7
Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it
being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights of any other 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 such Holders.
5.8
Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 3.5 and Section 3.7) interest on such Security on the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
5.9
Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
5.10
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 to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
5.11
Delay or Omission Not Waiver. To fullest extent permitted by applicable law, no delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
5.12
Control by Holders. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that:
(a)
such direction shall not be in conflict with any rule of law or with this Indenture;
(b)
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(c)
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability.
5.13
Waiver of Past Defaults. By written notice to the Company and
the Trustee, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except:
(a)
a continuing default in the payment of the principal of or any premium or interest on any Security of such series, or
(b)
a default in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon
any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
5.14
Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant, other than the Trustee, in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date).
5.15
Waiver of Stay or Extension Laws. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all 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
Six
THE TRUSTEE
6.1
Certain Duties and Responsibilities.
(a)
Except during the continuance of an Event of Default,
| (i) | the
Trustee undertakes to perform such duties and only such duties as are specifically set forth
in this Indenture and as are provided by the Trust Indenture Act, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and |
| (ii) | in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether they conform to the requirements of this Indenture. |
(b)
In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c)
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
| (i) | this
Subsection shall not be construed to limit the effect of Subsection (a) of this Section; |
| (ii) | the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; |
| (iii) | the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series, given pursuant to Section 5.12,
relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and |
| (iv) | no
provision of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. |
(d)
Regardless of whether therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this Section.
6.2
Notice of Defaults. Within 90 days after the occurrence of any
Default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such
series, as their names and addresses appear in the Security Register, notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the
principal of or any premium or interest on any Security of such series or in the payment of any sinking fund installment with respect
to Securities of such series, the Trustee may withhold from Holders of Securities notice of any continuing Default or Event of Default
if the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series;
and, provided, further, that in the case of any Default of the character specified in Section 5.1(c) with respect
to Securities of such series, no such notice to Holders shall be given until at least 90 days after the occurrence thereof and that in
the case of any Default of the character specified in Section 5.1(e) with respect to Securities of such series, no such notice
to Holders shall be given until at least 180 days after the occurrence thereof.
6.3
Certain Rights of Trustee. Subject to the provisions of Section
6.1:
(a)
the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(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 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)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) shall be entitled
to receive and may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(d)
the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder and shall not be responsible for the supervision of officers and employees
of such agents or attorneys;
(h)
the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed
by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate
previously delivered and not superseded;
(i)
the Trustee shall be entitled to the rights and protections afforded to the Trustee pursuant to this Article Six in acting as a Paying
Agent or Security Registrar hereunder; and
(j)
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, and such notice references the Notes and this Indenture.
6.4
Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
6.5
May Hold Securities. The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent of the Company in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act and Section 6.8, Section
6.9 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
6.6
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 in writing with the Company.
6.7
Compensation and Reimbursement. The Company agrees:
(a)
to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b)
except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c)
to indemnify each of the Trustee and its officers, directors, agents and employees for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As
security for the performance of the obligations of the Company under this Section the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Securities.
Without
limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(e) or Section 5.1(f), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services of the Trustee are intended to constitute expenses of administration
under any applicable Bankruptcy Law.
The
provisions of this Section 6.7 shall survive the satisfaction and discharge of this Indenture and the Legal Defeasance of the
Securities.
6.8
Disqualification; Conflicting Interests. Reference is made to
Section 310(b) of the Trust Indenture Act. There shall be excluded from the operation of Section 310(b)(1) of the Trust
Indenture Act this Indenture with respect to the Securities of more than one series.
6.9
Corporate Trustee Required; Eligibility. There shall at all times
be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and
surplus required by the Trust Indenture Act, subject to supervision or examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, 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. The Trustee shall not be an obligor upon the Securities
or an Affiliate thereof. 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 hereinafter specified in this Article Six.
6.10
Resignation and Removal; Appointment of Successor.
(a)
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(b)
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.
(c)
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d)
If at any time:
| (i) | the
Trustee shall fail 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 |
| (ii) | the
Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after
written request therefor by the Company or by any such Holder, or |
| | |
| (iii) | the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the Company by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees. |
(e)
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by
Section 6.11, 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.
(f)
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner
provided in Section 1.7. Each notice shall include the name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
6.11
Acceptance of Appointment by Successor.
(a)
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder.
(b)
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates,
(ii) 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 this Article and the Trust Indenture Act.
6.12
Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, 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.
6.13
Preferential Collection of Claims Against Company. Reference is made to Section 311 of the Trust Indenture Act. For purposes
of Section 311(b) of the Trust Indenture Act,
(a)
the term “cash transaction” means any transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable
upon demand;
(b)
the term “self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
6.14
Appointment of Authenticating Agent. The Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, 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 all
or substantially all of 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 any
further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall
be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
Except
with respect to an Authenticating Agent appointed at the request of the Company, the Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section 6.14, and the Trustee shall be entitled to be reimbursed
by the Company for such payments, subject to the provisions of Section 6.7.
If
an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the
following form:
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| |
| as Trustee |
| | |
| By: | As
Authenticating Officer |
| | |
| | |
| By: | As Authenticating Officer |
Article
Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1
Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a)
semi-annually, not more than 15 days after each Regular Record Date for a series of Securities,
a list for such series of Securities, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of such series as of such Regular
Record Date, and
(b)
at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however,
that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished with respect to such series of Securities.
7.2
Preservation of Information; Communications to Holders.
(a)
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names and addresses of Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt
of a new list so furnished.
(b)
If three or more Holders (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under
this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
| (i) | afford
such applicants access to the information preserved at the time by the Trustee in accordance
with Section 7.2(a), or |
| (ii) | inform
such applicants as to the approximate number of Holders whose names and addresses appear
in the information preserved at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application. |
If
the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with
Section 7.2(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the SEC, together with a copy
of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion.
If the SEC, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing
to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the SEC shall find, after
notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c)
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company nor the
Trustee nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 7.2(b), regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 7.2(b).
7.3
Reports by Trustee. Any Trustee’s report required pursuant
to Section 313(a) of the Trust Indenture Act shall be dated as of May 15, and shall be transmitted within 60 days after May 15
of each year (but in all events at intervals of not more than 12 months), commencing with the year 20__, by mail to all Holders, as their
names and addresses appear in the Security Register. A copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which any Securities are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Securities are listed on any stock exchange.
7.4
Reports by Company. The Company shall:
(a)
file with the Trustee, within 15 days after the Company files the same with the SEC, 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 SEC may from time to time by rules and regulations
prescribe) which the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary
and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act 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)
file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(c)
transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to clauses (a)
and (b) of this Section as may be required by rules and regulations prescribed from time to time by the SEC.
Article
Eight
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
8.1
Company May Consolidate, Etc., Only on Certain Terms. The Company
shall not consolidate or merge with or into any other Person or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of the properties and assets of the Company on a consolidated basis to any other Person, and shall not permit any Person to consolidate
or merge into the Company, unless:
(a)
either: (i) the Company is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation, amalgamation
or merger or resulting from such conversion (if other than the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation, limited liability company or limited partnership organized or existing under the laws of
the United States, any state of the United States or the District of Columbia;
(b)
the Person formed by or surviving any such conversion, consolidation, amalgamation or merger (if other than the Company) or the Person
to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under
the Securities and this Indenture pursuant to agreements reasonably satisfactory to the Trustee; provided that, unless such Person is
a corporation, a corporate co-issuer of the Securities will be added to this Indenture by agreements reasonably satisfactory to the Trustee;
(c)
immediately before and after giving pro forma effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(d)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
amalgamation, merger, conveyance, sale, transfer or lease and such supplemental indenture, if any, comply with this Article Eight and
that all conditions precedent herein provided for relating to such transaction have been complied with.
8.2
Successor Substituted. Upon any consolidation or merger of the Company with or into any other Person or any sale, conveyance,
transfer, lease or other disposition of all or substantially all of the properties and assets of the Company on a consolidated basis
in accordance with Section 8.1, the successor or resulting Person formed by or resulting upon such consolidation or merger (if
other than the Company) or to which such sale, conveyance, transfer, lease or other disposition is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved of all obligations
and covenants under this Indenture and the Securities.
Article
Nine
AMENDMENT, SUPPLEMENT AND WAIVER
9.1
Without Consent of Holders. The Company and the Trustee may amend
or supplement this indenture or the Securities without the consent of any holder of a Security:
(a)
to cure any ambiguity or to correct or supplement any provision herein that may be inconsistent with any other provision herein in a
manner that does not adversely affect the rights of any Holder of Securities in any material respect; or
(b)
to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and, to the extent applicable, to the Securities; or
(c)
to provide for uncertificated Securities in addition to or in place of certificated Securities; provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in the manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of the Code; or
(d)
to secure the Securities of any series; or
(e)
to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as the Company shall consider to
be appropriate for the benefit of the Holders of all or any series of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company and to make the occurrence,
or the occurrence and continuance, of a Default in any such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that
in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default
or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event
of Default; or
(f)
to make any change to any provision of this Indenture that does not adversely affect the rights or interests of any Holder of Securities;
or
(g)
to provide for the issuance of additional Securities in accordance with the provisions set forth in this Indenture on the date of this
Indenture; or
(h)
to add any additional Defaults or Events of Default in respect of all or any series of Securities; or
(i)
to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or
(j)
to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is entitled to
the benefit of such provision; or
(k)
to establish the form or terms of Securities of any series as permitted by Section 2.1 and Section 3.1, including to reopen
any series of any Securities as permitted under Section 3.1; or
(l)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or
(m)
to conform the text of this Indenture (and/or any supplemental indenture) or any debt securities issued thereunder to any provision of
a description of such debt securities appearing in a prospectus or prospectus supplement or an offering memorandum or offering circular
to the extent that such provision was intended to be a verbatim recreation of a provision of the indenture (and/or any supplemental indenture)
or any debt securities issued thereunder; or
(n)
to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal statute subsequently enacted, and to add to this Indenture such
other provisions as may be expressly required under the Trust Indenture Act.
After
an amendment under this Section 9.1 becomes effective, the Company shall mail to Holders a notice briefly describing such amendment.
The failure to give such notice to Holders, or any defect therein, shall not impair or affect the validity of an amendment under this
Section 9.1.
Upon
the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture, the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations that may be therein contained and to accept the conveyance, transfer, assignment, mortgage,
charge or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture that
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
9.2
With Consent of Holders. The Company and the Trustee may amend
or supplement this Indenture and the Securities with the consent of the Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series of Securities affected by such amendment or supplemental indenture, with each such series voting as a separate
class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for Securities)
and, subject to Section 5.8 and Section 5.13 hereof, any existing Default or Event of Default or compliance with any provision
of this Indenture or the Securities may be waived with respect to each series of Securities with the consent of the Holders of a majority
in principal amount of the Outstanding Securities of such series voting as a separate class (including consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities).
Upon
the request of the Company accompanied by a resolution of its Board of Directors authorizing
the execution of any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities
as aforesaid, and upon receipt by the Trustee of the documents described in Section 6.3
hereof, the Trustee will join with the Company in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but will not be obligated to, enter into such amended or supplemental
Indenture.
It
is not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any
proposed amendment or waiver, but it is sufficient if such consent approves the substance of the proposed amendment or waiver.
After
an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company will mail to the Holders of Securities
affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
Subject to Section 5.8 and Section 5.13 hereof, the application of or compliance with, either generally or in any particular
instance, of any provision of this Indenture or the Securities may be waived as to each series of Securities by the Holders of a majority
in aggregate principal amount of the Outstanding Securities of such series. However, without the consent of each Holder affected, an
amendment or waiver under this Section 9.2 may not (with respect to any Securities held by a non-consenting Holder):
(a)
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 that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2, or change any Place of Payment where, or the coin or currency in which, any Security 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), or
(b)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c)
modify any of the provisions of this Section 9.2, Section 5.8, Section 5.13 or Section 10.6, except to increase
any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, provided, however, that this clause (c) shall not be deemed to require the
consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section,
or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) and Section 9.1(l); or
(d)
waive a redemption payment with respect to any Security; provided, however, that any purchase or repurchase of Securities shall not be
deemed a redemption of the Securities; or
(e)
make any change in the foregoing amendment and waiver provisions.
A
supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It
shall not be necessary for any Act of Holders under this Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance thereof.
9.3
Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
9.4
Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
9.5
Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as then in effect.
9.6
Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
Article
Ten
COVENANTS
10.1
Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
10.2
Maintenance of Office or Agency. The Company will maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee or Registrar or agent of the
Trustee or Registrar) where Securities of that series may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any
change in the location, of 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.
The
Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York 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.
Except
as otherwise specified with respect to a series of Securities as contemplated by Section 3.1, the Company hereby initially designates
the office of the Trustee located at [___________], New York, New York [___________], as the Company’s office or agency
for each such purpose for each series of Securities.
10.3
Money for Securities Payments to be Held in Trust. If the Company
shall at any time act as its own Paying Agent, with respect to any series of Securities, it will, on or before each due date of the principal
of and any premium 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 and any premium and interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action
or failure so to act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium
or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. For purposes
of this Section 10.3, should a due date for principal of and any premium or interest on, or sinking fund payment with respect
to any series of Securities not be on a Business Day, such payment shall be due on the next Business Day without any interest for the
period from the due date until such Business Day.
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:
(a)
hold all sums held by it for the payment of the principal of and any premium 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;
(b)
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 and any premium or interest on the Securities of that series; and
(c)
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.
Subject
to any applicable escheat or abandoned property laws, any money deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of and any premium or interest on any Security of any series and remaining unclaimed for one
year after such principal and any premium or interest has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, 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.
10.4
Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company.
10.5
Statement by Officer as to Default. Annually, within 150 days after the close of each fiscal year beginning with the first fiscal
year during which one or more series of Securities are Outstanding, the Company will deliver to the Trustee a brief certificate (which
need not include the statements set forth in Section 1.3) from the principal executive officer, principal financial officer or
principal accounting officer of the Company as to his or her knowledge of the Company’s compliance (without regard to any period
of grace or requirement of notice provided herein) with all conditions and covenants under the Indenture and, if the Company shall be
in Default, specifying all such Defaults and the nature and status thereof of which such officer has knowledge.
10.6
Additional Amounts. If the Securities of a series provide for the payment of additional amounts (as provided in Section 3.1(o)),
at least 10 days prior to the first Interest Payment Date with respect to that series of Securities and at least 10 days prior to each
date of payment of principal of, premium, if any, or interest on the Securities of that series if there has been a change with respect
to the matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish to the Trustee and the principal
Paying Agent, if other than the Trustee, an Officer’s Certificate instructing the Trustee and such Paying Agent whether such payment
of principal of, premium, if any, or interest on the Securities of that series shall be made to holders of the Securities of that series
without withholding or deduction for or on account of any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding or deduction shall be required, then such Officer’s Certificate shall specify by country the
amount, if any, required to be withheld or deducted on such payments to such holders and shall certify the fact that additional amounts
will be payable and the amounts so payable to each holder, and the Company shall pay to the Trustee or such Paying Agent the additional
amounts required to be paid by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this
Section 10.6.
Whenever
in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other amounts on,
or in respect of, any Securities of any series, such mention shall be deemed to include mention of the payment of additional amounts
provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if applicable)
in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express
mention is not made.
Article
Eleven
REDEMPTION OF SECURITIES
11.1
Applicability of Article. Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in accordance with this Article Eleven.
11.2
Election to Redeem; Notice to Trustee. The election of the Company
to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 15 days prior to the last date for the giving of notice of such redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and 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 (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere
in this Indenture or (b) pursuant to an election of the Company that is subject to a condition specified in the terms of the Securities
of the series to be redeemed, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such
restriction or condition.
11.3
Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series are to be redeemed (unless all
of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called
for redemption, by lot, pro rata or by another method as the Trustee shall deem fair and appropriate, including any method required by
the Depository with respect to any Global Securities (and in such manner as is not prohibited by applicable legal requirements) and which
may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof) of the principal amount of Securities 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 for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal is payable or different rates of interest, or different methods by which interest may be
determined or have any other different tenor or terms, then the Company may, by written notice to the Trustee, direct that the Securities
of such series to be redeemed shall be selected from among the groups of such Securities having specified tenor or terms and the Trustee
shall thereafter select the particular Securities to be redeemed in the manner set forth in the preceding paragraph from among the group
of such Securities so specified.
For
all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
11.4
Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All
notices of redemption shall state:
(a)
the Redemption Date,
(b)
the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(c)
if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(d)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(e)
the place or places where such Securities are to be surrendered for payment of the Redemption Price, and
(f)
that the redemption is for a sinking fund, if such is the case.
Notice
of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request,
by the Trustee in the name and at the expense of the Company.
11.5
Deposit of Redemption Price. Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date.
11.6
Securities Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that unless otherwise specified with respect to Securities of any series as contemplated in Section
3.1, installments of interest 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 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.
11.7
Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of
the same series and tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
Article
Twelve
SINKING FUNDS
12.1
Applicability of Article. The provisions of this Article Twelve
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 12.2. 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.
12.2
Satisfaction of Sinking Fund Payments with Securities. The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (b) 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.
12.3
Redemption of Securities for Sinking Fund. Not less than 45 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the Trustee), the Company will deliver to the Trustee an Officer’s
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 12.2 and stating the basis for such credit and that such Securities
have not been previously so credited, 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 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.6 and Section 11.7.
Article
Thirteen
DEFEASANCE
13.1
Option to Effect Legal Defeasance or Covenant Defeasance. The
Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officer’s Certificate, and at any
time, elect to have either Section 13.2 or Section 13.3 hereof be applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article Thirteen, unless otherwise established with respect to the Securities of a series
pursuant to Section 3.1.
13.2
Legal Defeasance and Discharge. Upon the Company’s exercise
under Section 13.1 hereof of the option applicable to this Section 13.2, the Company will, subject to the satisfaction
of the conditions set forth in Section 13.4 hereof, be deemed to have been discharged from their obligations with respect to all
outstanding Securities on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).
For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire Debt represented by the
outstanding Securities, which will thereafter be deemed to be “outstanding” only for the purposes of Section 13.5
hereof and the other sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied all their other obligations
under such Securities and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(a)
the rights of Holders of Outstanding Securities to receive payments in respect of the principal of, or interest or premium, if any, on
such Securities when such payments are due from the trust referred to in Section 13.4 hereof;
(b)
the Company’s obligations with respect to such Securities under Section 3.4, Section 3.5, Section 3.6, Section
10.2 and Section 10.3 hereof;
(c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
and
(d)
this Article Thirteen.
Subject
to compliance with this Article Thirteen, the Company may exercise its option under this Section 13.2 notwithstanding the prior
exercise of its option under Section 13.3 hereof.
13.3
Covenant Defeasance. Upon the Company’s exercise under Section 13.1 hereof of the option applicable to this Section
13.3, the Company will, subject to the satisfaction of the conditions set forth in Section 13.4 hereof, be released from each
of their obligations under the covenants contained in Section 7.4, Section 8.1 and Section 10.4 hereof as well as
any Additional Defeasible Provisions (such release and termination hereinafter referred to as “Covenant Defeasance”),
and the Securities will thereafter be deemed 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 such covenants, but will continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Securities will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Securities, the Company may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 5.1
hereof, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby. In addition,
upon the Company’s exercise under Section 13.1 hereof of the option applicable to this Section 13.3 hereof, subject
to the satisfaction of the conditions set forth in Section 13.4 hereof, Sections 5.1(c), 5.1(d), 5.1(e),
5.1(g) and 5.1(h) hereof and will not constitute Events of Default.
13.4
Conditions to Legal or Covenant Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance under either Section
13.2 or Section 13.3 hereof:
(a)
the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Securities, cash in U.S. dollars,
non-callable U.S. Government Obligations, or a combination of cash in U.S. dollars and non-callable U.S. Government Obligations, in such
amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm, or firm of independent public
accountants to pay the principal of, or interest and premium, if any, on the Outstanding Securities on the stated date for payment thereof
or on the applicable redemption date, as the case may be, and the Company must specify whether the Securities are being defeased to such
stated date for payment or to a particular redemption date;
(b)
in the case of an election under Section 13.2 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming
that:
| (i) | the
Company has received from, or there has been published by, the Internal Revenue Service a
ruling; or |
| (ii) | since
the Issue Date, there has been a change in the applicable federal income tax law, |
in
either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as a result of such Legal 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 Legal Defeasance had not
occurred;
(c)
in the case of an election under Section 13.3 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming
that the Holders of the Outstanding Securities 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;
(d)
no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit);
(e)
[reserved];
(f)
such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound;
(g)
the Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Securities over the other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company or others;
(h)
the Company must deliver to the Trustee an Officer’s Certificate, stating that all conditions precedent set forth in clauses (a)
through (g) of this Section 13.4 have been complied with; and
(i)
the Company must deliver to the Trustee an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions, qualifications
and exclusions), stating that all conditions precedent set forth in clauses (b), (c) and (f) of this Section 13.4 have been complied
with; provided that the Opinion of Counsel with respect to clause (f) of this Section 13.4 may be to the knowledge of such counsel.
13.5
Deposited Money and U.S. Government Obligations to be Held in Trust, Other Miscellaneous Provisions. Subject to Section 13.6
hereof, all money and non-callable U.S. Government Obligation (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 13.5, the “Trustee”) pursuant to Section 13.4
hereof in respect of the Outstanding Securities will be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The
Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable
U.S. Government Obligations deposited pursuant to Section 13.4 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities.
Notwithstanding
anything in this Article Thirteen to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable U.S. Government Obligations held by it as provided in Section 13.4 hereof which, in the
opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 13.4(a) hereof), are in excess of the amount thereof that would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
13.6
Repayment. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of, premium, if any, or interest on any Security and remaining unclaimed for two years after such principal, premium, if
any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged
from such trust; and the Holder of such Security will thereafter be permitted to 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,
will 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 the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date
of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.
13.7
Reinstatement. If the Trustee or Paying Agent is unable to apply
any United States dollars or non-callable U.S. Government Obligations in accordance with Section 13.2 or Section 13.3 hereof,
as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company’s obligations under this Indenture and the Securities will be revived and reinstated as though
no deposit had occurred pursuant to Section 13.2 or Section 13.3 hereof until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 13.2 or Section 13.3 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if any, or interest on any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
Article
Fourteen
SUBORDINATION OF SECURITIES
14.1
Securities Subordinated to Senior Debt. The Company and the Trustee
each covenants and agrees, and each Holder, by its acceptance of a Security, likewise covenants and agrees that all Securities shall
be issued subject to the provisions of this Article Fourteen; and each Person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the payment of the principal of, interest and premium, if any, on each
and all of the Securities shall, to the extent and in the manner set forth in this Article Fourteen, be subordinated in right of payment
to the prior payment in full, in cash or cash equivalents, of all existing and future Senior Debt.
14.2
No Payment on Securities in Certain Circumstances.
(a)
No direct or indirect payment by or on behalf of the Company of the principal of, interest and premium, if any, on each and all of the
Securities (other than with the money, securities or proceeds held under any defeasance trust established in accordance with this Indenture),
whether pursuant to the terms of the Securities or upon acceleration or otherwise shall be made if, at the time of such payment, there
exists a default in the payment of all or any portion of the obligations on any Senior Debt and such default shall not have been cured
or waived or the benefits of this sentence waived by or on behalf of the holders of such Senior Debt.
(b)
During the continuance of any other event of default with respect to any Designated Senior Debt pursuant to which the maturity thereof
may be accelerated, upon receipt by the Trustee of written notice from the trustee or other representative for the holders of such Designated
Senior Debt (or the holders of at least a majority in principal amount of such Designated Senior Debt then outstanding), no payment of
the principal of, interest or premium, if any, on each and all of the Securities (other than with the money, securities or proceeds held
under any defeasance trust established in accordance with this Indenture) may be made by or on behalf of the Company upon or in respect
of the Securities for a period (a “Payment Blockage Period”) commencing on the date of receipt of such notice and
ending 179 days thereafter (unless, in each case, such Payment Blockage Period has been terminated by written notice to the Trustee from
such trustee of, or other representatives for, such holders or by payment in full in cash or cash equivalents of such Designated Senior
Debt or such event of default has been cured or waived). Not more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. Notwithstanding anything in this Indenture to the contrary, there must be 180 consecutive
days in any 360-day period in which no Payment Blockage Period is in effect. No event of default that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an event of default pursuant to any provision under which an event of
default previously existed or was continuing shall constitute a new event of default for this purpose) on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior Debt initiating such Payment Blockage Period shall be, or shall
be made, the basis for the commencement of a second Payment Blockage Period by the trustee or other representative for the holders of
such Designated Senior Debt, whether or not within a period of 360 consecutive days, unless such event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
(c)
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee or any Holder when such payment is prohibited
by clause (a) or (b) above, the Trustee shall promptly notify the holders of Senior Debt of such prohibited payment and such payment
shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Debt or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective
interests may appear, but only to the extent that, upon notice from the Trustee to the holders of Senior Debt that such prohibited payment
has been made, the holders of the Senior Debt (or their representative or representatives of a trustee) within 30 days of receipt of
such notice from the Trustee notify the Trustee of the amounts then due and owing on the Senior Debt, if any, and only the amounts specified
in such notice to the Trustee shall be paid to the holders of Senior Debt and any excess above such amounts due and owing on Senior Debt
shall be paid to the Company.
14.3
Payment over Proceeds upon Dissolution, Etc.
(a)
Upon any payment or distribution of assets or securities of the Company of any kind or character, whether in cash, property or securities
(other than with the money, securities or proceeds held under any defeasance trust established in accordance with this Indenture), in
connection with any dissolution or winding up or total or partial liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings or other marshalling of assets for the benefit of creditors,
all amounts due or to become due upon all Senior Debt shall first be paid in full, in cash or cash equivalents, before the Holders or
the Trustee on their behalf shall be entitled to receive any payment by (or on behalf of) the Company on account of the Securities, or
any payment to acquire any of the Securities for cash, property or securities, or any distribution with respect to the Securities of
any cash, property or securities. Before any payment may be made by, or on behalf of, the Company on any Security (other than with the
money, securities or proceeds held under any defeasance trust established in accordance with this Indenture), in connection with any
such dissolution, winding up, liquidation or reorganization, any payment or distribution of assets or securities for the Company of any
kind or character, whether in cash, property or securities, to which the Holders or the Trustee on their behalf would be entitled, but
for the provisions of this Article Fourteen, shall be made by the Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person making such payment or distribution or by the Holders or the Trustee if received by them or it, directly
to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or
their representatives or to any trustee or trustees under any indenture pursuant to which any such Senior Debt may have been issued,
as their respective interests appear, to the extent necessary to pay all such Senior Debt in full, in cash or cash equivalents, after
giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Debt.
(b)
To the extent any payment of Senior Debt (whether by or on behalf of the Company, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee or other similar Person,
the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Debt is declared to be fraudulent, invalid, or otherwise set aside
under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligation so declared fraudulent, invalid
or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall
be deemed to be reinstated and outstanding as Senior Debt for all purposes hereof as if such declaration, invalidity or setting aside
had not occurred.
(c)
In the event that, notwithstanding the provision in clause (a) above prohibiting such payment or distribution, any payment or distribution
of assets or securities of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee
or any Holder at a time when such payment or distribution is prohibited by clause (a) above and before all obligations in respect of
Senior Debt are paid in full, in cash or cash equivalents, such payment or distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts
of Senior Debt held by such holders) or their representatives or to any trustee or trustees under any indenture pursuant to which any
such Senior Debt may have been issued, as their respective interests appear, for application to the payment of all such Senior Debt remaining
unpaid, in cash or cash equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the
holders of such Senior Debt.
(d)
For purposes of this Section 14.3, the words “cash, property or securities” shall not be deemed
to include, so long as the effect of this clause is not to cause the Securities to be treated in any case or proceeding or similar event
described in this Section 14.3 as part of the same class of claims as the Senior Debt or any class of claims pani passu with,
or senior to, the Senior Debt for any payment or distribution, securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment that are subordinated, at least to the extent that the Securities are subordinated, to the payment
of all Senior Debt then outstanding; provided that (i) if a new corporation results from such reorganization or readjustment, such corporation
assumes the Senior Debt and (ii) the rights of the holders of the Senior Debt are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or the merger of the Company with or into, another corporation
or the liquidation or dissolution of the Company following the sale, conveyance, transfer, lease or other disposition of all or substantially
all of its property and assets to another corporation upon the terms and conditions provided in Section 8.1 of this Indenture
shall not be deemed a dissolution, winding up, liquidation or reorganization for the purposes of this Section 14.3 if such other
corporation shall, as a part of such consolidation, merger, sale, conveyance, transfer, lease or other disposition, comply (to the extent
required) with the conditions stated in Section 8.1 of this Indenture.
14.4
Subrogation.
(a)
Upon the payment in full of all Senior Debt in cash or cash equivalents, the Holders shall be subrogated to the rights of the holders
of Senior Debt to receive payments or distributions of cash, property or securities of the Company made on such Senior Debt until the
principal of, premium, if any, and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders or the Trustee on their behalf
would be entitled except for the provisions of this Article Fourteen, and no payment pursuant to the provisions of this Article Fourteen
to the holders of Senior Debt by the Holders or the Trustee on their behalf shall, as between the Company, its creditors other than holders
of Senior Debt, and the Holders, be deemed to be a payment by the Company to or on account of the Senior Debt. It is understood that
the provisions of this Article Fourteen are intended solely for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of the Senior Debt, on the other hand.
(b)
If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article Fourteen
shall have been applied, pursuant to the provisions of this Article Fourteen, to the payment of all amounts payable under Senior Debt,
then, and in such case, the Holders shall be entitled to receive from the holders of such Senior Debt any payments or distributions received
by such holders of Senior Debt in excess of the amount required to make payment in full, in cash or cash equivalents, of such Senior
Debt of such holders.
14.5
Obligations of Company Unconditional.
(a)
Nothing contained in this Article Fourteen or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among
the Company and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal
of, premium, if any, and interest on the Securities as and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of the Senior
Debt, nor shall anything herein or therein prevent the Holders or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Fourteen of the holders
of the Senior Debt.
(b)
Without limiting the generality of the foregoing, nothing contained in this Article Fourteen will restrict the right of the Trustee or
the Holders to take any action to declare the Securities to be due and payable prior to their Stated Maturity pursuant to Section
5.1 of this Indenture or to pursue any rights or remedies hereunder; provided, however, that all Senior Debt then due
and payable or thereafter declared to be due and payable shall first be paid in full, in cash or cash equivalents, before the Holders
or the Trustee are entitled to receive any direct or indirect payment from the Company with respect to any Security.
14.6
Notice to Trustee.
(a)
The Company shall give prompt written notice to the Trustee of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities pursuant to the provisions of this Article Fourteen. The Trustee shall not be charged
with the knowledge of the existence of any default or event of default with respect to any Senior Debt or of any other facts that would
prohibit the making of any payment to or by the Trustee unless and until the Trustee shall have received notice in writing at its Corporate
Trust Office to that effect signed by an Officer of the Company, or by a holder of Senior Debt or trustee or agent thereof; and prior
to the receipt of any such written notice, the Trustee shall, subject to Article Six, be entitled to assume that no such facts exist;
provided that, if the Trustee shall not have received the notice provided for in this Section 14.6 at least two Business Days
prior to the date upon which, by the terms of this Indenture, any monies shall become payable for any purpose (including, without limitation,
the payment of the principal of, premium, if any, or interest on any Security), then, notwithstanding anything herein to the contrary,
the Trustee shall have full power and authority to receive any monies from the Company and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary that may be received by it on or after such prior date except
for an acceleration of the Securities prior to such application. Nothing contained in this Section 14.6 shall limit the right
of the holders of Senior Debt to recover payments as contemplated by this Article Fourteen. The foregoing shall not apply if the Paying
Agent is the Company. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself
or itself to be a holder of any Senior Debt (or a trustee on behalf of, or other representative of, such holder) to establish that such
notice has been given by a holder of such Senior Debt or a trustee or representative on behalf of any such holder.
(b)
In the event that the Trustee determines in good faith that any evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or distribution pursuant to this Article Fourteen, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under
this Article Fourteen and, if such evidence is not furnished to the Trustee, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
14.7
Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities referred to in this Article Fourteen, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in which bankruptcy, dissolution, winding up, liquidation
or reorganization proceedings are pending, or upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person making such payment or distribution, delivered to the Trustee or to the Holders for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the Senior Debt and other Debt of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fourteen.
14.8
Trustee’s Relation to Senior Debt.
(a)
The Trustee and any Paying Agent shall be entitled to all the rights set forth in this Article Fourteen with respect to any Senior Debt
that may at any time be held by it in its individual or any other capacity to the same extent as any other holder of Senior Debt and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any of its rights as such holder.
(b)
With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Fourteen, and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt (except as provided in Section 14.2 and Section 14.3 of this Indenture) and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other
person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article Fourteen or otherwise.
14.9
Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt. No right of any present or future
holders of any Senior Debt to enforce subordination as provided in this Article Fourteen will at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with. The provisions of this Article Fourteen are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Debt.
14.10
Holders Authorize Trustee to Effectuate Subordination of Securities. Each Holder by his acceptance of any Securities authorizes
and expressly directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen, and appoints the Trustee his attorney-in-fact for such purposes, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise) tending towards liquidation of the property and assets of
the Company, the filing of a claim for the unpaid balance of its Securities in the form required in those proceedings. If the Trustee
does not file a proper claim or proof in indebtedness in the form required in such proceeding at least 30 days before the expiration
of the time to file such claim or claims, each holder of Senior Debt is hereby authorized to file an appropriate claim for and on behalf
of the Holders.
14.11
Not to Prevent Events of Default. The failure to make a payment
on account of principal of, premium, if any, or interest on the Securities by reason of any provision of this Article Fourteen will not
be construed as preventing the occurrence of an Event of Default.
14.12
Trustee’s Compensation Not Prejudiced. Nothing in this Article Fourteen will apply to amounts due to the Trustee pursuant
to other sections of this Indenture, including Section 6.7.
14.13
No Waiver of Subordination Provisions. Without in any way limiting
the generality of Section 14.9, the holders of Senior Debt may, at any time and from time to time, without the consent of or notice
to the Trustee or the Holders, without incurring responsibility to the Holders and without impairing or releasing the subordination provided
in this Article Fourteen or the obligations hereunder of the Holders to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Debt or any instrument evidencing
the same or any agreement under which Senior Debt is outstanding or secured; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the collection of Senior Debt;
and (d) exercise or refrain from exercising any rights against the Company and any other Person.
14.14
Payments May Be Paid Prior to Dissolution. Nothing contained in
this Article Fourteen or elsewhere in this Indenture shall prevent (i) the Company, except under the conditions described in Section
14.2 or Section 14.3, from making payments of principal of, premium, if any, and interest on the Securities, or from depositing
with the Trustee any money for such payments, or (ii) the application by the Trustee of any money deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the Securities to the holders entitled thereto unless, at least
two Business Days prior to the date upon which such payment becomes due and payable, the Trustee shall have received the written notice
provided for in Section 14.2(b) of this Indenture (or there shall have been an acceleration of the Securities prior to such application)
or in Section 14.15 of this Indenture. The Company shall give prompt written notice to the Trustee of any dissolution, winding
up, liquidation or reorganization of the Company.
14.15
Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article Four by the Trustee for the payment of principal of, premium, if any, and
interest on the Securities shall not be subordinated to the prior payment of any Senior Debt (provided that, at the time deposited, such
deposit did not violate any then outstanding Senior Debt), and none of the Holders shall be obligated to pay over any such amount to
any holder of Senior Debt.
This
instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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.
|
RUMBLEON, INC. |
|
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|
|
By: |
|
|
Name: |
|
|
Title: |
|
|
|
|
|
[TRUSTEE] |
|
|
|
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By: |
|
|
Name: |
|
|
Title: |
|
55
Exhibit 5.1
Snell & Wilmer L.L.P.
Hughes Center
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169-5958
TELEPHONE: 702.784.5200
FACSIMILE: 702.784.5252
August 30, 2024
RumbleOn, Inc.
901 W. Walnut Hill Lane, Suite 110A
Irving, Texas 75038
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have served as special
Nevada counsel to RumbleOn, Inc., a Nevada corporation (the “Company”), in connection with the Company’s preparation
and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 filed
on the date hereof, as amended from time to time (the “Registration Statement”) under the Securities Act of 1933, as amended
(the “Securities Act”). The Registration Statement includes a base prospectus (the “Prospectus”) relating to the
proposed offer, issuance and sale, from time to time, pursuant to Rule 415 under the Securities Act, as set forth in the Registration
Statement and the supplements to the Prospectus, by the Company of up to an aggregate offering price of $250,000,000, or the equivalent
thereof, of an indeterminate number of securities (the “Securities”) consisting of the Company’s Class B common stock,
$0.001 par value per share (the “Common Stock”), shares of the Company’s preferred stock, $0.001 par value per share
(the “Preferred Stock”), debt securities, which may be senior or subordinated or senior or subordinated convertible or exchangeable,
and which may be issued in one or more series (the “Debt Securities”), warrants to purchase any of the securities described
above (the “Warrants”), units, in one or more series, comprised of any combination of Common Stock, Preferred Stock, Debt
Securities, Warrants or Rights (as defined below), in any combination (the “Units”) and/or rights to purchase Common Stock
(the “Rights”).
The Securities are to be sold
from time to time as set forth in the Registration Statement, the Prospectus and the supplements to the Prospectus (the “Prospectus
Supplements”). The Securities are to be sold pursuant to a purchase, underwriting, subscription, placement agency or similar agreement,
which, in the case of the Securities, will be in substantially the forms previously filed and/or to be filed under a Current Report on
Form 8-K.
This opinion is being furnished
in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in
the Prospectus.
In connection with our representation
of the Company, and as a basis for the opinion hereinafter set forth, we have relied upon and examined matters of fact, questions of law
and documents as we have deemed necessary to render this opinion, including the originals, or copies certified or otherwise identified
to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration
Statement and exhibits thereto;
2. The Prospectus;
3. The Articles of Incorporation
of the Company filed with the Secretary of State of the State of Nevada, as amended through the date hereof, certified as of the date
hereof by an officer of the Company (the “Articles”);
RumbleOn, Inc.
August 30, 2024
Page 2
4. The Amended and Restated
Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company (the “Bylaws”);
5. Certificate of Existence
with Status in Good Standing, certified by the Secretary of State of the State of Nevada, dated as of a recent date;
6. Resolutions adopted by
the Board of Directors of the Company relating to the Registration Statement, the Prospectus and other actions with regard thereto (collectively,
the “Resolutions”), certified as of the date hereof by an officer of the Company;
7. A specimen of the current
form of stock certificate representing shares of the Company’s Common Stock, certified as of the date hereof by an officer of the
Company;
8. A certificate executed
by an officer of the Company, dated as of the date hereof, as to certain factual matters; and
9. Such other documents and
matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and
qualifications stated herein.
In expressing the opinion
set forth below, we have assumed the following:
A. Each individual
executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
B. All Documents
submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All
Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such
Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All
representations, warranties, statements and information contained in the Documents are true and complete. There has been no
oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the
Documents, by action or omission of the parties or otherwise. For the purpose of the opinion rendered below, we have assumed that,
upon each issuance of Securities, the Company will receive or has received the consideration for such Securities required by the
Resolutions and the applicable definitive purchase, underwriting, subscription, placement agency or similar agreement with respect
to such Securities offered under the Registration Statement.
C. (i) The Registration Statement,
and any amendments thereto (including post-effective amendments), will have become effective under the Securities Act; (ii) a Prospectus
Supplement will have been filed with the Commission describing the Securities offered thereby; (iii) the Securities will be issued and
sold in compliance with applicable U.S. federal and state securities laws and in the manner stated in the Registration Statement and the
applicable Prospectus Supplements; (iv) that a definitive purchase, underwriting, subscription, placement agency or similar agreement
with respect to any Securities offered under the Registration Statement will have been duly authorized and validly executed and delivered
by the Company and the other parties thereto; (v) that any Securities issuable upon conversion, exchange, redemption or exercise of any
Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption
or exercise; (vi) with respect to shares of Common Stock or Preferred Stock (or Debt Securities convertible or exchangeable into, or Warrants
or Rights exercisable for, Common Stock or Preferred Stock) offered, that there will be sufficient shares of Common Stock or Preferred
Stock authorized under the Company’s organizational documents that are not otherwise reserved for issuance; (vii) with respect to
any Securities issuable upon conversion of any convertible Debt Securities or upon exercise of any Warrants or Rights, such convertible
Debt Securities, Warrants and Rights will constitute valid and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms; and (viii) any Debt Securities or Warrants offered under the Registration Statement, and the related indenture
and warrant agreement, will be executed in the forms filed as exhibits to the Registration Statement or incorporated by reference therein.
RumbleOn, Inc.
August 30, 2024
Page 3
Based upon the foregoing,
and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. With respect to shares
of the Common Stock to be sold by the Company when both: (a) the Board of Directors of the Company or a duly constituted and acting committee
thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all necessary corporate
action to approve the issuance and the terms of the offering of the shares of Common Stock and related matters; and (b) certificates representing
such shares of Common Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable
definitive purchase, underwriting, subscription, placement agency or similar agreement approved by the Board, or upon the exercise of
Warrants or Rights to purchase Common Stock, upon payment of the consideration therefor (not less than the par value of the Common Stock)
provided for therein or (ii) upon conversion or exercise of any other Securities, in accordance with the terms of such Securities or the
instrument governing such Securities providing for such conversion or exercise as approved by the Board, for the consideration approved
by the Board (not less than the par value of the Common Stock), then such shares of Common Stock will be validly issued, fully paid and
nonassessable.
2. With respect to any particular
series of shares of Preferred Stock, when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms
of the shares of Preferred Stock, the terms of the offering thereof, and related matters; and (b) certificates representing the shares
of Preferred Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the applicable definitive
purchase, underwriting, subscription, placement agency or similar agreement approved by the Board, or upon the exercise of Warrants or
Rights to purchase Preferred Stock, upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided
for therein or (ii) upon conversion or exercise of any other Securities or the instrument governing such Securities providing for such
conversion or exercise as approved by the Board, for the consideration approved by the Board (not less than the par value of the Preferred
Stock), then the shares of Preferred Stock will be validly issued, fully paid and nonassessable.
We render this opinion only
with respect to the general corporate law of the State of Nevada as set forth in Chapter 78 of the Nevada Revised Statutes. We neither
express nor imply any obligation with respect to any other laws or the laws of any other jurisdiction or of the United States. For purposes
of this opinion, we assume that the Securities will be issued in compliance with all applicable state securities or blue sky laws.
The opinion expressed herein
is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated.
We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact
that might change the opinion expressed herein after the date hereof. Without limiting the generality of the foregoing, we neither express
nor imply any opinion regarding the contents of the Registration Statement.
We hereby consent to the filing
of this opinion as Exhibit 5.1 to the Registration Statement filed by the Company. We also consent to the reference to our firm under
the heading “Legal Matters” in the Registration Statement filed by the Company. In giving this consent, we do not admit that
we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
|
Very truly yours, |
|
|
|
/s/ Snell & Wilmer L.L.P. |
Exhibit 5.2
|
2001 Ross Avenue
Suite 900
Dallas, Texas
75201-2980
TEL +1 214.953.6500
FAX +1 214.953.6503
BakerBotts.com |
AUSTIN
BRUSSELS
DALLAS
DUBAI
HOUSTON
london
|
NEW YORK
PALO ALTO
RIYADH
SAN FRANCISCO
Singapore
WASHINGTON
|
August 30, 2024
RumbleOn, Inc.
901 W. Walnut Hill Lane, Suite 110A
Irving, Texas 75038
Ladies and Gentlemen:
We have acted as counsel to
RumbleOn, Inc., a Nevada corporation (the “Company”), with respect to certain legal matters in connection with the
Registration Statement on Form S-3 (the “Registration Statement”) to be filed by the Company with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”).
The Registration Statement includes a base prospectus (the “Base Prospectus”) that provides it will be supplemented
in the future, if required, by one or more prospectus supplements (each, a “Prospectus Supplement”). The Registration
Statement, including the Base Prospectus (as supplemented from time to time, if required, by one or more Prospectus Supplements), relates
to the proposed offer and sale, from time to time, pursuant to Rule 415 under the Act, of up to $250,000,000 in aggregate amount of one
or more series of (i) shares of Class B common stock, par value $0.001 per share, of the Company (the “Common Stock”);
(ii) shares of preferred stock, par value $0.001 per share, of the Company (the “Preferred Stock”); (iii) debt securities
of the Company (the “Debt Securities”); (iv) warrants to purchase Common Stock, Preferred Stock, Debt Securities, or
any combination thereof (the “Warrants”); (v) units consisting of Common Stock, Preferred Stock, Debt Securities, Warrants,
and Rights (as defined below) or any combination thereof (the “Units”); and (vi) rights to purchase Common Stock (the
“Rights”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Units, and Rights are collectively referred
to herein as the “Securities.” At your request, this opinion is being furnished to you for filing as Exhibit 5.2 to
the Registration Statement.
Each series of senior Debt Securities
to be issued under the Registration Statement will be governed by an indenture, substantially in the form filed as Exhibit 4.4 to the
Registration Statement, to be entered into by the Company, as issuer, and the trustee thereunder (as may be amended or supplemented from
time to time, the “Senior Base Indenture”). Each series of subordinated Debt Securities will be issued pursuant to
an indenture, substantially in the form filed as Exhibit 4.5 to the Registration Statement, to be entered into by the Company, as issuer,
and the trustee thereunder (as may be amended or supplemented from time to time, the “Subordinated Base Indenture”
and, together with the Senior Base Indenture, the “Indentures”). Each applicable Indenture will be supplemented, in
connection with the issuance of any series of Debt Securities, by a supplemental indenture, officers’ certificate or other writing
thereunder (each, a “Supplemental Indenture Document”), by and among the Company and the trustee thereunder, establishing
the form and terms of such series of Debt Securities.
RumbleOn, Inc. |
- 2 - |
August 30, 2024 |
Any Warrants, Units or Rights
to be issued under the Registration Statement will be issued pursuant to a warrant agreement, unit agreement, rights agreement or similar
agreement or instrument to be entered into between the Company and one or more third parties.
In our capacity as your counsel
in the connection referred to above and as a basis for the opinions herein after expressed, we have examined originals, or copies certified
or otherwise identified, of (i) the Company’s Articles of Incorporation and Amended and Restated Bylaws, each as amended to date
(together, the “Charter Documents”), (ii) the Indentures, (iii) corporate records of the Company, (iv) the Registration
Statement, including the Base Prospectus contained therein relating to the Securities, (v) certificates of public officials and of officers
and other representatives of the Company and (vi) statutes and such other records, certificates, documents and instruments as we have
deemed necessary or advisable as a basis for giving the opinions set forth below.
In giving such opinions below,
we have relied, to the extent we deemed proper, without independent investigation, upon certificates, statements and other representations
of officers and other representatives of the Company and of governmental and public officials with respect to the accuracy and completeness
of the material factual matters contained therein or covered thereby.
In making our examination, we
have assumed, without independent investigation, that each document submitted to us for review is accurate and complete, each such document
that is an original is authentic, each such document that is a copy conforms to an authentic original and all signatures on each such
document are genuine.
In connection with this opinion,
we also have assumed that:
(i) the Registration
Statement and any amendments thereto (including post-effective amendments) will have become effective under the Act;
(ii) a Prospectus
Supplement will have been prepared and filed with the Commission describing any Securities to be offered and sold by the Company under
the Registration Statement;
(iii) all Securities
will be offered, issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration
Statement (including post-effective amendments thereto) and the appropriate Prospectus Supplement;
RumbleOn, Inc. |
- 3 - |
August 30, 2024 |
(iv) the Board of
Directors of the Company, or a duly constituted and acting committee thereof (such Board of Directors or committee being hereafter referred
to as the “Board”), and the stockholders of the Company will have taken all necessary corporate action to authorize
the creation and issuance of the Securities and any other Securities issuable on the conversion, exchange, redemption or exercise thereof,
and to authorize the terms of the offering and the issuance and sale of such Securities and related matters;
(v) (a) in the case
of any Debt Securities, a definitive Indenture will have been entered into by the Company and the trustee thereunder and a definitive
Supplemental Indenture Document will have been executed or approved in accordance with the terms of the applicable Indenture; (b) in the
case of any Warrants, Units or Rights, a warrant agreement, unit agreement, rights agreement or other appropriate agreement or instrument
with respect thereto will have been entered into between the Company and one or more third parties; and (c) in the case of any Securities,
a definitive purchase agreement, underwriting agreement, warrant agreement, unit agreement or similar agreement providing for the issuance
and sale of any such Securities (each, a “Purchase Agreement”) will have been duly authorized and validly executed
and delivered by the Company and the other parties thereto;
(vi) any securities
issuable upon conversion, exchange, redemption or exercise of any Securities being offered will have been duly authorized, created and,
if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise;
(vii) all Securities,
and any certificates in respect thereof, will be delivered either (a) in accordance with the provisions of the applicable Purchase Agreement
approved by the Board upon payment of the consideration therefor provided for therein; or (b) upon conversion, exchange, redemption or
exercise of any other Security, in accordance with the terms of such Security or the agreement or other instrument providing for such
conversion, exchange, redemption or exercise as approved by the Board, for the consideration approved by the Board;
(viii) in the case
of Debt Securities, (a) an indenture substantially in the form of the applicable Indenture will have been duly authorized, executed and
delivered by the Company and the trustee thereunder; (b) the Board will have taken all necessary action to designate and establish the
terms of such series of Debt Securities in accordance with the terms of the applicable Indenture, including, if applicable, the execution
and delivery of a Supplemental Indenture Document by the Company and the trustee thereunder, and such Debt Securities will be governed
by New York law and will not include any provision that is unenforceable; (c) a Supplemental Indenture Document will have been duly executed
and delivered by the Company and the trustee under the applicable Indenture; (d) at the time of execution, authentication, issuance and
delivery of the Debt Securities, the applicable Indenture will be the valid and legally binding obligation of the trustee thereunder,
enforceable against the trustee in accordance with its terms; (e) the applicable Indenture will have become qualified under the Trust
Indenture Act of 1939, as amended; and (f) forms of Debt Securities complying with the terms of the applicable Indenture and evidencing
such Debt Securities will have been duly executed, authenticated, issued and delivered in accordance with the provisions of such Indenture;
RumbleOn, Inc. |
- 4 - |
August 30, 2024 |
(ix) in the case
of Warrants, (a) the Board will have taken all necessary corporate action to authorize the creation of and the terms of such Warrants
and the issuance of the Securities to be issued pursuant thereto and to approve the warrant agreement relating thereto; (b) such warrant
agreement will have been duly executed and delivered by the Company and the warrant agent thereunder appointed by the Company; (c) at
the time of execution, countersignature, issuance and delivery of any Warrants, such warrant agreement will be the valid and legally binding
obligation of the warrant agent, enforceable against such party in accordance with its terms; (d) such Warrants and such warrant agreement
will be governed by New York law and will not include any provision that is unenforceable; and (e) such Warrants or certificates representing
such Warrants will have been duly executed, countersigned, registered and delivered in accordance with the provisions of such warrant
agreement and the applicable Purchase Agreement to the purchasers thereof upon payment of the agreed-upon consideration therefor;
(x) in the case
of Units, (a) the Board will have taken all necessary corporate action to establish the terms of such Units and the terms of the Securities
included in such Units, (b) the terms of the Units and the related Securities and their issuance and sale will have been duly established
in conformity with the applicable unit agreement or other contracts, agreements or indentures that establish the such Units or other Securities
(including authorization of the issuance of any Securities to be issued pursuant to such Units) and (c) any agreement or other instrument
establishing such Unit or defining the rights of holders of such Unit will be governed by New York law and will not contain any provision
that is unenforceable; and
(xi) in the case
of Rights, (a) the Board will have taken all necessary corporate action to authorize the terms of such Rights, (b) the applicable rights
agreement will be duly authorized by the Company and duly executed and delivered by the Company and the rights agent thereunder appointed
by the Company, (c) at the time of execution, countersignature, issuance and delivery of any Rights, the related rights agreement will
be the valid and legally binding obligation of the rights agent, enforceable against such party in accordance with its terms, (d) such
Rights or certificates representing such Rights, if any, will have been duly executed, countersigned, registered and delivered in accordance
with the provisions of such rights agreement and the applicable Purchase Agreement and (e) such Rights and such rights agreement will
be governed by New York law and will not include any provision that is unenforceable.
RumbleOn, Inc. |
- 5 - |
August 30, 2024 |
On the basis of the foregoing,
and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the Debt Securities,
Warrants, Units and Rights included in the Securities, when issued, will have been duly authorized and will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except to the extent that
the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
conveyance or other similar laws relating to or affecting creditors’ rights and remedies generally, (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law) and comity or (iii) any implied covenants
of good faith and fair dealing.
The opinion set forth above
is limited in all respects to matters of the contract law of the State of New York and applicable federal law of the United States of
America, in each case, as in effect on the date hereof. With respect to matters of Nevada law, we note that you are relying on an opinion
of Snell & Wilmer L.L.P., which opinion is filed as Exhibit 5.1 to the Registration Statement. We express no opinion herein with regard
to the matters set forth in such opinion, and to the extent elements of such matters are necessary to the conclusions expressed herein,
we have, with your consent, assumed such matters.
We hereby consent to the filing
of this opinion of counsel with the Commission as Exhibit 5.2 to the Registration Statement. We also consent to the reference to our Firm
under the heading “Legal Matters” in the Base Prospectus forming a part of the Registration Statement. In giving such consent,
we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission thereunder.
|
Very truly yours, |
|
|
|
/s/ Baker Botts L.L.P. |
Exhibit 23.3
Consent of Independent Registered Public Accounting
Firm
We hereby consent to the incorporation by reference
in the Registration Statement on Form S-3 of our report dated March 28, 2024, relating to the consolidated financial statements and the
effectiveness of internal control over financial reporting of RumbleOn, Inc. (the Company) appearing in the Company’s Annual Report
on Form 10-K for the year ended December 31, 2023. Our report on the effectiveness of internal control over financial reporting expresses
an adverse opinion on the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023.
We also consent to the reference to us under the
caption “Experts” in the Registration Statement.
/s/ BDO USA, P.C.
Dallas, Texas
August 30, 2024
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our report dated March 16, 2023 (except for the effects
of changes in discontinued operations, as discussed in Note 19, as to which the date is September 26, 2023), with respect to the consolidated
financial statements included in the Annual Report of RumbleOn, Inc. on Form 10-K for the year ended December 31, 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
Dallas, Texas
August 30, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
RumbleOn, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
|
Security Type |
|
Security Class
Title(1) |
|
Fee Calculation
or Carry
Forward Rule |
|
Amount
Registered |
|
|
Proposed
Maximum Offering Price Per Unit |
|
|
Maximum
Aggregate Offering Price |
|
|
Fee
Rate |
|
|
Amount
of Registration Fee |
|
|
Carry
Forward Form
Type |
|
|
Carry
Forward File Number |
|
|
Carry
Forward Initial Effective Date |
|
|
Filing
Fee Previously Paid In Connection with
Unsold Securities to be Carried Forward |
|
Newly Registered Securities |
|
|
|
Equity |
|
Common Stock, par value $0.001 per share |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to Be
Paid |
|
Equity |
|
Preferred Stock, par value $0.001 per
share |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt |
|
Debt Securities |
|
Rule 457(o) (2) |
|
|
|
(2) |
|
|
|
(2) |
|
|
|
(2) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Warrants |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Units |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other |
|
Rights |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unallocated (Universal) Shelf |
|
— |
|
|
|
|
|
|
|
|
|
|
|
$ |
250,000,000 |
(3) |
|
|
.00014760 |
|
|
$ |
36,900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Previously Paid |
|
N/A |
|
N/A |
|
N/A |
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities |
|
Carry Forward Securities |
|
N/A |
|
N/A |
|
N/A |
|
|
N/A |
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
Total Offering Amounts |
|
|
|
|
|
|
$ |
250,000,000 |
|
|
|
.00014760 |
|
|
$ |
36,900 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
9,082.58 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
27,817.42 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Any securities registered hereunder may be sold separately, together or in units with other securities registered hereunder. Separate consideration may or may not be received for any securities issued upon the conversion, redemption, exchange, exercise or settlement of any securities registered hereunder. |
(2) |
There is to be registered hereunder such indeterminate number or amount of securities of each identified class as may from time to time be issued by the registrant at indeterminate prices and as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable anti-dilution provisions. |
(3) |
Estimated solely for the purpose of calculating the registration fee. The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security. The aggregate maximum offering price of all securities issued pursuant to this registration statement will not exceed $250,000,000. |
Table 2: Fee Offset Claims and Sources
| |
Registrant
or Filer
Name | |
Form
or Filing
Type | |
File
Number | |
Initial
Filing Date | |
Filing
Date | |
Fee
Offset Claimed | | |
Security
Type Associated with Fee Offset Claimed | |
Security
Title Associated with Fee Offset Claimed | | |
Unsold
Securities Associated with Fee Offset Claimed | | |
Unsold
Aggregate Offering Amount Associated with Fee Offset Claimed | | |
Fee
Paid with Fee Offset Source |
Rule 457(p) |
Fee
Offset Claims | |
RumbleOn,
Inc. | |
S-3 | |
333-257198 | |
06/21/2021 | |
| |
$ | 9,082.58 | | |
Unallocated
(Universal) Shelf | |
| (1) | | |
| (1) | | |
$ | 83,250,043.00 | |
|
|
Fee
Offset Sources | |
RumbleOn,
Inc. | |
S-3 | |
333-257198 | |
| |
06/21/2021 | |
| | | |
| |
| | | |
| | | |
| | | $ |
27,275.00 |
(1) |
On June 21, 2021, the registrant initially filed a Registration Statement on Form S-3 (File No. 333-257198) (the “Prior Registration Statement”), which registered an aggregate amount of $250,000,000 of Class B common stock, preferred stock, debt securities, warrants, and units to be offered by the registrant from time to time and paid a total registration fee of $27,275.00. The registrant sold an aggregate of $166,749,957.00 of such securities pursuant to the Prior Registration Statement, leaving the balance of $83,250,043.00, representing $9,082.58 in registration fees (based on the filing fee rate in effect at the time of the filing of the Prior Registration Statement). The registrant has terminated any offering that included the unsold securities under the Prior Registration Statement. In accordance with Rule 457(p) under the Securities Act, the registrant is using $9,082.58 in unused filing fees associated with the Prior Registration Statement to offset the filing fee payable in connection with this filing. |
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