Exhibit 4.5


 


 






 


WHEELER REAL ESTATE INVESTMENT TRUST, INC.


 


and


 


COMPUTERSHARE TRUST COMPANY, N.A.,

as Trustee


 


INDENTURE


 


6.00% Subordinated Convertible Notes due 2028


 


WHEELER REAL ESTATE INVESTMENT TRUST, INC.


 


Dated [●],
2023


 


 








 




     


     


    

 


RECONCILIATION AND TIE BETWEEN

TRUST INDENTURE ACT OF 1939 AND INDENTURE


 


	
    TRUST INDENTURE
    ACT SECTION
	 	
    INDENTURE
    SECTION

	310	(a)(1)	 	6.08
	 	(a)(2)	 	6.08
	 	(b)	 	6.09
	312	(a)	 	7.01
	 	(c)	 	7.02
	313	(a)	 	7.03
	 	(c)	 	7.03
	314	(a)(4)	 	10.08(b)
	 	(c)(1)	 	1.02
	 	(c)(2)	 	1.02
	 	(e)	 	1.02
	315	(a)	 	6.01(a)
	 	(b)	 	6.02
	 	(c)	 	6.01(b)
	 	(d)	 	6.01(c), 6.03
	316	(a)(last sentence)	 	1.01 (“Outstanding”)
	 	(a)(1)(A)	 	5.02, 5.12
	 	(a)(1)(B)	 	5.13
	 	(b)	 	5.08
	 	(c)	 	1.04(d)
	317	(a)(1)	 	5.03
	 	(a)(2)	 	5.04
	 	(b)	 	10.03
	318	(a)	 	13.04


 




    i


     


    

 


TABLE OF CONTENTS


 


	 	 	 	Page
	 	 	 	 
	ARTICLE I
	DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
	 	 	 	 
	Section 1.01	Definitions	 	1
	Section 1.02	Compliance Certificates and Opinions	 	9
	Section 1.03	Form of Documents Delivered to Trustee	 	10
	Section 1.04	Acts of Holders	 	10
	Section 1.05	Notices, Etc., To Trustee and the Company	 	12
	Section 1.06	Notice to Holders; Waiver	 	12
	Section 1.07	Successors and Assigns	 	13
	Section 1.08	No Personal Liability of Directors, Officers, Employees, or Stockholders	 	13
	 	 	 	 
	ARTICLE II
	NOTE FORMS
	 	 	 	 
	Section 2.01	FORMS GENERALLY	 	13
	 	 	 	 
	ARTICLE III
	THE NOTES
	 	 	 	 
	Section 3.01	Title and Terms	 	14
	Section 3.02	Denominations	 	14
	Section 3.03	Execution, Authentication, Delivery and Dating	 	15
	Section 3.04	[Reserved].	 	15
	Section 3.05	Registration of Transfer and Exchange	 	15
	Section 3.06	Mutilated, Destroyed, Lost and Stolen Notes	 	17
	Section 3.07	Payment of Interest; Interest Rights Preserved	 	18
	Section 3.08	Persons Deemed Owners	 	18
	Section 3.09	Cancellation	 	18
	Section 3.10	Computation of Interest	 	18
	Section 3.11	CUSIP Numbers	 	18
	Section 3.12	Calculation of Principal Amount of Notes	 	19
	 	 	 	 
	ARTICLE IV
	[RESERVED]
	 
	ARTICLE V
	REMEDIES
	 	 	 	 
	Section 5.01	Events of Default	 	19
	Section 5.02	Acceleration of Maturity; Rescission and Annulment	 	20
	Section 5.03	Collection of Indebtedness and Suits for Enforcement By Trustee	 	21


 



    ii


     


    

 


	Section 5.04	Trustee May File Proofs of Claim	 	21
	Section 5.05	Trustee May Enforce Claims Without Possession of Notes	 	22
	Section 5.06	Application of Money and Property Collected	 	22
	Section 5.07	Limitation on Suits	 	23
	Section 5.08	Unconditional Right of Holders to Receive Principal and Interest	 	23
	Section 5.09	Restoration of Rights and Remedies	 	23
	Section 5.10	Rights and Remedies Cumulative	 	24
	Section 5.11	Delay or Omission Not Waiver	 	24
	Section 5.12	Control By Holders	 	24
	Section 5.13	Waiver of Past Defaults	 	24
	Section 5.14	Waiver of Stay or Extension Laws	 	25
	Section 5.15	Undertaking for Costs	 	25
	 	 	 	 
	ARTICLE VI
	THE TRUSTEE
	 	 	 	 
	Section 6.01	Certain Duties and Responsibilities	 	26
	Section 6.02	Notice of Defaults	 	27
	Section 6.03	Certain Rights of Trustee	 	27
	Section 6.04	Trustee Not Responsible for Recitals or Issuance of Notes	 	29
	Section 6.05	May Hold Notes	 	29
	Section 6.06	Money Held In Trust	 	29
	Section 6.07	Compensation and Reimbursement	 	29
	Section 6.08	Corporate Trustee Required; Eligibility	 	30
	Section 6.09	Resignation and Removal; Appointment of Successor	 	30
	Section 6.10	Acceptance of Appointment by Successor	 	32
	Section 6.11	Merger, Conversion, Consolidation or Succession to Business	 	32
	 	 	 	 
	ARTICLE VII
	HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
	 	 	 	 
	Section 7.01	Company to Furnish Trustee Names and Addresses	 	32
	Section 7.02	Disclosure of Names and Addresses of Holders	 	32
	Section 7.03	Reports by Trustee	 	32
	 	 	 	 
	ARTICLE VIII
	[RESERVED]
	 
	ARTICLE IX
	SUPPLEMENTS AND AMENDMENTS TO INDENTURE
	 	 	 	 
	Section 9.01	Supplemental Indentures Without Consent of Holders	 	33
	Section 9.02	Supplemental Indentures With Consent of Holders	 	33
	Section 9.03	Execution of Supplemental Indentures	 	34
	Section 9.04	Effect of Supplemental Indentures	 	34
	Section 9.05	Conformity with Trust Indenture Act	 	34


 



    iii


     


    

 


	Section 9.06	Reference in Notes to Supplemental Indentures	 	35
	Section 9.07	Notice of Supplemental Indentures	 	35
	 	 	 	 
	ARTICLE X
	COVENANTS
	 	 	 	 
	Section 10.01	Payment of Principal and Interest	 	35
	Section 10.02	Maintenance of Office or Agency	 	35
	Section 10.03	Money for Note Payments to be Held In Trust	 	35
	Section 10.04	Corporate Existence	 	37
	Section 10.05	Payment of Taxes and Other Claims	 	37
	Section 10.06	Maintenance of Properties	 	37
	Section 10.07	Compliance with Laws	 	37
	Section 10.08	Notices to the Trustee	 	38
	Section 10.09	Commission Reports and Reports to Holders	 	38
	 	 	 	 
	ARTICLE XI
	REDEMPTION OR REPURCHASE OF NOTES
	 	 	 	 
	Section 11.01	Redemption; Open Market Purchases	 	38
	Section 11.02	Applicability of Article	 	39
	Section 11.03	Election to Redeem; Notice to Trustee	 	39
	Section 11.04	Notice of Redemption	 	39
	 	 	 	 
	ARTICLE XII
	SUBORDINATION
	 	 	 	 
	Section 12.01	Agreement to Subordinate	 	41
	Section 12.02	Obligation of the Company Unconditional	 	42
	Section 12.03	Notice to Trustee of Facts Prohibiting Payment	 	42
	Section 12.04	Application by Trustee of Moneys Deposited With It	 	43
	Section 12.05	Subrogation to Rights of Holders of Senior Indebtedness	 	43
	Section 12.07	Authorization of Trustee to Effectuate Subordination of Notes	 	43
	Section 12.08	[Reserved]	 	44
	Section 12.11	Article Applicable to Paying Agents	 	44
	Section 12.12	Reliance on Judicial Order or Certificate of Liquidating Agent	 	44
	 	 	 	 
	ARTICLE XIII
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	Section 13.01	Provisions Binding on Company’s Successors	 	45
	Section 13.02	Official Acts By Successor Corporation	 	45
	Section 13.03	Addresses for Notices, Etc.	 	45
	Section 13.04	GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE	 	46
	Section 13.05	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	 	47


 



    iv


     


    

 





	Section 13.06	Legal Holidays	 	47
	Section 13.07	No Security Interest Created	 	47
	Section 13.08	Benefits of Indenture	 	47
	Section 13.09	Table of Contents, Heading, Etc.	 	48
	Section 13.10	Execution in Counterparts	 	48
	Section 13.11	Severability	 	48
	Section 13.12	Waiver of Jury Trial	 	48
	Section 13.13	Force Majeure	 	48
	Section 13.14	Calculations	 	48
	Section 13.15	USA PATRIOT ACT	 	49
	Section 13.16	Currency Conversion	 	49
	Section 13.17	Anti-Money Laundering	 	50
	Section 13.18	No Adverse Interpretation of Other Agreements	 	50
	Section 13.19	Third Party	 	50
	Section 13.20	Waiver of Immunity	 	50
	 	 	 	 
	ARTICLE XIV
	CONVERSION
	 	 	 	 
	Section 14.01	Optional Conversion	 	51
	Section 14.02	Conversion Procedures	 	51
	Section 14.03	No Responsibility of Trustee of Trustee for Conversion Provisions	 	52
	Section 14.04	Adjustment of Conversion Rates	 	53


 


SCHEDULE, ANNEX, APPENDIX & EXHIBITS


 


Exhibit A — Form of Note


 




    v


     


    

 


INDENTURE, dated as of [●],
2023 (this “Indenture”), among WHEELER REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation (the “Company”),
and COMPUTERSHARE TRUST COMPANY, N.A., a national association duly organized and existing under the laws of the United States, as trustee
(together with its successors and assigns, in such capacity, the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the issuance of its 6.00% Subordinated Convertible Notes due 2028 (the “Notes”),
initially in an aggregate principal amount of $[●] (the “Initial Notes”), and in
order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Indenture; and


 


WHEREAS, the Form of Note, the
certificate of authentication to be borne by each Note, and the Form of Assignment and Transfer to be borne by the Notes are to be substantially
in the forms hereinafter provided; and


 


WHEREAS, all acts and things
necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized Authenticating
Agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according
to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects
been duly authorized.


 


NOW, THEREFORE, THIS INDENTURE
WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:


 


ARTICLE
I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.01 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 words in the singular include the plural as well
as the singular, and words in the plural include the singular as well as the plural;


 


(b) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them therein;


 






    -1-


     


    

 


(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP (as herein defined);


 


(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
word “or” is not exclusive;


 


(f) “including”
means including without limitation;


 


(g) all
references to Articles, Sections and Exhibits shall be construed to refer to Articles and Sections of, and Exhibits to, this Indenture;
and


 


(h) provisions
of this Indenture apply to successive events and transactions.


 


“Act” when used
with respect to any Holder, means any request, demand, authorization, direction, notice, consent, waiver or other action provided by the
Indenture to be given or taken by Holders, that is embodied in and evidenced by one or more instruments of substantially similar tenor
signed by Holders in person or by agents duly appointed in writing; except as otherwise expressly provided in the Indenture, such actions
becoming effective when such instruments are delivered to the Trustee and, where it is expressly required, to the Company.


 


“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” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as used with respect to any Person, shall mean 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.


 


“Agent” means any
Paying Agent, Authenticating Agent, Conversion Agent and Note Registrar under this Indenture.


 


“Agent for Service”
has the meaning specified in Section 13.04(c).


 


“Adjustment Event”
has the meaning specified in Section 14.04(k).


 


“Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depository
to the extent applicable to such transaction and as in effect from time to time.


 


“Authenticating Agent”
means the Person appointed, if any, by the Trustee as an authenticating agent pursuant to the last paragraph of Section 3.03.


 


“Bankruptcy Law”
means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state or foreign law relating
to bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.


 






    -2-


     


    

 


“Board of Directors”
means, with respect to any Person, either the board of directors of such Person or any duly authorized committee thereof.


 


“Board Resolution”
means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have
been duly adopted by the Board of Directors of such Person or any committee thereof and to be in full force and effect on the date of
such certification, and delivered to the Trustee.


 


“Business Day” means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York, at the
location of the Corporate Trust Office, or the place of payment on the Notes are authorized or obligated by law or executive order to
close.


 


“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.


 


“Common Stock” means
the common stock, without par value, of the Company.


 


“Company” means
Wheeler Real Estate Investment Trust, Inc., a Maryland Corporation, until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor Person.


 


“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by any one of its Chairman, President,
Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Secretary, or any Vice President and delivered to the Trustee.


 


“Conversion Agent”
means any office or agency (including the Company acting as Conversion Agent) where the Notes may be presented for conversion.


 


“Conversion Price”
has the meaning specified in Section 14.02 of this Indenture.


 


“Conversion Rate”
has the meaning specified in Section 14.02 of this Indenture.


 


“Convertible Securities”
has the meaning specified in Section 14.04(g).


 


“Corporate Trust Office”
means the designated corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Indenture is located at 6200 S. Quebec Street, Greenwood Village, Colorado 80111, Attn:
Corporate Trust - Wheeler Real Estate Investment Trust, Inc., except that with respect to presentation of Notes for payment or for registration
of transfer or exchange, such term shall mean any office or agency of the Trustee at which, at any particular time, its corporate agency
business shall be conducted.


 






    -3-


     


    

 


“Current Market Price”
has the meaning specified in Section 14.04(h)(i).


 


“Custodian” means
any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.


 


“Default” means
any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.


 


“Depository” means
The Depository Trust Company, its nominees and successors.


 


“Determination Date”
has the meaning specified in Section 14.04(k).


 


“Distributed Property”
has the meaning specified in Section 14.04(d).


 


“Event of Default”
has the meaning specified in Section 5.01 of this Indenture.


 


“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.


 


“Ex-date” has the
meaning specified in Section 14.04(h)(iii).


 


“Expiration Time”
has the meaning specified in Section 14.04(e).


 


“Exchange Offer”
means the offer made to holders of the Company’s Series D Preferred Stock to exchange any and all validly tendered and accepted
outstanding shares of Series D Preferred Stock for the Company’s Notes upon the terms and subject to the conditions set forth in
the Prospectus.


 


“Form of Notice of Conversion”
means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.


 


“Global Notes” means
one or more permanent global Notes in definitive, fully registered form.


 


“Holder” means the
Person in whose name a Note is registered on the books of the Note Registrar.


 


“Indenture” means
this Indenture between the Company and the Trustee dated as of the date hereof, as originally executed and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions of this Indenture.


 


“Initial Notes”
has the meaning specified in the recitals to this Indenture.


 


“Interest Payment Date”
means the Stated Maturity of an installment of interest on the Notes.


 


“Issuance Date”
means the closing date for the sale and original issuance of the Initial Notes hereunder.


 






    -4-


     


    

 


“Judgment Currency”
shall have the meaning specified in Section 13.16.


 


“Market Disruption Event”
means, for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national or regional securities
exchange or market on which the Common Stock or Series D Preferred Stock, as the case may be, is listed or admitted for trading to open
for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any
Scheduled Trading Day for the Common Stock or Series D Preferred Stock, as the case may be, for more than one half-hour period in the
aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the relevant stock exchange or otherwise) in the Common Stock or Series D Preferred Stock, as the case may be, or in any
options contracts or futures contracts relating to the Common Stock or Series D Preferred Stock, as the case may be.


 


“Maturity” means,
with respect to any Note, the date on which any principal of such Note becomes due and payable as therein or herein provided, whether
at the Stated Maturity by declaration of acceleration, call for redemption or purchase or otherwise.


 


“Maturity Date”
means [●], 2028.


 


“Nasdaq” has the
meaning specified in the definition of “Trading Day.”


 


“National Securities Exchange”
means the New York Stock Exchange, NYSE Amex, the NASDAQ Stock Market or another national securities exchange or any successor to the
foregoing.


 


“Note Register”
and “Note Registrar” have the respective meanings specified in Section 3.05.


 


“Notes” means any
Notes authenticated and delivered under the Indenture.


 


“Notes Custodian”
means the custodian with respect to a Global Note, or any successor Person thereto and shall initially be the Trustee.


 


“Obligations” means
any principal, interest, penalties, fees, expenses, indemnifications, reimbursements (including, without limitation, reimbursement obligations
with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal,
interest, penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities, payable under the documentation
governing any indebtedness.


 


“Officer” means
the Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the President, any Executive
Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Company.


 


“Officers’ Certificate”
means a certificate signed on behalf of the Company by an Officer of the Company, whom must be the President, Chief Executive Officer,
Chief Financial Officer, Chief Operating Officer, Secretary, or any Vice President addressed to the Trustee complying with the requirements
of Section 1.02.


 






    -5-


     


    

 


“Opinion of Counsel”
means a written opinion of legal counsel addressed to the Trustee complying with the requirements of Section 1.02. Unless otherwise
required by the TIA, such legal counsel may be an employee of or counsel to the Company.


 


“Outstanding,” when
used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,
except:


 


(a) Notes
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;


 


(b) Notes,
or portions thereof, for whose payment or redemption money in the necessary amount have 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 Notes; provided that, if such Notes 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) Notes
paid pursuant to Section 3.06 in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to
this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose hands the Notes are valid obligations of the Company;


 


provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, consent,
notice or waiver, and for the purpose of making the calculations required by TIA Section 313, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding (provided,
that in connection with any offer by the Company or any obligor to purchase the Notes, Notes tendered for purchase will be deemed to be
Outstanding and held by the tendering Holder until the date of purchase), except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes
which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the
Company or such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’
Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above
described Persons; and, subject to Section 6.01, the Trustee, shall be entitled to accept such Officers’ Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such
determination.


 






    -6-


     


    

 


“Paying Agent” means
any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of or interest on any Notes on
behalf of the Company.


 


“Person” means any
individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any other entity.


 


“Pricing Date” has
the meaning specified in 14.04(g).


 


“Prospectus” means
the prospectus/consent solicitation dated [●], 2023, as supplemented by any prospectus supplement,
relating to the Exchange Offer.


 


“Purchased Shares”
has the meaning specified in 14.04(e)(i).


 


“Ranking Junior to the
Notes”, when used with respect to any Obligation of the Company, means any Obligation of the Company which (a) ranks junior
to and not equally with or prior to the Notes in right of payment upon the happening of any event of the kind specified in the first sentence
of the first paragraph of Section 12.01, and (b) is specifically designated as ranking junior to the Notes by express provisions
in the instrument creating or evidencing such obligation. The securing of any Obligations of the Company, otherwise Ranking Junior to
the Notes, is not deemed to prevent such Obligations from constituting obligations Ranking Junior to the Notes.


 


“Ranking on a Parity with
the Notes,” when used with respect to any Obligation of the Company, means any Obligation of the Company which (a) ranks equally
with and not prior to the Notes in right of payment upon the happening of any event of the kind specified in the first sentence of the
first paragraph of Section 12.01, and (b) is specifically designated as ranking on a parity with the Notes by express provision
in the instrument creating or evidencing such Obligation. The securing of any Obligations of the Company, otherwise Ranking on a Parity
with the Notes, is not deemed to prevent such Obligations from constituting obligations Ranking on a Parity with the Notes.


 


“Redemption Date,”
when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this
Indenture.


 


“Redemption Price”
means the redemption price (expressed as a percentage of the principal amount thereof) (subject
to the right of holders of record on the relevant interest record date to receive interest due on the related interest payment date) of
102.00%.


 


“Regular Record Date”
for the interest payable on any Interest Payment Date means January 1 or July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.


 


“Responsible Officer,”
when used with respect to the Trustee, means any officer of the Trustee customarily performing functions similar to those performed by
persons having direct responsibility for the administration of this Indenture , and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the
particular subject.


 






    -7-


     


    

 


“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.


 


“Senior Indebtedness”
means any indebtedness permitted to be incurred by the Company under the terms of this Indenture that is senior to the Notes.


 


“Series D Preferred Stock”
means Series D Cumulative Convertible Preferred Stock, without par value, of the Company.


 


“Settlement” has
the meaning specified in Section 14.02 of this Indenture.


 


“Significant Subsidiary”
means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date hereof.


 


“Spinoff Valuation Period”
has the meaning specified in Section 14.04(d).


 


“Stated Maturity”
when used with respect to any Note or any installment of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and payable, and, when used with respect to any other indebtedness,
means the date specified in the instrument governing such indebtedness as the fixed date on which the principal of such indebtedness,
or any installment of interest thereon, is due and payable.


 


“Subsidiary” means,
with respect to any Person, (i) any corporation, association, or other business entity (other than a partnership, joint venture or
limited liability company) of which more than 50% of the total voting power of shares of capital stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned
or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof
and (ii) any partnership, joint venture, limited liability company or similar entity of which more than 50% of the capital accounts,
distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the
form of membership, general, special or limited partnership interests or otherwise.


 


“Trading Day” means
a day on which: (1) there is no Market Disruption Event; and (2) trading in shares of the Common Stock or Series D Preferred
Stock generally occurs on the Nasdaq Capital Market (“Nasdaq”) or, if shares of the Common Stock or Series D Preferred Stock
are not then listed on Nasdaq, on the principal other U.S. national or regional securities exchange on which shares of the Common Stock
or Series D Preferred Stock are then listed or, if shares the Common Stock or Series D Preferred Stock are not then listed on a U.S. national
or regional securities exchange, on the principal other market on which shares of the Common Stock, or Series D Preferred Stock are then
listed or admitted for trading. If shares of the Common Stock, or Series D Preferred Stock are not so listed or traded, “Trading
Day” means a “Business Day.”


 






    -8-


     


    

 


“Trigger Event”
has the meaning specified in 14.04(d).


 


“Trust Indenture Act”
or “TIA” means the Trust Indenture Act of 1939 as amended and in force on the date as of which this Indenture was executed,
except as provided in Section 9.05 hereof.


 


“Trustee” means
the Person named as the “Trustee” in the first paragraph of the Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.


 


“Underlying Shares”
has the meaning specified in 14.04(b)(i).


 


“VWAP” means, for
each of the 15 consecutive Trading Days immediately prior to the date of determination, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “WHLR <equity> AQR” (or its equivalent successor
if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the
primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of
the Common Stock and Series D Preferred Stock on such Trading Day determined, using a volume-weighted average method, by a nationally
recognized independent investment banking firm retained for this purpose by the Company). “VWAP” shall be determined without
regard to after-hours trading or any other trading outside of the regular trading session trading hours.


 


Section 1.02 Compliance
Certificates and Opinions.


 


Upon any application or request
by the Company to the Trustee to take or refrain from taking any action under any provision of this Indenture, the Company and any other
obligor on the Notes (if applicable) shall furnish to the Trustee an Officers’ Certificate stating that, in the opinion of the signer,
all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and, if requested by the Trustee, 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.


 


Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:


 


(a) a
statement that each individual signing such certificate or opinion has read such covenant or condition;


 


(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 or such firm, such individual or firm has made such examination or investigation
as is necessary to enable such individual or firm to express an informed opinion as to whether or not such covenant or condition has been
complied with; and


 






    -9-


     


    

 


(d) a
statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.


 


Section 1.03 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 or other obligor on the Notes may be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such Officer or obligor 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 or other obligor on the Notes stating that the information with respect to such factual matters
is in the possession of the Company or other obligor on the Notes unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such matters are erroneous.


 


Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 1.04 Acts
of Holders.


 


(a) Proof
of execution of any Act shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section 1.04.


 


(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 authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient.


 


(c) The
principal amount and serial and/or CUSIP numbers of Notes held by any Person, and the date of holding the same, shall be proved by the
Note Register.


 






    -10-


     


    

 


(d) If
the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 3.16(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding
Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.


 


Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder
of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof (including in accordance with
Section 3.06) in respect of anything done, omitted or suffered to be done by the Trustee, any Paying Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.


 


Without limiting the foregoing,
a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or
any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal
amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.


 


Without limiting the generality
of the foregoing, a Holder, including the Depository that is the Holder of a Global Note, may make, give or take, by a proxy or proxies
duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture
to be made, given or taken by Holders, and the Depository that is the Holder of a Global Note may provide its proxy or proxies to the
beneficial owners of interests in any such Global Note through such Depository’s standing instructions and customary practices.


 


The Company may fix a record
date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by the Depository entitled
under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by the Holders.


 






    -11-


     


    

 


Section 1.05 Notices,
Etc., To Trustee and the Company.


 


Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,


 


(a) the
Trustee by any Holder or by the Company or any other obligor on the Notes shall be sufficient for every purpose hereunder if made, given,
furnished or delivered in writing (which may be via facsimile or any other electronic means that the Trustee agrees to accept), to or
with the Trustee and received at its Corporate Trust Office, Attention: Corporate Trust - Wheeler Real Estate Investment Trust, Inc. ,
or


 


(b) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or delivered, in writing (which may include via facsimile), or mailed, first-class postage prepaid, or delivered
by recognized overnight courier, to the Company, addressed to it at the address provided in Section 14.03 of this Indenture, or at any
other address previously furnished in writing to the Trustee by the Company.


 


The Trustee agrees to accept
instructions or directions pursuant to this Indenture delivered by e-mail, pdf, DocuSign, facsimile transmission or other electronic
methods (“electronic methods”): provided, however, that the Trustee shall have received an incumbency certificate
listing persons designated to give such instructions or directions (“Authorized Officers”) and containing specimen signatures
of such Authorized Officers, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted
from the listing. If the Company elects to give the Trustee instructions by electronic method and the Trustee acts upon such instructions
as required or permitted by this Indenture, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee
shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company
shall be responsible for ensuring that only Authorized Officers transmit such instructions or directions. The Company agrees to assume
all risks arising out of the use of electronic methods to submit instructions and directions to the Trustee, including without limitation
the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.


 


Section 1.06 Notice
to Holders; Waiver.


 


Where this Indenture provides
for notice of any event to Holders by the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, by email or such other applicable customary procedures of the Depository,
to each Holder affected by such event, at such Holder’s address as it appears in the Note 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, whether or not 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.


 






    -12-


     


    

 


In case by reason of the suspension
of or irregularities in regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event to
Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice for every purpose hereunder.


 


Section 1.07 Successors
and Assigns.


 


All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in
this Indenture shall bind its successors, whether so expressed or not.


 


Section 1.08 No
Personal Liability of Directors, Officers, Employees, or Stockholders.


 


No director, officer, employee,
incorporator or stockholders, as such, of the Company shall have any liability for any obligations of the Company under the Notes or this
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creations. Each Holder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. Such waiver
may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such a waiver is
against public policy.


 


ARTICLE
II

NOTE FORMS


 


Section 2.01 FORMS
GENERALLY.


 


The Notes and the Trustee’s
certificate of authentication shall be substantially in the form of Exhibit A which is hereby incorporated in, and expressly made a part
of, this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form reasonably acceptable to the
Company). Each Note shall be dated the date of its authentication. The terms of the Note set forth in Exhibit A are part of the terms
of this Indenture.


 






    -13-


     


    

 


ARTICLE
III

THE NOTES


 


Section 3.01 Title
and Terms.


 


The aggregate principal amount
of Notes which may be authenticated and issued under this Indenture is not limited; provided, however that any additional Notes issued
under this Indenture are issued in accordance with Section 3.03 hereof, as part of the same series as the Initial Notes, form a
single class with the Initial Notes and shall have the same terms as to status, redemption, conversion or otherwise as the Initial Notes.


 


The Notes shall be known and
designated as the “6.00% Subordinated Convertible Notes due 2028” of the Company. The Stated Maturity of the Notes shall be
[●], 2028. The principal amount of each Note shall be payable on the Maturity Date. Subject
to Article XI (Redemption or Repurchase of Notes), during each calendar year, commencing with 2023,
the Company shall permanently discharge and retire an aggregate principal amount of Notes equal to at least 10% of the initial aggregate
principal amount of Notes issued at the closing of the Exchange Offer, through a mandatory redemption from holders at a redemption price
of 102% of the principal amount thereof, purchases in the open market at then prevailing market prices (followed in each instance by retirement
of such purchased Notes), or a combination of the foregoing. Holders of the Notes will not have the option to have the Notes repaid
prior to the stated maturity except as contemplated above.  Interest on the Notes will be payable semi-annually on January 31 and
July 31 of each year, starting on July 31, 2023, to Holders of record at the close of business on the preceding January 1 and July 1,
respectively. Interest shall accrue on the Notes at a rate of 6.0% per annum. Interest will accrue on the Notes from and including the
Issuance Date or from, and including, the last date in respect of which interest has been paid or provided for, as the case may be, to,
but excluding, the next Interest Payment Date or the Maturity Date, as the case may be. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months, until the principal thereof is paid or duly provided for.


 


The principal of and interest
on the Notes shall be payable at the office or agency of the Company maintained for such purpose; provided, however, that, at the option
of the Company, payment of interest may be paid by check mailed to addresses of the Persons entitled thereto as such addresses shall appear
on the Note Register; provided that all payments of principal, and interest with respect to Notes represented by one or more permanent
Global Notes registered in the name of or held by the Depository or its nominee will be made by wire transfer of immediately available
funds to the accounts specified by the Holders thereof.


 


The Notes shall be convertible
into Common Stock pursuant to Article Fourteen.


 


Section 3.02 Denominations.


 


The Notes shall be issuable
only in registered form without coupons and only in minimum denominations of $25.00 and integral multiples thereof.


 






    -14-


     


    

 


Section 3.03 Execution,
Authentication, Delivery and Dating.


 


The Notes shall be executed
on behalf of the Company by an Officer. The signature of an Officer on the Notes may be manual or facsimile signatures of the present
or any future such authorized Officer and may be imprinted or otherwise reproduced on the Notes.


 


Notes 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 Notes or did not hold
such offices at the date of such Notes.


 


On or prior to the Issuance
Date, the Company shall deliver the Initial Notes in an aggregate principal amount not to exceed $[●]
executed by the Company to the Trustee for authentication, together with a Company Order directing the Trustee to authenticate the Initial
Notes and certifying that all conditions precedent to the issuance of Notes contained herein have been fully complied with, and the Trustee
in accordance with such Company Order shall authenticate and deliver such Initial Notes.


 


Each Note shall be dated the
date of its authentication.


 


No Note shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.


 


The Trustee may appoint an Authenticating
Agent acceptable to the Company to authenticate Notes on behalf of the Trustee. Unless limited by the terms of such appointment, an Authenticating
Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such Agent.


 


Section 3.04 [Reserved].


 


Section 3.05 Registration
of Transfer and Exchange.


 


The Company shall cause to be
kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency
designated pursuant to Section 10.02 being herein sometimes referred to as the “Note Register”) in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The
Note Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all
reasonable times, the Note Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security
registrar (the Trustee in such capacity, together with any successor of the Trustee in such capacity, the “Note Registrar”)
for the purpose of registering Notes and transfers of Notes as herein provided. The Trustee is hereby initially appointed to act as the
Paying Agent and the Conversion Agent.


 






    -15-


     


    

 


Upon surrender for registration
of transfer of any Note at the office or agency of the Company designated pursuant to Section 10.02, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order, authenticate and deliver, in the name of the designated transferee or transferees, one
or more new Notes of any authorized denomination or denominations of a like aggregate principal amount. The Trustee shall not be required
to register transfers of Notes or to exchange Notes for a period of 15 days before selection of any Notes to be redeemed. The Trustee
shall not be required to register transfers of any Notes called or being called for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part. The Trustee shall not be required to register the transfer of or to exchange a Note between
a record date and the next succeeding Interest Payment Date.


 


Furthermore, any Holder of a
Global Note shall, by acceptance of such Global Note, agree that transfers of beneficial interests in such Global Note may be effected
only through a book-entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest
in the Note shall be required to be reflected in a book entry.


 


At the option of the Holder,
Notes may be exchanged for other Notes of any authorized denomination and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall, upon receipt of a Company Order, authenticate and deliver, the Notes which the Holder making the exchange is entitled to
receive and the Notes to be exchanged shall be cancelled by the Trustee.


 


All Notes issued upon any registration
of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.


 


Every Note presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company, the Trustee or the Note Registrar) be duly endorsed,
or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Note Registrar, duly executed by the
Holder thereof or such Holder’s attorney duly authorized in writing.


 


No service charge shall be made
for any registration of transfer or redemption of Notes, but the Company or Trustee may require payment of a sum sufficient to cover any
taxes, fees or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 3.04 or Section 9.06, not involving any transfer.


 


Prior to due presentment for
the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for
all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.


 


Neither the Trustee, Note Registrar
and Paying Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer
or exchange imposed under the Indenture or under applicable law with respect to any transfer or exchange of any interest in any note (including
any transfers between or among participants or other beneficial owners of interests in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by
the terms of, the Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.


 






    -16-


     


    

 


Each Holder of a Note agrees
to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s
Note by such Holder in violation of any provision of this Indenture and/or applicable United States federal or state securities laws.


 


Neither the Trustee nor any
Agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depository.


 


Section 3.06 Mutilated,
Destroyed, Lost and Stolen Notes.


 


If (i) any mutilated Note
is surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, and there is delivered to the Company and the Trustee such security or indemnity bond, in each case, as may be required
by them to save each of them and any Authenticating Agent harmless, then, in the absence of notice to the Company or the Trustee that
such Note has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of a Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of
like tenor and principal amount, bearing a number not contemporaneously outstanding.


 


In case any such mutilated,
destroyed, lost or stolen Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Note, pay such Note.


 


Upon the issuance of any new
Note under this Section 3.06, the Company or the Trustee 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) in
connection therewith.


 


Every new Note issued pursuant
to this Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual
obligation of the Company and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be
at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.


 


The provisions of this Section
3.06 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 Notes.


 






    -17-


     


    

 


Section 3.07 Payment
of Interest; Interest Rights Preserved.


 


Interest on any Note which is
payable, and is punctually paid or duly provided for as set forth in the following paragraph, on any Interest Payment Date shall be paid
to the Person in whose name such Note is registered at the close of business on the Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose pursuant to Section 10.02.


 


The interest payable on any
Interest Payment Date shall be paid in cash.


 


Section 3.08 Persons
Deemed Owners.


 


Prior to the due presentment
of a Note for registration of transfer, the Company, the Trustee and any Agent of the Company or the Trustee may treat the Person in whose
name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of and (subject to Sections
3.05 and 3.07) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of
the Company, the Trustee nor any Agent of the Company or the Trustee shall be affected by notice to the contrary.


 


Section 3.09 Cancellation.


 


All Notes surrendered for payment,
redemption, conversion or registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes 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 Notes previously authenticated hereunder which the Company has not
issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. If the Company shall acquire any of the Notes
other than as set forth in the preceding sentence, the acquisition shall not operate as a redemption, conversion or satisfaction of the
indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation pursuant to this Section
3.09. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 3.09, except
as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures, and certification of the destruction of all canceled Notes will be delivered to the Company, at the Company’s
written request.


 


Section 3.10 Computation
of Interest.


 


Interest on the Notes shall
be computed on the basis of a 360-day year of twelve 30-day months.


 


Section 3.11 CUSIP
Numbers.


 


The Company in issuing the Notes
may use “CUSIP” numbers, ISINs and “Common Code” numbers (in each case, if then generally in use) in addition
to serial numbers, and, if so, the Trustee shall use such “CUSIP” numbers, ISINs and “Common Code” numbers in
addition to serial numbers in notices of redemption, repurchase or other notices to Holders as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness of such “CUSIP” numbers, ISINs and “Common
Code” numbers either as printed on the Notes or as contained in any notice of a redemption or repurchase and that reliance may be
placed only on the serial or other identification numbers printed on the Notes, and any such redemption or repurchase shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers, ISINs and “Common Code” numbers applicable to the Notes.


 






    -18-


     


    

 


Section 3.12 Calculation
of Principal Amount of Notes.


 


The aggregate principal amount
of the Notes, at any date of determination, shall be the principal amount of the Notes at such date of determination. With respect to
any matter requiring consent, waiver, approval or other action of the Holders of a specified percentage of the principal amount of all
the Notes, such percentage shall be calculated, on the relevant date of determination, by dividing (a) the principal amount, as of
such date of determination, of Notes, the Holders of which have so consented, by (b) the aggregate principal amount, as of such date
of determination, of the Notes then Outstanding.


 


ARTICLE
IV

[RESERVED]


 


ARTICLE
V

REMEDIES


 


Section 5.01 Events
of Default.


 


“Event of Default,”
wherever used herein, means any one of the following events (whatever the reason for such Event of Default or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):


 


(a) the
Company’s failure to pay in cash the principal of any Note when due whether at Maturity, on a Redemption Date or otherwise (except
as provided in clause (c) below);


 


(b) the
Company’s failure to pay in cash an installment of interest on any Note when due, if the failure continues for 30 days after the
date when due;


 


(c) the
Company is in breach of the Redemption Covenant for 60 days after the Company receives a written notice of default stating the Company
is in breach (the notice must be sent by either the trustee or holders of at least 5% of the principal amount of the then outstanding
Notes);


 


(d) the
Company’s failure to comply with any other term, covenant or agreement contained in the Notes or this Indenture, if the failure
is not cured within 60 days after notice to the Company by the Trustee or to the Trustee and the Company by Holders of at least 25% in
aggregate principal amount of the applicable Notes then outstanding, in accordance with this Indenture;


 






    -19-


     


    

 


(e) the
Company or any of its Significant Subsidiaries, pursuant to or within the meaning of the United States Bankruptcy Code: (A) commences
a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment
of a Custodian of it or for all or substantially all of its property; (D) makes a general assignment for the benefit of its creditors,
or (E) admits in writing that it is generally not paying its debts (other than debts which are the subject of a bona fide dispute)
as they become due;


 


(f) a
court of competent jurisdiction enters an order or decree under any bankruptcy code that remains unstayed and in effect for 90 days and:
(A) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case; (B) appoints a Custodian
of the Company or any of its Significant Subsidiaries or for all or substantially all of the property of the Company or any of its Significant
Subsidiaries; or (C) orders the liquidation of the Company or any of its Significant Subsidiaries; and


 


(g) the
Company’s failure to timely provide shares of Common Stock upon conversion of the Notes.


 


Section 5.02 Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default, other
than an Event of Default specified in Section 5.01(e) or 5.01(f), occurs and is continuing, either the Trustee, by notice to the Company,
or the Holders of at least 25% in aggregate principal amount of the Notes Outstanding, by notice to the Company and the Trustee, may declare
the principal of, accrued and unpaid interest on, all the then Outstanding Notes to be immediately due and payable in cash. In the case
of an Event of Default specified in Section 5.01(e) or 5.01(f) occurs and is continuing, then the principal amount of, and accrued and
unpaid interest on, all the Notes shall automatically become and be immediately due and payable in cash without any declaration or other
act on the part of the Trustee or any Holder.


 


At any time after a declaration
of acceleration has been made, the Holders of a majority in aggregate principal amount of the Notes Outstanding, by written notice to
the Trustee, may rescind and annul such declaration and its consequences if


 


(a) the
rescission would not conflict with any order or decree;


 


(b) all
Events of Default, other than the non-payment of accelerated principal of or interest, have been cured or waived; and


 


(c) all
amounts due to the Trustee are paid.


 


The Trustee is not obligated
to exercise any of its rights or powers at the request or demand of the Holders, unless the Holders have offered to the Trustee security
or indemnity that is satisfactory to the Trustee against the costs, expenses and liabilities that the Trustee may incur to comply with
the request or demand. Subject to applicable law and the Trustee’s rights to indemnification, the Holders of a majority in aggregate
principal amount of the Outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, if the Trustee, being advised by counsel, determines that the action or proceeding
so directed may not lawfully be taken or if the Trustee in good faith shall determine that the action or proceeding so directed would
involve the Trustee in personal liability or expense for which it is not adequately indemnified, or that the Trustee determines is unduly
prejudicial to the rights of any other Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether
or not such actions or forbearances are unduly prejudicial to such Holders).


 






    -20-


     


    

 


Section 5.03 Collection
of Indebtedness and Suits for Enforcement By Trustee.


 


If an Event of Default specified
in Section 5.01(a) or 5.01(b) occurs and is continuing, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid (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) may prosecute such proceeding to judgment or final decree and may enforce the same against the
Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon the Notes, wherever situated.


 


If an Event of Default occurs
and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders under this
Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights or
any proper remedy, subject however to Section 5.13. No recovery of any such judgment upon any property of the Company shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.


 


Section 5.04 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 Notes or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, 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 interest owing and unpaid in respect of the Notes, to take such other actions
(including participating as a member, voting or otherwise, of any official committee of creditors appointed in such matter) 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, receive and distribute any moneys or other property payable or deliverable on any such claims and to distribute the same;


 






    -21-


     


    

 


and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay 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 6.07.


 


Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or other similar official.


 


Section 5.05 Trustee
May Enforce Claims Without Possession of Notes.


 


All rights of action and claims
under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name and 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 in respect of which such
judgment has been recovered.


 


Section 5.06 Application
of Money and Property Collected.


 


Any money and property collected
by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money and property on account of principal or interest, upon presentation of the Notes and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:


 


FIRST: To the payment of all
amounts due the Trustee under Section 6.07;


 


SECOND: To the payment of the
amounts then due and unpaid for principal of and interest on the Notes in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal
and interest, respectively; and


 


THIRD: The balance, if any,
to the Person or Persons entitled thereto, including the Company or any other obligor on the Notes, as their interests may appear or as
a court of competent jurisdiction may direct in writing; provided that all sums due and owing to the Holders and the Trustee have been
paid in full as required by this Indenture.


 


The Trustee may fix a record
date and payment date for any payment to Holders of Notes pursuant to this Section 5.06.


 



    -22-


     


    

 


Section
5.07 Limitation on Suits.


 


No
Holder of any Notes shall have any right to institute any proceeding with respect to its rights, or for the appointment of a receiver
or a 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;


 


(b)
the Holders of at least 25% in aggregate principal amount of the Outstanding Notes shall have made written request to the Trustee to
pursue the remedy;


 


(c)
such Holder or Holders have offered and, if requested, provided to the Trustee indemnity satisfactory to it against any loss, liability
or expense to be incurred in compliance with such request; and


 


(d)
the Trustee fails to comply with the request within 60 days after the Trustee receives the notice, request and offer of indemnity and
does not receive, during those 60 days, from Holders of a majority in aggregate principal amount of the Notes then outstanding, a direction
that is inconsistent with the request.


 


Notwithstanding
any other provision of this Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery,
as the case may be, of (x) the principal (including the Redemption Price, if applicable) of, (y) accrued and unpaid interest,
if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided
for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be.


 


A
Holder may not use this Indenture to prejudice the rights of another Holder to obtain a preference or priority over another Holder.


 


Section
5.08 Unconditional Right of Holders to Receive Principal and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment,
as provided herein and in such Note of the principal of and (subject to Section 3.07) interest on such Note on the respective
Stated Maturities expressed in such Note (or, in the case of redemption or repurchase, on the Redemption Date or the repurchase date)
and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.


 


Section
5.09 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, any other obligor on the Notes, 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.


 






    -23-


     


    

 


Section
5.10 Rights and Remedies Cumulative.


 


Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right
or remedy.


 


Section
5.11 Delay or Omission Not Waiver.


 


No
delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.


 


Section
5.12 Control By Holders.


 


The
Holders of not less than a majority in principal amount of the Outstanding Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee;
provided that:


 


(a)
such direction shall not be in conflict with any rule of law or with this Indenture,


 


(b)
the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders not consenting
(it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are
unjustly prejudicial to such Holders); and


 


(c)
subject to the provisions of Section 3.15 of the Trust Indenture Act, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.


 


Section
5.13 Waiver of Past Defaults.


 


The
Holders of a majority in aggregate principal amount of the Outstanding Notes may by notice to the Trustee waive any past Default or Event
of Default and its consequences under this Indenture other than a Default or Event of Default:


 


(a)
in the payment of principal of or interest on, any Note or in the payment of the Redemption Price; or


 


(b)
arising from the Company’s failure to convert or redeem any Note in accordance with this Indenture; or


 


(c)
in respect of any provision under this Indenture that cannot be modified or amended without the consent of the Holders of each Outstanding
Note affected.


 






    -24-


     


    

 


The
Company will promptly notify the Trustee in writing upon its becoming aware of the occurrence of any Default or Event of Default, its
status and what action the Company is taking or proposes to take in respect thereof. In addition, the Company is required to furnish
to the Trustee, on an annual basis within 180 days after January 1 in any year, beginning January 1, 2023, a written certificate by the
Company’s Officers stating whether they have actual knowledge of any Default or Event of Default by the Company in performing any
of its obligations under this Indenture or the Notes and describing any such Default or Event of Default. If a Default or Event of Default
has occurred and the Trustee has received notice of the Default or Event of Default in accordance with this Indenture, the Trustee must
give each registered Holder of applicable Notes a notice of the Default or Event of Default within 90 days after receipt of the notice.
However, the Trustee need not give notice if the Default or Event of Default:


 


(a)
has been cured or waived; or


 


(b)
is not in the payment or delivery of any amounts due (including upon conversion or redemption) with respect to any Note and the Trustee
in good faith determines that withholding the notice is in the best interests of Holders.


 


Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.


 


Section
5.14 Waiver of Stay or Extension Laws.


 


Each
of the Company and any other obligors upon the Notes 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 each of the Company and
any such obligor (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.


 


Section
5.15 Undertaking for Costs.


 


All
parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any
Note on or after the respective Stated Maturities expressed in such Note (or, in the case of redemption, on or after the Redemption Date).


 






    -25-


     


    

 


ARTICLE
VI

THE TRUSTEE


 


Section
6.01 Certain Duties and Responsibilities.


 


(a)
Except during the continuance of an Event of Default,


 


(i)
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and


 


(ii)
in the absence of bad faith on its part, as determined in a final and non-appealable decision of a court of competent jurisdiction, 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, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this
Indenture, but not to verify the contents thereof.


 


(b)
In case an Event of Default has occurred and is continuing of which written notice of such Event of Default shall have been given to
the Trustee by the Company, any other obligor of the Notes or by any Holder, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s 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 paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 6.01;


 


(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 in a
final and non-appealable decision of a court of competent jurisdiction 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 aggregate principal amount of the Outstanding Notes 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;
and


 


(iv)
no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial
or otherwise, 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)
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section 6.01.


 


(e)
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.


 


(f)
The Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default or fact or event which might require the
Trustee to take any action or give any notice unless a Responsible Officer of the Trustee has received written notice from the Company,
any other obligor of the Notes or any Holder of the description and circumstances constituting such Default or Event of Default and stating
that such notice is a notice of Default or Event of Default.


 


(g)
The Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article
Ten. Delivery of reports, information and documents to the Trustee is for information purposes only and the receipt by the Trustee
of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder, as to which the Trustee is entitled to conclusively
rely on Officers’ Certificates.


 


(h)
Any permissive right or authority granted to the Trustee shall not be construed as a mandatory duty.


 






    -26-


     


    

 


Section
6.02 Notice of Defaults.


 


Within
90 days after the receipt of written notice from the Company, any other obligor of the Notes or any Holder of the occurrence of any Default
or Event of Default hereunder, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), mail notice
of such Default or Event of Default hereunder known to the Trustee, unless such Default or Event of Default shall have been cured or
waived or, is not in the payment or delivery of any amounts due (including upon conversion) with respect to any Note and the Trustee
in good faith determines that withholding notice is in the best interests of the Holders. In addition, the Trustee shall have no obligation
to accelerate the Notes if in the judgment of the Trustee acceleration is not in the interest of the Holders of such Notes.


 


Section
6.03 Certain Rights of Trustee.


 


(a)
If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.


 


(b)
Subject to the provisions of TIA Sections 315(a) through 315(d):


 


(i)
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 (whether in original or facsimile form) believed by it to be genuine and to have been signed or presented
by the proper party or parties;


 


(ii)
any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;


 


(iii)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate or an Opinion of Counsel, or both;


 


(iv)
the Trustee may consult with counsel of its selection and any 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;


 


(v)
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 security or indemnity satisfactory
to it against the costs, expenses, losses and liabilities which might be incurred by it in compliance with such request or direction;


 


(vi)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or investigation;


 






    -27-


     


    

 


(vii)
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


 


(viii)
the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture; provided that the Trustee’s conduct does not constitute
negligence or willful misconduct.


 


(c)
The Trustee shall not be required to expend or risk its own funds or otherwise incur any liability, financial or otherwise, 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)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder; provided that (i) an Agent, an agent, custodian or other Person employed to act hereunder shall only be liable
to extent of its gross negligence or willful misconduct; and (ii) in and during an Event of Default, only the Trustee, and not any Agent,
agent, custodian or other Person employed to act hereunder shall be subject to the prudent person standard.


 


(e)
In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.


 


(f)
The Trustee may make a written request that the Company deliver to the Trustee within five Business Days a certificate setting forth
the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture.


 


(g)
Unless otherwise required by applicable law, the Trustee shall not have any duty (1) to see to any recording, filing or depositing
of this Indenture or any Indenture referred to herein, or see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof or (2) to see to any insurance.


 


(h)
Unless otherwise required by applicable law, the Trustee shall not be required to give any bond or surety in respect of the execution
of the powers granted hereunder.


 






    -28-


     


    

 


Section
6.04 Trustee Not Responsible for Recitals or Issuance
of Notes.


 


The
recitals contained herein and in the Notes, except for the Trustee’s certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Notes and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Notes or the proceeds thereof.


 


Section
6.05 May Hold Notes.


 


The
Trustee, any Paying Agent, any Note Registrar, any Authenticating Agent or any other Agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar, Authenticating Agent or such other
Agent; provided, however, that, if it acquires any conflicting interest, it must eliminate such conflict within 90 days,
apply to the Commission for permission to continue, or resign.


 


Section
6.06 Money Held In Trust.


 


All
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust hereunder for the purposes for which
they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.


 


Section
6.07 Compensation and Reimbursement.


 


(a)
The Company agrees to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Company and
the Trustee 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)
The Company agrees, 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, professional advisers and counsel and costs and expenses of collection),
except any such expense, disbursement or advance as may be attributable to its willful misconduct or negligence, as determined in a final
and non-appealable decision of a court of competent jurisdiction; and


 


(c)
The Company agrees to indemnify each of the Trustee or any predecessor Trustee (and their respective directors, officers, employees and
agents) for, and to hold it harmless against, any and all loss, damage, claim, obligation, injury (to person, property, or natural resource),
penalty, suits, judgments, liability or expense, including taxes (other than taxes based on the income of the Trustee) incurred without
willful misconduct or negligence on its part, as determined in a final and non-appealable decision of a court of competent jurisdiction,
arising out of or in connection with the acceptance or administration of this Indenture, the Notes or the trust created hereby, including
the reasonable costs and expenses of defending itself against any claim, the costs and expenses of enforcing this Indenture, including,
without limitation, the indemnification provided herein (regardless of whether such claim is asserted by the Company, a Holder or any
other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.


 






    -29-


     


    

 


The
obligations of the Company under this Section 6.07 to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Company, the Trustee shall have
a lien prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment
of principal of or interest on particular Notes.


 


When
the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(d) or (e),
the expenses (including the reasonable charges and expenses of its counsel) of and the compensation for such services are intended to
constitute expenses of administration under any applicable Bankruptcy Law.


 


The
provisions of this Section 6.07 shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee.


 


Section
6.08 Corporate Trustee Required; Eligibility.


 


There
shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a), and which shall have together
with its affiliates a combined capital and surplus of at least $50,000,000 (or in the case of a corporation included in a bank holding
company system, the related bank holding company shall have a combined capital and surplus of at least $50,000,000). If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this Section 6.08, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.08, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.


 


Section
6.09 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 this Section 6.09.


 


(b)
The Trustee may resign at any time by giving written notice thereof to the Company. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee and, upon acceptance by the successor trustee of such appointment, release the resigning Trustee
from its obligations hereunder by written instrument executed by authority of the Board of Directors of the Company, a copy of which
shall be delivered to the resigning Trustee and a copy to the successor trustee. If an instrument of acceptance required by this Section
6.09 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee
may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee.


 


(c)
The Trustee may be removed at any time by Act of the Holders of not less than a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.


 






    -30-


     


    

 


(d)
If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of
such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Notes of such series.


 


(e)
If at any time:


 


(i)
the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any Holder
who has been a bona fide Holder for at least six months, or


 


(ii)
the Trustee shall cease to be eligible under Section 6.08 and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder for at least six months, or


 


(iii)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a Custodian 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, (i) the Company, by a Board Resolution, may remove the Trustee,
or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder 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 and the appointment of
a successor Trustee.


 


(f)
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,
the Company, by a Board Resolution of the Board of Directors of the Company, shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder 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.


 


(g)
The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to the
Holders in the manner provided for in Section 1.06. Each notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.


 






    -31-


     


    

 


Section
6.10 Acceptance of Appointment by Successor.


 


Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of all 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. 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.


 


No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.


 


Section
6.11 Merger, Conversion, Consolidation or Succession
to Business.


 


Any
corporation or national association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
or national association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
or national association succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation or national association shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes. In case at that time any of the Notes shall not have been authenticated, any successor Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.


 


ARTICLE
VII

HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY


 


Section
7.01 Company to Furnish Trustee Names and Addresses.


 


The
Company will furnish or cause to be furnished to the Trustee


 


(a)
semi-annually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and


 


(b)
at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any such request,
a list of similar form and content to that in paragraph (a) hereof 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 Note Registrar, no such list need be furnished.


 


Section
7.02 Disclosure of Names and Addresses of Holders.


 


Every
Holder, by receiving and holding Notes, agrees with the Company and the Trustee that none of the Company or the Trustee or 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 TIA Section 312, 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 TIA Section 312(b).


 


Section
7.03 Reports by Trustee.


 


Within
60 days after February 15 of each year commencing with February 15, 2023, the Trustee shall transmit to the Holders, in the manner and
to the extent provided in TIA Section 313(c), a brief report dated as of such reporting date if required by TIA Section 313(a).






    -32-


     


    

 


ARTICLE
VIII

[RESERVED]


 


ARTICLE
IX

SUPPLEMENTS AND AMENDMENTS TO INDENTURE


 


Section
9.01 Supplemental Indentures Without Consent of Holders.


 


Without
notice to or the consent of any Holder, the Company may, with the consent of the Trustee, at any time and from time to time, amend or
supplement this Indenture or the Notes, in form satisfactory to the Trustee, for any of the following purposes to:


 


(a)
evidence the assumption of its obligations under the Indenture and the Notes by a successor upon its consolidation or merger or the sale,
transfer, lease, conveyance or other disposition of all of or substantially all of its property or assets in accordance with the Indenture;


 


(b)
make adjustments in accordance with this Indenture to the right to convert the Notes upon certain reclassifications in its Common Stock
and certain consolidations, mergers, and binding share exchanges involving the Company and upon the sale, transfer, lease, conveyance
or other disposition of all or substantially all of its property or assets;


 


(c)
add guarantees with respect to, or secure its obligations in respect of, the Notes;


 


(d)
add to its covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company;


 


(e)
cure any ambiguity, defect, omission or inconsistency in this Indenture;


 


(f)
comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture
Act as in effect on the date on which this Indenture is qualified thereunder;


 


(g)
to pay interest in accordance with the terms of this Indenture;


 


(h)
make any change that does not adversely affect the rights of any Holder, subject to the provisions of this Indenture;


 


(i)
provide for the appointment of a successor Trustee, Note Registrar, Paying Agent, or Conversion Agent;


 


(j)
comply with the rules of any applicable securities depositary in a manner that does not adversely affect the rights of any Holder; or


 


(k)
to conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Prospectus to the extent
that such provision in the “Description of the Notes” was intended (as evidenced by an Officers’ Certificate of the
Company) to be a verbatim recitation of a provision of this Indenture or the Notes.


 


Section
9.02 Supplemental Indentures With Consent of Holders.


 


With
the written consent of the Holders of at least a majority in aggregate principal amount of the Outstanding Notes delivered to the Company
and the Trustee (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), the
Company and the Trustee may amend or supplement this Indenture or the Notes for the purpose of adding any provisions hereto or thereto,
changing in any manner or eliminating any of the provisions hereunder or thereunder or of modifying in any manner the rights of the Holders
hereunder or thereunder and any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes
may be waived with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes, other
than Notes beneficially owned by the Company or its affiliates; provided, however, that no such amendment, supplement or waiver shall,
without the consent of the Holder of each Outstanding Note affected thereby (with respect to any Notes held by a nonconsenting Holder):


 


(a)
change the stated maturity of the principal of, or the payment date of any installment of interest on, or any additional amounts with
respect to, any Note;


 


(b)
reduce the principal amount of, or any interest on, any Note;


 






    -33-


     


    

 


(c)
change the manner, consideration or currency of payment of principal of, or any interest on, any Note;


 


(d)
modify, in a manner adverse to the Holders, the provisions of this Indenture relating to the Redemption Price or the Company’s
obligation to pay the Redemption Price when due;


 


(e)
impair the right to institute a suit for the enforcement of any payment on, or with respect to, or of the conversion of, any Note;


 


(f)
modify the ranking provisions of this Indenture, relative to other indebtedness of the Company in a manner adverse to the Holders;


 


(g)
reduce the percentage in aggregate principal amount of Outstanding Notes whose Holders must consent to a modification or amendment of
this Indenture or the Notes;


 


(h)
reduce the percentage in aggregate principal amount of Outstanding Notes whose Holders must consent to a waiver of compliance with any
provision of this Indenture or the Notes or a waiver of any Default or Event of Default;


 


(i)
modify the provisions of this Indenture with respect to modification and waiver (including waiver of a Default or Event of Default),
except to increase the percentage required for modification or waiver or to provide for the consent of each affected Holder; or


 


(j)
impair or adversely affect the right of a holder to convert any Exchange Note into shares of Common Stock or reduce the Conversion Rate,
except as permitted pursuant to this Indenture.


 


It
shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.


 


Section
9.03 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 receive, and shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel, each stating that the execution of such supplemental indenture is authorized or permitted by this
Indenture and, with respect to such Opinion of Counsel, that such amended or supplemental indenture is a valid and binding obligation
of the Company, enforceable against it in accordance with its terms (subject to customary conditions). The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties, privileges, protections,
indemnities or immunities under this Indenture or otherwise.


 


Section
9.04 Effect of Supplemental Indentures.


 


Upon
the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby (except as provided in Section 9.02).


 


Section
9.05 Conformity with Trust Indenture Act.


 


Every
supplemental indenture executed pursuant to the Article shall conform to the requirements of the Trust Indenture Act as then in effect.


 






    -34-


     


    

 


Section
9.06 Reference in Notes to Supplemental Indentures.


 


Notes
authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form satisfactory to the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Notes 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, upon receipt of a Company Order
in exchange for Outstanding Notes.


 


Failure
to make the appropriate notation or issue a new Note in accordance with this Section will not affect the validity and effect of such
supplemental indenture.


 


Section
9.07 Notice of Supplemental Indentures.


 


Promptly
after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 9.02, the
Company shall give notice thereof to the Holders of each Outstanding Note affected, in the manner provided for in Section 1.06, setting
forth in general terms the substance of such supplemental indenture.




 


ARTICLE
X

COVENANTS


 


Section
10.01 Payment of Principal and Interest.


 


The
Company covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal of and interest on the
Notes in accordance with the terms of the Notes and this Indenture.


 


Subject
to Article XI (Redemption or Repurchase of Notes), during each calendar year, commencing with 2023,
the Company shall permanently discharge and retire an aggregate principal amount of Notes equal to at least 10% of the initial aggregate
principal amount of Notes issued at the closing of the Exchange Offer, through a mandatory redemption from holders at a redemption price
of 102% of the principal amount thereof, purchases in the open market at then prevailing market prices (followed in each instance by
retirement of such purchased Notes), or a combination of the foregoing (such covenant, the “Redemption Covenant”).
Holders of the Notes will not have the option to have the Notes repaid prior to the stated maturity except as contemplated above.
 Principal shall be considered paid on the date it is due if the Trustee or Paying Agent holds, for the benefit of the Holders,
as of 10:00 a.m., New York City time on that date U.S. legal tender designated for and sufficient to pay such principal or interest then
due. Interest on the Notes will be payable semi-annually on January 31 and July 31 of each year, starting on July 1, 2023, to Holders
of record at the close of business on the preceding January 1 and July 1, respectively. Interest shall accrue on the Notes at a rate
of 6.0% per annum. Interest will accrue on the Notes from and including the Issuance Date or from, and including, the last date in respect
of which interest has been paid or provided for, as the case may be, to, but excluding, the next Interest Payment Date or the Maturity
Date, as the case may be. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months, until the principal
thereof is paid or duly provided for.


 


Section
10.02 Maintenance of Office or Agency.


 


The
Company will maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange, where the Notes
may be presented for payment or conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The designated office of the Trustee shall be such office or agency of the Company, unless the Company shall designate
and maintain some other office or agency for one or more of such purposes. The Company will give prompt written notice to the Trustee
of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its Agent to receive all such
presentations, surrenders, notices and demands.


 


The
Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.


 


Section
10.03 Money for Note Payments to be Held In Trust.


 


If
the Company shall at any time make cash payments in respect of principal of or interest, if any, on any of the Notes, and the Company
at such time is acting as its own Paying Agent, the Company shall segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay in cash the principal of or interest so becoming due until such sums shall be paid in cash to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure to so act.






    -35-


     


    

 


Whenever the Company makes cash
payments in respect of principal of or interest, if any, on any of the Notes, and at such time has appointed one or more Paying Agents
for the Notes, the Company will, on or before each due date of the principal of or interest on any Notes, deposit with a Paying Agent
a sum in same day funds (or New York Clearing House funds if such deposit is made prior to the date on which such deposit is required
to be made) sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled
to such principal or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of such action
or any failure to so act.


 


The Company will cause each
Paying Agent (other than the Trustee) to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will:


 


(a) hold all sums held by it
for the payment of the principal of or interest on Notes 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 Notes) in the making of any payment of principal or interest; 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
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
sums.


 


Any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or interest on any Note and remaining
unclaimed for two years after such principal 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 Note 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 to the Company, may at the written request and 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.


 






    -36-


     


    

 


Section 10.04 Corporate Existence.


 


The Company will do or cause
to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate rights (charter
and statutory) licenses and franchises of the Company, except to the extent that the failure to be so qualified could not reasonably be
expected to have a material adverse effect; provided, however, that the Company shall not be required to preserve any such existence (except
that of the Company), right, license or franchise if the Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that the loss thereof is not, and will not be, disadvantageous
in any material respect to the Holders.


 


Section 10.05 Payment of
Taxes and Other Claims.


 


The Company will pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary
prior to the date on which material penalties attach thereto and (b) all lawful claims for labor, materials and supplies, which,
if unpaid, might by law become a material liability or lien upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate accruals, if necessary
(in the good faith judgment of management of the Company) are being maintained in accordance with GAAP.


 


Section 10.06 Maintenance
of Properties.


 


The Company will cause all material
properties owned by the Company or used or held for use in the conduct of its business to be maintained and kept in normal condition,
repair and working order, ordinary wear and tear excepted, and will cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith
may be properly conducted at all times, except to the extent the failure to so maintain and preserve or so comply could not reasonably
be expected to have a material adverse effect; provided, however, that nothing in this Section 10.06 shall prevent the Company from discontinuing
the maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business
and not adverse in any material respect to the Holders.


 


Section 10.07 Compliance
with Laws.


 


The Company shall comply with
all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof,
and of any governmental regulatory authority, in respect of the conduct of their respective businesses and the ownership of their respective
properties, except such as may be contested in good faith or as to which a bona fide dispute may exist and except for such non-compliances
as would not in the aggregate have a material adverse effect on the financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.


 






    -37-


     


    

 


Section 10.08 Notices to
the Trustee


 


(a) The Company shall provide
prompt written notice to the Trustee of any change to its fiscal year, which as of the date hereof ends on December 31.


 


(b) When any Default has occurred
and is continuing under this Indenture, or if the trustee for or the holder of any other evidence of indebtedness of the Company or any
Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to indebtedness in the
principal amount of less than $5.0 million), the Company shall notify the Trustee in writing of such event, notice or other action within
five Business Days of its occurrence. The Company shall furnish to the Trustee, not less than annually, an Officers’ Certificate
certifying that, to the knowledge of the Company, it is in compliance with all conditions and covenants under the Indenture.


 


Section 10.09 Commission
Reports and Reports to Holders.


 


The Company will deliver to
the Trustee (without exhibits), within 15 days after it is required to file them with the Commission copies of: (A) annual reports
on Form 10-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor
or comparable form); (B) reports on Form 10-Q (or any successor or comparable form); (C) reports on Form 8-K (or any successor
or comparable form); and (D) any other information, documents and other reports which the Company would be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act; provided, however, if the Company is not obligated to file such reports
with the Commission or if the Commission does not permit such filing, the Company shall make available such information to prospective
purchasers of the Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15
days after the time the Company would have been required to file such information with the Commission, if it were subject to Sections
13 or 15(d) of the Exchange Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only
and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee
is entitled to conclusively rely exclusively on Officers’ Certificates). The Company shall be deemed to have furnished the reports,
documents and information referred to above to the Trustee, the Holders and/or the prospective purchasers of the Notes, if the Company
has filed such reports, documents or information with the Commission via the EDGAR filing system (or any successor system) and/or posted
such reports, documents or information on the Company’s website and such reports, documents and information are publicly available.
Without limiting the effect of the preceding sentence, the Trustee shall have no obligation to monitor whether the Company posts such
reports, information and documents on the Company’s website or the Commission’s EDGAR service, or to collect any such information
from the Company’s website or the Commission’s EDGAR service. The Trustee shall have no liability or responsibility for the
content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated
hereunder.


 


ARTICLE
XI

REDEMPTION OR REPURCHASE OF NOTES


 


Section 11.01 Redemption;
Open Market Purchases.


 


(a) The Company will have the
option, as set forth in Section 10.01, to redeem Notes from holders.


 


(b) The Company shall be entitled
at its option at any time and from time to time to purchase the Notes in the open market or otherwise


 






    -38-


     


    

 


Section 11.02 Applicability
of Article.


 


Redemption of Notes at the election
of the Company shall be made in accordance with this Article.


 


Section 11.03 Election to
Redeem; Notice to Trustee.


 


The election of the Company
to redeem any Notes pursuant to Section 11.01 shall be evidenced by a Board Resolution of the Board of Directors of the Company.
In case of any redemption at the election of the Company, the Company shall, at least 3 Business Days prior to the date notice is required
to be sent to Holders (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date, the paragraph of the Notes or Section of this Indenture pursuant to which the Notes are to be redeemed, and of the principal amount
of Notes to be redeemed.


 


Section 11.04 Notice of Redemption.


 


At least 30 days but not more
than 60 days before a Redemption Date as contemplated in Section 11.01(a), the Company shall send to the Trustee and the Depository
in the case of Global Notes a notice of redemption. Notwithstanding anything in this Section 11.04 to the contrary, to the extent these
procedures conflict with procedures of the Depository, the procedures of the Depository shall supersede the procedures set forth herein.


 


All notices of redemption shall
be prepared by the Company and shall state:


 


(a) the Redemption Date,


 


(b) the Redemption Price payable
as provided in Section 11.06, if any,


 


(c) if less than all Outstanding
Notes are to be redeemed, the identification (and, in the case of a partial redemption, the principal amounts) of the particular Notes
to be redeemed,


 


(d) in case any Note is to be
redeemed in part only, the notice which relates to such Note shall state that on and after the Redemption Date, upon surrender of such
Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount thereof remaining
unredeemed,


 


(e) that on the Redemption Date
the Redemption Price will become due and payable upon each such Note, or the portion thereof, to be redeemed, and, unless the Company
defaults in making the redemption payment, that interest on Notes called for redemption (or the portion thereof) will cease to accrue
on and after said date,


 


(f) the place or places where
such Notes are to be surrendered for payment of the Redemption Price and accrued interest, if any,


 






    -39-


     


    

 


(g) the name and address of
the Paying Agent,


 


(h) that Notes called for redemption
must be surrendered to the Paying Agent to collect the Redemption Price,


 


(i) the CUSIP number, and that
no representation is made as to the accuracy or correctness of the CUSIP number, if any, listed in such notice or printed on the Notes,


 


(j) the paragraph of the Notes
or Section of this Indenture pursuant to which the Notes are to be redeemed, and


 


(k) whether the redemption of
Notes is subject to any conditions precedent and, if subject to any conditions precedent, a description of such conditions.


 


At the Company’s request,
the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has
delivered to the Trustee, at least five (5) Business Days (or such shorter period as shall be acceptable to the Trustee) prior to when
the Notice of Redemption is given to Holders, an Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding paragraph.


 


Section 11.05 Deposit of Redemption
Price.


 


If the Company elects to pay
the Redemption Price in cash, then prior to 10:00 a.m. (New York City time) on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section
10.03) an amount of money sufficient to pay the Redemption Price of, and accrued interest on, all the Notes which are to be redeemed on
that date.


 


If the Redemption Date falls
after a Record Date and on or prior to the corresponding Interest Payment Date, the Company will pay the full amount of accrued and unpaid
interest due on such Interest Payment Date to the Holder of record at the close of business on the corresponding Regular Record Date.
On and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption as long as the
Company has deposited with the Paying Agent funds in full satisfaction of the applicable Redemption Price, pursuant to this Indenture.


 


Section 11.06 Notes Payable
on Redemption Date.


 


Notice of redemption having
been given as aforesaid, the Notes 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) such Notes shall cease
to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company
at the Redemption Price, and such Notes shall be cancelled by the Trustee; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes or one or more predecessor Notes registered
as such at the close of business on the relevant Regular Record Date according to their terms and the provisions of Section 3.07.


 


If any Note called for redemption
shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at
the rate borne by the Notes.


 






    -40-


     


    

 


Section 11.07 Selection of Notes
to be Redeemed.


 


If less than all of the Notes
are to be redeemed at any time, the Notes shall be redeemed in compliance with Nasdaq requirements
or in accordance with the policies and procedures of the Depository (i.e. pro rata through a randomization method). For the avoidance
of doubt, the Company will not be able to identify which Notes will be redeemed prior to maturity.


 


Section 11.08 Notes Redeemed
in Part.


 


Any Note which is to be redeemed
only in part (pursuant to the provision of this Article) shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 10.01 (with, if the Company or the Trustee so require, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, 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 Note so surrendered.


 


ARTICLE
XII

SUBORDINATION


 


Section 12.01 Agreement to
Subordinate.


 


The Company, for itself, its
successors and assigns, covenants and agrees, and each Holder of a Note likewise covenants and agrees by its acceptance thereof, that
the obligation of the Company to make any payment on account of the principal and interest on each and all of the Notes shall be subordinate
and junior in right of payment to the Company’s Obligations to the holders of Senior Indebtedness to the extent provided herein,
and that in the case of any insolvency, receivership, conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or any liquidation or winding-up of or relating to the Company as a whole, whether voluntary or involuntary,
all Obligations to holders of Senior Indebtedness shall be entitled to be paid in full before any payment shall be made on account of
the principal or interest on the Notes. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness, the Holders of the Notes, together with the holders of any Obligations of the Company Ranking on a Parity with the Notes,
shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal
and interest on the Notes before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of
any capital stock or any Obligations of the Company Ranking Junior to the Notes. In addition, subject to the provisions of Section
12.03, in the event of any such proceeding, if any payment or distribution of assets of the Company of any kind or character, whether
in cash, property or Notes, including any such payment or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the Notes, shall be received by the Trustee or any Holder of
the Notes before all Senior Indebtedness is paid in full and if such Holder or the Trustee, as the case may be, receiving such payment
is aware at the time of receipt that all Senior Indebtedness has not been paid in full, then such payment or distribution shall, if received
by any Holder, be held in trust for the benefit of the holders of Senior Indebtedness or, if received by the Trustee, shall be held by
it and delivered forthwith to the trustee in bankruptcy, receiver, assignee, agent or other Person making payment or distribution of the
assets of the Company, and, in each case, shall be applied to the payment of all Senior Indebtedness remaining unpaid, until all such
Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness. For purposes of this paragraph only, the words, “cash, property or Notes” shall not be deemed to include
shares of capital stock of the Company, or indebtedness of the Company or any other company provided for by a plan of reorganization or
readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially
the same extent as, or to a greater extent than, the Notes are so subordinated as provided in this Article 12. For the avoidance
of doubt, the foregoing provisions relating to the preference of the Senior Indebtedness shall not be affected by the conversion of the
Notes into shares of Common Stock of the Company.


 


The subordination provisions
of the foregoing paragraph shall not be applicable to amounts at the time due and owing on the Notes on account of the unpaid principal
or interest on the Notes for the payment of which funds have been deposited in trust with the Trustee or have been set aside by the Company
in trust in accordance with the provisions of this Indenture; nor shall such provisions impair any rights, interests, remedies or powers
of any secured creditor of the Company in respect of any security the creation of which is not prohibited by the provisions of this Indenture.


 






    -41-


     


    

 


If there shall have occurred
and be continuing (a) a default in any payment with respect to any Senior Indebtedness or (b) an event of default with respect
to any Senior Indebtedness as a result of which the maturity thereof is accelerated, unless and until such payment default or event of
default shall have been cured or waived or shall have ceased to exist, no cash payments shall be made by the Company with respect to the
principal or interest on the Notes. The provisions of this paragraph shall not apply to any payment with respect to which the first paragraph
of this Section 12.01 would be applicable.


 


The securing of any Obligations
of the Company Ranking on a Parity with the Notes or Ranking Junior to the Notes shall not be deemed to prevent such Obligations from
constituting Obligations of the Company Ranking on a Parity with the Notes or Ranking Junior to the Notes.


 


The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this
Section 12.01.


 


Section 12.02 Obligation
of the Company Unconditional.


 


Nothing contained in this Article
12 or elsewhere in this Indenture is intended to or shall impair, as between the Company and the Holders of the Notes, the obligation
of the Company, which is absolute and unconditional, to pay the Holders of the Notes the principal and interest on the Notes when, where
and as the same shall become due and payable, all in accordance with the terms of the Notes and this Indenture, or is intended to or shall
affect the relative rights of the Holders of the Notes and creditors other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Note from exercising all remedies otherwise permitted by applicable law upon
an Event of Default under this Indenture, subject to the rights, if any, under this Article 12 of the holders of Senior Indebtedness
in respect of cash, property, or securities of the Company (other than shares of the Company’s Common Stock issued upon conversion
of the Notes as contemplated herein) received upon the exercise of any such remedy.


 


Section 12.03 Notice to Trustee
of Facts Prohibiting Payment.


 


The Company shall give prompt
written notice to a Responsible Officer of the Trustee located at the Corporate Trust Office of the Trustee of any fact known to the
Company which would prohibit the making of any cash payment to or by the Trustee in respect of the Notes. Notwithstanding the provisions
of this Article 12 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Notes, unless and until the Trustee
shall have received at its Corporate Trust Office written notice thereof from the Company or a holder of Senior Indebtedness or from
any trustee therefor, and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01,
shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section 12.03 at least five Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without limitation, the payment of the principal or interest on any Notes),
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which
may be received by it during or after such five Business Day period.


 






    -42-


     


    

 


Subject to the provisions of
Section 6.01, the Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing
itself to be a holder of Senior Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article
12, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness 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 12, and if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of such Person to receive such payment.


 


Section 12.04 Application
by Trustee of Moneys Deposited With It.


 


Anything in this Indenture to
the contrary notwithstanding, any deposit of moneys by the Company with the Trustee or any other Agent (whether or not in trust) for any
payment of the principal or interest on any Notes shall, except as provided in Section 12.03, be subject to the provisions of Section
12.01.


 


Section 12.05 Subrogation
to Rights of Holders of Senior Indebtedness.


 


Subject to the payment in full
of all Senior Indebtedness, the Holders of the Notes shall be subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Company applicable to such Senior Indebtedness until the principal and interest on the Notes
shall be paid in full. For purposes of such subrogation, none of the payments or distributions to the holders of the Senior Indebtedness
to which the Holders of the Notes or the Trustee would be entitled except for the provisions of this Article 12, or of payments
over pursuant to the provisions of this Article 12 to the holders of Senior Indebtedness by Holders of the Notes or the Trustee
shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness; it being understood that the provisions of this Article 12
are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes, on the one hand, and the holders
of the Senior Indebtedness, on the other hand.


 


Section 12.06 Subordination
Rights Not Impaired by Acts or Omissions of Company or Holders of Senior Indebtedness.


 


No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or any act or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof with which any such holder
may have or be otherwise charged.


 


Section 12.07 Authorization
of Trustee to Effectuate Subordination of Notes.


 


Each Holder of a Note, by its
acceptance thereof, authorizes and expressly directs the Trustee on its behalf to take such actions as may be necessary or appropriate
to effectuate the subordination provided in this Article 12 and appoints the Trustee its attorney-in-fact for any and all such
purposes.


 


If, in the event of any proceeding
or other action relating to the Company referred to in the first sentence of Section 12.01, a proper claim or proof of debt in
the form required in such proceeding or action is not filed by or on behalf of the Holders of the Notes prior to fifteen days before
the expiration of the time to file such claim or claims, then the holder or holders of Senior Indebtedness shall have the right to file
and are hereby authorized to file appropriate claim for and on behalf of the Holders of the Notes; provided, that no such filing
by any holders of Senior Indebtedness shall preclude the Trustee from filing such a proof of claim on behalf of the Holders of Notes.


 






    -43-


     


    

 


Section 12.08 [Reserved]


 


Section 12.09 Right of Trustee
to Hold Senior Indebtedness.


 


The Trustee in its individual
capacity shall be entitled to all of the rights set forth in this Article 12 in respect of any Senior Indebtedness at any time
held by it in its individual capacity to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in this Article shall subordinate to Senior Indebtedness
the claims of, or any payments to, the Trustee under Section 6.07.


 


Section 12.10 Not to Prevent
Events of Default.


 


The failure to make a payment
pursuant to the Notes by reason of any provision in this Article 12 shall not be construed as preventing the occurrence of a default
or an Event of Default.


 


Section 12.11 Article Applicable
to Paying Agents.


 


In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as
used in this Article 12 shall in such case (unless the content otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition
to or in place of the Trustee; provided, however, that Section 12.09 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.


 


Section 12.12 Reliance on
Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or distribution
of assets of the Company referred to in this Article 12, the Trustee, subject to the provisions of Section 6.01, and the Holders of the
Notes shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of Notes for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article
12.


 


Section 12.13 Trustee Not Fiduciary
for Holders of Senior Indebtedness.


 


The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Notes or to the Company or to any other Person, cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article 12 or otherwise.


 






    -44-


     


    

 


Section 12.14 Payment Permitted
if No Default.


 


Nothing contained in this Article
12 or elsewhere in this Indenture or in any of the Notes shall prevent the Company, at any time except during the case of any insolvency,
receivership, conservatorship, reorganization, readjustment or debt, marshalling of assets and liabilities or similar proceedings or any
liquidation or winding-up of or relating to the Company referred to in Section 12.01 or as provided in the third paragraph of Section
12.01, and except as required by any regulatory enforcement action of any governmental body relating to the Company, from making payments
at any time of principal or interest on the Notes.


 


Section 12.15 Third Party Beneficiaries.


 


The subordination provisions
in this Article 12 are for the benefit of the holders of the Senior Indebtedness, and the holders of the Senior Indebtedness shall
be deemed to be third party beneficiaries of the provisions in this Article 12.


 


ARTICLE
XIII

MISCELLANEOUS PROVISIONS


 


Section 13.01 Provisions
Binding on Company’s Successors.


 


All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether so expressed or not.


 


Section 13.02 Official Acts
By Successor Corporation.


 


Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and
may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall
at the time be the lawful sole successor of the Company.


 


Section 13.03 Addresses for
Notices, Etc.


 


Any notice or demand that by
any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the Company shall be
deemed to have been sufficiently given or made, for all purposes if given or served by overnight courier or by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the
Trustee) to 2529 Virginia Beach Blvd., Virginia Beach, VA 23452. Any notice, direction, request or demand hereunder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed to the Corporate Trust Office of the Trustee or sent electronically in PDF format.


 


The Trustee, by notice to the
Company, may designate an additional or different address for subsequent notices or communications.


 


Any notice or communication
delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the Applicable Procedures of the depositary
and shall be sufficiently given to it if so delivered within the time prescribed. Notwithstanding any other provision of this Indenture
or any Note, where this Indenture or any Note provides for notice of any event to a Holder of a Global Note (whether by mail or otherwise),
such notice shall be sufficiently given if given to the Depository (or its designee) pursuant to the standing instructions from the Depository
or its designee, including by electronic mail in accordance with the Depository’s Applicable Procedures.


 






    -45-


     


    

 


Failure to mail or deliver a
notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee
receives it.


 


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 to Holders by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.


 


Section 13.04 GOVERNING LAW;
CONSENT TO JURISDICTION AND SERVICE. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. THIS INDENTURE SHALL BE SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO BE PART OF THIS INDENTURE
AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.


 


(a) By the execution and delivery
of this Indenture, the Company submits to the non-exclusive jurisdiction of any U.S. Federal or state court located in the Borough of
Manhattan in the City of New York in any suit, action or proceeding arising out of or relating to this Indenture, the Notes, or the transactions
contemplated hereby. The Company agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture or the Notes shall affect
any right that the Trustee or any Holder may otherwise have to bring any suit, action or proceeding relating to this Indenture, the Notes
or the transactions contemplated hereby against the Company or its properties in the courts of any jurisdiction.


 


(b) The Company hereby irrevocably
and unconditionally waives to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture, the Notes, or the transactions
contemplated hereby in any court referred to in Section 13.04(a). The Company hereby irrevocably and unconditionally waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court.


 


(c) By the execution and delivery
of this Indenture, the Company (i) acknowledges that the Company has, by separate written instrument, irrevocably designated and
appointed Kaufman & Canoles, P.C., 150 W. Main Street, Suite 2100, Norfolk, VA 23510 (or any successor) (together with any successor,
the “Agent for Service”), as its authorized agent upon which process may be served in any suit, action or proceeding arising
out of or relating to this Indenture, the Notes or the transactions contemplated hereby that may be instituted in any U.S. Federal or
state court located in the Borough of Manhattan in the City of New York, or brought under U.S. Federal or state securities laws, and acknowledge
that the Agent for Service has accepted such designation and (ii) agrees that service of process upon the Agent for Service (or any
successor) and written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding. The Company further agrees to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such designation and appointment of the Agent for Service in full
force and effect until the final satisfaction and discharge of this Indenture.


 






    -46-


     


    

 


Section 13.05 Evidence
of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee.


 


Upon any application or demand
by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officers’ Certificate stating that such action is permitted by the terms of this Indenture.


 


Notwithstanding anything to
the contrary in this Section 13.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive
an Opinion of Counsel in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled
to, or entitled to request, such Opinion of Counsel.


 


Section 13.06 Legal
Holidays.


 


In any case where any Interest
Payment Date, any Redemption Date, Stated Maturity or Maturity of any Note shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of principal or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, or at the Stated Maturity
or Maturity; provided that no interest shall accrue for purposes of such payment for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be, to the next succeeding Business Day.


 


Section 13.07 No
Security Interest Created.


 


Nothing in this Indenture or
in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect, in any jurisdiction.


 


Section 13.08 Benefits
of Indenture.


 


Nothing in this Indenture or
in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying Agent, any Conversion
Agent, any Authenticating Agent, any Note Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy
or claim under this Indenture.


 






    -47-


     


    

 


Section 13.09 Table
of Contents, Heading, Etc.


 


The table of contents and the
titles and headings of the articles and sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 13.10 Execution
in Counterparts.


 


This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same
instrument. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic transmission shall constitute effective execution
and delivery of this Indenture as to the other parties hereto shall be deemed to be their original signatures for all purposes.


 


Section 13.11 Severability.


 


In the event any provision of
this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality
or enforceability of the remaining provisions shall not in any way be affected or impaired.


 


Section 13.12 Waiver
of Jury Trial.


 


EACH OF THE COMPANY AND THE
TRUSTEE, ON BEHALF OF ITSELF AND THE HOLDERS, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 13.13 Force
Majeure.


 


In no event shall the Trustee
be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemic, pandemic, disease, and interruptions, or loss
or malfunctions of utilities, or other causes reasonably beyond its control; it being understood that the Trustee shall use reasonable
efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.


 


Section 13.14 Calculations.


 


Except as otherwise provided
herein, the Company shall be responsible for making all calculations called for under the Notes and this Indenture. These calculations
include, but are not limited to, determinations of the Redemption Price, accrued interest payable on the Notes the Conversion Rate of
the Notes and calculations related to currency exchange rates and the Conversion Rate. The Company shall make all these calculations in
good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders. The Company shall provide
a schedule of its calculations to the Trustee, the Conversion Agent, the Paying Agent and the Trustee, the Paying Agent, the Note Registrar
and the Conversion Agent are entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification.
The Trustee shall forward the Company’s calculations to any Holder upon the written request of that Holder.


 






    -48-


     


    

 


Section 13.15 USA
PATRIOT ACT.


 


The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the
funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The Company agrees that it shall provide the Trustee with
such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.


 


Section 13.16 Currency
Conversion.


 


Payments of principal and interest
in respect of the Notes are payable in U.S. Dollars. If for the purposes of obtaining judgment in any court it is necessary to convert
a sum due under this Indenture to the Holder from U.S. dollars to another currency, the Company agrees, and each Holder by holding such
Note shall be deemed to have agreed, to the fullest extent that the Company and they may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures such Holder could purchase U.S. dollars with such other currency
in New York City, New York on the Business Day preceding the day on which final judgment is given. The Company’s Obligations to
any Holder will, notwithstanding any judgment in a currency (the “Judgment Currency”) other than U.S. dollars, be discharged
only to the extent that on the Business Day following receipt by such Holder or the Trustee, as the case may be, of any amount in such
Judgment Currency, such Holder may in accordance with normal banking procedures purchase U.S. dollars with the Judgment Currency.


 


If the amount of the U.S. dollars
so purchased is less than the amount originally to be paid to such Holder or the Trustee in the Judgment Currency (as determined in the
manner set forth in the preceding paragraph), as the case may be, the Company agrees, as a separate Obligation and notwithstanding any
such judgment, to indemnify the Holder and the Trustee, as the case may be, against any such loss. If the amount of the U.S. dollars so
purchased is more than the amount originally to be paid to such Holder or the Trustee, as the case may be, such Holder or the Trustee,
as the case may be, shall pay the Company such excess; provided that such Holder or the Trustee, as the case may be, shall not have any
Obligation to pay any such excess if the Company shall have failed to pay such Holder or the Trustee any amounts then due and payable
under such Note or this Indenture, in which case such excess may be applied by such Holder or the Trustee to such Obligations.


 






    -49-


     


    

 


Section 13.17 Anti-Money
Laundering.


 


Subject at all times to Article
6, the Trustee shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for
any other reason whatsoever, the Trustee, in its sole judgment, determines that such act might cause it to be in non-compliance with any
applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Trustee
in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in noncompliance with any applicable
anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to resign
in accordance with the requirements of Section 6.09.


 


Section 13.18 No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be used
to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


Section 13.19 Third
Party.


 


The Company hereby represents
to the Trustee that any account to be opened by, or interest to be held by, the Trustee in connection with this Indenture, for or to the
credit of the Company, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used
by or on behalf of a third party, in which case, the Company hereto agrees to complete and execute forthwith a declaration in the Trustee’s
prescribed form as to the particulars of such third party.


 


Section 13.20 Waiver
of Immunity.


 


To the extent that the Company
or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to the Company, any right
of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any
such legal action, suit or proceeding, from setoff or counterclaim, from the jurisdiction of New York state or U.S. federal court, from
service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any such court in which proceedings
may at any time be commenced, with respect to the obligations and liabilities of the Company, the Company hereby irrevocably and unconditionally
waives or shall waive such right to the extent permitted by applicable law, and agrees not to plead or claim any such immunity and consents
to such relief and enforcement.


 






    -50-


     


    

 


ARTICLE
XIV

CONVERSION


 


Section 14.01 Optional
Conversion.


 


The Notes are convertible, in
whole or in part, at any time, at the option of the Holders thereof, into shares of Common Stock at a conversion price of $12.50 per share
of Common Stock (the “Conversion Price”) (two (2) common shares for each $25.00 of principal amount of the Notes being converted
(the “Conversion Rate”)).


 


Section 14.02 Conversion
Procedures.


 


(a) No
fractional shares of Common Stock shall be issued upon conversion of any Note or Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of any fractional
share of Common Stock that would otherwise be issuable upon conversion of any Note or Notes (or specified portions thereof), the Company
shall calculate and pay a cash adjustment for the fractional amount (calculated to the nearest 1/100th of a share) based upon the applicable
Conversion Rate or deemed value as the case may be. The amount of the cash adjustment payable in lieu of issuing such fractional share
shall be equal to such fractional share otherwise issuable multiplied by the deemed value of one share of Common Stock.


 


(b) Upon
conversion, a Holder shall not receive any payment of an installment of interest for accrued and unpaid interest except as set forth below.
The delivery of shares of Common Stock payable and issuable upon such conversion in accordance with the Applicable Procedures (such delivery
of shares, the “Settlement”) shall be deemed to satisfy the Company’s obligation to pay the principal amount of the
Notes and accrued and unpaid interest to, but not including, the conversion date or the Maturity Date, as the case may be. As a result,
accrued and unpaid interest to, but not including, the conversion date shall be deemed to be paid in full rather than cancelled, extinguished
or forfeited. If Notes are converted after a Regular Record Date for the payment of an installment of interest, notwithstanding such prior
Regular Record Date, such interest shall be included in the calculation of the shares of the Company’s Common Stock to be issued
on the conversion date.


 


(c) Subject
to Section 14.02(d), before any Holder of a Note shall be entitled to convert a Note as set forth above in Section 14.01,
such Holder shall in the case of a Global Note, comply with the Applicable Procedures of the Depository and any transfer agent in effect
at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled,
and if the conversion occurs prior to the Common Stock being fully DTC FAST eligible, in addition to Depository’s standard procedures,
converting Holders shall need to provide the transfer agent with physical documentation, which forms shall be provided by the transfer
agent to the Holder (or its representative if directed by the Holder). The Trustee (and if different, the Conversion Agent) shall notify
the Company of any conversion pursuant to this Article 14 on the conversion date for such conversion.


 






    -51-


     


    

 


If more than one Note shall
be surrendered for conversion at one time by the same Holder, the Conversion Rate with respect to such Notes shall be computed on the
basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.


 


(d) If
a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issuance
of any Common Stock upon conversion, unless the tax is due because the Holder requests such Common Stock to be issued in a name other
than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient to
pay any tax that is due by such Holder in accordance with the immediately preceding sentence.


 


(e) Upon
the conversion of an interest in a Global Note, the Trustee, or the Notes Custodian at the direction of the Trustee, shall make a notation
on such Global Note or an adjustment on the Trustee’s books and records as to the reduction in the principal amount represented
thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the
Trustee.


 


Section 14.03 No
Responsibility of Trustee of Trustee for Conversion Provisions.


 


The Company is responsible for
all calculations under the Indenture and the Notes, including the determination of Conversion Rate, and the VWAPs of the Common Stock.
The Company shall make all such calculations in good faith. In the absence of manifest error, such calculations shall be final and binding
on all Holders. The Company shall provide a copy of such calculations to the Trustee and the Conversion Agent, as required hereunder,
and, the Trustee and the Conversion Agent shall be entitled to conclusively rely on the accuracy of any such calculation without independent
verification.


 


The Trustee shall not be under
any responsibility to perform any calculations under the Indenture. The Trustee makes no representation as to the validity or value of
any securities or assets issued upon conversion of the Notes, and the Trustee shall not be responsible for the Company’s failure
to comply with any provision of this Article 14. The Conversion Agent shall have the same protection under this Section 14.03
as the Trustee.


 


Neither the Trustee nor the
Conversion Agent shall at any time be under any duty or responsibility to any holder to determine the Conversion Rate (or any adjustment
thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein, in making the
same. Neither the Trustee nor the Conversion Agent shall be accountable with respect to the validity or value (or the kind or amount)
of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion
of any Note; and the Trustee and the Conversion Agent make no representations with respect thereto. Neither the Trustee nor the Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates
or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor the Conversion Agent shall be under any responsibility to determine the correctness of amount of shares of stock or securities
or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to herein or to any adjustment
to be made with respect thereto, but, may accept (without any independent investigation) as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, the Officers’ Certificate with respect thereto. Neither the Trustee
nor the Conversion Agent shall be responsible for determining whether any event has occurred that makes the Notes eligible for conversion
or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices with respect to the
commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and
the Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event
or at such other times as shall be provided for in this Indenture.


 






    -52-


     


    

 


Section 14.04 Adjustment
of Conversion Rates.


 


The applicable Conversion Rate
shall be adjusted from time to time by the Company as follows:


 


(a) In
case the Company shall hereafter pay a dividend or make a distribution to all or substantially all holders of the outstanding Common Stock
in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying such
Conversion Rate in effect at the opening of business on the date following the Common Stock Record Date by a fraction,


 


(i) the
numerator of which shall be sum of (x) the number of shares of Common Stock outstanding at the close of business on the Common Stock
Record Date and (y) the total number of shares of Common Stock constituting such dividend or other distribution; and


 


(ii) the
denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the Common Stock Record Date;
such increase to become effective at the opening of business on the date following such Common Stock Record Date. For the purpose of this
paragraph (a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of Company.
Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of Company. If any dividend
or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the applicable Conversion Rate
shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.


 


(b) In
case Company shall issue rights, options or warrants to all or substantially all holders of its outstanding shares of Common Stock (except
as to rights, options and warrants which do not entitle their holders to purchase shares until the occurrence of a Trigger Event) entitling
them (for a period expiring within forty-five (45) days after the Common Stock Record Date) to subscribe for or purchase shares of Common
Stock at a price per share less than the Current Market Price calculated using the declaration date as the date for determination of stockholders
entitled to receive such rights, options or warrants, each Conversion Rate shall be increased by multiplying such Conversion Rate in effect
at the opening of business on the Common Stock Record Date by a fraction,


 






    -53-


     


    

 


(i) the
numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding at the close of business on the Common
Stock Record Date, and (y) the total number of shares (the “Underlying Shares”) of Common Stock underlying all of such
issued rights, options or warrants (whether by exercise, conversion, exchange or otherwise); and


 


(ii) the
denominator of which shall be the sum of (x) the number of shares of Common Stock outstanding at the close of business on the Common
Stock Record Date, and (y) the number of shares of Common Stock which the aggregate exercise, conversion, exchange or other price
at which the Underlying Shares may be subscribed for or purchased pursuant to such rights or warrants would purchase at such Current Market
Price; such increase to become effective at the opening of business on the date following such Common Stock Record Date.


 


Such adjustment shall be successively
made whenever any such rights, options or warrants are issued, and shall become effective immediately after the opening of business on
the Common Stock Record Date. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options
or warrants, each Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon
the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be each Conversion Rate that would
then be in effect if a Common Stock Record Date had not been fixed. In determining whether any rights or warrants entitle the holders
to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering
price of such shares of Common Stock, there shall be taken into account any consideration received by Company for such rights, options
or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors acting in good faith.


 


(c) In
case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, each Conversion Rate in effect
at the opening of business on the date following the date upon which such subdivision becomes effective shall be proportionately increased,
and conversely, in case outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, each Conversion
Rate in effect at the opening of business on the date following the date upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the date following
the date upon which such subdivision or combination becomes effective.


 


(d) In
case Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock a portion of its assets
(including cash, debt, or other securities or rights to purchase securities (but excluding any distribution referred to in Sections
14.04(a), 14.04(b), 14.04(c) or 14.04(f))) (any of the foregoing hereinafter in this Section 14.04(d) called
the “Distributed Property”), then, in each such case (unless Company elects to reserve such Distributed Property for distribution
to the Noteholders upon the conversion of the Notes, so that any such holder converting Notes will receive upon such conversion, in addition
to the shares of Common Stock to which such holder is entitled, the amount and kind of such Distributed Property which such holder would
have received if such holder had converted its Notes into Common Stock immediately prior to the Common Stock Record Date) each Conversion
Rate shall be increased so that the same shall be equal to the rate determined by multiplying such Conversion Rate in effect at the opening
of business on the Common Stock Record Date with respect to such distribution by a fraction,


 


(i) the
numerator of which shall be the Current Market Price with respect to such Common Stock Record Date; and


 






    -54-


     


    

 


(ii) the
denominator of which shall be the Current Market Price with respect to such Common Stock Record Date less the fair market value (as determined
by the Board of Directors acting in good faith, whose determination shall be conclusive, and described in a resolution of the Board of
Directors) on the Common Stock Record Date of the portion of the Distributed Property so distributed applicable to one share of Common
Stock, such adjustment to become effective immediately at the opening of business on the date following such Common Stock Record Date;
provided that if the then fair market value (as so determined) of the portion of the Distributed Property so distributed applicable to
one share of Common Stock is equal to or greater than the Current Market Price on the Common Stock Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of the
Distributed Property such holder would have received had such holder converted each Note on the Common Stock Record Date. If such dividend
or distribution is not so paid or made, each Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect
if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 14.04(d) by reference to the actual or when issued trading market for any securities, it must in doing
so consider the prices in such market over the same period used in computing the Current Market Price with respect to Common Stock Record
Date.


 


Notwithstanding the foregoing,
if the Distributed Property distributed by Company to all or substantially all holders of its Common Stock consists of capital stock of,
or similar equity interests in, a Subsidiary or other business unit, each Conversion Rate shall be increased so that the same shall be
equal to the rate determined by multiplying such Conversion Rate in effect at the opening of business on the Common Stock Record Date
with respect to such distribution by a fraction: (1) the numerator of which shall be the product of (x) the average of the VWAPs
per share of Common Stock over the fifteen (15) consecutive Trading Days (the “Spinoff Valuation Period”) commencing on and
including the Trading Day after the date on which “ex-dividend trading” commences on the Common Stock on the principal national
or regional securities exchange on which the Common Stock is then listed or quoted and (y) the average fair market value (as determined
by the Board of Directors acting in good faith, whose determination shall be conclusive, and described in a resolution of the Board of
Directors) over the Spinoff Valuation Period of the portion of the Distributed Property so distributed applicable to one share of Common
Stock; and (2) the denominator of which shall be the average of the VWAPs per share of Common Stock over the Spinoff Valuation Period,
such adjustment to become effective at the opening of business on the date following such Common Stock Record Date; provided that the
Company may in lieu of the foregoing adjustment make adequate provision so that each Noteholder shall have the right to receive upon conversion
the amount of Distributed Property such holder would have received had such holder converted each Note on the Common Stock Record Date
with respect to such distribution.


 






    -55-


     


    

 


Rights, options or warrants
distributed by Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s
capital stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified
event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed
for purposes of this Section 14.04(d) (and no adjustment to the Conversion Rates under this Section 14.04(d) will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights, options and warrants shall be deemed to have been distributed
and an appropriate adjustment (if any is required) to the Conversion Rates shall be made under this Section 14.04(d).


 


If any such right or warrant,
including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or
other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date
with respect to new rights, options or warrants with such rights (and a termination or expiration of the existing rights, options or warrants
without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options
or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the Conversion Rates under this Section 14.04 was made, (1) in
the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Rates shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder
or holders of Common Stock with respect to such rights, options or warrants (assuming such Holder had retained such rights, options or
warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights,
options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rates shall be
readjusted as if such rights, options and warrants had not been issued.


 


No adjustment of the Conversion
Rates shall be made pursuant to this Section 14.04(d) in respect of rights, options or warrants distributed or deemed distributed on any
Trigger Event to the extent that such rights, options or warrants are actually distributed, or reserved by the Company for distribution,
to holders of Notes upon conversion by such holders of Notes to Common Stock.


 


For purposes of this Section
14.04(d) and Section 14.04(a) and Section 14.04(b), any dividend or distribution to which this Section 14.04(d)
is applicable that also includes shares of Common Stock, or rights, options or warrants to subscribe for or purchase shares of Common
Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares
of capital stock other than such shares of Common Stock or rights, options or warrants (and any Conversion Rate adjustments required by
this Section 14.04(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend
or distribution of such shares of Common Stock or such rights, options or warrants (and any further Conversion Rate adjustments required
by Section 14.04(a) and Section 14.04(b) with respect to such dividend or distribution shall then be made), except that
any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on
the date fixed for such determination” within the meaning of Section 14.04(a).


 






    -56-


     


    

 


(e) In
case a tender or exchange offer made by Company or any of its Subsidiaries for all or any portion of the Common Stock shall expire and
such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per
share of Common Stock having a fair market value (as determined by the Board of Directors acting in good faith, whose determination shall
be conclusive and described in a resolution of the Board of Directors) that as of the last time (the “Expiration Time”) tenders
or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the VWAP per share of Common Stock on
the Trading Day next succeeding the Expiration Time, each Conversion Rate shall be increased so that the same shall equal the rate determined
by multiplying such Conversion Rate in effect immediately prior to the Expiration Time by a fraction,


 


(i) the
numerator of which shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable
to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred
to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the VWAP per share of Common Stock on the Trading Day (or, if a Qualified Public Offering has not yet
occurred, the Business Day) next succeeding the Expiration Time, and


 


(ii) the
denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration
Time multiplied by the VWAP per share of Common Stock on the Trading Day (or, if a Qualified Public Offering has not yet occurred, the
Business Day) next succeeding the Expiration Time, such adjustment to become effective at the opening of business on the date following
the Expiration Time. If Company is obligated to purchase shares pursuant to any such tender or exchange offer, but is permanently prevented
by applicable law from effecting any such purchases or all such purchases are rescinded, each Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.


 


(f) In
case Company shall, by dividend or otherwise, at any time make a distribution of cash (excluding any cash that is distributed as part
of a distribution requiring a Conversion Rate adjustment pursuant to Section 14.04(d)) to all or substantially all holders of Common
Stock, then in such case each Conversion Rate shall be increased by multiplying such Conversion Rate in effect at the opening of business
on the Common Stock Record Date for the determination of holders of Common Stock entitled to such distribution by a fraction, the numerator
of which shall be the Current Market Price with respect to such Common Stock Record Date and the denominator of which shall be an amount
equal to the Current Market Price with respect to such Common Stock Record Date less the amount of the distribution per share of Common
Stock, such adjustment to become effective at the opening of business on the date following the Common Stock Record Date.


 






    -57-


     


    

 


(g) In
case Company shall issue (i) shares of Common Stock, or (ii) options to purchase or rights to subscribe for Common Stock, securities
by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or
exchangeable securities (collectively, “Convertible Securities”), without consideration or for consideration per share less
than the Common Stock fair market value on the date the price of such shares of Common Stock or such Convertible Securities is fixed by
the Company (such date, the “Pricing Date”), excluding:


 


(i) dividends,
distributions, rights, options or warrants as to which an adjustment was effected pursuant to Sections 14.04(a), 14.04(b),
14.04(c) or 14.04(d);


 


(ii) shares
of Common Stock issued pursuant to any equity compensation plans;


 


(iii) shares
of Common Stock issued in connection with (x) the funding of an acquisition (whether by stock sale, merger, recapitalization, asset
purchase or otherwise) or (y) a joint venture or strategic alliance;


 


(iv) shares
of Common Stock issued in a tender offer or exchange offer by Company or any of its Subsidiaries as to which an adjustment was effected
pursuant to Section 14.04(e) above;


 


(v) public
or broadly marketed offerings (as determined by the Board of Directors of Company acting in good faith) and sales of shares of Common
Stock, securities convertible into shares of Common Stock or rights or warrants entitling the holder to purchase shares of Common Stock
for cash, conducted on a basis consistent with offerings by public companies of similar size in their own capital raising transactions;
each Conversion Rate shall be increased so that the same shall be equal to the rate determined by multiplying such Conversion Rate in
effect on the Pricing Date by a fraction: (x) the numerator of which shall be the sum of (A) the number of shares of Common
Stock outstanding immediately prior to the Pricing Date and (B) the number of additional shares of Common Stock issued (or into which
such Convertible Securities may be exercised or converted); and (y) the denominator of which shall be the sum of (A) the number
of shares of Common Stock outstanding immediately prior to the Pricing Date and (B) the number of shares of Common Stock which the
aggregate consideration receivable by Company for the total number of shares of Common Stock so issued (or into which such Convertible
Securities may be exercised or convert) would purchase at fair market value (as determined by the Board of Directors in good faith, whose
determination shall be conclusive and described in a resolution of the Board of Directors) on the last Trading Day preceding the Pricing
Date.


 






    -58-


     


    

 


Such adjustments shall be made
successively whenever any shares of Common Stock are issued (or into which such Convertible Securities may be exercised or converted).
Any adjustment made pursuant to this Section 14.04(g) shall become effective after the close of business on the Pricing Date.


 


For purposes of this Section
14.04(g), the aggregate consideration receivable by Company in connection with the issuance of such shares of Common Stock or Convertible
Securities shall be deemed to be equal to the sum of the net offering price (including the fair market value (as determined by the Board
of Directors in good faith, whose determination shall be conclusive and described in a resolution of the Board of Directors) of any non-cash
consideration and after deduction of any related reasonable expenses payable to third parties) of all such securities plus, if applicable,
the minimum aggregate amount, if any, payable upon exercise or conversion of any such Convertible Securities into shares of Common Stock.


 


(h) For
purposes of this Section 14.04, the following terms shall have the meaning indicated:


 


(i) “Current
Market Price” means (i) at such times as the Common Stock is not listed on a National Securities Exchange, the fair market
value (as determined by the Board of Directors in good faith, whose determination shall be conclusive and described in a resolution of
the Board of Directors) of the Common Stock, and (ii) at such times as the Common Stock is listed on a National Securities Exchange,
the average of the VWAPs per share of Common Stock for the fifteen (15) consecutive Trading Days ending on the earlier of the date of
determination of the Common Stock holders entitled to receive such issuance or distribution and the day before the “Ex-date”
with respect to the issuance or distribution requiring such computation immediately prior to the date in question.


 


If another issuance, distribution,
subdivision or combination to which Section 14.04 applies occurs during the period applicable for calculating “Current Market
Price” pursuant to the definition in the preceding paragraph, “Current Market Price” shall be calculated for such period
in a manner determined in good faith by the Board of Directors to reflect the impact of such issuance, distribution, subdivision or combination
on the VWAP of the Common Stock during such period.


 


(ii)
“Common Stock Record Date” means, for purposes of this Section 14.04, with respect to any dividend, distribution or other
transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which
the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed
by the Board of Directors or by statute, contract or otherwise).


 


(iii) “Ex-date”
means (A) at such time as the Common Stock is not listed on a National Securities Exchange, the applicable Common Stock Record Date,
and (B) (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades, regular
way, on the relevant exchange or in the relevant market from which the VWAP was obtained without the right to receive such issuance or
distribution, and (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades, regular way, on such exchange or in such market after the time at which such subdivision or combination
becomes effective.


 






    -59-


     


    

 


(i) The
Company may make such increases in a Conversion Rate, in addition to those required by Section 14.04(a), (b), (c),
(d), (e), (f) or (g) as the Board of Directors considers to be advisable to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of Common Stock (or rights to
acquire stock) or from any event treated as such for income tax purposes.


 


To the extent permitted by applicable
law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty
(20) days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant
to the preceding sentence, the Company shall mail to holders of the Notes a notice of the increase at least fifteen (15) days prior to
the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which
it will be in effect.


 


(j) Whenever
a Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officers’
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last related
Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such Officers’ Certificate, the Company
shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note Register provided for in Section 2.5 of this Indenture, within twenty (20) days after the date of execution
of such Officers’ Certificate. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.


 


(k) In
any case in which this Section 14.04 provides that an adjustment shall become effective on or after (1) a record date or Common Stock
Record Date for an event, (2) the date fixed for the determination of stockholders entitled to receive a dividend or distribution
pursuant to Section 14.04(a), (d) or (f), (3) a date fixed for the determination of stockholders entitled to
receive rights, options or warrants pursuant to Section 14.04(b), or (4) the Expiration Time for any tender or exchange offer
pursuant to Section 14.04(e), or (5) on the Pricing Date pursuant to Section 14.04(g) (each a “Determination
Date”), the Company may elect to defer such adjustment until the occurrence of the applicable Adjustment Event (as hereinafter defined)
by issuing to the holder of any Note converted after such Determination Date and before the occurrence of such Adjustment Event, the additional
shares of Common Stock or other securities issuable upon such conversion by reason of the adjustment required by such Adjustment Event
over and above the Common Stock issuable upon such conversion before giving effect to such adjustment. For purposes of this Section
14.04(k), the term “Adjustment Event” shall mean:


 


(i) in
any case referred to in clause (1) hereof, the occurrence of such event,


 


(ii) in
any case referred to in clause (2) hereof, the date any such dividend or distribution is paid or made,


 






    -60-


     


    

 


(iii) in
any case referred to in clause (3) hereof, the date of expiration of such rights, options or warrants,


 


(iv) in
any case referred to in clause (4) hereof, the date a sale or exchange of Common Stock pursuant to such tender or exchange offer is consummated
and becomes irrevocable, and


 


(v) in
any case of an adjustment pursuant to Section 14.04(g), the date of the closing of such sale.


 


(l) For
purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares held in the
treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of Company.


 


(m) Upon
conversion of the Notes, the holders shall receive, in addition to any shares of Common Stock issuable upon such conversion, the associated
rights issued under any future shareholder rights plan Company adopts unless, prior to conversion, the rights have separated from the
Common Stock, expired, terminated or been redeemed or exchanged in accordance with such plan. If the holders receive rights under such
shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this
Section 14.04 shall be made in connection with such shareholder rights plans. If the rights under a shareholder rights plan have
separated from the Common Stock, then each Conversion Rate shall be adjusted as provided in Section 14.04(d).


 


[Signature
page follows]


 




    -61-


     


    

 


IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.


 


	 	WHEELER REAL ESTATE INVESTMENT 

TRUST, INC.
	 	 
	 	By: 	 
	 	Name:	 M. Andrew Franklin
	 	Title: 	Chief Executive Officer and President
	 	 
	 	COMPUTERSHARE TRUST COMPANY, N.A., 

as Trustee
	 	 
	 	By: 	 
	 	Name: 	 
	 	Title:	                                  



 




     


     


    

 


EXHIBIT A



 


FORM OF NOTE



 


FORM OF FACE OF NOTE

INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE


 


UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 




    Exh. A-1


     


    

 


WHEELER REAL
ESTATE INVESTMENT TRUST, INC.

6.00% Subordinated Convertible Notes due 2028


 


	No. [ ]	Initially $[           ]


CUSIP No. 963025804


 


WHEELER REAL ESTATE INVESTMENT
TRUST, INC., a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,”
which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received
hereby promises to pay to CEDE & CO. or registered assigns, the principal sum as set forth in the “Schedule of Exchanges of
Notes” attached hereto of $[●], in accordance with the rules and procedures of the Depository, on [●], [●], and
interest thereon as set forth below.


 


The Company covenants and agrees
for the benefit of the Holders that it will duly and punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. During each calendar year, commencing with 2023, the Company
shall permanently discharge and retire an aggregate principal amount of Notes equal to at least 10% of the initial aggregate principal
amount of Notes issued at the closing of the Exchange Offer, through a mandatory redemption from holders at a redemption price of 102%
of the principal amount thereof, purchases in the open market at then prevailing market prices (followed in each instance by retirement
of such purchased Notes), or a combination of the foregoing. Holders of the Notes will not have the option to have the Notes repaid
prior to the stated maturity except as contemplated above.  Principal shall be considered paid on the date it is due if the Trustee
or Paying Agent holds, for the benefit of the Holders, as of 10:00 a.m., New York City time on that date U.S. legal tender designated
for and sufficient to pay such principal or interest then due.


 


Interest shall accrue on the
Notes at a rate of 6.0% per annum. Interest will accrue on the Notes from and including the Issuance Date or from, and including, the
last date in respect of which interest has been paid or provided for, as the case may be, to, but excluding, the next Interest Payment
Date or the Maturity Date, as the case may be. Interest is payable semi-annually in arrears on each January 31 and July 31, commencing
on July 31, 2023, to Holders of record at the close of business on the preceding and (whether or not such day is a Business Day), respectively.
For any interest period, the Company shall pay interest on the Notes in cash.


 


Reference is made to the further
provisions of this Note set forth on the reverse hereof, including, without limitation, provisions pursuant to which this Note shall be
mandatorily converted into shares of Common Stock of the Company on the terms and subject to the limitations set forth in the Indenture.
Such further provisions shall for all purposes have the same effect as though fully set forth at this place.


 


This Note, and any claim,
controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State
of New York (without regard to the conflicts of laws provisions thereof).


 


In the case of any conflict
between this Note and the Indenture, the provisions of the Indenture shall control and govern.


 


This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually or by facsimile by
the Trustee or a duly authorized authenticating agent under the Indenture.


 


[Remainder
of page intentionally left blank]


 




    Exh. A-2


     


    

 


IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed.


 


	 	WHEELER REAL ESTATE INVESTMENT 

TRUST, INC.
	 	 
	 	By: 	 
	 	 	Name: 	 
	 	 	Title:	                  



 



    Exh. A-3


     


    

 







	Dated:	 
	 	 
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION
	COMPUTERSHARE TRUST COMPANY, N.A.,
	as Trustee, certifies that this is one of the Notes described
	in the within named Indenture.
	  	 
	By: 	                                                                           	 
	 	Authorized Officer	 



 



    Exh. A-4


     


    

 


[FORM OF REVERSE
OF NOTE]

WHEELER REAL ESTATE INVESTMENT TRUST, INC.

6.00% Subordinated Convertible Notes due 2028


 


This Note is one of a duly authorized
issue of Notes of the Company, designated as its 6.00% Subordinated Convertible Notes due 2028 (the “Notes”), issued under
and pursuant to an Indenture dated as of [●], 2023 (the “Indenture”), between the Company and Computershare Trust Company,
N.A. (the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties, privileges, protections, indemnities and immunities thereunder of the Trustee,
the Company and the Holders of the Notes. Capitalized terms used in this Note and not defined in this Note shall have the respective meanings
set forth in the Indenture.


 


In case certain Events of Default
shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders
of at least 25% in aggregate principal amount of Notes then Outstanding, and upon said declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.


 


The Indenture contains provisions
permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other
circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as described
therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount
of the Notes at the time Outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under
the Indenture and its consequences.


 


Each Holder shall have the right
to receive payment of interest on any Interest Payment Date paid in cash.


 


During each
calendar year, commencing with 2023, the Company shall permanently discharge and retire an aggregate principal amount of Notes equal to
at least 10% of the initial aggregate principal amount of Notes issued at the closing of the Exchange Offer, through a mandatory redemption
from holders at a redemption price of 102% of the principal amount thereof, purchases in the open market at then prevailing market prices
(followed in each instance by retirement of such purchased Notes), or a combination of the foregoing. Holders of the Notes will not
have the option to have the Notes repaid prior to the stated maturity except as contemplated above.  The Company shall repay the
principal accrued on the Notes in cash. Principal shall be considered paid on the date it is due if the Trustee or Paying Agent holds,
for the benefit of the Holders, as of 10:00 a.m., New York City time on that date U.S. legal tender designated for and sufficient to pay
such principal or interest then due.


 


The Notes are convertible, in
whole or in part, at any time, at the option of the Holders thereof, into shares of Common Stock at a conversion price of $12.50 per share
of Common Stock (two (2) common shares for each $25.00 of principal amount of the Notes being converted.


 


The Notes are initially issuable
in registered form without coupons in minimum denominations of $25 principal amount and integral multiples thereof. At the office or agency
of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but,
if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection
therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different from the name of the
Holder of the old Notes surrendered for such exchange.


 




    Exh. A-5


     


    

 


ABBREVIATIONS


 


The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable
laws or regulations:


 


		TEN COM 	= as tenants in common



		UNIF GIFT MIN ACT	= Uniform Gifts to Minors Act



		CUST	= Custodian



		TEN ENT	= as tenants by the entireties



		JT TEN	= joint tenants with right of survivorship and not as tenants
in common

  Additional abbreviations may also be used though not in the above list.



 




    Exh. A-6


     


    

 


SCHEDULE A



SCHEDULE OF EXCHANGES OF NOTES

WHEELER REAL ESTATE INVESTMENT TRUST, INC.

6.00% Subordinated Convertible Notes due 2028


 


The initial principal amount of this Global Note
is DOLLARS ($[ ] ). The following increases or decreases in this Global Note have been made:


 


	Date of issuance	 	Amount of decrease
 in principal
 Amount of this
 Global Note	 	 	Amount of
 increase in

 principal 

amount of 

this
 Global Note	 	 	Principal Amount
 of this Global Note
 following such 

decrease or increase	 	 	Signature of
 authorized 

Signatory
 of Trustee or
 Custodian	 
	 	 	 	            	 	 	 	            	 	 	 	            	 	 	 	            	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




 




    Exh. A-7


     


    

 


ATTACHMENT 1

[FORM OF NOTICE OF CONVERSION]


 


		To:	Computershare Trust Company, N.A. 

6200 S. Quebec Street,
Greenwood Village, Colorado 80111 

Attn: GCM/Wheeler Wilmington, DE 19801 

Attention: Administrator for Wheeler Real Estate Investment
Trust, Inc.



 


The undersigned registered owner
of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $25 principal amount or an integral multiple
thereof) below designated, into Common Stock, in accordance with the terms of the Indenture referred to in this Note, and directs that
any Common Stock issuable and deliverable upon such conversion, and any Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any Common Stock or any portion
of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned shall pay all documentary,
stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) of the Indenture. Any amount required to be paid
to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings
ascribed to such terms in the Indenture.


 


	Dated:  	 	 	 
	 	 	 	Signature(s)


 


		 	 
	 	 	 
	Signature Guarantee	 	 
	 	 	 
	Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.	 	 
	 	 	 
	Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:	 	 
	 	 	 
	(Name)	 	 
	 	 	 
		 	 
	(Street Address)	 	 
	 	 	 
		 	 
	(City, State and Zip Code) Please print name and address.	 	 
	 	 	 
	 	 	Principal amount to be converted (if less than all):
	 	 	 
	 	 	$
	 	 	 
	 	 	NOTICE:  The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
	 	 	 
	 	 	
	 	 	Social Security or Other Taxpayer Identification Number


 



    Exh. A-8


     


    

 


ATTACHMENT 2

[FORM OF ASSIGNMENT AND TRANSFER]


 


For value received hereby sell(s), assign(s) and
transfer(s) unto (Please insert name and social security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably
constitutes and appoints attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.


 


 Dated:




Signature(s)


Signature Guarantee


 


Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature
guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes are to be delivered, other than to and
in the name of the registered Holder.


 


NOTICE: The signature on the assignment must correspond
with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.


 


 


Exh. A-9