Exhibit 10.2


 


EXECUTION VERSION


 


 



 


NEKTAR THERAPEUTICS


 


7.75% SENIOR SECURED NOTES DUE 2020


 


 



 


INDENTURE


 


Dated as of October 5, 2015


 


 



 




Wilmington Trust, National Association,


 


as Trustee


 


TC Lending, LLC,


 


as Collateral Agent


 






    	 



    	 



    

 


CROSS-REFERENCE TABLE*


 


	Trust Indenture
 Act Section	Indenture Section
	310	(a)(1)	7.10
	 	(a)(2)	7.10
	 	(a)(3)	N.A.
	 	(a)(4)	N.A.
	 	(a)(5)	7.10
	 	(b)	7.10
	 	(c)	N.A.
	311	(a)	7.11
	 	(b)	7.11
	 	(c)	N.A.
	312	(a)	2.05
	 	(b)	12.03
	 	(c)	12.03
	313	(a)	7.06
	 	(b)(1)	10.03
	 	(b)(2)	7.06; 7.07
	 	(c)	7.06; 10.03;12.02
	 	(d)	7.06
	314	(a)	4.03;12.02; 12.05
	 	(b)	N.A.
	 	(c)(1)	12.04
	 	(c)(2)	12.04
	 	(c)(3)	N.A.
	 	(d)	N.A. 
	 	(e)	12.05
	 	(f)	N.A.
	315	(a)	7.01
	 	(b)	7.05; 12.02
	 	(c)	7.01
	 	(d)	7.01
	 	(e)	6.11
	316	(a) (last sentence)	2.09
	 	(a)(1)(A)	6.05
	 	(a)(1)(B)	6.04
	 	(a)(2)	N.A.
	 	(b)	6.07
	 	(c)	2.12
	317	(a)(1)	6.08
	 	(a)(2)	6.09
	 	(b)	2.04
	318	(a)	12.01
	 	(b)	N.A.
	 	(c)	12.01


 


N.A. means not applicable.


* This Cross Reference Table is not part
of this Indenture.


 






    	 



    	 



    

 

TABLE OF CONTENTS


 





	 	 	 	Page
	 	 	 	 
	ARTICLE 1
	DEFINITIONS AND INCORPORATION
	BY REFERENCE
	 
	 	Section 1.01	Definitions	1
	 	Section 1.02	Other Definitions	23
	 	Section 1.03	Incorporation by Reference of Trust Indenture Act	23
	 	Section 1.04	Rules of Construction	24
	 	 	 	 
	ARTICLE 2
	THE NOTES
	 
	 	Section 2.01	Form and Dating	24
	 	Section 2.02	Execution and Authentication	25
	 	Section 2.03	Registrar and Paying Agent	25
	 	Section 2.04	Paying Agent to Hold Money in Trust	25
	 	Section 2.05	Holder Lists	26
	 	Section 2.06	Transfer and Exchange	26
	 	Section 2.07	Replacement Notes	37
	 	Section 2.08	Outstanding Notes	37
	 	Section 2.09	Treasury Notes	38
	 	Section 2.10	Temporary Notes	38
	 	Section 2.11	Cancellation	38
	 	Section 2.12	Defaulted Interest	38
	 	Section 2.13	Global Notes	39
	 	 	 	 
	ARTICLE 3
	REDEMPTION AND PREPAYMENT
	 
	 	Section 3.01	Notices to Trustee	39
	 	Section 3.02	Selection of Notes to Be Redeemed or Purchased	39
	 	Section 3.03	Notice of Redemption	39
	 	Section 3.04	Effect of Notice of Redemption	40
	 	Section 3.05	Deposit of Redemption or Purchase Price	40
	 	Section 3.06	Notes Redeemed or Purchased in Part	41
	 	Section 3.07	Optional Redemption	41
	 	Section 3.08	Mandatory Redemption	42
	 	Section 3.09	[Reserved]	42
	 	Section 3.10	Offer to Purchase by Application of Excess Proceeds	42
	 	 	 	 
	ARTICLE 4
	COVENANTS
	 
	 	Section 4.01	Payment of Notes	44
	 	Section 4.02	Maintenance of Office or Agency	44
	 	Section 4.03	Reports	45
	 	Section 4.04	Compliance Certificate	47
	 	Section 4.05	Taxes	47
	 	Section 4.06	Stay, Extension and Usury Laws	47



 






    	 



    	 



    

 

	 	 	 	Page
	 	 	 	 
	 	Section 4.07	Restricted Payments	48
	 	Section 4.08	Dividend and Other Payment Restrictions Affecting Subsidiaries	50
	 	Section 4.09	Incurrence of Indebtedness and Issuance of Preferred Stock	52
	 	Section 4.10	Asset Sales	55
	 	Section 4.11	Transactions with Affiliates	58
	 	Section 4.12	Liens	59
	 	Section 4.13	Business Activities	59
	 	Section 4.14	Corporate Existence	59
	 	Section 4.15	Offer to Repurchase Upon Change of Control	59
	 	Section 4.16	Royalty Transactions Repurchase Offer	61
	 	Section 4.17	Additional Note Guarantees	64
	 	Section 4.18	Designation of Royalty Transaction Subsidiaries	64
	 	Section 4.19	Maintenance of Property and Insurance	64
	 	Section 4.20	Real Estate Mortgages and Filings	65
	 	Section 4.21	Minimum Cash Balance	66
	 	Section 4.22	Control Agreements	66
	 	Section 4.23	Access to Management	66
	 	Section 4.24	Amendments	66
	 	 	 	 
	ARTICLE 5
	SUCCESSORS
	 
	 	Section 5.01	Merger, Consolidation, or Sale of Assets	67
	 	Section 5.02	Successor Corporation Substituted	68
	 	 	 	 
	ARTICLE 6
	DEFAULTS AND REMEDIES
	 
	 	Section 6.01	Events of Default	68
	 	Section 6.02	Acceleration	71
	 	Section 6.03	Other Remedies	71
	 	Section 6.04	Waiver of Past Defaults	71
	 	Section 6.05	Control by Majority	72
	 	Section 6.06	Limitation on Suits	72
	 	Section 6.07	Rights of Holders of Notes to Receive Payment	72
	 	Section 6.08	Collection Suit by Trustee	72
	 	Section 6.09	Trustee May File Proofs of Claim	73
	 	Section 6.10	Priorities	73
	 	Section 6.11	Undertaking for Costs	73
	 	 	 	 
	ARTICLE 7
	TRUSTEE
	 
	 	Section 7.01	Duties of Trustee	74
	 	Section 7.02	Rights of Trustee	75
	 	Section 7.03	Individual Rights of Trustee and Collateral Agent	76
	 	Section 7.04	Trustee’s and Collateral Agent’s Disclaimer	76
	 	Section 7.05	Notice of Defaults	76
	 	Section 7.06	Reports by Trustee to Holders of the Notes	77
	 	Section 7.07	Compensation and Indemnity	77
	 	Section 7.08	Replacement of Trustee	78
	 	Section 7.09	Successor Trustee by Merger, etc.	79
	 	Section 7.10	Eligibility; Disqualification	79
	 	Section 7.11	Preferential Collection of Claims Against Company	79


 






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	 	 	 	Page
	 	 	 	 
	 	Section 7.12	Trustee as Paying Agent	80
	 	 	 	 
	ARTICLE 8
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 
	 	Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	80
	 	Section 8.02	Legal Defeasance and Discharge	80
	 	Section 8.03	Covenant Defeasance	81
	 	Section 8.04	Conditions to Legal or Covenant Defeasance	81
	 	Section 8.05	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions	82
	 	Section 8.06	Repayment to Company	82
	 	Section 8.07	Reinstatement	83
	 	 	 	 
	ARTICLE 9
	AMENDMENT, SUPPLEMENT AND WAIVER
	 
	 	Section 9.01	Without Consent of Holders of Notes	83
	 	Section 9.02	With Consent of Holders of Notes	84
	 	Section 9.03	Revocation and Effect of Consents	85
	 	Section 9.04	Notation on or Exchange of Notes	85
	 	Section 9.05	Trustee to Sign Amendments, Waivers, etc.	85
	 	 	 	 
	ARTICLE 10
	COLLATERAL AND SECURITY
	 
	 	Section 10.01	Grant of Security Interest; Collateral Documents	86
	 	Section 10.02	Recording and Opinions	86
	 	Section 10.03	Release of Collateral	87
	 	Section 10.04	[Reserved]	87
	 	Section 10.05	[Reserved]	87
	 	Section 10.06	Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents	87
	 	Section 10.07	Authorization of Receipt of Funds by the Trustee Under the Collateral Documents	88
	 	Section 10.08	Termination of Security Interest	88
	 	 	 	 
	ARTICLE 11
	NOTE GUARANTEES
	 	 	 	 
	 	Section 11.01	Guarantee	88
	 	Section 11.02	Limitation on Guarantor Liability	89
	 	Section 11.03	Execution and Delivery of Note Guarantee	89
	 	Section 11.04	Guarantors May Consolidate, etc., on Certain Terms	90
	 	Section 11.05	Releases	90
	 	 	 	 
	ARTICLE 12
	SATISFACTION AND DISCHARGE
	 
	 	Section 12.01	Satisfaction and Discharge	91
	 	Section 12.02	Application of Trust Money	92
	 	 	 	 
	ARTICLE 13
	MISCELLANEOUS
	 	 	 
	 	Section 13.01	Notice	92
	 	Section 13.02	Communication by Holders of Notes with Other Holders of Notes	94
	 	Section 13.03	Certificate and Opinion as to Conditions Precedent	94


 






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	 	 	 	Page
	 	 	 	 
	 	Section 13.04	Statements Required in Certificate or Opinion	94
	 	Section 13.05	Rules by Trustee and Agents	94
	 	Section 13.06	Force Majeure	94
	 	Section 13.07	No Personal Liability of Directors, Officers, Employees and
Stockholders	95
	 	Section 13.08	Governing Law; Waiver of Jury Trial	95
	 	Section 13.09	No Adverse Interpretation of Other Agreements	95
	 	Section 13.10	Successors	95
	 	Section 13.11	Severability	95
	 	Section 13.12	Counterpart Originals	95
	 	Section 13.13	Table of Contents, Headings, etc.	96
	 	Section 13.14	U.S.A. Patriot Act	96


 


EXHIBITS


 

	Exhibit A	FORM OF NOTE	A-1
	Exhibit B	FORM OF CERTIFICATE OF TRANSFER	B-1
	Exhibit C	FORM OF CERTIFICATE OF EXCHANGE	C-1
	Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR	D-1
	Exhibit E	FORM OF SUPPLEMENTAL INDENTURE	E-1


 



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INDENTURE dated as
of October 5, 2015 between Nektar Therapeutics, a Delaware corporation, and Wilmington Trust, National Association, as trustee
(together with its successors and assigns, in such capacity, the “Trustee”) and TC Lending, LLC, as collateral
agent (together with its successors and assigns, in such capacity, the “Collateral Agent”).


 


The Company (as hereinafter
defined), the Trustee and the Collateral Agent agree as follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined below) of the 7.75% Senior Secured Notes due 2020 (the “Notes”):


 


ARTICLE
1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section
1.01        Definitions.


 


“144A Global
Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“Acquired
Debt” means, with respect to any specified Person:


 


		(1)	Indebtedness of any other Person existing at the time such other Person is merged with or into
or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or
in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and



 


		(2)	Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.



 


“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the Voting Stock of a Person will be deemed to be control solely for purposes of Section 4.11. For
purposes of this definition, the terms “controlling,” “controlled by” and “under common control with”
have correlative meanings.


 


“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.


 


“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 Depositary, Euroclear and Clearstream that apply to such transfer or exchange.


 


“Applicable
Transaction” means (1) any incurrence of Indebtedness as part of a Collaboration Transaction or Royalty Transaction in
connection with which cash proceeds are generated and (2) the receipt of any cash payments by the Company or any Restricted Subsidiary
of the Company as part of a Collaboration Transaction other than (x) net royalty payments, (y) payments for bona fide services
provided by the Company or any Restricted Subsidiary and (z) payments for manufacturing and supply activities and (3) any incurrence
of Permitted Convertible Notes, in each case, arising from transactions occurring after the date of this Indenture but excluding
amendments, restatements, modifications, renewals, supplements or replacements of agreements entered into prior to the date of
this Indenture.


 






    	1



    	 



    

 


“Asset Sale”
means:


 


		(1)	the sale, lease, conveyance or other disposition of any assets or property; provided that
the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Section 4.15 and/or Section 5.01 and not by the provisions of Section 4.10; and



 


		(2)	the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale
of Equity Interests in any of its Restricted Subsidiaries.



 


Notwithstanding the
preceding, none of the following items will be deemed to be an Asset Sale:


 


		(1)	any single transaction or series of related transactions (other than a Royalty Transaction) that
involves assets having a Fair Market Value of less than $1.0 million;



 


		(2)	a transfer of assets between or among the Company and the Guarantors;



 


		(3)	an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to
a Restricted Subsidiary of the Company;



 


		(4)	the sale or lease of products, services or accounts receivable in the ordinary course of business,
any sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business and the abandonment or
other disposition of intellectual property (other than a Royalty Transaction) that in the Company’s good faith judgment are
not useful in a Permitted Business or otherwise of any material value;



 


		(5)	the sale or other disposition of cash or Cash Equivalents;



 


		(6)	a Restricted Payment that does not violate Section 4.07 or a Permitted Investment;



 


		(7)	the licensing or sublicensing of patents, trademarks, know-how or other intellectual property or
general intangibles related thereto (in each case, other than a Royalty Transaction) in the ordinary course of business which do
not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries (provided
that any exclusive license of patents that effectively constitutes a transfer of the related patent shall be deemed to be an Asset
Sale);



 


		(8)	the lease, assignment or sublease of any real or personal property (other than a Royalty Transaction)
in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries;



 


		(9)	the sale of any property in a Sale/Leaseback Transaction within six months of the acquisition of
such property;



 


		(10)	the sale or other disposition of the Equity Interests of any Royalty Transaction Subsidiary pursuant
to the foreclosure of a pledge of such Equity Interests in connection with the related Royalty Transaction; and



 






    	2



    	 



    

 


		(11)	any Collaboration Transaction, to the extent involving any sale, lease, conveyance or other disposition
of property or assets.



 


For the avoidance of
doubt, (i) any Royalty Transaction shall constitute an Asset Sale and (ii) no Specified Drug shall be permitted to be sold, disposed
or otherwise transferred other than pursuant to a Royalty Transaction.


 


“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act),
such “person” will be deemed to have beneficial ownership of all securities that such “person” has the
right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only
after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding
meaning.


 


“Board of
Directors” means:


 


		(1)	with respect to a corporation, the board of directors of the corporation or any committee thereof
duly authorized to act on behalf of such board;



 


		(2)	with respect to a partnership, the Board of Directors of the general partner of the partnership;



 


		(3)	with respect to a limited liability company, the managing member or members or any controlling
committee of managing members thereof; and



 


		(4)	with respect to any other Person, the board or committee of such Person serving a similar function.



 





“Business
Day” means any day other than a Legal Holiday.


 


“Capital Lease
Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.


 


“Capital Stock”
means:


 


		(1)	in the case of a corporation, corporate stock;



 


		(2)	in the case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;



 


		(3)	in the case of a partnership or limited liability company, partnership interests (whether general
or limited) or membership interests; and



 


		(4)	any other interest or participation in a Person that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing
any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with
Capital Stock.



 







    	3



    	 



    

 


“Cash Equivalents”
means:


 


		(1)	United States dollars;



 


		(2)	securities issued or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality of the United States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;



 


		(3)	certificates of deposit and eurodollar time deposits with maturities of two years or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding two years and overnight bank deposits, in each
case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating
of “B” or better;



 


		(4)	repurchase obligations with a term of not more than seven days for underlying securities of the
types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in
clause (3) above;



 


		(5)	commercial paper having one of the two highest ratings obtainable from Moody’s or S&P
and, in each case, maturing within two years after the date of acquisition;



 


		(6)	readily marketable direct obligations issued by any state of the United States of America or any
political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P (or
reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding
two years from the date of acquisition;



 


		(7)	Indebtedness issued by Persons (other than the Company or any of its Affiliates) with a rating
of “A” or higher from S&P or “A-2” or higher from Moody’s in each case with maturities not exceeding
two years from the date of acquisition; and



 


		(8)	investment funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (7) of this definition.



 


“Change of
Control” means the occurrence of any of the following:


 


		(1)	the direct or indirect sale, lease, transfer, conveyance or other disposition (other than (x) by
way of merger or consolidation or (y) pursuant to a Royalty Transaction), in one or a series of related transactions, of (i) all
or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any Person other than
the Company or a Guarantor; or (ii) assets of the Company or any Subsidiary of the Company to a Person other than the Company or
a Guarantor for a purchase price equal to more than 50% of the consolidated total assets of the Company (based upon the Company’s
most recent audited balance sheet);



 


		(2)	the adoption of a plan relating to, or the occurrence of, the liquidation, dissolution or winding
up of the Company;



 


		(3)	the consummation of any transaction (including, without limitation, any merger or consolidation),
the result of which is that any “person” or “group” (each as defined above) becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares;



 






    	4



    	 



    

 


		(4)	the Company consolidates with, or merges with or into, any Person, or any Person consolidates with,
or merges with or into, the Company, or the Company consummates an exchange of shares, recapitalization, reorganization, business
combination or other similar event, in any such event pursuant to a transaction following which the holders of Voting Stock immediately
preceding such consolidation, merger, exchange, recapitalization, reorganization, business combination or similar event either
(a) no longer hold a majority of the Voting Stock of the Company or (b) no longer have the ability elect a majority of the board
of directors of the Company; or



 


		(5)	the first day on which a majority of the members of the Board of Directors of the Company are not
Continuing Directors. 



 


“Clearstream”
means Clearstream Banking, S.A.


 


“Collaboration
Agreement” means any agreement entered into in connection with a Collaboration Transaction.


 


“Collaboration
Transaction” means any transaction pursuant to which the Company or any Restricted Subsidiary (a) provides a license
or sublicense of its intellectual property, or transfers, contributes or assigns intellectual property owned or controlled by the
Company or any Restricted Subsidiary and/or provides a right of reference regulatory filings and applications with governmental
health authorities, and/or provides rights with respect to pre-clinical and clinical data, in each case to one or more third parties
in connection with the (b) research, clinical development, regulatory activities, manufacturing, commercialization and/or marketing
of one or more of the Company’s or any Restricted Subsidiary’s drugs or drug candidates, or similar agreements or arrangements.


 


“Collateral”
has the meaning assigned to it in the Collateral Documents.


 


“Collateral
Agent” shall have the meaning set forth in the preamble.


 


“Collateral
Documents” means the Security Agreement, the other security agreements, pledge agreements, Mortgages, collateral assignments,
Control Agreements and related agreements (including, without limitation, financing statements under the Uniform Commercial Code
of the relevant states), each as amended, supplemented, restated, renewed, replaced or otherwise modified from time to time, to
secure any Obligations under the Indenture Documents or under which rights or remedies with respect to any such Lien are governed.


 


“Company”
means Nektar Therapeutics, and any and all successors thereto.


 


“Competitor”
means an entity engaged primarily in substantially the same business as the Company, which is the business of discovery, development,
manufacturing, selling, licensing and/or other commercialization of pharmaceutical products. For the avoidance of doubt, “Competitor”
shall not include any financial services institution, investment fund or lender.


 






    	5



    	 



    

 


“Consolidated
Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for
such period, adjusted as follows (without duplication):


 


		(1)	plus provision for taxes based on income, profits or capital, including state, franchise
and similar taxes, of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes
was taken into account in computing such Consolidated Net Income;



 


		(2)	plus the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to
the extent that such Fixed Charges were deducted in computing such Consolidated Net Income;



 


		(3)	plus depreciation, amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to
the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income;



 


		(4)	minus non-cash items increasing such Consolidated Net Income for such period other than
the recognition of deferred revenue from transactions for which cash was received after the date of this Indenture, the accrual
of revenue in the ordinary course of business and any items which represent the reversal of any accrual of, or cash reserve for,
anticipated cash charges in any prior period and any items for which cash was received in a prior period;



 


in each case, on a
consolidated basis and determined in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:


 


		(1)	any extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges, including,
without limitation, any non-cash royalty revenue and any associated non-cash royalty expense, any severance expenses, any fees,
expenses or charges related to any equity offering, Permitted Investment, acquisition or Indebtedness permitted to be incurred
by this Indenture (in each case, whether or not successful), in each case, shall be excluded;



 


		(2)	the Net Income (but not loss) of any Person that is not a Subsidiary or that is accounted for by
the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in
cash (or to the extent converted into cash) to the specified Person or a Restricted Subsidiary of the Person;



 


		(3)	solely for the purpose of determining the amount available for Restricted Payments under clause
(iii)(a) of Section 4.07(a), the Net Income of any Restricted Subsidiary (other than a Note Guarantor) will be excluded to the
extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders unless any applicable restrictions have been legally waived;



 


		(4)	the cumulative effect of a change in accounting principles will be excluded;



 






    	6



    	 



    

 


		(5)	the Net Income of any Royalty Transaction Subsidiary will be included solely to the extent distributed
to the specified Person or one of its Subsidiaries;



 


		(6)	any increase in amortization or depreciation or any one-time non-cash charges or reductions in
Net Income, in each case resulting from purchase accounting in connection with any acquisition that is consummated after the date
of this Indenture shall be excluded;



 


		(7)	any impairment charges or asset write-offs and amortization of intangibles in each case arising
pursuant to the application of GAAP shall be excluded;



 


		(8)	any non-cash expense realized or resulting from employee benefit plans or post-employment benefit
plans, grants of stock appreciation or similar rights, stock options or other rights to officers, directors and employees of such
Person or any of its Restricted Subsidiaries, any severance or relocation costs or expenses, one-time non-cash compensation charges,
in each case of such Person or any of its Restricted Subsidiaries, shall be excluded;



 


		(9)	any currency translation gains and losses related to currency remeasurements of indebtedness, and
any net loss or gain resulting from hedging transactions for currency exchange risk, shall be excluded;



 


		(10)	non-cash charges for deferred tax asset valuation allowances shall be excluded; and



 


		(11)	to the extent covered by insurance and actually reimbursed, or, so long as such Person has made
a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the
extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within
365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365
days), expenses with respect to casualty events or business interruption, net of any reimbursement to the extent already taken
into account in computing Consolidated Net Income, shall be excluded.



 


“Continuing
Directors” means, as of any date of determination, any member of the Board of Directors of the Company who:


 


		(1)	was a member of such Board of Directors on the date of this Indenture; or



 


		(2)	was nominated for election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.



 


“Control Agreement”
means a control agreement, in form and substance satisfactory to Collateral Agent, executed and delivered by the Company or one
of its Subsidiaries, Collateral Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank
(with respect to a Deposit Account).


 


“Corporate
Trust Office of the Trustee” will be at the address of the Trustee specified in Section 13.01 hereof or such other address
as to which the Trustee may give notice to the Company.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.


 






    	7



    	 



    

 


“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.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not
have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.


 


“Deposit Account”
means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.


 


“Designated
Preferred Stock” means Preferred Stock of the Company (other than Disqualified Stock), that is issued for cash (other
than to the Company or any of its Subsidiaries or an employee stock ownership plan or trust established by the Company or any of
its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance
date thereof.


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock
have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale
will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07. The amount
of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company
and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock, exclusive of accrued dividends.


 


“Domestic
Restricted Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States
or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for
any Indebtedness of the Company.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 






    	8



    	 



    

 


“Excluded
Account” means (i) Deposit Accounts and Securities Accounts the balance of which consists exclusively of (a) withheld
income taxes and federal, state or local employment taxes in such amounts as are required to be paid to the Internal Revenue Service
or state or local government agencies within the following two months with respect to employees of the Company or any of its Restricted
Subsidiaries, and (b) any payroll accounts, health care reimbursement accounts and employee benefits accounts, including any accounts
containing amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for
the benefit of employees of the Company or any of its Restricted Subsidiaries, (ii) all segregated Deposit Accounts constituting
(and the balance of which consists solely of funds set aside in connection with) tax accounts, fiduciary accounts and trust accounts
and (iii) any Deposit Accounts and Securities Accounts, amounts on deposit in which do not exceed $50,000 individually or $250,000
in the aggregate at any one time.


 


“Existing
Indebtedness” means Indebtedness of the Company and its Subsidiaries in existence on the date of this Indenture (other
than the Indebtedness under the Existing Secured Notes), until such amounts are repaid.


 


“Existing
Secured Notes” means the 12.00% Senior Secured Notes due 2017 of the Company issued under the Existing Secured Notes
Indenture.


 


“Existing
Secured Notes Indenture” means the Indenture, dated as of July 11, 2012, between the Company and Wells Fargo Bank, National
Association, as trustee and collateral agent.


 


“Fair Market
Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, as determined in good faith by the Company (and in the case of determinations of Fair Market
Value in excess of $5.0 million, by the Board of Directors of the Company).


 


“Fee Letter”
means the letter agreement dated October 5, 2015 between the Collateral Agent and the Company, as amended, amended and restated,
supplemented or otherwise modified from time to time.


 


“Fixed Charge
Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of
such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the
Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.


 


For purposes of making
the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP), in each case with respect to an operating unit of a business, during the four-quarter
reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for
purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations (and the change of any associated
fixed charge obligations and the change in Consolidated Cash Flow resulting therefrom) had occurred on the first day of the four-quarter
reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or discontinued operation, in each case with respect to an operating unit of a business, that
would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger or consolidation
had occurred at the beginning of the applicable four-quarter period.


 






    	9



    	 



    

 


For purposes of this
definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Company and determined on a basis consistent with Article 11 of Regulation
S-X promulgated under the Securities Act and as interpreted by the staff of the SEC. Any such pro forma calculation may include
adjustments appropriate, in the reasonable good faith determination of the Company as set forth in an Officer’s Certificate,
to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result within twelve
months following the applicable pro forma event so long as such adjustments are determined on a basis consistent with Article 11
of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC.


 


If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of twelve months). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with
GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable
period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or,
if none, then based upon such optional rate chosen as the Company may designate.


 


“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without duplication, of:


 


		(1)	the consolidated interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued, including, without limitation, amortization of original issue discount, non-cash interest payments, the
interest component of all payments associated with Capital Lease Obligations, excluding the amortization of deferred financing
fees and expensing of any bridge or other financing fees, and net of the effect of all payments made or received pursuant to Hedging
Obligations in respect of interest rates;



 


		(2)	plus the consolidated interest expense of such Person and its Restricted Subsidiaries that
was capitalized during such period;



 


		(3)	plus all cash dividends (excluding items eliminated in consolidation) on any series of preferred
stock of such Person or any of its Restricted Subsidiaries,



 


		(4)	minus interest income for such period,



 


in each case, determined
on a consolidated basis in accordance with GAAP; provided that non-cash interest expense in respect of long-term liabilities
incurred in connection with Royalty Transactions that do not constitute Indebtedness for borrowed money shall not be included in
Fixed Charges.


 






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“Foreign Subsidiary”
means a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state or territory thereof
or the District of Columbia and does not guarantee or otherwise provide direct credit support for any Indebtedness of the Company.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect on the date of this Indenture.


 


“Global Note
Legend” means the legend set forth in Section 2.06(f)(2) hereof, which is required to be placed on all Global Notes issued
under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears
the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued
in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d)(2) hereof.


 


“Government
Securities” means securities that are: (1) direct obligations of the United States of America for the timely payment
of which its full faith and credit is pledged, or (2) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in each case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depository receipt.


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).


 


“Guarantor”
means any Domestic Restricted Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this
Indenture and its successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance
with the provisions of this Indenture.


 


“Hedging Obligations”
means, with respect to any specified Person, the obligations of such Person under:


 


		(1)	interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest
rate cap agreements and interest rate collar agreements;



 


		(2)	other agreements or arrangements designed to manage interest rates or interest rate risk; and



 






    	11



    	 



    

 


		(3)	other agreements or arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.



 


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


 


“IAI Global
Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses, deferred or prepaid revenue,
trade payables and Guarantees incurred in the ordinary course of business and not in respect of borrowed money), whether or not
contingent:


 


		(1)	in respect of borrowed money;



 


		(2)	evidenced by bonds, notes, debentures or similar instruments;



 


		(3)	all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance
or similar credit transaction;



 


		(4)	representing Capital Lease Obligations;



 


		(5)	representing the balance deferred and unpaid of the purchase price of any property or services
due more than six months after such property is acquired or such services are completed; or



 


		(6)	representing any Hedging Obligations,



 


if and to the extent
any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person
(other than by endorsement of negotiable instruments for collection in the ordinary course of business).


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Indenture
Documents” means this Indenture, the Notes, the Note Guarantees, the Fee Letter and the Collateral Documents.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.


 






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“Investments”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of
any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any
such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold
or disposed of in an amount determined as provided in Section 4.07. The acquisition by the Company or any Subsidiary of the Company
of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Subsidiary in
such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person
in an amount determined as provided in Section 4.07 Except as otherwise provided in this Indenture, the amount of an Investment
will be determined at the time the Investment is made and without giving effect to subsequent changes in value. Any payments (including
payments under the existing intercompany agreement between the Company and Nektar Therapeutics (India) Private Limited) made to
a foreign Restricted Subsidiary of the Company by the Company or a domestic Restricted Subsidiary of the Company to the extent
reflected as operating expenses of the Company or such domestic Restricted Subsidiary in the financial statements of the Company
shall be deemed to not constitute an Investment in such foreign Restricted Subsidiary.


 


“Institutional
Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, who are not also QIBs.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.


 


“LTM Royalty
Revenue” means for the purpose of this Indenture, at any date of determination, the lesser of (i) the actual last twelve
months of royalty revenue received by the Company and its Restricted Subsidiaries and (ii) the actual last twelve months of royalty
revenue received by the Company and its Restricted Subsidiaries calculated as if the Company and its Restricted Subsidiaries had
received all such royalty revenue in the prior calendar year and subject to any annual royalty tiers applicable in the prior calendar
year. For the avoidance of doubt, any royalties applied to this definition do not include (i) milestones or other one-time payments
or (ii) any royalties associated with any license agreement or permit with respect to any Specified Drug if such license or permit
has been lost, suspended, revoked or not renewed.


 


“Material
Adverse Effect” means a material adverse effect on the financial condition, operations, assets, or business of the Company
and its Subsidiaries, taken as a whole.


 






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“Make-Whole
Premium” means an amount equal to (A) the difference between (1) the aggregate amount of interest (including, without
limitation, interest payable in cash, in kind or deferred) which would have otherwise been payable on the amount of the redemption
from the date of redemption until the twenty-four month anniversary of the date of this Indenture, minus (2) the aggregate amount
of interest Holders would earn if the redeemed amount were reinvested for the period from the date of redemption until the twenty-four
month anniversary of the date of this Indenture at the Treasury Rate plus (B) an amount equal to the Prepayment Premium that would
otherwise be payable as if such redemption had occurred on the day after the twenty-four month anniversary of the date of this
Indenture. The Company shall deliver a certificate to the Trustee containing the calculation of the Make-Whole Premium and certifying
that such calculation was done in accordance with the Indenture.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgages”
means a collective reference to each mortgage, deed of trust, deed to secure debt and any other document or instrument under which
any Lien on the Premises or any other Collateral secured by and described in such mortgages, deeds of trust, deeds to secure debt
or other documents or instruments is granted to secure any Obligations of the Company or a Guarantor under any of the Indenture
Documents or under which rights or remedies with respect to any such Liens are governed.


 


“Net Income”
means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however, any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries.


 


“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale, Royalty
Transaction or Applicable Transaction (including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale, Royalty Transaction or Applicable Transaction, but only as and when received),
net of the direct costs relating to such Asset Sale, Royalty Transaction or Applicable Transaction, including, without limitation,
legal, accounting and investment banking fees, and sales or brokerage commissions, and any relocation expenses incurred as a result
of the Asset Sale, Royalty Transaction or Applicable Transaction, taxes paid or payable as a result of the Asset Sale, Royalty
Transaction or Applicable Transaction, in each case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts (including premiums and fees) required to be applied to the repayment of Indebtedness required
to be repaid as a result of such Asset Sale, Royalty Transaction or Applicable Transaction and any reserve for adjustment in respect
of the sale price of such asset or assets, or any retained liabilities or indemnities with respect to such Asset Sale, Royalty
Transaction or Applicable Transaction, established in accordance with GAAP; provided, however, that the amount of Net Proceeds
received with respect to an issuance of Permitted Convertible Notes shall be deemed to be 35% of the amount that would otherwise
be determined pursuant to the foregoing definition.


 


“Non-Recourse
Debt” means Indebtedness:


 


		(1)	as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (other than
undertakings, including in respect of ‘make-whole interest,’ that are customary in Royalty Transactions), (b) is directly
or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;



 


		(2)	no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action
against a Royalty Transaction Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness
of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its Stated Maturity; and



 






    	14



    	 



    

 


		(3)	as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries.



 


“Non-U.S.
Person” means a Person who is not a U.S. Person.


 


“Note Guarantee”
means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant
to the provisions of this Indenture.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture.


 


“Obligations”
means any principal, interest, penalties, fees, premiums, expenses (including, without limitation, reasonable attorneys’,
agents’ and professional advisors’ fees and expenses), indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.


 


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


 


“Officer’s
Certificate” means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements
set forth in this Indenture.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee or the Collateral Agent, as
applicable, that meets the requirements of Section 13.04 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Permitted
Business” means businesses which are the same, similar, ancillary or reasonably related to the businesses in which the
Company and its Restricted Subsidiaries are engaged on the date of this Indenture.


 


“Permitted
Investments” means: 


 


		(1)	any Investment in the Company or in a Restricted Subsidiary of the Company that is a Guarantor;



 


		(2)	any Investment in Cash Equivalents;



 


		(3)	any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment:



 


(a)          such
Person becomes a Restricted Subsidiary of the Company and a Guarantor; or


 


(b)          such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company and a Guarantor;


 






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		(4)	any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.10;



 


		(5)	any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;



 


		(6)	any Investments received in compromise or resolution of (A) obligations of trade creditors or customers
that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B)
litigation, arbitration or other disputes;



 


		(7)	Investments represented by Hedging Obligations;



 


		(8)	loans or advances to employees made in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;



 


		(9)	repurchases of the Notes;



 


		(10)	Collaboration Transactions and Royalty Transactions, to the extent involving an Investment;



 


		(11)	guarantees not prohibited by Section 4.09 and guarantees required by Section 4.17;



 


		(12)	Investments in joint ventures of the Company or any of its Restricted Subsidiaries not to exceed
$15.0 million at any one time outstanding;



 


		(13)	Investments in Foreign Subsidiaries not to exceed $15.0 million at any one time outstanding; and



 


		(14)	other Investments in any Person having an aggregate Fair Market Value (measured on the date each
such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (14) that are at the time outstanding, not to exceed $20.0 million.



 


For the avoidance of
doubt, any Investment (other than a Royalty Transaction) with respect to, or related to, any Specified Drugs (other than as set
forth in the following proviso) shall not constitute a Permitted Investment; provided that any Investment in a Specified Drug otherwise
permitted under this Indenture shall constitute a Permitted Investment.


 


“Permitted
Liens” means:


 


		(1)	Liens in favor of the Trustee or the Collateral Agent created pursuant to this Indenture and the
Collateral Documents with respect to the Note and Note Guarantees;



 


		(2)	Liens in favor of the Company or the Guarantors;



 


		(3)	Liens on property of a Person existing at the time such Person is merged with or into or consolidated
with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with
the Company or the Subsidiary;



 






    	16



    	 



    

 


		(4)	Liens on property (including Capital Stock) existing at the time of acquisition of the property
by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition,
and not incurred in contemplation of, such acquisition;



 


		(5)	Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of business;



 


		(6)	Liens to secure Permitted Debt (including Capital Lease Obligations) described in clause (4) of
the definition thereof covering only the assets acquired with or financed by such Indebtedness;



 


		(7)	Liens existing on the date of this Indenture; provided, that, in the case of the Lien securing
the Existing Secured Notes under the Existing Secured Notes Indenture and the Collateral Documents (as defined in the Existing
Secured Notes Indenture), such Lien shall only be permitted prior to the date that is 90 days after the date of this Indenture;



 


		(8)	Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that
are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that
any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;



 


		(9)	Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens, in each case, incurred in the ordinary course of business, which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently conducted;



 


		(10)	all Liens of record identified in any existing title policies, all survey exceptions, all easements
or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and
other utility or other similar purposes, all local and other Laws, including building and zoning laws, regulations or ordinances,
now or hereafter in effect relating to or affecting any real property, and other Liens or imperfections of title to or on real
or personal property that are not material in amount or do not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such Person;



 


		(11)	Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture;
provided, however, that:



 


		(a)	the new Lien shall be limited to all or part of the
same property and assets that are subject to or, under the written agreements pursuant to which the original Lien arose, could
be subject to the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and



		 	 



		(b)	the Indebtedness secured by the new Lien is not increased
to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge; and



 





		(12)	Liens on assets of a Restricted Subsidiary that is not a Note Guarantor, securing Indebtedness
of such Restricted Subsidiary permitted to incurred pursuant to Section 4.09;



 







    	17



    	 



    

 


		(13)	Collaboration Transactions and Royalty Transactions, to the extent involving the incurrence of
a Lien;



 


		(14)	grants of intellectual property licenses or sublicenses in the ordinary course of business which
do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;



 


		(15)	judgment and attachment Liens not giving rise to an Event of Default;



 


		(16)	any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock
of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;



 


		(17)	leases and subleases of real property in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;



 


		(18)	Liens arising by virtue of any statutory or common law provisions relating to banker’s liens,
rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial
institution; and



 


		(19)	Liens incurred in the ordinary course of business of the Company or any Subsidiary of the Company
with respect to obligations that do not exceed $5.0 million at any one time outstanding.



 


Notwithstanding the foregoing,
Liens on Specified Drugs (other than Liens on Specified Drugs in favor of the Collateral Agent) shall not constitute Permitted
Liens; provided, that any restrictions set forth in any Collaboration Agreement with respect to such Specified Drugs shall
be permitted.


 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange
for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the
Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:


 


		(1)	the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced,
defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith);



 


		(2)	such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged;



 


		(3)	if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated
in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on
terms at least as favorable to the holders of Notes as those contained in the documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and



 






    	18



    	 



    

 


		(4)	such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged.



 


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


 


“Preferred
Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or
winding up.


 


“Private Placement
Legend” means the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Regulation
S” means Regulation S promulgated under the Securities Act.


 


“Regulation
S Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Office of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity with the particular subject, and shall, in each case,
have direct responsibility for the administration of this Indenture.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private Placement Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement Legend.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent Person that is not a Royalty Transaction Subsidiary.


 


“Royalty Transaction”
means any royalty monetization transaction with respect to licenses or sublicenses of the intellectual property owned or controlled
by the Company or any Restricted Subsidiary, including but not limited to sales of royalty streams, royalty bonds and other royalty
financings, synthetic royalty and revenue interest transactions and hybrid monetization transactions.


 


“Royalty Transaction
Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as a Royalty
Transaction Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:


 


		(1)	has no Indebtedness other than Non-Recourse Debt;



 






    	19



    	 



    

 


		(2)	has no assets other than assets that are the subject of a Royalty Transaction and is not engaged
in any activities other than those related or incidental to a Royalty Transaction;



 


		(3)	is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of operating results, in each case other than pursuant
to the terms of Non-Recourse Debt; and



 


		(4)	has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries.



 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property now owned or hereafter acquired by the Company or a Restricted
Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted
Subsidiary leases it from such Person, other than leases between the Company and a Restricted Subsidiary of the Company or between
Restricted Subsidiaries of the Company.


 


“S&P”
means Standard & Poor’s Ratings Group.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities
Account” means a securities account (as defined in the Uniform Commercial Code (or any similar or equivalent legislation)
as in effect in any applicable jurisdiction).


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Security
Agreement” means the Pledge and Security Agreement, dated as of the date of this Indenture, entered into by the Company
and the Guarantors in favor of the Collateral Agent, as amended, supplemented or otherwise modified from time to time.


 


“Significant
Subsidiary” means any Restricted Subsidiary (i) the total assets of which constitute more than 5% of the consolidated
total assets of the Company and its Restricted Subsidiaries and (ii) the total revenues of which constitute more than 5% of the
consolidated revenues of the Company and its Restricted Subsidiaries.


 


“Specified Drugs” means, collectively,
each of the following and all of the Intellectual Property related thereto (each individually, a “Specified Drug”):


 


		(i)	Any product falling within the definition of “Licensed Product” as defined in Section 1.101 of the License Agreement
by and between Astrazeneca AB and Nektar Therapeutics, dated September 20, 2009, as amended (the “Movantik Agreement”),
and any other product that provides a basis for the payment of royalties, milestones and/or other payments to the Company or an
Affiliate of the Company thereunder (this clause (i), collectively, “Movantik”);



 






    	20



    	 



    

 


		(ii)	Any product falling within the definition of “Commercial Product” as defined in Section 1.13 and “Potential
Product” as defined in Section 1.62 of the Exclusive Research, Development, License and Manufacturing and Supply Agreement,
between Nektar Therapeutics AL, Corporation and Baxter Healthcare SA and Baxter Healthcare Corporation, dated September 26, 2005,
as amended (the “BAX-855 Agreement”), and any other product that provides a basis for the payment of royalties, milestones
and/or other payments to the Company or an Affiliate of the Company thereunder;



 


		(iii)	Any product falling within the definition of “Product” as defined in Section 1.57 of the License, Manufacturing
and Supply Agreement between Nektar Therapeutics AL, Corporation and (OSI) Eyetech, Inc., dated September 30, 2006, as amended
(the “Fovista Agreement”), and any other product that provides a basis for the payment of royalties, milestones and/or
other payments to the Company or an Affiliate of the Company thereunder;



  


		(iv)	Any product falling within the definition of “Product” as defined in Section 1.98 of the Co-Development, License
and Co-Promotion Agreement between Nektar Therapeutics, Aerogen, Inc., and Bayer Healthcare LLC, dated August 1, 2007 as amended
(the “Amikacin Agreement”), and any other product that provides a basis for the payment of royalties, milestones and/or
other payments to the Company or an Affiliate of the Company thereunder;



  


		(v)	Any product falling within the definition of “Product” as defined in Section 1.69 of the Collaborative Development
and License Agreement between Nektar Therapeutics and Bayer Healthcare AG, dated November 30, 2004, as amended (the “CIPRO
Agreement”), and any other product that provides a basis for the payment of royalties, milestones and/or other payments to
the Company or an Affiliate of the Company thereunder; and



  


		(vi)	Any product falling within the definition of “Selected Product” as defined in Section 1.56 of the License Agreement
between Nektar Therapeutics AL, Corporation and Halozyme, Inc., dated December 22, 2006, as amended (the “PEG2H2O Agreement”),
and any other product that provides a basis for the payment of royalties, milestones and/or other payments to the Company or an
Affiliate of the Company thereunder.



  


“Specified
Entity” means any Person listed on Schedule 1 attached to the Fee Letter.


 


“Specified
Revenue Amount” means, as of any date, the amount set forth opposite such date below:




 


	 	Date	 	 	Amount	 
	On or prior to December 31, 2016	$30,000,000
	January 1, 2017 to and including December 31, 2017	$45,000,000
	January 1, 2018 to and including December 31, 2018	$60,000,000
	January 1, 2019 to and including December 31, 2019	$95,000,000
	January 1, 2020 and all times thereafter	$140,000,000
	 	 	 	 




; provided that the above amounts will be reduced on a proportionate basis at the time of any repayment (in accordance with
the terms of this Indenture) of the principal amount of Notes.


 






    	21



    	 



    

 


“Stated Maturity”
means, with respect to any installment of principal on any series of Indebtedness, the date on which the payment of principal was
scheduled to be paid in the documentation governing such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment
thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


		(1)	any corporation, association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and



 


		(2)	any partnership (a) the sole general partner or the managing general partner of which is such Person
or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person
(or any combination thereof).



 


“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).


 


“Treasury
Rate” means, as of any redemption date, a rate per annum (computed on the basis of actual days elapsed over a year of
360 days) determined by the Collateral Agent on the date three (3) Business Days prior to the date of redemption, to be the yield
expressed as a rate listed in The Wall Street Journal for United States Treasury securities having a term of not greater than twenty-four
(24) months.


 


“Trustee”
means Wilmington Trust, National Association, in its capacity as trustee, until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor serving hereunder.


 


“Unrestricted
Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.


 


“Unrestricted
Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.


 


“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.


 


“Uniform Commercial
Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.


 


“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election
of the Board of Directors of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:


 


		(1)	the sum of the products obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness,
by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment;
by



 






    	22



    	 



    

 


		(2)	the then outstanding principal amount of such Indebtedness.



 


Section
1.02        Other Definitions.


 


	 	Defined in 
	Term	 	Section
	“Affiliate Transaction”	4.11
	“Asset Sale Offer”	3.10
	“Authentication Order”	2.02
	“Change of Control Offer”	4.15
	“Change of Control Payment”	4.15
	“Change of Control Payment Date”	4.15
	“Covenant Defeasance”	8.03
	“DTC”	2.03
	“Event of Default”	6.01
	“Excess Proceeds”	4.10
	“Excess Royalty Proceeds”	4.16
	“incur”	4.09
	“Legal Defeasance”	8.02
	“Lenders’ Policies”	4.20
	“Offer Amount”	3.10
	“Offer Period”	3.10
	“Paying Agent”	2.03
	“Permitted Debt”	4.09
	“Payment Default” 	6.01
	“Permitted Convertible Notes” 	4.09
	“Premises” 	4.20
	“Prepayment Premium” 	3.07
	“Prepayment Restricted Indebtedness” 	4.07
	“Purchase Date”	3.10
	“Registrar”	2.03
	“Repurchase Date”	4.16
	“Restricted Payments”	4.07
	“Royalty Transactions Repurchase Offer”	4.16
	“Royalty Transactions Repurchase Offer Amount”	4.16
	“Royalty Transactions Repurchase Offer Period”	4.16


 


Section
1.03          Incorporation by Reference of Trust Indenture Act.


 


Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.


 


The following TIA terms
used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes;


 


“indenture
security Holder” means a Holder of a Note;


 






    	23



    	 



    

 


“indenture
to be qualified” means this Indenture;


 


“indenture
Trustee” or “institutional Trustee” means the Trustee; and


 


“obligor”
on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes
and the Note Guarantees, respectively.


 


All other terms used
in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.


 


Section
1.04          Rules of Construction.


 


Unless the context
otherwise requires:


 


(1)          a
term has the meaning assigned to it;


 


(2)          an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(3)          “or”
is not exclusive;


 


(4)          words
in the singular include the plural, and in the plural include the singular;


 


(5)          “will”
shall be interpreted to express a command;


 


(6)          provisions
apply to successive events and transactions; and


 


(7)          references
to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.


 


ARTICLE
2

THE NOTES


 


Section
2.01          Form and Dating.


 


(a)          General.
The Notes will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations
of $2,000 and integral multiples of $1,000 in excess thereof.


 


The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.


 






    	24



    	 



    

 


(b)          Notes.
Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and
the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form will
be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes
as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from
time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.


 


Section
2.02          Execution and Authentication.


 


At least one Officer
must sign the Notes for the Company by manual or facsimile signature.


 


If an Officer whose
signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.


 


A Note will not be
valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.


 


The Trustee will, upon
receipt of a written order of the Company signed by two Officers (an “Authentication Order”), authenticate Notes
for original issue that may be validly issued under this Indenture. The aggregate principal amount of Notes outstanding at any
time may not exceed $250,000,000, except as provided in Section 2.07 hereof.


 


The Trustee may appoint
an authenticating agent acceptable to the Company to authenticate Notes. 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.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.


 


Section
2.03          Registrar and Paying Agent.


 


The Company will maintain
an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a
register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Trustee shall be the
Paying Agent. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.
If the Company fails to appoint or maintain another entity as Registrar, the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Registrar.


 


The Company initially
appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.


 


The Company initially
appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.


 


Section
2.04          Paying Agent to Hold Money in Trust.


 


The Company will require
each Paying Agent to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee,
in writing, of any default by the Company in making any such payment. While any such default continues, the Trustee may require
a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent will have no further liability for the money. At
all times, the Trustee will serve as Paying Agent for the Notes.


 






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Section
2.05          Holder Lists.


 


The Trustee will preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders
and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee
at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes
and the Company shall otherwise comply with TIA § 312(a).


 


Section
2.06          Transfer and Exchange.


 


(a)          Transfer
and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company
for Definitive Notes if:


 


(1)          the
Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that
it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 120 days after the date of such notice from the Depositary;


 


(2)          the
Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers an Authentication Order to such effect, along with an Officer’s Certificate, to the Trustee; or


 


(3)          there
has occurred and is continuing a Default or Event of Default with respect to the Notes and a request for such exchange has been
made by DTC.


 


Upon the occurrence
of either of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Definitive
Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests
in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d) hereof.


 






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(b)          Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:


 


(1)          Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).


 


(2)          All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)         both:


 


(i)          a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged; and


 


(ii)          instructions
given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with
such increase; or


 


(B)         both:


 


(i)          a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged; and


 


(ii)          instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.


 


Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g)
hereof.


 


(3)          Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:


 


(A)         if the
transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;


 






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(B)         if the
transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)         if the
transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable.


 


(4)          Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and:


 


(A)         the
Registrar receives the following:


 


(i)          if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(a) thereof; or


 


(ii)          if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Company or Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the Company or Registrar stating that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.


 


If any such transfer
is effected pursuant to subparagraph (A) above at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests
transferred or exchanged pursuant to subparagraph (A) above. Notwithstanding anything to the contrary contained herein, the Company
hereby agrees that, after the expiration of the six-month holding period under Rule 144 and upon receipt by the Registrar of the
certification set forth in item (1)(a) of Exhibit C hereto or item (4) of Exhibit B hereto, as applicable, but without any requirement
to deliver an Opinion of Counsel, it shall issue one or more Unrestricted Global Notes, an Authentication Order and provide the
Trustee with such other documentation as reasonably requested by the Trustee (including the Officer’s Certificate and Opinion
of Counsel set forth in Section 13.03 hereof) to exchange a beneficial interest in a Restricted Global Note into a beneficial interest
in an Unrestricted Global Note or to transfer a beneficial interest in a Restricted Global Note to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.


 






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Beneficial interests
in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.


 


(c)          Transfer
or Exchange of Beneficial Interests for Definitive Notes.


 


(1)          Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:


 


(A)          if the
holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


(B)          if such
beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;


 


(C)          if such
beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904,
a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if such
beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(E)          if such
beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)          if such
beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof; or


 


(G)          if such
beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute
and the Trustee shall authenticate, upon receipt of an Authentication Order, and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1)
shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.


 






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(2)          [Reserved]


 


(3)          Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note only if:


 


(A)         the
Registrar receives the following:


 


(i)          if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof;
or


 


(ii)          if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Company or Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the Company or Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.


 


(4)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2)
hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Company will execute and the Trustee will, upon receipt of an Authentication Order, authenticate
and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to
the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(4)will not bear the Private Placement Legend.


 






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(d)          Transfer
and Exchange of Definitive Notes for Beneficial Interests.


 


(1)          Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 


(A)          if the
Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;


 


(B)          if such
Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;


 


(C)          if such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if such
Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;


 


(E)          if such
beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)          if such
Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof; or


 


(G)          if such
Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


the Trustee will cancel the Restricted
Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation
S Global Note, and in all other cases, the IAI Global Note.


 


(2)          Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(A)         the
Registrar receives the following:


 


(i)          if
the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or


 






    	31



    	 



    

 


(ii)          if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Company or Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the Company or Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required
in order to maintain compliance with the Securities Act.


 


Upon satisfaction
of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase
or cause to be increased the aggregate principal amount of the Unrestricted Global Note.


 


(3)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.


 


If any such
exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(A) or (3) above
at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so transferred.


 


(e)          Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s
compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).


 


(1)          Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:


 


(A)          if the
transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (1) thereof;


 






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(B)         if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and


 


(C)         if
the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.


 


(2)          Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:


 


(A)         the
Registrar receives the following:


 


(i)           if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or


 


(ii)          if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Company or Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Company
or Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities
Act.


 


(3)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.


 


(f)           Legends.
The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.


 


(1)          Private
Placement Legend.


 


(A)         Except
as permitted by subparagraph (B) below, each Restricted Global Note and each Restricted Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in substantially the following form


 


THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 






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THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH SUCH PURCHASE
IS MADE OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) or (7)UNDER
THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE 6 MONTH HOLDING
PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE
JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501 (a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S
AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C), (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE OR REGISTRAR. THIS LEGEND MAY BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE EXPIRATION OF THE 6 MONTH HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES
ACT.


 


(B)          Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (d)(2), (d)(3), (e)(2) or (e)(3)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.


 






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(2)           Global
Note Legend. Each Global Note will bear a legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
[__________________] OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
[______________] OR SUCH OTHER ENTITY AS MAY BE 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, [____________],
HAS AN INTEREST HEREIN.”


 


(g)          Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such
Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior
to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note
will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.


 


(h)          General
Provisions Relating to Transfers and Exchanges.


 


(1)           To
permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.


 


(2)           No
service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange
or transfer pursuant to Sections 2.10, 3.06, 4.10 and 4.15 hereof).


 






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


 


(4)          Neither
the Registrar nor the Company will be required:


 


(A)          to
issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption under Section 3.03 hereof and ending at the close of business on the day of selection;


 


(B)          to
register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part; or


 


(C)          to
register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.


 


(5)          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.


 


(6)           The
Trustee will, upon receipt of an Authentication Order, authenticate Global Notes and Definitive Notes in accordance with the provisions
of Section 2.02 hereof.


 


(7)          All
certifications, certificates and Opinions of Counsel required to be submitted to the Registrar, Trustee or Company pursuant to
this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.


 


(8)          Trustee
and the Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers
between or among Depositary participants, members or beneficial owners 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 this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.


 


(9)          Neither
the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.


 






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(10)          The
Trustee shall have no responsibility or obligation to any Participant or Indirect Participant or any other Person with respect
to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant or Indirect Participant
or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders
under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary
subject to the Applicable Procedures. The Trustee may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its Participants or Indirect Participants.


 


(11)          So
long as no Event of Default has occurred and is continuing, no Holder shall, without the prior written consent of the Company,
transfer any Note to any Competitor or Specified Entity. In connection with any such transfer, the transferee shall deliver to
the Trustee a certificate in the form of Exhibit D.


 


Section
2.07         Replacement Notes.


 


If any mutilated Note
is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee will, upon receipt of an Authentication Order, authenticate a replacement
Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment
of each of the Trustee and the Company to protect the Company or the Trustee, as applicable, and any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.


 


Every replacement Note
is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


Section
2.08         Outstanding Notes.


 


The Notes outstanding
at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be outstanding for purposes of Section 3.07(a) hereof. 


 


If a Note is replaced
pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a protected purchaser.


 


If the principal amount
of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


If the Paying Agent
(other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease
to accrue interest.


 






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Section
2.09          Treasury Notes.


 


In determining whether
the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company
or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control
with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether
the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee actually knows are
so owned will be so disregarded. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s
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 the Trustee shall be entitled to accept and rely upon such Officer’s 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
determination.


 


Section
2.10          Temporary Notes.


 


Until certificates
representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company will prepare and the Trustee will, upon receipt of an Authentication Order, authenticate definitive Notes in
exchange for temporary Notes.


 


Holders of temporary
Notes will be entitled to all of the benefits of this Indenture.


 


Section
2.11          Cancellation.


 


The Company at any
time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement
of the Exchange Act). Evidence of the cancellation of all canceled Notes will be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.


 


Section
2.12          Defaulted Interest.


 


If the Company defaults
in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special
record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record date, the Company will mail or cause to be mailed
(in the case of Notes held in book entry form, by electronic transmission) to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.


 






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Section
2.13         Global Notes. 


 


Notwithstanding
anything to the contrary in this Indenture, no Global Notes shall be issued without the prior written consent of the Collateral
Agent.


 


ARTICLE
3

REDEMPTION AND PREPAYMENT


 


Section
3.01         Notices to Trustee.


 


If the Company elects
to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least
45 days (or such shorter period as the Trustee may agree) but not more than 60 days before a redemption date, an Officer’s
Certificate setting forth:


 


(1)           the
clause of this Indenture pursuant to which the redemption shall occur;


 


(2)           the
redemption date;


 


(3)           the
principal amount of Notes to be redeemed; and


 


(4)           the
redemption price.


 


Section
3.02         Selection of Notes to Be Redeemed or Purchased.


 


If less than all of
the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a pro rata basis to the extent
practicable, subject to the applicable procedures of the Depositary unless otherwise required by law or applicable stock exchange
requirements.


 


In the event of partial
redemption or purchase, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously
called for redemption or purchase.


 


The Trustee will promptly
notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be
in minimum amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to
be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for redemption or purchase. No Notes of $2,000 or less can be redeemed
in part.


 


Section
3.03         Notice of Redemption.


 


Subject to the provisions
of Section 3.10 hereof, at least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to
be mailed, by first class mail (in the case of Global Notes, by electronic transmission), a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this
Indenture pursuant to Articles 8 or 12 hereof.


 






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The notice will identify
the Notes to be redeemed and will state:


 


(1)           the
redemption date;


 


(2)           the
redemption price;


 


(3)           if
any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation
of the original Note;


 


(4)           the
name and address of the Paying Agent;


 


(5)           that
Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;


 


(6)           that,
unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;


 


(7)           the
paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and


 


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


 


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 45 days (or such shorter notice period as may be agreed to by the Trustee)
prior to the redemption date, an Officer’s 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
3.04         Effect of Notice of Redemption.


 


Once notice of redemption
is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.


 


Section
3.05         Deposit of Redemption or Purchase Price.


 


Prior to 10:00 a.m.
(New York City Time) on the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date.
Promptly following the redemption or purchase date, the Trustee or the Paying Agent will return to the Company any money deposited
with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price
of, and accrued interest on, all Notes to be redeemed or purchased.


 


If the Company complies
with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase
is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.


 






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Section
3.06          Notes Redeemed or Purchased in Part.


 


Upon surrender of a
Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.


 


Section
3.07          Optional Redemption.


 


(a)           At
any time prior to October 5, 2017, upon the redemption of all or a part of the Notes for any reason (including, but not limited
to, any redemption after the occurrence of an Event of Default or after acceleration of the Notes including in connection with
the commencement of any proceeding pursuant to any Bankruptcy Law), the Company shall pay a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Make-Whole Premium as of, and accrued and unpaid interest, if any, to the date of redemption,
subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment
date occurring on or prior to the redemption date.


 


(b)           Any
redemption of Notes at the option of the Company shall be upon not less than 30 nor more than 60 days’ prior notice.


 


(c)           On
or after October 5, 2017, upon the redemption of all or a part of the Notes for any reason (including, but not limited to, any
redemption after the occurrence of an Event of Default or after acceleration of the Notes including in connection with the commencement
of any proceeding pursuant to any Bankruptcy Law), the Company shall pay the redemption prices (expressed as percentages of principal
amount) set forth below (the “Prepayment Premium”) plus accrued and unpaid interest, if any, on the Notes redeemed,
to the applicable redemption date, if redeemed during the twelve-month period beginning on October 5 of the years indicated below,
subject to the rights of holders of Notes on the relevant record date to receive interest on the relevant interest payment date
occurring on or prior to the redemption date:


 


	Year	 	Percentage
	2017	 	104%
	2018	 	102%
	2019	 	100%


 


Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption
on the applicable redemption date.


 


(d)           Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.


 






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(e)           Without
limiting the generality of the foregoing, it is understood and agreed that if the Obligations are accelerated for any reason, including
because of an Event of Default, the sale, disposition or encumbrance (including that by operation of law or otherwise) as a result
of an Event of Default or the commencement of any proceeding pursuant to any Bankruptcy Law, the Make-Whole Premium, if any, and
Prepayment Premium, if any, determined as of the date of acceleration will also be due and payable as though said Indebtedness
was voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme
difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s
lost profits as a result thereof. Any Make-Whole Premium and Prepayment Premium payable in accordance with the immediately preceding
sentence shall be presumed to be the liquidated damages sustained by each Holder as the result of the early redemption and the
Company agrees that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, and Prepayment
Premium, if any, shall also be payable (i) in the event the Obligations (and/or this Indenture or the Notes evidencing the Obligations)
are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other
means and/or (ii) upon the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance
or compromise of any of the Obligations (and/or this Indenture or the Notes evidencing the Obligations) in any proceeding pursuant
to any Bankruptcy Law, foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any
other means or the making of a distribution of any kind in any proceeding pursuant to any Bankruptcy Law to the Collateral Agent,
for the account of the Holders, in full or partial satisfaction of the Obligations. THE COMPANY EXPRESSLY WAIVES THE PROVISIONS
OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM AND PREPAYMENT
PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE
OBLIGATIONS PURSUANT TO ANY PROCEEDING PURSUANT TO ANY BANKRUPTCY LAW OR PURSUANT TO A PLAN OF REORGANIZATION. The Company expressly
agrees that: (A) the Make-Whole Premium and Prepayment Premium are reasonable and are the product of an arm’s length transaction
between sophisticated business people, ably represented by counsel; (B) the Make-Whole Premium and Prepayment Premium shall be
payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between
Holders and the Company giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium and
Prepayment Premium; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph.
The Company expressly acknowledges that its agreement to pay the Make-Whole Premium and Prepayment Premium to the Holders as herein
described is a material inducement to Holders to purchase the Notes.


 


Section
3.08          Mandatory Redemption.


 


The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes.


 


Section
3.09          [Reserved]


 


Section
3.10          Offer to Purchase by Application of Excess Proceeds.


 


In the event that,
pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset
Sale Offer”), it will follow the procedures specified below.


 


The Asset Sale Offer
shall be made to all Holders. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement
and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer
Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”),
the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes or, if less than the
Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are made.


 






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If the Purchase Date
is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest
will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.


 


Upon the commencement
of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders. The notice
will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer.
The notice, which will govern the terms of the Asset Sale Offer, will state:


 


(1)           that
the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.10 hereof and the length of time the Asset Sale
Offer will remain open;


 


(2)           the
Offer Amount, the purchase price and the Purchase Date;


 


(3)           that
any Note not tendered or accepted for payment will continue to accrue interest;


 


(4)           that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest on and after the Purchase Date;


 


(5)           that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum denominations
of $2,000 or an integral multiple of $1,000 in excess thereof;


 


(6)           that
Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three
days before the Purchase Date;


 


(7)           that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased;


 


(8)           that,
if the aggregate principal amount of Notes surrendered by holders thereof exceeds the Offer Amount, the Company will select the
Notes to be purchased on a pro rata basis based on the principal amount of Notes surrendered (with such adjustments as may
be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in
excess thereof, will be purchased); and


 


(9)           that
Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).


 






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On or before the Purchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary and in the
manner described in clause (8) above, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee
the Notes properly accepted together with an Officer’s Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.10. The Company, the Depositary or the Paying Agent,
as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and
the Company will promptly issue a new Note, and the Trustee, upon written request from the Company in the form of an Authentication
Order, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered
by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.


 


Other than as specifically
provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.


 


The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
those laws and regulations are applicable in connection with the repurchase of the Notes as a result of an Asset Sale Offer. To
the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 3.10 hereof,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under this Section 3.10 by virtue of such compliance


 


ARTICLE
4

COVENANTS


 


Section
4.01          Payment of Notes.


 


The Company will pay
or cause to be paid the principal of and interest and premium, if any, on, the Notes on the dates and in the manner provided in
the Notes. Principal, interest and premium, if any, will be considered paid on the date due if the Paying Agent, if other than
the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, interest and premium, if any, then due.


 


The Company will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
2% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.


 


Section
4.02          Maintenance of Office or Agency.


 


The Company will maintain
an office or agency (which may, in the case of clause (i) below, be an office of the Trustee or an affiliate of the Trustee, Registrar
or co-registrar) where (i) Notes may be surrendered for registration of transfer or for exchange and (ii) where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain
any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations and surrenders
may be made or served at the Corporate Trust Office of the Trustee.


 






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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 such designations. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such other office or agency.


 


The Company hereby
designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03
hereof.


 


Section
4.03         Reports.


 


(a)          Whether
or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the
Holders of Notes, within the time periods specified in the SEC’s rules and regulations:


 


(1)          all
quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required
to file such reports; and


 


(2)          all
current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.


 


(b)          If
the Company has designated any of its Subsidiaries as Royalty Transaction Subsidiaries, then at the time of the quarterly and annual
reports referred to in Section 4.03(a)(1), the Company shall make available to the Holders (separately from such reports, if the
Company so elects) a reasonably detailed presentation of the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of operations of the Royalty Transaction Subsidiaries
of the Company.


 


(c)          All
such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s
certified independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses (a)(1)
and (a)(2) above with the SEC for public availability within the time periods specified in the rules and regulations applicable
to such reports (unless the SEC will not accept such filing) and will post the reports on its website within those time periods.
The availability of the foregoing materials on the SEC’s EDGAR service (or any successor thereto) shall be deemed to satisfy
the Company’s delivery obligation, it being understood that the Trustee shall have no obligation whatsoever to determine
if such information has been posted.


 


(d)          If,
at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding paragraphs of this covenant with the SEC within the time
periods specified above unless the SEC will not accept such filings. The Company will not take any action for the purpose of causing
the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings
for any reason, the Company will post the reports referred to in the preceding paragraphs on its website within the time periods
that would apply if the Company were required to file those reports with the SEC.


 






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(e)          Furthermore,
the Company agrees that, for so long as any Notes remain outstanding, it will furnish to the holders of Notes, beneficial owners
of the Notes, bona fide prospective investors, securities analysts and market makers, upon their request, the reports described
above and any other information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


(f)           Without
limiting any other obligations of the Company hereunder, with a view to making available to the holders of Notes the benefits
of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that may at any time permit
the holders to sell securities of the Company to the public without registration, until the first anniversary of the date of issuance
of the Notes the Company shall:


 


(1)          
make and keep public information available, as those terms are understood and defined in Rule 144;


 


(2)           file
with the SEC all reports and other documents specified in applicable provisions of Rule 144 that are required of the Company under
the Securities Act and the Exchange Act within the time periods specified in the SEC’s rules and regulations; and


 


(3)           so
long as the holders own Notes, promptly upon request, furnish to holders (i) a written statement by the Company that it has complied
with the reporting requirements of the Securities Act and the Exchange Act as required for applicable provisions of Rule 144, (ii)
a copy of the most recent annual or quarterly report of the Company and such other reports and documents filed by the Company with
the Company and (iii) such other information as may be reasonably requested to permit the holders to sell such securities pursuant
to Rule 144 without registration.


 


(g)          At
the time of the quarterly reports referred to in Section 4.03(a)(1), the Company shall make available to the Holders (separately
from such reports, if the Company so elects) a reasonably detailed presentation of the royalty revenue of the Company and its Restricted
Subsidiaries for such preceding quarter.


 


(h)          At
the time of the quarterly reports referred to in Section 4.03(a)(1), the Company shall, to the extent permitted to do so under
the underlying license agreement, make available to the Holders copies of each report of royalty revenue delivered to the Company
or any of its Subsidiaries by each licensee of any intellectual property owned by the Company or any of its Subsidiaries relating
to any Specified Drug (whether pursuant to a Royalty Transaction or otherwise).


 


(i)           Promptly,
but in any event within 5 Business Days, after the end of each fiscal month of the Company, the Company shall promptly make available
to the Holders a report of the current cash and Cash Equivalent balances of the Company and the Guarantors, which report shall
identify unrestricted and restricted cash and Cash Equivalents; provided, that at any time the current cash and Cash Equivalent
balances of the Company and the Guarantors is less than $120,000,000, the Collateral Agent may request at any time, and the Company
shall promptly provide, a report of at least 95% of the current cash and Cash Equivalent balances of the Company and the Guarantors,
which report shall identify unrestricted and restricted cash and Cash Equivalents (or, if greater, all cash and Cash Equivalent
balances required to satisfy the minimum cash balance covenant set forth in Section 4.21).


 


(j)           Delivery
of any such reports, information and documents to the Trustee pursuant to this Section 4.03 is for informational purposes only,
and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or 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 rely exclusively on Officer’s Certificates).


 






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Section
4.04          Compliance Certificate.


 


(a)           The
Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, commencing with the fiscal year ending
December 31, 2015, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture and the other Indenture Documents, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and the other Indenture Documents and is not in default
in the performance or observance of any of the terms, provisions and conditions of this Indenture or the other Indenture Documents
(or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any,
on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes
to take with respect thereto.


 


(b)           So
long as any of the Notes are outstanding, the Company will deliver to the Trustee and the Collateral Agent, within 30 days of any
Officer becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto. The Company shall provide the Collateral Agent
prompt notice of any acceleration of the Notes.


 


Section
4.05          Taxes.


 


The Company will pay,
and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.


 


Section
4.06          Stay, Extension and Usury Laws.


 


The Company and each
of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors
(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, by resort to any such law, 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 has been enacted.


 






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Section
4.07          Restricted Payments.


 


(a)           The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)           declare
or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’
Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) (other than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company (it being understood for the avoidance of doubt that any right to purchase Equity Interests at a discount
pursuant to an implementation of the Company’s existing shelf shareholder rights plan shall be deemed to be a distribution
payable solely in Equity Interests) and other than dividends or distributions payable to the Company or a Restricted Subsidiary
of the Company);


 


(2)           purchase,
redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;


 


(3)           (x)
make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value (i) any Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness
between or among the Company and any of its Restricted Subsidiaries), (ii) the Permitted Convertible Notes or (iii) any other Indebtedness
of the Company except those incurred pursuant to clauses (2), (3), (4), (6) (to the extent the Indebtedness under such clause (6)
is owed to the Company or a Guarantor), (8), (10), (11), (13), (15) and (16) of Section 4.09(b) hereof (such Indebtedness described
in the preceding clauses (i), (ii) and (iii) collectively, “Prepayment Restricted Indebtedness”), in each case
prior to the Stated Maturity thereof, or (y) make any interest payment on any Prepayment Restricted Indebtedness, other than regularly
scheduled interest; or


 


(4)           make
any Restricted Investment


 


(all such payments
and other actions set forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”),


 


unless, at
the time of and after giving effect to such Restricted Payment:


 


(1)           no
Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;


 


(2)           the
Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;


 


(3)           such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries since the date of this Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) and (9)
of paragraph (b) of this Section 4.07), is less than the sum, without duplication, of


 


 (A)          50%
of the Consolidated Net Income of the Company for the period (taken as one accounting period) from October 1, 2015 to the end of
the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus


 






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(B)          100%
of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale
of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold
to a Subsidiary of the Company); plus


 


(C)          to
the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated
or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition,
if any) and (ii) the initial amount of such Restricted Investment; and


 


(4)          the
Company and the Guarantors would, at the time of such Restricted Payment and after giving effect thereto, have unrestricted cash
and Cash Equivalents in an aggregate amount greater than or equal to $90.0 million.


 


Notwithstanding the
foregoing, the Company may not make any Restricted Payments of the type described in clause (3) of paragraph (a) of this Section
4.07 except pursuant to clauses (3) and (10) of paragraph (b) of this Section 4.07.


 


(b)          The
provisions of Section 4.07(a) hereof will not prohibit:


 


(1)          the
payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend
or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment
would have complied with the provisions of this Indenture;


 


(2)          [Reserved];


 


(3)          the
repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of Prepayment Restricted Indebtedness
with the net cash proceeds from, or in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness;


 


(4)          the
payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;


 


(5)          the
repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent
a portion of the exercise price of those stock options;


 


(6)          the
declaration and payment of customary regularly scheduled or accrued dividends to holders of any class or series of Disqualified
Stock of the Company or any Restricted Subsidiary of the Company issued on or after the date hereof in compliance with Section
4.09;


 


(7)          so
long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of customary regularly
scheduled or accrued dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock)
issued after the date hereof; provided, however, that (A) for the most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock,
after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis (including a pro forma
application of the net proceeds therefrom), the Company would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00 and
(B) the aggregate amount of dividends declared and paid pursuant to this clause (7) does not exceed the net cash proceeds actually
received by the Company from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the date
hereof;


 






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(8)           the
payment of dividends on the Company’s common stock of up to 6% per annum of the net proceeds received by the Company from
a public offering of common stock of the Company consummated concurrently with payment of such dividend;


 


(9)           Restricted
Payments by the Company or any Restricted Subsidiary to allow the payment in good faith of cash in lieu of the issuance of fractional
shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person;


 


(10)         the
repurchase, redemption or other acquisition or retirement for value of any convertible notes in connection with a Change of Control
pursuant to change of control provisions customary for convertible notes; provided that a Change of Control Offer has been
made with respect to such Change of Control and all Notes tendered by Holders of the Notes in connection with such Change of Control
Offer have been repurchased; and


 


(11)         so
long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount
not to exceed $5.0 million since the date hereof.


 


The amount of all Restricted
Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed
to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Notwithstanding the foregoing, (x) the aggregate amount of Restricted Payments made by the Company (other than if made pursuant
to clauses (3), (4), (5), (7), (8), (9) or (10) of paragraph (b) of this Section 4.07) shall not exceed $50.0 million, whether
made pursuant to Section 4.07(a) or 4.07(b) and (y) no Restricted Payments shall be made pursuant to clauses (1), (6) or (11) of
paragraph (b) of this Section 4.07 unless the Company and the Guarantors have, at the time of such Restricted Payment and after
giving effect thereto, unrestricted cash and Cash Equivalents in an aggregate amount greater than or equal to $90.0 million.


 


Section
4.08         Dividend and Other Payment Restrictions Affecting Subsidiaries.


 


(a)          The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:


 


(1)           pay
dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect
to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;


 


(2)           make
loans or advances to the Company or any of its Restricted Subsidiaries; or


 


(3)           sell,
lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.


 






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(b)          The
restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:


 


(1)           agreements
governing Existing Indebtedness as in effect on the date of this Indenture;


 


(2)           the
Indenture Documents;


 


(3)           agreements
or instruments governing Indebtedness, Disqualified Stock or Preferred Stock incurred in compliance with Section 4.09 hereof; provided
that the encumbrances or restrictions contained therein, taken as a whole, are not materially more restrictive than those contained
in the Indenture Documents, in each case, as then in effect;


 


(4)           applicable
law, rule, regulation or order, or pursuant to any agreement relating to a judgment, settlement, or compromise of any litigation,
arbitration or other dispute;


 


(5)           any
instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as
in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;


 


(6)           customary
non-assignment provisions in contracts and licenses entered into in the ordinary course of business;


 


(7)           purchase
money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions
on the property purchased or leased of the nature described in Section 4.08(a)(3) hereof;


 


(8)           any
agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending the sale or other disposition;


 


(9)           Permitted
Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness
being refinanced;


 


(10)         Liens
permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets
subject to such Liens;


 


(11)          provisions
limiting the disposition or distribution of assets or property in agreements governing Collaboration Transactions, agreements governing
Royalty Transactions, intellectual property licenses, joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements, and other similar agreements entered into with the approval of the Company’s Board of Directors, which
limitation is applicable only to the assets that are the subject of such agreements;


 


(12)         restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and


 






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(13)         any
amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of any agreements specified
in the preceding clauses (1) through (12); provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in the applicable original agreement.


 


(c)          For
purposes of determining compliance with this Section 4.08, (i) the priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the
ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted
Subsidiary of the Company to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances.


 


Section
4.09         Incurrence of Indebtedness and Issuance of Preferred Stock.


 


(a)          The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred
stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified
Stock or such preferred stock is issued, as the case may be, would have been at least 2.00 to 1.00, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified
Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.


 


(b)          The
provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively,
“Permitted Debt”):


 


(1)           the
incurrence by the Company or any Guarantor of Indebtedness that is expressly subordinated to the prior payment in full in cash
of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor,
in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $35.0 million; provided
that such subordinated Indebtedness has a final maturity date that is no earlier than one year after the date on which the Notes
mature;


 


(2)           the
incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;


 


(3)           the
incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued
on the date hereof;


 


(4)           the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock and Preferred Stock of Restricted
Subsidiaries of the Company (including Capitalized Lease Obligations) to finance (whether prior to or within 270 days after) the
purchase, lease, construction or improvement of property (real or personal) or equipment (whether through the direct purchase of
assets or the Capital Stock of any Person owning such assets (but no other material assets)), including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause
(4), in an aggregate principal amount not to exceed $5.0 million at any time outstanding;


 






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(5)          the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2), (3), (4), (5), (14) and
(17) of this Section 4.09(b);


 


(6)          the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that:


 


(a)           if the
Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness
must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the
case of the Company, or the Note Guarantee, in the case of a Guarantor; and


 


(b)           (i)
any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than
the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary of the Company,


 


will be deemed,
in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (6);


 


(7)          the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares
of preferred stock; provided, however, that:


 


(a)          any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than
the Company or a Restricted Subsidiary of the Company; and


 


(b)          any
sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the
Company,


 


will be deemed,
in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause
(7);


 


(8)          the
incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not
for speculative purposes;


 


(9)          the
guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that
was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed
is subordinated to the Notes, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;


 






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(10)          the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;


 


(11)          the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness
is covered within five business days;


 


(12)          [Reserved];


 


(13)          Collaboration
Transactions and Royalty Transactions, to the extent involving an incurrence of Indebtedness;


 


(14)          the
incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt that is not incurred in connection with, or in
contemplation of, the related acquisition; provided, however, that after giving effect to the related acquisition and the Incurrence
of such Indebtedness either: (x) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant; or (y) the Fixed Charge Coverage Ratio
would be greater than immediately prior to such acquisition;


 


(15)          Indebtedness
of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $2.5 million;


 


(16)          Indebtedness
of the Company or any of its Restricted Subsidiaries arising from agreements for adjustment of purchase price, earn-outs, contingent
milestone payments or similar obligations in each case incurred in connection with (a) any disposition or acquisition of any business,
asset, property or Subsidiary of the Company, to the extent the related disposition or acquisition is permitted under this Indenture,
(b) any license arrangement pursuant to which the Company or any of its Restricted Subsidiaries acquires intellectual property
or other rights useful in a Permitted Business; and


 


(17)          the
incurrence by the Company or any of the Guarantors of additional Indebtedness, Disqualified Stock or Preferred Stock of Restricted
Subsidiaries of the Company in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (17), not
to exceed $10.0 million.


 


Notwithstanding anything
to the contrary in the foregoing, other than (x) Indebtedness incurred pursuant to clauses (2), (3), (4), (6) (to the extent the
Indebtedness under such clause (6) is owed to the Company or a Guarantor), (8), (10), (11), (13), (15) and (16) of paragraph (b)
of this Section 4.09 and (y) Indebtedness (i) that constitutes an issuance of convertible notes at a rate of interest no higher
than 6.0% per annum, (ii) with an aggregate principal amount at any time outstanding not exceeding $100.0 million, (iii) with no
amortization prior to Stated Maturity other than pursuant to customary change of control provisions, (iv) with a Stated Maturity
that is no earlier than 91 days after the date on which the Notes mature and (v) the Net Proceeds of which are applied in accordance
with Section 4.10 (the “Permitted Convertible Notes”), all Indebtedness incurred pursuant to this covenant shall
be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, will not
provide for amortization prior to Stated Maturity and have a Stated Maturity that is no earlier than 91 days after the date on
which the Notes mature.


 






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The Company will not
incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated
in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms.


 


For purposes of determining
compliance with this Section 4.09, in the event that an item of proposed Indebtedness (or portion thereof) meets the criteria of
more than one of the categories of Permitted Debt described in clauses (1) through (17) above or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness (or portion thereof) on the date
of its incurrence, or later reclassify all or a portion of such item of Indebtedness (or portion thereof), in any manner that complies
with this Section 4.09. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness
due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment
is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 4.09, the maximum amount
of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.


 


The amount of any Indebtedness
outstanding as of any date will be:


 


(1)          the
accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;


 


(2)          the
principal amount of the Indebtedness, in the case of any other Indebtedness; and


 


(3)          in
respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:


 


(A)          the
Fair Market Value of such assets at the date of determination; and


 


(B)          the
amount of the Indebtedness of the other Person.


 


Section
4.10         Asset Sales.


 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


(1)          the
Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;


 


(2)          (i)
in the case of Asset Sales other than those constituting Royalty Transactions, at least 75% of the consideration received in the
Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents and (ii) in the case of Asset
Sales constituting Royalty Transactions, 100% of the consideration received in the Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents;


 






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(3)          if
the Asset Sale would constitute a Change of Control, the Company shall have complied with all of its obligations under Section
4.15 hereof; provided that with respect to such Asset Sale, the Company shall not be required to make an Asset Sale Offer
if a Change of Control Offer has been made;


 


(4)          in
the case of Asset Sales constituting Royalty Transactions, (i) at the time of such proposed Royalty Transaction (or any other time
of determination in accordance herewith) and after giving effect thereto, the aggregate unencumbered LTM Royalty Revenue of the
Company and its Restricted Subsidiaries actually received from the Specified Drugs for the immediately preceding twelve-month period
is greater than the Specified Revenue Amount; provided that for the avoidance of doubt, any LTM Royalty Revenue of the Company
and its Restricted Subsidiaries that was disposed of in a prior Royalty Transaction cannot be used to achieve compliance with this
Section 4.10(4)(i) and (ii) for any Royalty Transaction involving a Specified Drug where only a portion of the LTM Royalty Revenue
of the Company and its Restricted Subsidiaries for such Specified Drug is required to achieve satisfaction of this Section 4.10(4)(i)
above, only the Pro Rata Percentage (defined as the percentage achieved by dividing (x) the LTM Royalty Revenue of the Company
and its Restricted Subsidiaries for such Specified Drug not required to achieve satisfaction in accordance with this Section 4.10(4)(i)
by (y) the total LTM Royalty Revenue of the Company and its Restricted Subsidiaries for such Specified Drug) of the future royalty
stream of such Specified Drug can be sold as part of the Royalty Transaction, with such Pro Rata Percentage being applied equally
to all royalty tiers. For purposes of this Indenture, when determining whether or not if the LTM Royalty Revenue of the Company
and its Restricted Subsidiaries actually received from the Specified Drugs for the immediately preceding twelve-month period is
greater than the Specified Revenue Amount, (i) first, such calculation shall include only the LTM Royalty Revenue of the Company
and its Restricted Subsidiaries actually received from Movantik for the immediately preceding twelve-month period, and (ii) second,
if necessary to comply with the provisions of this Section 4.10(4), such calculation may include the LTM Royalty Revenue of the
Company and its Restricted Subsidiaries actually received from the Specified Drugs (other than Movantik) for the immediately preceding
twelve-month period; and


 


(5)          no
Default or Event of Default has occurred and is continuing or would occur as a consequence of such Asset Sale.


 


For purposes
of this provision, each of the following shall be deemed to be cash:


 


(a)           any
liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary
(other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a customary novation or assumption agreement that releases the Company
or such Restricted Subsidiary from further liability or that are otherwise cancelled or terminated in connection with the transaction
with such transferee;


 


(b)           any
securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 90 days of the receipt thereof, to the extent of the cash
received in that conversion; and


 






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 (c)           any
stock or assets of the kind referred to in clause (1) or (3) of the next paragraph of this Section 4.10.


 


Within (i) 360 days
after the receipt of any Net Proceeds (other than Net Proceeds of any Royalty Transaction which is subject to Section 4.16) from
an Asset Sale or Applicable Transaction described in clause (1) of the definition of Applicable Transactions or (ii) 540 days after
receipt of any Net Proceeds from an Applicable Transaction described in clause (2) of the definition of Applicable Transaction,
the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:


 


(1)           to
acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect
to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;


 


(2)           to
make a capital expenditure in a Permitted Business;


 


(3)           to
license or acquire intellectual property and other rights in respect of technologies, drug candidates, drugs and assets related
or incidental thereto; or


 


(4)           to
make research and development expenditures that in the Company’s good faith judgment are useful with respect to a Permitted
Business.


 


Pending the final application
of any Net Proceeds, the Company may invest the Net Proceeds in any manner that is not prohibited by this Indenture; provided that
Net Proceeds attributable to an Asset Sale of assets, rights or Equity Interests that constitute Collateral may only be invested
in Cash Equivalents that shall be held in an account in which the Collateral Agent has a first priority perfected security interest,
subject to Permitted Liens, for its benefit, the benefit of the Trustee and the benefit of the Holders of the Notes in accordance
with this Indenture and the Collateral Documents; provided further that a binding commitment to apply Net Proceeds as set
forth in clause (1) or (3) above or a statement in an Officer’s Certificate that Net Proceeds will be applied as set forth
in clause (4) above shall be treated as a permitted application of the Net Proceeds from the date of such commitment or statement
so long as the Company or such Restricted Subsidiary enters into such commitment or makes such statement with the good faith expectation
that such Net Proceeds will be applied in a manner consistent with such commitment or statement within 180 days of such commitment
or statement and, in the event such commitment is later cancelled or terminated, or such statement withdrawn, for any reason before
the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.


 


Any Net Proceeds (other
than Net Proceeds of any Royalty Transaction which is subject to Section 4.16) from Asset Sales or Applicable Transactions that
are not applied or invested as provided in the second paragraph of this Section 4.10 will constitute “Excess Proceeds”
(it being understood that Net Proceeds from an Applicable Transaction described in clause (3) of the definition of Applicable Transactions
shall constitute Excess Proceeds immediately upon receipt). Within five Business Days after the aggregate amount of Excess Proceeds
exceeds $2.5 million, the Company will make an Asset Sale Offer to all Holders of Notes to purchase the maximum principal amount
of Notes that may be purchased with the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal
amount plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by
this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds,
the Trustee will select the Notes to be purchased on a pro rata basis to the extent practicable, subject to the applicable
procedures of the Depositary. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.


 






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The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of Section 3.10 hereof or this Section 4.10,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under Section 3.10 hereof or this Section 4.10 by virtue of such compliance.


 


Section
4.11         Transactions with Affiliates.


 


(a)          The
Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each,
an “Affiliate Transaction”), unless:


 


(1)          the
Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and


 


(2)          the
Company delivers to the Trustee:


 


(A)          with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of the Board of Directors of the Company set forth in an Officer’s Certificate certifying that
such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors of the Company; and


 


(B)          with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking firm of national standing, which opinion shall
be conclusive evidence that the standard set forth in clause (1) of this Section 4.11(a) has been satisfied (whether or not such
Affiliate Transaction or series of related Affiliate Transactions involve aggregate consideration in excess of $10.0 million).


 


(b)          The
following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section
4.11(a) hereof:


 


(1)          any
employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;


 


(2)          transactions
between or among the Company and/or its Restricted Subsidiaries and transactions between or among the Company and/or Restricted
Subsidiaries on the one hand and a Royalty Transaction Subsidiary on the other hand in connection with a Royalty Transaction;


 






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(3)           payment
of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;


 


(4)           any
issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;


 


(5)           Restricted
Payments that do not violate the provisions of Section 4.07 hereof;


 


(6)           pledges
of Equity Interests of Royalty Transaction Subsidiaries; and


 


(7)           loans
or advances to employees in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding.


 


Section
4.12         Liens.


 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any
Lien of any kind on any asset now owned or hereafter acquired, except Permitted Liens.


 


Section
4.13         Business Activities.


 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.


 


Section
4.14         Corporate Existence.


 


Subject to Article
5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect:


 


(1)           its
corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and


 


(2)           the
rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence
of any of its Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.


 


Section
4.15         Offer to Repurchase Upon Change of Control.


 


(a)          The
Company shall not consummate any Change of Control unless, no later than substantially concurrently with such consummation, each
Holder will have the right to require the Company to repurchase all or any part of that Holder’s Notes pursuant to a Change
of Control Offer.


 


(b)          At
least 30 days prior to a Change of Control, the Company will make an offer (a “Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date
to receive interest due on the relevant interest payment date occurring prior to the Change of Control Payment Date (the “Change
of Control Payment”).


 






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(c)          At
least 30 days prior to a Change of Control, the Company will send a notice to each Holder (with a copy to the Trustee) describing
the transaction or transactions that constitute the Change of Control and stating:


 


(1)           that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;


 


(2)           the
purchase price and the purchase date, which shall be no earlier than 15 days prior to and no later than the date on which such
Change of Control is consummated; provided that if the Change of Control Payment Date is the date of consummation of the
Change of Control, the payment for the repurchase of Notes will be made at a time no later than substantially concurrently with
the consummation of such Change of Control (the “Change of Control Payment Date”);


 


(3)           that
any Note not tendered will continue to accrue interest;


 


(4)           that,
unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control Payment Date;


 


(5)           that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with
the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;


 


(6)           that
Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the
Notes purchased; and


 


(7)           that
Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000
in excess thereof.


 


(d)          A
Change of Control Offer may be conditioned upon the occurrence of the related Change of Control.


 


(e)          On
the Change of Control Payment Date, the Company will, to the extent lawful:


 


(1)           accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;


 


(2)           deposit
with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered;
and


 






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(3)           deliver
or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the Company.


 


The Paying Agent will
promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that any such new Notes will be in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.


 


(f)           Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption for all of the Notes has been given pursuant to Section 3.07 hereof, unless and until
there is a default in payment of the applicable redemption price.


 


(g)          The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change
in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section
4.15 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 4.15 by virtue of such compliance.


 


Section
4.16         Royalty Transactions Repurchase Offer.


 


Within five Business
Days of the receipt of any Net Proceeds of any Royalty Transaction newly entered into by the Company or any of its Restricted Subsidiaries
following the date hereof, the Company shall send a notice to the Holders describing the applicable Royalty Transaction and offering
to repurchase Notes (such offer, a “Royalty Transactions Repurchase Offer”) in an amount of not less than 50%
of such Net Proceeds, at a price of 101% of the principal amount, plus accrued and unpaid interest, if any, to the Repurchase Date
(subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date occurring
on or prior to the Repurchase Date).


 


The Royalty Transactions
Repurchase Offer shall be made to all Holders and will remain open for a period of at least 20 Business Days following its commencement
and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Royalty
Transactions Repurchase Offer Period”). No later than three Business Days after the termination of the Royalty Transactions
Repurchase Offer Period (the “Repurchase Date”), the Company will apply not less than 50% of the Net Proceeds
of the Royalty Transaction (the “Royalty Transactions Repurchase Offer Amount”) to the purchase of Notes or,
if less than the Royalty Transactions Repurchase Offer Amount has been tendered, all Notes tendered in response to the Royalty
Transactions Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.


 


If the Repurchase Date
is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest
will be payable to Holders who tender Notes pursuant to the Royalty Transactions Repurchase Offer.


 






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Upon the commencement
of a Royalty Transactions Repurchase Offer, the Company will send, by first class mail, a notice to the Trustee and each of the
Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the
Royalty Transactions Repurchase Offer. The notice, which will govern the terms of the Royalty Transactions Repurchase Offer, will
state:


 


(1)           that
the Royalty Transactions Repurchase Offer is being made pursuant to this Section 4.16 and the length of time the Royalty Transactions
Repurchase Offer will remain open;


 


(2)           the
Royalty Transactions Repurchase Offer Amount, the purchase price and the Repurchase Date;


 


(3)           that
any Note not tendered or accepted for payment will continue to accrue interest;


 


(4)           that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Royalty Transactions Repurchase
Offer will cease to accrue interest after the Repurchase Date;


 


(5)           that
Holders electing to have a Note purchased pursuant to a Royalty Transactions Repurchase Offer may elect to have Notes purchased
in denominations of $2,000, or integral multiples of $1,000 in excess thereof;


 


(6)           that
Holders electing to have Notes purchased pursuant to any Royalty Transactions Repurchase Offer will be required to surrender the
Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at
least three days before the Repurchase Date;


 


(7)           that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Royalty Transactions Repurchase Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;


 


(8)           that,
if the aggregate principal amount of Notes surrendered by holders thereof exceeds the Royalty Transactions Repurchase Offer Amount,
the Trustee will select the Notes to be purchased on a pro rata basis, subject to applicable procedures of the Depositary
(with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or integral
multiples of $1,000 in excess thereof, will be purchased); and


 


(9)           that
Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).


 






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On or before the Repurchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary (with such
adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2000 or integral multiples
of $1000 in excess thereof will be purchased), the Royalty Transactions Repurchase Offer Amount of Notes or portions thereof tendered
pursuant to the Royalty Transactions Repurchase Offer, or if less than the Royalty Transactions Repurchase Offer Amount has been
tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with
an Officer’s Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 4.16. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in
any case not later than five days after the Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company in the form of an Authentication Order, will authenticate and mail
or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company will publicly announce the results of the Royalty Transactions Repurchase Offer on the Repurchase Date.


 


Within 360 days after
the receipt of any Net Proceeds of any Royalty Transaction that are not applied pursuant to a Royalty Transactions Repurchase Offer
as set forth above, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:


 


(1)          to
acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect
to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;


 


(2)          to
make a capital expenditure in a Permitted Business;


 


(3)          to
license or acquire intellectual property and other rights in respect of technologies, drug candidates, drugs and assets related
or incidental thereto; or


 


(4)          to
make research and development expenditures that in the Company’s good faith judgment are useful with respect to a Permitted
Business.


 


Pending the final application
of any such Net Proceeds of any Royalty Transaction that are not applied pursuant to a Royalty Transactions Repurchase Offer, the
Company may invest such Net Proceeds of any Royalty Transaction that are not applied pursuant to a Royalty Transactions Repurchase
Offer in any manner that is not prohibited by this Indenture; provided that such Net Proceeds may only be invested in Cash Equivalents
that shall be held in an account in which the Collateral Agent has a first priority perfected security interest, subject to Permitted
Liens, for its benefit, the benefit of the Trustee and the benefit of the Holders of the Notes in accordance with this Indenture
and the Collateral Documents; provided further that a binding commitment to apply such Net Proceeds as set forth in clause
(1) or (3) above or a statement in an Officer’s Certificate that such Net Proceeds will be applied as set forth in clause
(4) above shall be treated as a permitted application of the Net Proceeds from the date of such commitment or statement so long
as the Company or such Restricted Subsidiary enters into such commitment or makes such statement with the good faith expectation
that such Net Proceeds will be applied in a manner consistent with such commitment or statement within 180 days of such commitment
or statement and, in the event such commitment is later cancelled or terminated, or such statement withdrawn, for any reason before
the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Royalty Proceeds.


 






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Any Net Proceeds of
any Royalty Transaction that are not applied or invested as provided in the preceding paragraphs of this Section 4.16 will constitute
“Excess Royalty Proceeds”. Within five Business Days after the end of the reinvestment period set forth in this
Section 4.16, the Company will make a Royalty Transactions Repurchase Offer to all Holders of Notes to purchase the maximum principal
amount of Notes that may be purchased with the Excess Royalty Proceeds. The offer price in such Royalty Transactions Repurchase
Offer will be equal to 101% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and will
be payable in cash pursuant to the procedures set forth above in this Section 4.16. If any Excess Royalty Proceeds remain after
consummation of an Royalty Transaction Repurchase Offer, the Company may use those Excess Royalty Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Royalty Transaction Repurchase
Offer exceeds the amount of Excess Royalty Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis, subject
to the applicable procedures of the depository. Upon completion of each Royalty Transaction Repurchase Offer, the amount of Excess
Royalty Proceeds will be reset at zero.


 


The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Royalty Transactions Repurchase
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Section 4.16,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under Section 4.16 hereof by virtue of such compliance.


 


Section
4.17          Additional Note Guarantees.


 


If the Company or any
of its Domestic Restricted Subsidiaries acquires or creates another Domestic Restricted Subsidiary after the date hereof, then
such newly acquired or created Domestic Restricted Subsidiary will within 10 Business Days of the date on which it was acquired
or created (i) execute and deliver to the Trustee a supplemental indenture substantially in the form attached hereto as Exhibit
E pursuant to which such Domestic Restricted Subsidiary will Guarantee the Notes, (ii) execute and deliver to the Collateral Agent
joinder agreements or other similar agreements with respect the applicable Collateral Documents and (iii) deliver to the Trustee
and the Collateral Agent an Opinion of Counsel stating that such supplemental indenture and other documents required to be delivered
pursuant to clause (ii) above have been duly authorized, executed and delivered and constitute legally valid and binding and enforceable
obligations (subject to customary qualifications and exceptions).


 


Section
4.18          Designation of Royalty Transaction Subsidiaries.


 


The Board of Directors
of the Company may designate any newly-formed Subsidiary to be a Royalty Transaction Subsidiary in connection with, or in contemplation
of, a Royalty Transaction.


 


Any designation of
a Subsidiary of the Company as a Royalty Transaction Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified
copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the requirements specified in the definition of “Royalty Transaction Subsidiary.”
If, at any time, any Royalty Transaction Subsidiary would fail to meet the requirements of a Royalty Transaction Subsidiary, it
will thereafter cease to be a Royalty Transaction Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary
will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted
to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such Section.


 


Section
4.19          Maintenance of Property and Insurance.


 


The Company will, and
will cause each of its Restricted Subsidiaries to, keep all property material to the operation of the business of the Company and
its Restricted Subsidiaries, taken as a whole, in good working order and condition in all material respects, ordinary wear and
tear and casualty loss excepted; provided that the Company shall not be obligated to comply with the foregoing provisions
of this Section 4.19 to the extent that the failure to do so is not adverse in any material respect to the Holders of the Notes.


 






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The Company will, and
will cause each of its Restricted Subsidiaries to, (i) maintain with one or more insurance companies of national standing insurance
on all property material to the operation of the business of the Company and its Restricted Subsidiaries, taken as a whole, in
at least such amounts and against at least such risks as are determined by the Company in good faith to be reasonable and prudent,
taking into account the risks that are usually insured against in the same general area by companies engaged in the same or similar
businesses (in each case, after giving effect to any self-insurance determined by the Company to be reasonable and prudent, taking
into account the practices of similarly situated Persons engaged in the same or similar businesses), and (ii) deliver copies of
all such insurance policies to the Collateral Agent with an endorsement naming the Collateral Agent as a loss payee or additional
insured, as appropriate.


 


Section
4.20         Real Estate Mortgages and Filings.


 


With respect to any
real property owned in fee simple by the Company or any Guarantor, where such owned real property has a Fair Market Value in excess
of $5.0 million and is located in the United States (the “Premises”), the Company or such Guarantor shall, within
90 days (or such later date as determined by the Collateral Agent in its reasonable discretion) of the later of (x) the date hereof
and (y) the acquisition thereof, deliver to the Collateral Agent:


 


(1)          as
mortgagee, for its benefit, the benefit of the Trustee and the benefit of the Holders of the Notes, fully executed counterparts
of Mortgages, duly executed by the Company or the applicable Guarantor, as the case may be, and corresponding UCC fixture filings,
together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such
Mortgages and corresponding UCC fixture filings as may be necessary to create a valid, perfected Lien, subject to Permitted Liens,
against the Premises purported to be covered thereby;


 


(2)          lenders’
or mortgagee’s title insurance policies (“Lenders’ Policies”) issued to the Collateral Agent in
an amount equal to 100% of the Fair Market Value of the Premises purported to be covered by the related Mortgages, insuring Collateral
Agent’s interest as mortgagee in such property, which interests are created by the Mortgages and are free and clear of all
Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent commercially available
and issued at reasonable and ordinary rates, customary endorsements and shall be accompanied by evidence of the payment in full
(or satisfactory arrangements for the payment in full) of all premiums thereon; in furtherance of satisfaction of the delivery
obligations in this clause (2), Company shall deliver to the title insurer issuing the Lenders’ Policies such customary affidavits,
certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall
be reasonably required of the title insurer to issue the Lenders’ Policies and endorsements referenced herein with respect
to each of the Premises;


 


(3)          (i)
updated surveys of such Premises, or (ii) the most recent surveys of such Premises, together with either (a) an updated survey
certification in favor of the Collateral Agent from the a licensed surveyor stating that, based on a visual inspection of the applicable
real property and the actual knowledge of the surveyor, there appear to have been no change in the facts depicted in the survey
or (b) an affidavit and/or indemnity from the Company or the applicable Guarantor, as the case may be, stating that, to its actual
knowledge, it has not caused or permitted any change in the facts depicted in the survey, other than, in each case, changes that
do not materially adversely affect the use by the Company or such Guarantor, as applicable, of such Premises for the Company or
such Guarantor’s business as so conducted, or intended to be conducted, at such Premises; and in each case, in form and substance
as may be reasonably requested by the title insurer issuing the Lenders’ Policies so that it may remove the standard survey
and survey-related exceptions from such policies and issue the survey, survey-related, and other endorsements required pursuant
to clause (2) above to such policy;


 






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(4)          Opinions
of Counsel in the jurisdictions where such Premises are located, in each case that such Mortgage (i) has been duly authorized,
executed and delivered by the Company or such Guarantor, (ii) constitutes a legal, valid and binding obligation of the Company
or such Guarantor, enforceable against the applicable mortgagor in accordance with its terms, and (iii) creates a valid, perfected
Lien on the Premises purported to be covered thereby; and


 


(5)          In
the event any such Premises is located in a special flood hazard area, evidence of flood insurance, in form and substance satisfactory
to the Collateral Agent, that satisfies the Federal Emergency Management Agency’s private flood insurance criteria.


 


Section
4.21         Minimum Cash Balance.


 


The Company will not
permit the aggregate amount of unrestricted cash and Cash Equivalents of the Company and the Guarantors at any time to be less
than $60,000,000.


 


Section
4.22         Control Agreements.


 


Subject to Section
4(q) of the Security Agreement, neither the Company nor any of its Restricted Subsidiaries shall establish or maintain a Deposit
Account or a Securities Account (other than an Excluded Account) that is not subject to a Control Agreement.


 


Section
4.23          Access to Management.


 


(1)          The
Company will, upon the request of the Collateral Agent, participate in a meeting with the Collateral Agent and one (1) designated
representative of each Holder once during each fiscal year to be held at Company’s corporate offices (or at such other location
as may be agreed to by Company and Collateral Agent) at such time as may be agreed to by Company and Collateral Agent; and


 


(2)          Upon
the request of the Collateral Agent, within ten (10) days of delivery of financial statements and other information required to
be delivered pursuant to Section 4.03(a)(1), the Company shall cause its chief financial officer or another Responsible Officer
reasonably acceptable to the Collateral Agent to participate in a conference call with the Collateral Agent and one (1) designated
representative of each Holder held at a mutually agreeable time with the Collateral Agent during which conference call the chief
financial officer or such other Responsible Officer shall review the financial condition of the Company and its Subsidiaries and
such other matters as the Collateral Agent may reasonably request.


 


Section
4.24         Amendments.


 


Neither the Company
nor any of its Restricted Subsidiaries shall amend or permit any amendments to, or terminate or waive any provision of, (i) any
Specified Drug related license agreement or any other Specified Drug related agreement or (ii) any other material license agreement
or any other material agreement, in each case, relating to, or resulting in, royalty streams or other payments from the licensing
or sublicensing of intellectual property of the Company or any of its Subsidiaries if such amendment, termination, or waiver would
be materially adverse to the Trustee, the Collateral Agent or the Holders.


 






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ARTICLE
5

SUCCESSORS


 


Section
5.01          Merger, Consolidation, or Sale of Assets.


 


The Company will not,
directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation);
or (b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions (other than any Royalty Transaction), to
another Person, unless:


 


(1)          the
Company is the surviving corporation or the Person to which such sale, assignment, transfer, conveyance or other disposition has
been made assumes all the obligations of the Company under the Indenture and the other Indenture Documents pursuant to a supplemental
indenture delivered to the Trustee, substantially in the form of Exhibit E hereto;


 


(2)          immediately
after such transaction, no Default or Event of Default exists;


 


(3)          the
Company or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date
of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof, or after so giving pro forma effect, the Fixed Charge
Coverage Ratio would be greater than immediately prior to so giving pro forma effect;


 


(4)          if
the applicable transaction would constitute a Change of Control, the Company shall have complied with all of its obligations under
Section 4.15; and


 


(5)          the
Company delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, both of which certify that the transactions
noted in this Section are authorized and permitted by this Indenture and all conditions precedent, including this Section, under
the Indenture have been satisfied.


 


In addition, the Company
will not, directly or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries
taken as a whole, in one or more related transactions, to any other Person.


 


Clauses (2) and (3)
of the prior paragraph will not apply to:


 


(i)          a
merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or


 


(ii)         any
consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the
Company and the Guarantors.


 






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Section
5.02         Successor Corporation Substituted.


 


Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties
or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring
to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.


 


ARTICLE
6

DEFAULTS AND REMEDIES


 


Section
6.01         Events of Default.


 


Each of the following
is an “Event of Default”:


 


(1)          default
for 5 days in the payment when due of interest on the Notes;


 


(2)          default
in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;


 


(3)          (i)
failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 2.06(b)(4), 3.10, 4.10,
4.15, 4.16, 4.22, 4.24 or 5.01 hereof or Section 4(q) of the Security Agreement, (ii) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.07, 4.08, 4.09, 4.12 or 4.21 hereof and such default continues for a period
of 5 Business Days after the earlier of the date an Executive Officer (as defined in the Securities Act) of the Company has knowledge
of such failure and the date written notice of such default has been given by the Trustee or the Collateral Agent to the Company;
provided, that no such grace period shall be applicable to a failure by the Company or any of its Restricted Subsidiaries
to comply with the provisions of Section 4.12 as a result of a breach of the proviso of clause (7) of the definition of “Permitted
Liens” or (iii) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Section 4.03(f),
4.03(g), 4.03(h) or 4.03(i) hereof and such default continues for a period of 20 days;


 


(4)          failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee, the Collateral Agent
or the holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with
any of the other agreements in the Indenture Documents;


 






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(5)          default
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness
(other than Indebtedness owed to the Company or any Restricted Subsidiary of the Company) for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that default:


 


(A)          is
caused by a failure to pay such Indebtedness at final maturity prior to the expiration of the grace period provided in such Indebtedness
(a “Payment Default”);


 


(B)          results
in the acceleration of such Indebtedness prior to its express maturity; or


 


(C)          permits
the acceleration of such Indebtedness prior to its express maturity and has continued without cure or waiver for a period of 30
days from the date on which such acceleration was first permitted,


 


and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates $15.0 million or more;


 


(6)          failure
by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $15.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged
liability for in writing), which judgments are not paid, discharged or stayed within a period of 60 days of the entry thereof;


 


(7)          the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law (provided
that such events with respect to a Restricted Subsidiary that is not a Significant Subsidiary shall nonetheless constitute an Event
of Default to the extent such events have had or would reasonably be expected to result in a Material Adverse Effect):


 


(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)          generally
is not paying its debts as they become due;


 


(8)          a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (provided that such events with
respect to a Restricted Subsidiary that is not a Significant Subsidiary shall nonetheless constitute an Event of Default to the
extent such events have had or would reasonably be expected to result in a Material Adverse Effect):


 


(A)          is
for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;


 






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(B)          appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property
of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant Subsidiary; or


 


(C)          orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;


 


and the order or decree remains
unstayed and in effect for 60 consecutive days; or


 


(9)          except
as permitted by this Indenture and the Collateral Documents, with respect to any assets or property having a Fair Market Value
in excess of $2.5 million, individually or in the aggregate, that constitutes or, under this Indenture or the Collateral Documents
is required to constitute, Collateral, (a) any of the Collateral Documents shall for any reason cease to be in full force and effect
in all material respects, or the Company or a Guarantor shall so assert, or (b) any security interest created, or purported to
be created, by any of the Collateral Documents shall cease to be enforceable and of the same effect and priority purported to be
created thereby, except in each case solely as a result of the Collateral Agent taking or refraining from taking any action in
its sole control;


 


(10)        except
as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or ceases
for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms
its obligations under its Note Guarantee;


 


(11)        any
order, judgment or decree shall be entered against the Company or any of its Restricted Subsidiaries decreeing the dissolution
or split up of the Company or such Restricted Subsidiary and such order shall remain undischarged or unstayed for a period in excess
of thirty days;


 


(12)        (x)
the loss, suspension or revocation of, or failure to renew, any material license (it being understood that any licenses under the
applicable Collaboration Agreements for any Specified Drugs shall not constitute material licenses for purposes of this Section
6.01(12)(x) unless the loss, suspension or revocation of, or failure to renew, any licenses under the applicable Collaboration
Agreements for any Specified Drugs results from a breach by the Company or any of its Restricted Subsidiaries under such agreements)
or material permit with respect to any Specified Drug now held or hereafter acquired by the Company or any of its Restricted Subsidiaries
or (y) the loss, suspension or revocation of, or failure to renew, any material license or material permit other than with respect
to any Specified Drug now held or hereafter acquired by the Company or any of its Restricted Subsidiaries, if, in the case of this
clause (y), such loss, suspension, revocation or failure to renew could reasonably be expected to have a Material Adverse Effect;
and


 


(13)        the
indictment of the Company or any of its Restricted Subsidiaries under any criminal statute, or commencement of criminal or civil
proceedings against the Company or any of its Restricted Subsidiaries pursuant to which statute or proceedings the penalties actually
sought include forfeiture to any governmental authority of any material portion of the property of the Company and its Restricted
Subsidiaries, taken as a whole, constituting Collateral.


 






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Section
6.02          Acceleration.


 


In the case of an Event
of Default specified in clause (7) or (8) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary
of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice.
If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 50.1% in aggregate principal amount
of the then outstanding Notes by written notice to the Company (and the Trustee if by the Holders) may declare all the Notes to
be due and payable immediately.


 


Upon any such declaration,
the Notes shall become due and payable immediately.


 


The Holders of at least
50.1% in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration and its consequences, if the rescission would not conflict with any judgment or decree and if
all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration)
have been cured or waived.


 


Section
6.03          Other Remedies.


 


If an Event of Default
occurs and is continuing, the Collateral Agent may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.


 


The Collateral Agent
may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Collateral Agent or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.


 


If an Event of Default
occurs and is continuing, the Holders of at least 50.1% in aggregate principal amount of the Notes at the time outstanding (not
including Notes held by the Issuer or any of its Affiliates), may provide directions directly to the Collateral Agent to cause
the foreclosure on any or all of the Collateral and/or proceed to enforce the remedies available to the Collateral Agent pursuant
to the terms of the Collateral Documents or otherwise as a matter of law, in each case, in accordance with and as contemplated
by the Collateral Documents.


 


Section
6.04          Waiver of Past Defaults.


 


Holders of not less
than at least 50.1% in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an
offer to purchase); provided, however, that the Holders of at least 50.1% in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.


 






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Section
6.05         Control by Majority.


 


Holders of at least
50.1% in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or power conferred on the Trustee under this Indenture
or the Collateral Agent under the Collateral Documents. However, the Trustee or the Collateral Agent may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee or Collateral Agent determines may be unduly prejudicial to the rights
of other Holders of Notes or that may involve the Trustee or the Collateral Agent in personal liability.


 


Section
6.06         Limitation on Suits.


 


A Holder may pursue
a remedy with respect to this Indenture or the Notes only if:


 


(1)          such
Holder gives to the Trustee written notice that an Event of Default is continuing;


 


(2)          Holders
of at least 50.1% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the
remedy;


 


(3)          such
Holder or Holders offer and, if requested, provide to the Trustee security or indemnity satisfactory to the Trustee against any
loss, liability or expense;


 


(4)          the
Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and


 


(5)          during
such 60-day period, Holders of at least 50.1% in aggregate principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with such request.


 


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


 


Section
6.07         Rights of Holders of Notes to Receive Payment.


 


Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.


 


Section
6.08         Collection Suit by Trustee.


 


If an Event of Default
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and 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.


 






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Section
6.09         Trustee May File Proofs of Claim.


 


The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims 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 to the Trustee any amount due to 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 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. 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, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section
6.10          Priorities.


 


If the Trustee collects
any money or property pursuant to this Article 6, it shall pay out the money in the following order:


 


First:          to
the Trustee and the Collateral Agent, their agents and attorneys for amounts due under this Indenture and the Collateral Documents,
including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the Collateral
Agent and the costs and expenses of collection;


 


Second:      to
Holders of Notes for amounts due and unpaid on the Notes for principal, indemnities, if any, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any
and interest, respectively; and


 


Third:         to
the Company or to such party as a court of competent jurisdiction shall direct.


 


The Trustee may fix
a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.


 


Section
6.11         Undertaking for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it
as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit
by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.


 






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ARTICLE
7

TRUSTEE


 


Section
7.01         Duties of Trustee.


 


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


 


(b)          Except
during the continuance of an Event of Default:


 


(1)          the
duties of the Trustee will be determined solely by the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and


 


(2)          in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.


 


(c)          The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(1)          this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;


 


(2)          the
Trustee will not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court
of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and


 


(3)          the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.


 


(4)          No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.


 


(d)          Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.


 


(e)          The
Trustee will not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.


 






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Section
7.02         Rights of Trustee.


 


(a)          The
Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the document.


 


(b)          Before
the Trustee acts or refrains from acting, it shall be entitled to receive an Officer’s Certificate or an Opinion of Counsel
or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s
Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.


 


(c)          The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed
with due care, and the Trustee shall not be responsible for the supervision of officers and employees of such agents or attorneys
or the application of any money by any Agent other than the Trustee.


 


(d)          The
Trustee will not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.


 


(e)          Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient
if signed by an Officer of the Company.


 


(f)          The
rights, privileges, protections, immunities and benefits given to the Trustee, including, its right to be compensated, reimbursed,
and indemnified, and its right to resign, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder
or in any Indenture Document or Collateral Document, including but not limited to its capacities as Paying Agent and Registrar,
and to each agent, custodian and other Person employed to act hereunder or in any Indenture Document or Collateral Document.


 


(g)          The
Trustee will 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 unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against
the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.


 


(h)          The
Trustee need not investigate any fact or matter stated in any document delivered to it, but the Trustee, in its discretion or if
directed to do so, may make such further inquiry or investigation into such facts or matters, and, if the Trustee shall determine
in good faith or if directed to do so to make such further inquiry or investigation, it shall be entitled upon reasonable notice
during normal business hours to examine the books, records and premises of the Company and the Guarantors, personally or by agent
or attorney at the sole cost of the Company and the Guarantors and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation.


 


(i)          The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of
the Trustee, and such notice references the Notes and this Indenture and such notice states that it is a “notice of default”.


 


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


 






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(k)          The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may
be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.


 


(k)          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 or profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.


 


(l)          The Company
shall provide prompt written notice to the Trustee of any change to its fiscal year.


 


(m)        The Trustee
shall not be responsible for the actions or inactions of the Collateral Agent. The Collateral Agent shall not be responsible for
the actions or inactions of the Trustee.


 


Section
7.03        Individual Rights of Trustee and Collateral Agent.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture
has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof. The Collateral Agent in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were
not the Collateral Agent.


 


Section
7.04        Trustee’s and Collateral Agent’s Disclaimer.


 


The Trustee will not
be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Collateral Documents or the
Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company
or upon the Company’s direction under any provision of this Indenture, it will not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee, and it will not be responsible for any statement or recital herein
or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication. The Collateral Agent will not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Collateral Documents or the Notes, it shall not be accountable for the Company’s
use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of
this Indenture, it will not be responsible for the use or application of any money received by any Paying Agent, and it will not
be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale
of the Notes or pursuant to this Indenture.


 


Section
7.05        Notice of Defaults.


 


If a Default or Event
of Default occurs and is continuing and if it is actually known to the Trustee, the Trustee will mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs or, if later, 30 days after obtaining knowledge thereof. Except
in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on, any Note, the Trustee
may withhold the notice if and so long as it in good faith determines that withholding the notice is in the interests of the Holders
of the Notes.


 






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Section
7.06         Reports by Trustee to Holders of the Notes.


 


(a)          Within
60 days after each January 15th beginning with the January 15th following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies
with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will also transmit by
mail all reports as required by TIA § 313(c).


 


(b)          A
copy of each report at the time of its mailing to the Holders of Notes will be mailed by the Trustee to the Company and filed by
the Trustee with the SEC and each stock exchange or market, if any, on which the Notes are listed or quoted in accordance with
TIA § 313(d). The Company will promptly notify the Trustee in writing if the Notes become listed or quoted on any stock exchange
or market or any delisting thereof.


 


Section
7.07         Compensation and Indemnity.


 


(a)          The
Company will pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder
as agreed to in writing. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express
trust. The Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the reasonable compensation, disbursements
and expenses of the Trustee’s agents and counsel. The Company will reimburse the Collateral Agent promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such
expenses will include the reasonable compensation, disbursements and expenses of the Collateral Agent’s agents and counsel.


 


(b)          The
Company and the Guarantors will jointly and severally indemnify the Trustee against any and all losses, liabilities or expenses
(including reasonable attorney’s expenses and fees) incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company
and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors,
any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense is attributable to its negligence or willful misconduct as determined
by a court of competent jurisdiction. The Trustee will notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their obligations hereunder.
The Company or such Guarantor will defend such claim and the Trustee will cooperate in the defense. The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay
for any settlement made without its consent, which consent will not be unreasonably withheld. The Company and the Guarantors will
jointly and severally indemnify the Collateral Agent against any and all losses, liabilities or expenses (including reasonable
attorney’s expenses and fees) incurred by it arising out of or in connection with the acceptance or administration of its
duties under the Indenture Documents, including the costs and expenses of enforcing this Indenture against the Company and the
Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors,
any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder,
except to the extent any such loss, liability or expense is attributable to its negligence, bad faith or willful misconduct as
determined by a court of competent jurisdiction. The Collateral Agent will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Collateral Agent to so notify the Company will not relieve the Company or any of the Guarantors
of their obligations hereunder. The Company or such Guarantor will defend such claim and the Collateral Agent will cooperate in
the defense. The Collateral Agent may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel.
Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably
withheld


 






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(c)          The
obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture
or earlier resignation or removal of the Trustee or the Collateral Agent.


 


(d)          To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior
to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest
on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture or earlier resignation or removal
of the Trustee. To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Collateral
Agent will have a Lien prior to the Notes on all money or property held or collected by the Collateral Agent, except that held
in trust to pay principal and interest on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture
or earlier resignation or removal of the Collateral Agent.


 


(e)          When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(9) or (10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law. When the Collateral Agent incurs expenses or renders services after an Event
of Default specified in Section 6.01(9) or (10) hereof occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.


 


(f)          The
Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.


 


Section
7.08         Replacement of Trustee.


 


(a)          A
resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.


 


(b)          The
Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders
of 50.1% in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:


 


(1)          the
Trustee fails to comply with Section 7.10 hereof;


 


(2)          the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;


 


(3)          a
custodian or public officer takes charge of the Trustee or its property; or


 






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 (4)           the
Trustee becomes incapable of acting.


 


(c)           If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will, with the consent
of the Collateral Agent, promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders
of at least 50.1% in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.


 


(d)           If
a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court
of competent jurisdiction for the appointment of a successor Trustee.


 


(e)           If
the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


(f)            A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring
Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit
of the retiring Trustee.


 


Section
7.09          Successor Trustee by Merger, etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee. If the Collateral Agent consolidates, merges or converts into,
or transfers all or substantially all of its business to, another corporation, the successor corporation without any further act
will be the successor Collateral Agent.


 


Section
7.10          Eligibility; Disqualification.


 


There will at all times
be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of
any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.


 


This Indenture will
always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA §
310(b).


 


Section
7.11          Preferential Collection of Claims Against Company.


 


The Trustee is subject
to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed
shall be subject to TIA § 311(a) to the extent indicated therein.


 






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Section
7.12         Trustee as Paying Agent.


 


References to the Trustee
in Sections 7.02, 7.03, 7.04, 7.07, 7.08 and 7.09 shall include the Trustee in its role as Paying Agent and as Registrar.


 


ARTICLE
8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section
8.01         Option to Effect Legal Defeasance or Covenant Defeasance.


 


The Company may at
any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officer’s Certificate, elect
to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below
in this Article 8.


 


Section
8.02         Legal Defeasance and Discharge.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations
with respect to all outstanding Notes (including the Note Guarantees and their obligations under Article 10 hereof) on the date
the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance
means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantees), which will thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees and this Indenture (and the Trustee, on demand of and
at the expense of the Company, shall execute instruments as reasonably requested by the Company acknowledging the same), except
for the following provisions which will survive until otherwise terminated or discharged hereunder:


 


(1)          the
rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on,
such Notes when such payments are due from the trust referred to in Section 8.04 hereof;


 


(2)          the
Company’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;


 


(3)          the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations
in connection therewith; and


 


(4)          this
Article 8.


 


Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.


 






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Section
8.03         Covenant Defeasance.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and
4.22 hereof and clause (4) of Section 5.01 hereof and Article 10 hereof with respect to the outstanding Notes on and after the
date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and
the Notes will thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding”
for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the
Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not
constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture
and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3) through 6.01(5) hereof will not constitute Events of Default.


 


Section
8.04         Conditions to Legal or Covenant Defeasance.


 


In order to exercise
either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:


 


(1)          the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, and interest
on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;


 


(2)          in
the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that:


 


(A)          the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or


 


(B)          since
the date of this Indenture, there has been a change in the applicable federal income tax law,


 


in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;


 


(3)          in
the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that
the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;


 






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(4)          no
Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;


 


(5)          such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any agreement
or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;


 


(6)          the
Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding any creditors of the Company or others; and


 


(7)          the
Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.


 


Section
8.05          Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section
8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest.


 


The Company will pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.


 


Notwithstanding anything
in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section
8.06          Repayment to Company.


 


Subject to applicable
law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of, premium, if any, or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest
has become due and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from
such trust; and the Holder of such Note will thereafter be permitted to look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, will
thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.


 






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Section
8.07          Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof,
as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes
and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest
on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying Agent.


 


ARTICLE
9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section
9.01          Without Consent of Holders of Notes.


 


Notwithstanding Section
9.02 of this Indenture, the Company, the Guarantors, if any, the Collateral Agent and the Trustee may amend or supplement the Indenture
Documents without the consent of any Holder of Note:


 


(1)          to
cure any ambiguity, defect or inconsistency that does not adversely affect the holders of the Notes in any material respect;


 


(2)          to
provide for uncertificated Notes in addition to or in place of certificated Notes;


 


(3)          to
provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees
by a successor to the Company or such Guarantor pursuant to Article 5 hereof;


 


(4)          to
make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder; or


 


(5)          to
allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes or to release a Guarantor
from its Note Guarantee in accordance with the terms of this Indenture.


 


Upon the request of
the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section 13.03 hereof, the Trustee will join with the Company
and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated
to enter into such amended or supplemental indenture that affects its own rights, duties, liabilities or immunities under this
Indenture or otherwise.


 






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Section
9.02          With Consent of Holders of Notes.


 


Except as provided
below in this Section 9.02, the Company, the Guarantors, if any, the Trustee, and the Collateral Agent may amend or supplement
the Indenture Documents with the consent of the Holders of at least 50.1% in aggregate principal amount of the then outstanding
Notes voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than
a Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture Documents may
be waived with the consent of the Holders of at least 50.1% in aggregate principal amount of the then outstanding Notes voting
as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes
of this Section 9.02.


 


Upon the written request
of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture or waiver, and upon the filing with the Trustee and the Collateral Agent of evidence of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee and the Collateral Agent of the documents described in Section 13.03 hereof,
the Trustee and the Collateral Agent will join with the Company and the Guarantors in the execution of such amended or supplemental
indenture or waiver unless such amended or supplemental indenture or waiver affects the Trustee’s and the Collateral Agent’s
own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee or the Collateral Agent,
as applicable, may in its discretion, but will not be obligated to, enter into such amended or supplemental indenture or waiver.


 


It is not necessary
for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement
or waiver, but it is sufficient if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders of Notes affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to send such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject
to Sections 6.04 and 6.07 hereof, the Holders of at least 50.1% in aggregate principal amount of the Notes then outstanding voting
as a single class may waive compliance in a particular instance by the Company with any provision of the Indenture Documents. However,
without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to
any Notes held by a non-consenting Holder):


 


(1)          reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;


 


(2)          reduce
the principal of or change the fixed maturity of any Note or reduce the premium payable upon the redemption of any Note or change
the time at which any Note may be redeemed;


 






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(3)          reduce
the rate of or change the time for payment of interest, including default interest, on any Note;


 


(4)          waive
a Default or Event of Default in the payment of principal of, or interest or premium, if any, on, the Notes (except a rescission
of acceleration of the Notes by the holders of at least 50.1% in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);


 


(5)          make
any Note payable in money other than that stated in the Notes;


 


(6)          make
any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of, or interest or premium, if any, on, the Notes;


 


(7)          waive
a redemption payment with respect to any Note (other than a payment required by Sections 4.10, 4.15 and 4.16 hereof);


 


(8)          release
any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this
Indenture;


 


(9)          expressly
subordinate the Notes or any Note Guarantees in right of payment, or expressly subordinate the Lien securing the Notes and the
Note Guarantees;


 


(10)        make
any change in the preceding amendment and waiver provisions; or


 


(11)        release
all or substantially all of the Collateral from the Liens securing the Notes.


 


Section
9.03          Revocation and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke
the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every
Holder.


 


Section
9.04         Notation on or Exchange of Notes.


 


The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange
for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.


 


Failure to make the
appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.


 


Section
9.05          Trustee to Sign Amendments, Waivers, etc.


 


The
Trustee will sign any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental
indenture until the Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee
will receive and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required
by Section 13.03 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the
legal, valid and binding obligation of the Company and any Guarantors party thereto, enforceable against them in accordance with
its terms, subject to customary exceptions, and complies with the provisions of this Indenture.


 






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ARTICLE
10

COLLATERAL AND SECURITY


 


Section
10.01          Grant of Security Interest; Collateral Documents.


 


The due and punctual
payment of the principal of and interest, if any, on the Notes when and as the same shall be due and payable, whether on an interest
payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Company to the Holders of
Notes or the Trustee under the Indenture Documents, according to the terms hereunder or thereunder, are secured as provided in
the Collateral Documents which the Company has entered into simultaneously with the execution of this Indenture. Each Holder of
Notes, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to
time in accordance with its terms and authorizes and directs the Collateral Agent to enter into the Collateral Documents and to
perform its obligations and exercise its rights thereunder in accordance therewith. The Company will deliver to the Trustee copies
of all documents delivered to the Collateral Agent pursuant to the Collateral Documents, and will do or cause to be done all such
acts and things as may be required by the provisions of the Collateral Documents, to assure and confirm to the Trustee and the
Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof,
as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purposes herein expressed. The Company will take, and will cause its Subsidiaries
to take, upon request of the Collateral Agent, any and all actions reasonably required to cause the Collateral Documents to create
and maintain, as security for the Obligations of the Company hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Collateral Agent for its benefit, the benefit of the Trustee and for the benefit of
the Holders, superior to and prior to the rights of all third Persons and subject to no other Liens than Permitted Liens. For the
avoidance of doubt, neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of
any of the Collateral or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral.


 


Section
10.02          Recording and Opinions.


 


(a)          The Company
will furnish to the Trustee and the Collateral Agent for their records simultaneously with the execution and delivery of this Indenture
an Opinion of Counsel with respect to the Collateral Documents and the Lien created by the Collateral Documents in a form acceptable
to the initial purchasers of the Notes and their counsel.


 






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(b)          The Company
will furnish to the Collateral Agent and the Trustee, within 60 days after each January 15th, beginning with the January 15th following
the date of this Indenture, an Opinion of Counsel, dated as of such date, either:


 


(1)          (A)
stating that, in the opinion of such counsel, action has been taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring to prior Opinions of Counsel in which such details are given,
and (B) stating that, in the opinion of such counsel, based on relevant laws as in effect on the date of such Opinion of Counsel,
all financing statements and continuation statements have been executed and filed that are necessary as of such date and during
the succeeding 12 months fully to preserve and protect, to the extent such protection and preservation are possible by filing,
the rights of the Holders of Notes and the Collateral Agent and the Trustee hereunder and under the Collateral Documents with respect
to the security interests in the Collateral; or


 


(2)          stating
that, in the opinion of such counsel, no such action is necessary to maintain such Lien and assignment.


 


Section
10.03        Release of Collateral.


 


(a)          The Collateral
Agent shall not at any time release Collateral from the security interests created by the Collateral Documents unless such release
is in accordance with the provisions of this Indenture and the applicable Collateral Documents.


 


(b)          The Collateral
Agent shall be entitled to request and rely upon an Officer’s Certificate and/or an Opinion of Counsel in connection with
any release of Collateral from the Lien and security interest created by the Collateral Documents.


 


(c)          At any time
when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Collateral Agent, no release of Collateral
pursuant to the provisions of the Collateral Documents will be effective as against the Holders of Notes.


 


Section
10.04        [Reserved].


 


Section
10.05       [Reserved].


 


Section
10.06       Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.


 


Upon the occurrence
and during the continuance of an Event of Default and acceleration of the Notes, subject to the provisions of Section 7.01 and
7.02 hereof, the Trustee shall at the direction of a majority of the Holders of Notes, direct, on behalf of the Holders of Notes,
the Collateral Agent to, take all actions necessary or appropriate in order to:


 


(1)          enforce
any of the terms of the Collateral Documents; and


 


(2)          collect
and receive any and all amounts payable in respect of the Obligations of the Company hereunder.


 


The Collateral Agent
will have power to institute and maintain such suits and proceedings as directed to prevent any impairment of the Collateral by
any acts that may be unlawful or in violation of the Collateral Documents or this Indenture, and such suits and proceedings as
the Collateral Agent may be directed to preserve or protect its interests and the interests of the Holders of Notes in the Collateral
(including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders
of Notes or of the Collateral Agent).


 






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Section
10.07       Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.


 


The Trustee is authorized
to receive any funds for the benefit of the Holders of Notes distributed under the Collateral Documents, and to make further distributions
of such funds to the Holders of Notes according to the provisions of this Indenture.


 


Section
10.08       Termination of Security Interest.


 


Upon the payment in
full of all Obligations of the Company under this Indenture and the Notes, or upon Legal Defeasance, the Trustee will, at the written
request of the Company, deliver a certificate to the Collateral Agent stating that such Obligations have been paid in full, and
instruct the Collateral Agent to release the Liens pursuant to this Indenture and the Collateral Documents.


 


ARTICLE
11

NOTE GUARANTEES


 


Section
11.01       Guarantee.


 


(a)          Subject to this
Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:


 


(1)          the
principal of, premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and


 


(2)          in
case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid
in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.


 


Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.


 


(b)          The Guarantors
hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant
that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Indenture Documents.


 






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(c)          If any Holder
or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee
or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.


 


(d)          Each Guarantor
agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration
of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) will forthwith
become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.


 


Section
11.02        Limitation on Guarantor Liability.


 


Each Guarantor, and
by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights
to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance.


 


Section
11.03        Execution and Delivery of Note Guarantee.


 


Each Guarantor hereby
agrees that its execution and delivery of this Indenture or any supplemental indenture in the form of Exhibit E hereto on
behalf of such Guarantor by an Officer thereof in accordance with Section 4.17 hereof shall evidence its Note Guarantee set forth
in this Article 11 without the need for any further notation on the Notes.


 


If an Officer whose
signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note guaranteed by any Guarantor
under its Note Guarantee, the Note Guarantee will be valid nevertheless.


 


The delivery of any
Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in
this Indenture on behalf of the Guarantors.


 


In the event that the
Company or any of its Domestic Restricted Subsidiaries creates or acquires any Domestic Restricted Subsidiary after the date of
this Indenture, if required by Section 4.17 hereof, the Company will cause such Domestic Restricted Subsidiary to comply with the
provisions of Section 4.17 hereof and this Article 11, to the extent applicable.


 






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Section
11.04        Guarantors May Consolidate, etc., on Certain Terms.


 


Except as otherwise
provided in Section 11.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another
Guarantor, unless:


 


(1)          immediately
after giving effect to such transaction, no Default or Event of Default exists; and


 


(2)          such
sale or other disposition (which for the avoidance of doubt shall constitute an Asset Sale or, if applicable, a Change of Control)
does not violate Section 4.10 hereof or, if such sale or disposition constitutes a Change of Control, Section 4.15 hereof.


 


Except as set forth
in Articles 4 and 5 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Notes will
prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.


 


Section
11.05       Releases.


 


(a)          In the event
of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not (either
before or after giving effect to such transactions) the Company or a Restricted Subsidiary of the Company, then such Guarantor
(in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that the
sale or other disposition (which for the avoidance of doubt shall constitute an Asset Sale or, if applicable, a Change of Control)
does not violate Section 4.10 hereof or Section 4.16 hereof or, if such sale or disposition constitutes a Change of Control, Section
4.15 hereof. Upon delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect
that such sale or other disposition was made by the Company in accordance with the provisions of this Indenture, including without
limitation Section 4.10 hereof or Section 4.16 hereof or, if such sale or disposition constitutes a Change of Control, Section
4.15 hereof, the Trustee will execute any documents reasonably requested by the Company in order to evidence the release of any
Guarantor from its obligations under its Note Guarantee.


 


(b)          Upon the liquidation
or dissolution of such Guarantor where the assets of such Guarantor are conveyed to the Company or a Restricted Subsidiary; provided
that no Default or Event of Default shall occur as a result thereof or has occurred and is continuing, each Guarantor will be released
and relieved of any obligations under its Note Guarantee.


 


(c)          Upon Covenant
Defeasance or Legal Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance
with Article 12 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.


 


Any Guarantor not released
from its obligations under its Note Guarantee as provided in this Section 11.05 will remain liable for the full amount of principal
of and interest and premium, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided
in this Article 11.


 






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ARTICLE
12

satisfaction and discharge


 


Section
12.01        Satisfaction and Discharge.


 


This Indenture (including
the obligations under Article 10 hereof) will be discharged and will cease to be of further effect as to all Notes issued hereunder,
when:


 


(1)          either:


 


(a)          all
Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation;
or


 


(b)          all
Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice
of redemption, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense of, the Company, or otherwise or will become due and payable
within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination
of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient as determined by the Company (with
an Opinion of Counsel delivered to the Trustee), without consideration of any reinvestment of interest, to pay and discharge the
entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest
to the date of maturity or redemption;


 


(2)          no
Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);


 


(3)          the
Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and


 


(4)          the
Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment
of the Notes at maturity or on the redemption date, as the case may be.


 


In addition, the Company must deliver an
Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.


 


Notwithstanding the
satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will survive. In addition, nothing in this Section
12.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge
of this Indenture.


 






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Section
12.02        Application of Trust Money.


 


Subject to the provisions
of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent
required by law.


 


If the Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with Section 12.01 hereof by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.


 


ARTICLE
13

MISCELLANEOUS


 


Section
13.01        Notice


 


Any notice or communication
by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), electronic transmission (whether facsimile or .pdf format) or overnight
air courier guaranteeing next day delivery, to the others’ address:


 


If to the Company and/or any Guarantor:



Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158

Attention: Gil Labrucherie, Esq


 


With a copy to:




Sidley Austin LLP

2001 Ross Avenue

Suite 3600

Dallas, Texas 75201

Attention: Christopher Gleason, Esq.


 


If to the Trustee:


 

Wilmington Trust, National Association


50 South Sixth St, Suite 1290

Minneapolis, MN 55402

Attention: Nektar Therapeutics Administrator


 






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With a copy to:


 


Alston & Bird LLP


101 South Tryon St, Suite 4000 


Charlotte, NC 28280


Attention: Adam Smith, Esq.


 


If to the Collateral Agent:


 

TC Lending, LLC


301 Commerce Street, Suite 3300

Fort Worth, Texas 76102


Attention: Legal Compliance Department


 


With a copy to:


 


Schulte Roth & Zabel LLP


919 Third Avenue


New York, NY 10022


Attention: Frederic L. Ragucci, Esq.


 


The Company, any Guarantor
or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.


 


All notices and communications
(other than those sent to Holders) will be deemed to have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted electronically;
and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or communication
to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication
to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.


 


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 Depositary for such Note
(or its designee) pursuant to the standing instructions from such Depositary.


 


If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.


 


If the Company mails
a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.


 






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Section
13.02        Communication by Holders of Notes with Other Holders of Notes.


 


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).


 


Section
13.03        Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:


 


(1)          an
Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set
forth in Section 13.04 hereof) stating that, in the opinion of such Officer, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and


 


(2)          an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in
Section 13.04 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.


 


Section
13.04        Statements
Required in Certificate or Opinion.


 


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:


 


(1)          a
statement that the Person making such certificate or opinion has read such covenant or condition;


 


(2)          a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;


 


(3)          a
statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and


 


(4)          a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.


 


Section
13.05        Rules
by Trustee and Agents.


 


The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.


 


Section
13.06        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, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.


 






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Section
13.07        No Personal Liability of Directors, Officers, Employees and Stockholders.


 


No past, present or
future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Indenture Documents or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.


 


Section
13.08        Governing Law; Waiver of Jury Trial.


 


THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE DOCUMENTS WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. EACH OF THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY
HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


Section
13.09        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
13.10        Successors.


 


All agreements of the
Company in the Indenture Documents will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.
All agreements of each Guarantor in the Indenture Documents will bind its successors, except as otherwise provided in Section 11.05
hereof.


 


Section
13.11        Severability.


 


In case any provision
in any of the Indenture Documents is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.


 


Section
13.12        Counterpart Originals.


 


The
parties may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent
the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall
constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signature of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original
signatures for all purposes.


 






    	95



    	 



    

 


Section
13.13        Table of Contents, Headings, etc.


 


The Table of Contents 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 of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.


 


Section
13.14        U.S.A. Patriot Act.


 


The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help
fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree
that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the U.S.A. Patriot Act.


 


[Remainder of page intentionally
left blank]


 






    	96



    	 



    

 


SIGNATURES


 


Dated as of October 5, 2015

	 	 	 
	 	NEKTAR THERAPEUTICS
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:


 






    	 



    	 



    

 


	 	 	 
	 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:




 






    	 



    	 



    

 

	 	 	 
	 	TC LENDING, LLC, as Collateral Agent
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:




 






    	 



    	 



    

 


EXHIBIT A


 


	[Face of Note]



 


CUSIP ____________


 


7.750% Senior Secured Notes due 2020


 


	No. ___	 	$____________
	 	 	 
		 	[or
                                         such other principal amount as shall be set forth in the Schedule of Exchanges of Interests
                                         in the Global Note attached hereto]1



 


NEKTAR THERAPEUTICS


 


promises
to pay to [ ] or registered assigns, the principal sum of ___________ DOLLARS [or such other principal amount as
shall be set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto]2 on October 5, 2020.


 


Interest Payment Dates: January 15, April
15, July 15 and October 15, commencing October 15, 2015


 


Record Dates: October 5, 2015; thereafter,
January 1, April 1, July 1 and October 1


 


 



 


1
Insert in Global Notes.


 


2
Insert in Global Notes.


 






    	A-1



    	 



    

 

	 	 	 
	 	NEKTAR THERAPEUTICS
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:



 






    	A-2



    	 



    

 


This
is one of the Notes referred to in the within-mentioned Indenture:


	 	 	 
	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee	 
	 	 	 
	By: 	 	 
	 	Authorized Signatory	 



 


Dated:__________________________




 






    	A-3



    	 



    

 


[Back of Note]


7.750% Senior Secured Notes due 2020


 


[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]


 


[Insert the Private Placement Legend,
if applicable pursuant to the provisions of the Indenture]


 


Capitalized terms used
herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.


 


(1)          Interest.
Nektar Therapeutics, a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 7.750% per annum from October 5, 2015 until maturity. The Company will pay interest, quarterly in arrears on January
15, April 15, July 15 and October 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day
(each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further
that the first Interest Payment Date shall be October 15, 2015. The Company will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a
rate that is 2% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day
year for the actual number of days elapsed.


 


(2)          Method
of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Paying Agent on behalf of
the Persons who are registered Holders of Notes at the close of business on the January 1, April 1, July 1 or October 1 next preceding
the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Trustee, for the benefit
of the Holders, at the Trustee’s address set forth in the Indenture; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest, premium on, all Global Notes and all other Notes for
which wire transfer instructions have been provided by the Trustee to the Company or the Paying Agent. Such payment will be in
such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private
debts.


 


(3)          Paying
Agent and Registrar. Initially, Wilmington Trust, National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act as Registrar.


 


(4)          Indenture.
The Company issued the Notes under an Indenture dated as of October 5, 2015 (the “Indenture”) among the Company,
the Trustee and the Collateral Agent. The terms of the Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are secured obligations of the Company.


 






    	A-4



    	 



    

 


(5)          Optional
Redemption.


 


(a)          At any time
prior to October 5, 2017, upon the redemption of all or a part of the Notes for any reason (including, but not limited to, any
redemption after the occurrence of an Event of Default or after acceleration of the Notes including in connection with the commencement
of any proceeding pursuant to any Bankruptcy Law), the Company shall pay a redemption price equal to 100% of the principal amount
of Notes redeemed plus the Make-Whole Premium as of, and accrued and unpaid interest, if any, to the date of redemption, subject
to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date occurring
on or prior to the redemption date.


 


(b)          Any redemption
of Notes at the option of the Company shall be upon note less than 30 nor more than 60 days’ prior notice.


 


(c)          On or after
October 5, 2017, upon the redemption of all or a part of the Notes for any reason (including, but not limited to, any redemption
after the occurrence of an Event of Default or after acceleration of the Notes including in connection with the commencement of
any proceeding pursuant to any Bankruptcy Law), the Company shall pay the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest, if any, on the Notes redeemed, to the applicable redemption date, if
redeemed during the twelve-month period beginning on October 5 of the years indicated below, subject to the rights of holders of
Notes on the relevant record date to receive interest on the relevant interest payment date occurring on or prior to the redemption
date:


 


	Year	 	Percentage
	2017	104%
	2018	102%
	2019	100%


 


 


Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption
on the applicable redemption date.


 


Without limiting the
generality of the foregoing, it is understood and agreed that if the Obligations are accelerated for any reason, including because
of an Event of Default, the sale, disposition or encumbrance (including that by operation of law or otherwise) as a result of an
Event of Default or the commencement of any proceeding pursuant to any Bankruptcy Law, the Make-Whole Premium, if any, and Prepayment
Premium, if any, determined as of the date of acceleration will also be due and payable as though said Indebtedness was voluntarily
prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of
ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits
as a result thereof. Any Make-Whole Premium and Prepayment Premium payable in accordance with the immediately preceding sentence
shall be presumed to be the liquidated damages sustained by each Holder as the result of the early redemption and the Company agrees
that it is reasonable under the circumstances currently existing. The Make-Whole Premium, if any, and Prepayment Premium, if any,
shall also be payable (i) in the event the Obligations (and/or the Indenture or the Notes evidencing the Obligations) are satisfied
or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means and/or
(ii) upon the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise
of any of the Obligations (and/or the Indenture or the Notes evidencing the Obligations) in any proceeding pursuant to any Bankruptcy
Law, foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other means or the
making of a distribution of any kind in any proceeding pursuant to any Bankruptcy Law to the Collateral Agent, for the account
of the Holders, in full or partial satisfaction of the Obligations. THE COMPANY EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT
OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING MAKE-WHOLE PREMIUM AND PREPAYMENT PREMIUM
IN CONNECTION WITH ANY SUCH ACCELERATION INCLUDING IN CONNECTION WITH ANY VOLUNTARY OR INVOLUNTARY ACCELERATION OF THE OBLIGATIONS
PURSUANT TO ANY PROCEEDING PURSUANT TO ANY BANKRUPTCY LAW OR PURSUANT TO A PLAN OF REORGANIZATION. The Company expressly agrees
that: (A) the Make-Whole Premium and Prepayment Premium are reasonable and are the product of an arm’s length transaction
between sophisticated business people, ably represented by counsel; (B) the Make-Whole Premium and Prepayment Premium shall be
payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between
Holders and the Company giving specific consideration in this transaction for such agreement to pay the Make-Whole Premium and
Prepayment Premium; and (D) the Company shall be estopped hereafter from claiming differently than as agreed to in this paragraph.
The Company expressly acknowledges that its agreement to pay the Make-Whole Premium and Prepayment Premium to the Holders as herein
described is a material inducement to Holders to purchase the Notes.


 






    	A-5



    	 



    

 


(6)          Mandatory
Redemption.


 


The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes.


 


(7)          Repurchase
at the Option of Holder.


 


(a)          If
there is a Change of Control, the Company shall not consummate the Change of Control unless at least 30 days prior to the Change
of Control, it has made an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon to the date of purchase, subject
to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date occurring on
or prior to the redemption date (the “Change of Control Payment”); provided that if the Change of Control
Payment Date is the date of consummation of the Change of Control, the payment for the repurchase of Notes will be made at a time
no later than substantially concurrently with the consummation of such Change of Control. The Company will mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture within the time periods
required by the Indenture.


 


(b)          If
the Company consummates any Asset Sales or Applicable Transactions (other than any Royalty Transaction which is subject to Section
4.16 of the Indenture), within five Business Days of each date on which the aggregate amount of Excess Proceeds exceeds $2.5 million,
the Company will commence an offer to all Holders of Notes (an “Asset Sale Offer”) pursuant to Section 3.10
of the Indenture to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any thereon to the
date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use
such deficiency for any purpose not otherwise prohibited by the Indenture. If the aggregate principal amount of Notes tendered
into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis, subject to the applicable procedures of the Depositary. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased
by completing the form entitled “Option of Holder to Elect Purchase” attached to the Notes.


 






    	A-6



    	 



    

 


(c)          Within
five Business Days of the receipt of any Net Proceeds of any Royalty Transaction newly entered into by the Company or any of its
Restricted Subsidiaries following the date of the Indenture, the Company shall send a notice describing the applicable Royalty
Transaction and offering to repurchase Notes (such offer, a “Royalty Transactions Repurchase Offer”) in an amount
of not less than 50% of such Net Proceeds, at a price of 101% of the principal amount, plus accrued and unpaid interest, if any,
to the Repurchase Date. The Royalty Transactions Repurchase Offer shall be made to all Holders and will remain open for a period
of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer
period is required by applicable law (the “Royalty Transactions Repurchase Offer Period”). No later than three
Business Days after the termination of the Royalty Transactions Repurchase Offer Period (the “Repurchase Date”),
the Company will apply not less than 50% of such Net Proceeds (the “Royalty Transactions Repurchase Offer Amount”)
to the purchase of Notes or, if less than the Royalty Transactions Repurchase Offer Amount has been tendered, all Notes tendered
in response to the Royalty Transactions Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as
interest payments are made. If there are Excess Royalty Proceeds, such Excess Royalty Proceeds shall be subject to the reinvestment
and application provisions set forth in Section 4.16 of the Indenture with respect to such Excess Royalty Proceeds.


 


(8)          Notice
of Redemption. Notice of redemption will be given at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge
of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless
all of the Notes held by a Holder are to be redeemed.


 


(9)          Denominations,
Transfer, Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion
of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15
days before the mailing of a notice of redemption or during the period between a record date and the corresponding Interest Payment
Date.


 


(10)        Persons
Deemed Owners. The registered Holder of a Note shall be treated as its owner for all purposes.


 






    	A-7



    	 



    

 


(11)          Amendment,
Supplement and Waiver. Subject to certain exceptions, the Indenture, the Notes or the Note Guarantees may be amended
or supplemented with the consent of the Holders of at least 50.1% in aggregate principal amount of the then outstanding Notes voting
as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture, the Notes or
the Note Guarantees may be waived with the consent of the Holders of at least 50.1% in aggregate principal amount of the then outstanding
Notes voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders
of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder
or to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes
or to release a Guarantor from its Note Guarantee in accordance with the terms of the Indenture.


 


(12)          Defaults
and Remedies. Events of Default include: (i) default for 5 days in the payment when due of interest on the Notes; (ii)
default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(iii) (x)failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 2.06(b)(4), 3.10,
4.10, 4.15, 4.16, 4.22, 4.24 or 5.01 of the Indenture or Section 4(q) of the Security Agreement, (y) failure by the Company or
any of its Restricted Subsidiaries to comply with the provisions of Sections 4.07, 4.08, 4.09, 4.12 or 4.21 hereof and such default
continues for a period of 5 Business Days after the earlier of the date an Executive Officer (as defined in the Securities Act)
of the Company has knowledge of such failure and the date written notice of such default has been given by the Trustee or the Collateral
Agent to the Company or (z) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Section
4.03(f), 4.03(g), 4.03(h) or 4.03(i) of the Indenture, and such default continues for a period of 20 days; (iv) failure by the
Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee, the Collateral Agent or the
holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any
of the other agreements in the Indenture Documents; (v) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness (other than Indebtedness owed to the Company or any Restricted
Subsidiary of the Company) for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the date of the indenture, if that default meets certain criteria set forth in the Indenture; (vi) failure by the Company
or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating
in excess of $15.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for
in writing), which judgments are not paid, discharged or stayed within a period of 60 days of the entry thereof; (vii) certain
events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary (or such events in respect
of Restricted Subsidiaries that are not Significant Subsidiaries to the extent they have had or would reasonably be expected to
result in a Material Adverse Effect); (viii) except as permitted by the Indenture and the Collateral Documents, with respect to
any assets or property having a Fair Market Value in excess of $2.5 million, individually or in the aggregate, that constitutes
or, under the indenture or the Collateral Documents is required to constitute, Collateral, (a) any of the Collateral Documents
shall for any reason cease to be in full force and effect in all material respects, or the Company or a Guarantor shall so assert,
or (b) any security interest created, or purported to be created, by any of the Collateral Documents shall cease to be enforceable
and of the same effect and priority purported to be created thereby, except in each case solely as a result of the Collateral Agent
taking or refraining from taking any action in its sole control; (ix) except as permitted by the Indenture, any Note Guarantee
is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee; (x)
any order, judgment or decree shall be entered against the Company or any of its Restricted Subsidiaries decreeing the dissolution
or split up of the Company or such Restricted Subsidiary and such order shall remain undischarged or unstayed for a period in excess
of thirty days; (xi) (A) the loss, suspension or revocation of, or failure to renew, any material license (it being understood
that any licenses under the applicable Collaboration Agreements for any Specified Drugs shall not constitute material licenses
for purposes of this clause (xi)(A) unless the loss, suspension or revocation of, or failure to renew, any licenses under the applicable
Collaboration Agreements for any Specified Drugs results from a breach under such agreements by the Company or any of its Restricted
Subsidiaries) or material permit with respect to any Specified Drug now held or hereafter acquired by the Company or any of its
Restricted Subsidiaries or (B) the loss, suspension or revocation of, or failure to renew, any material license or material permit
other than with respect to any Specified Drug now held or hereafter acquired by the Company or any of its Restricted Subsidiaries,
if, in the case of this clause (B), such loss, suspension, revocation or failure to renew could reasonably be expected to have
a Material Adverse Effect; and (xii) the indictment of the Company or any of its Restricted Subsidiaries under any criminal statute,
or commencement of criminal or civil proceedings against the Company or any of its Restricted Subsidiaries pursuant to which statute
or proceedings the penalties actually sought include forfeiture to any governmental authority of any material portion of the property
of the Company and its Restricted Subsidiaries, taken as a whole, constituting Collateral.


 






    	A-8



    	 



    

 


If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least 50.1% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without
further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of at least 50.1% in aggregate principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of principal or interest or premium, if any,) if it determines
that withholding notice is in their interest. The Holders of at least 50.1% in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment
of interest or premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually
a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event of Default.


 


(13)          Trustee
Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were
not the Trustee.


 






    	A-9



    	 



    

 


(14)          No
Recourse Against Others. No past, present or future director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Indenture
Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Notes. The waiver may not be effective to waive liabilities under the federal securities laws.


 


(15)          Authentication.
This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.


 


(16)          Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).


 


(17)          CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.


 


(18)          GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE DOCUMENTS WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.


 


The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158

Attention: Gil Labrucherie, Esq


 






    	A-10



    	 



    

 



Assignment
Form


 


To assign this Note,
fill in the form below:


	 	 	 
	(I) or (we) assign and transfer this Note to: 	 
	 	(Insert assignee’s legal name)
	 
	(Insert assignee’s soc. sec. or tax I.D. no.)
	 
	 
	 
	 
	(Print or type assignee’s name, address and zip code)
	 	 
	and irrevocably appoint	 
	to transfer this Note on the books of the Company. The agent may substitute another to act for him.


 


Date: _______________


 

	 	Your Signature:	 
	 	(Sign exactly as your name appears on the face of this Note)


 


Signature Guarantee*: _________________________


 


*          Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 






    	A-11



    	 



    

 


Option of Holder to Elect Purchase


 


If you want to elect
to have this Note purchased by the Company pursuant to Section 4.10, 4.15 or 4.16 of the Indenture, check the appropriate box below:


 


	¬Section 4.10	¬Section
                                         4.15	¬Section
                                         4.16



 


If
you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10, 4.15 or Section 4.16 of the
Indenture, state the amount you elect to have purchased:


 


$_______________


 


Date: _______________


 

	 	Your Signature:	 
	 	 
	 	(Sign exactly as your name appears on the face of this Note)
	 	Tax
Identification No.:	 
	 	 	 	 


 


Signature
Guarantee*: _________________________


 


*          Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 






    	A-12



    	 



    

 


Schedule
of Exchanges of Interests in the Global Note *


 


The
following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges
of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:


 


	Date
    of Exchange	 	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


 


		*	This
                                         schedule should be included only if the Note is issued in global form. 



 






    	A-13



    	 



    

 

EXHIBIT B


 

FORM OF CERTIFICATE
OF TRANSFER


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wilmington
Trust, National Association,


as
Trustee and Registrar


50
South Sixth St, Suite 1290

Minneapolis, MN 55402


 


Re:
7.750% Senior Secured Notes due 2020


 


Reference
is hereby made to the Indenture, dated as of October 5, 2015 (the “Indenture”), between, Nektar Therapeutics,
as issuer (the “Company”) and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”)
and TC Lending, LLC, as collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


___________________,
(the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex
A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________
(the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:


 


[CHECK ALL
THAT APPLY]


 


1.
 ̈ Check if Transferee will take delivery
of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is
being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is
being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note
for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.


 


2.
 ̈ Check if Transferee will take delivery
of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly,
the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed
in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting
on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have
been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii)
the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.


 






    	B-1



    	 



    

 


3.
 ̈ Check and complete if Transferee will
take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor
hereby further certifies that (check one):


 


(a)           ̈
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities
Act;


 


or


 


(b)           ̈
such Transfer is being effected to the Company or a subsidiary thereof;


 


or


 


(c)           ̈
such Transfer is being effected pursuant to an effective registration statement under the
Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)           ̈
such Transfer is being effected to an Institutional Accredited Investor and pursuant to an
exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by
(1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided
by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of
the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and
the Securities Act.


 


4.
 ̈ Check if Transferee will take delivery
of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.


 


(a)
 ̈ Check if Transfer is pursuant to Rule
144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.


 






    	B-2



    	 



    

 


(b)
 ̈ Check if Transfer is Pursuant to Regulation
S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and
in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.


 


(c)
 ̈ Check if Transfer is Pursuant to Other
Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements
of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This
certificate and the statements contained herein are made for your benefit and the benefit of the Company.


 


	 	 	 
	 	 	[Insert Name of Transferor]
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:


 


Signature
Guarantee*: _________________________


 


*          Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


Dated:
_______________________


 






    	B-3



    	 



    

 

ANNEX A TO CERTIFICATE OF TRANSFER


 


1.          The Transferor
owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)    ̈
a beneficial interest in the:


 


(i)           ̈
144A Global Note (CUSIP _________), or


 


(ii)          ̈
Regulation S Global Note (CUSIP _________), or


 


(iii)         ̈
IAI Global Note (CUSIP _________); or


 


(b)    ̈ a Restricted Definitive Note.


 


2.          After the Transfer
the Transferee will hold:


 


[CHECK ONE]


 


(a)    ̈ a beneficial interest in the:


 


(i)           ̈
144A Global Note (CUSIP _________), or


 


(ii)          ̈
Regulation S Global Note (CUSIP _________), or


 


(iii)         ̈
IAI Global Note (CUSIP _________); or


 


(iv)         ̈
Unrestricted Global Note (CUSIP _________); or


 


(b)    ̈ a Restricted Definitive Note; or


 


(c)    ̈ an Unrestricted Definitive Note,


 


in accordance with
the terms of the Indenture.




 






    	B-4



    	 



    

 


EXHIBIT C


 

FORM OF CERTIFICATE
OF EXCHANGE


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wilmington
Trust, National Association,


as
Trustee and Registrar


50
South Sixth St, Suite 1290

Minneapolis, MN 55402


 


Re:
7.750% Senior Secured Notes due 2020


 


(CUSIP ____________)


 


Reference
is hereby made to the Indenture, dated as of October 5, 2015 (the “Indenture”), between, Nektar Therapeutics,
as issuer (the “Company”) and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”)
and TC Lending, LLC, as collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


__________________________,
(the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange,
the Owner hereby certifies that:


 


1.          Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note


 


(a)
 ̈ Check if Exchange is from beneficial
interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange
of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own
account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities Act”)
and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act.


 


(b)
 ̈ Check if Exchange is from beneficial
interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


(c)
 ̈ Check if Exchange is from Restricted
Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order
to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 






    	C-1



    	 



    

 


(d)
 ̈ Check if Exchange is from Restricted
Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


2.          Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes


 


(a)
 ̈ Check if Exchange is from beneficial
interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies
that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.


 


(b)
 ̈ Check if Exchange is from Restricted
Definitive Note to beneficial interest in a Restricted Global Note. In connection with the Exchange of the Owner’s Restricted
Definitive Note for a beneficial interest in the [CHECK ONE]  ̈ 144A Global Note,
 ̈ Regulation S Global Note,  ̈
IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.


 


This
certificate and the statements contained herein are made for your benefit and the benefit of the Company.


 

	 	 	 
	 	 	[Insert Name of Transferor]
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:



 






    	C-2



    	 



    

 


Signature
Guarantee*: _________________________


 


*                    Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


Dated: ______________________


 






    	C-3



    	 



    

 

EXHIBIT D


 

FORM OF CERTIFICATE
FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wilmington
Trust, National Association,


as
Trustee and Registrar


50
South Sixth St, Suite 1290

Minneapolis, MN 55402


 


Re:
7.750% Senior Secured Notes due 2020


 


Reference
is hereby made to the Indenture, dated as of October 5, 2015 (the “Indenture”), between, Nektar Therapeutics,
as issuer (the “Company”) and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”)
and TC Lending, LLC, as collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.


 


In
connection with our proposed purchase of $____________ aggregate principal amount of:


 


(a)
 ̈ a beneficial interest in a Global Note,
or


 


(b)
 ̈ a Definitive Note,


 


we
confirm that:


 


1.          We
understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).


 


2.          We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a “qualified institutional buyer” (as defined therein), (C) to an institutional “accredited investor”
(as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing
the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through
(D) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.


 






    	D-1



    	 



    

 


3.          We
understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications and, except in the case of a resale pursuant to Rule 144 under the Securities Act, legal opinions
and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.


 


4.          We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk
of our or its investment. We [are] [are not] a Competitor or Specified Entity.


 


5.          We
are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of
which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion; provided
that, by making such representations, we do not agree to hold any of the Notes for any minimum or other specific term and
reserve the right to dispose of the Notes at any time in accordance with an exemption under the Securities Act or pursuant to
an effective registration statement thereunder.


 


You
and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.


 


	 	 	 
	 	 	[Insert Name of Accredited Investor]
	 	 	 
	 	By: 	 
	 	 	Name:
	 	 	Title:



 


Signature
Guarantee*: _________________________


 


*                              Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


Dated: _______________________


 






    	D-2



    	 



    

 

EXHIBIT E


 

[FORM OF
SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


THIS
[______] Supplemental Indenture (this “Supplemental Indenture”), dated
as of ________________, 20__, among __________________ (the “Guaranteeing Subsidiary”), a [direct or indirect]
domestic subsidiary of Nektar Therapeutics (or its permitted successor), a Delaware corporation (the “Company”),
the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust, National Association,
as trustee (the “Trustee”) under the Indenture referred to below.


 


W I T N E
S S E T H


 


WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of
October 5, 2015 providing for the issuance of 7.750% Senior Secured Notes due 2020 (the “Notes”);


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s
Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”);
and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the
Notes as follows:


 


1.          Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.


 


2.          Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject
to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof.


 


4.          No
Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of
the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary
under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for 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 SEC that such a waiver is against public policy.


 


5.          NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


6.          Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.


 






    	E-1



    	 



    

 


7.          Effect
of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.


 


8.          The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency
of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by
the Guaranteeing Subsidiary and the Company.


 






    	E-2



    	 



    

 



IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above
written.


	 	 	 	 
	 	[Guaranteeing
    Subsidiary]
	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	NEKTAR THERAPEUTICS
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	[Existing Guarantors]
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 



 






    	E-3