Exhibit 4.1


 




 


ARBOR REALTY TRUST, INC.


 


AND


 


U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,


 


as Trustee


 


INDENTURE


 


Dated as of August 5, 2022


 


7.50% Convertible Senior Notes due 2025 


 


 






     


     


    

  


TABLE OF CONTENTS


 





 






 


	 	 	Page
	Article 1	 	 
	Definitions	 
	 	 
	Section 1.01 .	Definitions	1
	Section 1.02 .	References to Interest	13
	 	 	 
	Article 2	 	 
	Issue, Description, Execution, Registration and Exchange of Securities	 
	 	 
	Section 2.01 .	Designation and Amount	14
	Section 2.02 .	Form of Securities	14
	Section 2.03 .	Date and Denomination of
    Securities; Payments of Interest and Defaulted Amounts	15
	Section 2.04 .	Execution, Authentication and Delivery of Securities	16
	Section 2.05 .	Exchange and Registration of Transfer of Securities; Restrictions on Transfer; Depositary	17
	Section 2.06 .	Mutilated, Destroyed, Lost or Stolen Securities	23
	Section 2.07 .	Temporary Securities	25
	Section 2.08 .	Cancellation of Securities Paid, Converted, Etc.	25
	Section 2.09 .	CUSIP Numbers	25
	Section 2.10 .	Additional Securities;
    Repurchases	25
	 	 	 
	Article 3	 	 
	Satisfaction and Discharge	 
	 	 
	Section 3.01 .	Satisfaction and Discharge	26
	Section 3.02 .	Deposited Monies to Be Held in Trust by Trustee	27
	Section 3.03 .	Paying Agent to Repay Monies
    Held	27
	Section 3.04 .	Return of Unclaimed Monies	27
	Section 3.05 .	Reinstatement	27
	 	 	 
	Article 4	 	 
	Particular Covenants of the Company	 
	 	 
	Section 4.01 .	Payment of Principal and Interest	28
	Section 4.02 .	Maintenance of Office or Agency	28
	Section 4.03 .	Appointments to Fill Vacancies in Trustee’s Office	28



 






     


     


    

 


	Section 4.04 .	Provisions
    as to Paying Agent	28
	Section 4.05 .	Existence	30
	Section 4.06 .	Rule 144A Information Requirement and Annual Reports	30
	Section 4.07 .	Stay, Extension and Usury Laws	32
	Section 4.08 .	Compliance Certificate; Statements as to Defaults	32
	Section 4.09 .	Covenant to Take Certain Actions	32
	Section 4.10 .	Further Instruments and Acts	33
	 	 	 
	Article 5	 	 
	Lists of Holders and Reports by the Company and the Trustee	 
	 	 
	Section 5.01 .	Lists of Holders	33
	Section 5.02 .	Preservation and Disclosure
    of Lists	33
	 	 	 
	Article 6	 	 
	Defaults and Remedies	 
	 	 
	Section 6.01 .	Events of Default	33
	Section 6.02 .	Acceleration; Rescission and Annulment	35
	Section 6.03 .	Additional Interest	35
	Section 6.04 .	Waiver of Past Defaults	36
	Section 6.05 .	Control by Majority	36
	Section 6.06 .	Limitation on Suits	37
	Section 6.07 .	Rights of Holders to Receive Payment and to Convert	37
	Section 6.08 .	Collection of Indebtedness; Suit for Enforcement by Trustee	37
	Section 6.09 .	Trustee May Enforce Claims Without Possession of Securities	38
	Section 6.10 .	Trustee May File Proofs of Claim	38
	Section 6.11 .	Restoration of Rights and
    Remedies	38
	Section 6.12 .	Rights and Remedies Cumulative	39
	Section 6.13 .	Delay or Omission Not a Waiver	39
	Section 6.14 .	Priorities	39
	Section 6.15 .	Undertaking for Costs	40
	Section 6.16 .	Waiver of Stay, Extension
    and Usury Laws	40
	Section 6.17 .	Notices from the Trustee	40
	 	 	 
	Article 7	 	 
	Concerning the Trustee	 
	 	 
	Section 7.01 .	Duties and Responsibilities
    of Trustee	40
	Section 7.02 .	Reliance on Documents,
    Opinions, Etc.	42
	Section 7.03 .	No Responsibility for Recitals, Etc.	43



 






     


     


    

 


	Section 7.04 .	Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Security Registrar
    May Own Securities	43
	Section 7.05 .	Monies and Shares of Common
    Stock to Be Held in Trust	44
	Section 7.06 .	Compensation and Expenses of Trustee	44
	Section 7.07 .	Officers’ Certificate as Evidence	45
	Section 7.08  .	Eligibility of Trustee	45
	Section 7.09 .	Resignation or Removal of Trustee	45
	Section 7.10 .	Acceptance by Successor Trustee	46
	Section 7.11 .	Succession by Merger, Etc.	47
	Section 7.12 .	Trustee’s Application for Instructions from the Company	48
	 	 	 
	Article 8	 	 
	Concerning the Holders	 
	 	 
	Section 8.01 .	Action by Holders	48
	Section 8.02 .	Proof of Execution by Holders	48
	Section 8.03 .	Who Are Deemed Absolute Owners	49
	Section 8.04 .	Company-Owned Securities
    Disregarded	49
	Section 8.05 .	Revocation of Consents; Future Holders Bound	49
	 	 	 
	Article 9	 	 
	Holders’ Meetings	 
	 	 
	Section 9.01 .	Purpose of Meetings:	50
	Section 9.02 .	Call of Meetings by Trustee	50
	Section 9.03 .	Call of Meetings by Company or Holders	51
	Section 9.04 .	Qualifications for Voting	51
	Section 9.05 .	Regulations	51
	Section 9.06 .	Voting	52
	Section 9.07 .	No Delay of Rights by Meeting	52
	 	 	 
	Article 10	 	 
	Supplemental Indentures	 
	 	 
	Section 10.01 .	Supplemental Indentures
    Without Consent of Holders	52
	Section 10.02 .	Supplemental Indentures
    with Consent of Holders	53
	Section 10.03 .	Effect of Supplemental
    Indentures	54
	Section 10.04 .	Notation on Securities	55
	Section 10.05 .	Evidence of Compliance
    of Supplemental Indenture to Be Furnished Trustee	55



 






     


     


    

 


	Article 11	 	 
	Consolidation, Merger, Sale, Conveyance and Lease	 
	 	 
	Section 11.01 .	Company May Consolidate, Etc. on Certain Terms	55
	Section 11.02 .	Successor Corporation to
    Be Substituted	56
	Section 11.03 .	Opinion of Counsel to Be
    Given to Trustee	56
	 	 	 
	Article 12	 	 
	Immunity of Incorporators, Stockholders, Officers and Directors	 
	 	 
	Section 12.01 .	Indenture and Securities
    Solely Corporate Obligations	57
	 	 	 
	Article 13	 	 
	[Intentionally Omitted]	 
	 	 	 
	Article 14	 	 
	Conversion of Securities	 
	 	 
	Section 14.01 .	Right to Convert	57
	Section 14.02 .	Conversion Procedures	60
	Section 14.03 .	Settlement Upon Conversion.	62
	Section 14.04 .	Adjustment of Conversion Rate	66
	Section 14.05 .	Other Adjustments	76
	Section 14.06 .	Adjustment to Conversion
    Rate Upon Conversion in Connection with a Make-Whole Fundamental Change	76
	Section 14.07 .	Effect of Recapitalization,
    Reclassification, Consolidation, Merger or Sale	78
	Section 14.08 .	Stock Issued Upon Conversion.	80
	Section 14.09 .	Responsibility of Trustee	80
	Section 14.10 .	Notice to Holders	81
	Section 14.11 .	Exchange in Lieu of Conversion	82
	 	 	 
	Article 15	 	 
	Repurchase of Securities at Option of Holders	 
	 	 
	Section 15.01 .	Intentionally Omitted	83
	Section 15.02 .	Repurchase at Option of
    Holders Upon a Fundamental Change	83
	Section 15.03 .	Effect of Fundamental Change
    Repurchase Notice	85
	Section 15.04 .	Withdrawal of Fundamental
    Change Repurchase Notice	85
	Section 15.05 .	Deposit of Fundamental
    Change Repurchase Price	86
	Section 15.06 .	Securities Purchased in
    Whole or in Part	86



 






     


     


    

 


	Section 15.07 .	Covenant To
    Comply with Applicable Laws upon Purchase of Securities	87
	Section 15.08 .	Repayment to the Company	87
	 	 	 
	Article 16	 	 
	No Optional Redemption	 
	 	 
	Section 16.01 .	No Optional Redemption	87
	 	 	 
	Article 17 	 	 
	Miscellaneous Provisions	 
	 	 
	Section 17.01 .	Provisions Binding on Company’s
    Successors	87
	Section 17.02 .	Official Acts by Successor
    Corporation	87
	Section 17.03 .	Addresses for Notices,
    Etc.	88
	Section 17.04 .	Governing Law; Jurisdiction	88
	Section 17.05 .	Evidence of Compliance
    with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	89
	Section 17.06 .	Legal Holidays	89
	Section 17.07 .	No Security Interest Created	89
	Section 17.08 .	Benefits of Indenture	89
	Section 17.09 .	Table of Contents, Headings, Etc.	90
	Section 17.10 .	Authenticating Agent	90
	Section 17.11 .	Execution in Counterparts	91
	Section 17.12 .	Severability	91
	Section 17.13 .	Waiver of Jury Trial	91
	Section 17.14 .	Force Majeure	91
	Section 17.15 .	Calculations	92
	Section 17.16 .	USA PATRIOT Act	92



 


SCHEDULE


 


	Schedule
A	Additional Shares	



 


EXHIBIT


 


	Exhibit A	Form of
Security	 



 






     


     


    

 


INDENTURE dated as of August 5, 2022 between
ARBOR REALTY TRUST, INC., a Maryland corporation, as issuer (the “Company,” as more fully set forth in Section 1.01)
and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee,” as more
fully set forth in Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the issuance of its 7.50% Convertible Senior Notes due 2025 (the “Securities”), initially
in an aggregate principal amount not to exceed $287,500,000, and in order to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and


 


WHEREAS, the Form of Security, the certificate
of authentication to be borne by each Security, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase
Notice and the Form of Assignment and Transfer to be borne by the Securities are to be substantially in the forms hereinafter provided;
and


 


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


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


That in order to declare the terms and conditions
upon which the Securities are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Securities by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Securities (except as otherwise provided below), as follows:


 


Article 1

Definitions


 


Section 1.01.
Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:


 


(i)            the
terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as
the singular;


 






    1 


     


    

 


(ii)           all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted
accounting principles, the term “generally accepted accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted as consistently applied by the Company at the date of such
computation;


 


(iii)          unless
the context otherwise requires, any reference to an “Article,” a “Section” or an “Exhibit” refers
to an Article, a Section or an Exhibit, as the case may be, of or to this Indenture; and


 


(iv)          the
words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.


 


“Additional Interest” means
all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03, as applicable.


 


“Additional Shares” has the
meaning specified in Section 14.06(a) hereof.


 


“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 the purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.


 


“Applicable Procedures” means,
with respect to any matter at any time, the policies and procedures of the Depositary, if any, that are applicable to such matter at such
time.


 


“Bid Solicitation Agent” means
the Company or such other Person as may be appointed, from time to time, by the Company to solicit bids for the Trading Price of the Securities
in accordance with Section 14.01(b)(ii) hereof. Initially, the “Bid Solicitation Agent” means the Company.


 


“Board of Directors” means the
board of directors of the Company or a committee of such board duly authorized to act for it hereunder.


 


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


 






    2 


     


    

 


“Business Day” means any day
other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order
to close or be closed.


 


“Capital Stock” means, for any
Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however
designated) the equity of such Person, but excluding any debt securities convertible into such equity.


 


“Cash Settlement” has the meaning
specified in Section 14.03(a)(iv) hereof.


 


“Clause A Distribution” has
the meaning specified in Section 14.04(c) hereof.


 


“Clause B Distribution” has
the meaning specified in Section 14.04(c) hereof.


 


“Clause C Distribution” has
the meaning specified in Section 14.04(c) hereof.


 


“Close of Business” means 5:00
P.M., New York City time.


 


“Combination Settlement” has
the meaning specified in Section 14.03(a)(iv) hereof.


 


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


 


“Common Equity” of any Person
means the Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if
such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others
that will control the management or policies of such Person.


 


“Common
Stock” means, subject to Section 14.07, the shares of common stock, $0.01 par value per share, of the Company authorized
at the date of this instrument as originally executed or shares of any class or classes of common stock resulting from any reclassification
or reclassifications thereof.


 


“Company” has the meaning specified
in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.


 


“Company Order” means a written
request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.


 






    3 


     


    

 


“Conversion Agent” has the meaning
specified in Section 4.02 hereof.


 


“Conversion Date” has the meaning
specified in Section 14.02(b) hereof.


 


“Conversion Notice” has the
meaning specified in Section 14.02(b)(i) hereof.


 


“Conversion Price” means, in
respect of each Security, as of any date, $1,000 divided by the Conversion Rate in effect on such date.


 


“Conversion Rate” means initially
59.8480 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment as set forth herein.


 


“Corporate Trust Office” means
the designated office of the Trustee at which at any particular time its corporate trust business shall be administered, which as of the
date hereof is located at 60 Livingston Avenue, Mailcode: EP-MN-WS3C, St. Paul, MN 55107, Attention: Global Corporate Trust Services —
Administrator for Arbor Realty Trust, Inc.


 


“Custodian” means the Trustee,
as custodian with respect to the Securities (so long as the Securities constitute Global Securities), or any successor entity.


 


“Daily Conversion Value” means,
for each of the 40 consecutive Trading Days during the Observation Period, 2.5% of the product of (a) the Conversion Rate in effect
on such Trading Day and (b) the Daily VWAP on such Trading Day.


 


“Daily Measurement Value” has
the meaning specified in Section 14.03(a)(vi)(A) hereof.


 


“Daily Settlement Amount” has
the meaning specified in Section 14.03(a)(vi) hereof.


 


“Daily VWAP” means, for each
of the 40 consecutive Trading Days during the relevant Observation Period, the per-share volume-weighted average price as displayed under
the heading “Bloomberg VWAP” on Bloomberg page “ABR <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary
trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common
Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking
firm retained for this purpose by the Company). The “Daily VWAP” will be determined without regard to after-hours trading
or any other trading outside of the regular trading session trading hours.


 


“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.


 






    4 


     


    

 


“Defaulted Amounts” means any
amounts on any Security (including, without limitation, the Fundamental Change Repurchase Price, principal and interest) that are payable
but are not punctually paid or duly provided for.


 


“Depositary” means, with respect
to each Global Security, the Person specified in Section 2.05(c) as the Depositary with respect to such Securities, until a
successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.


 


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


 


“Effective Date” means (a) the
first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the
relevant share split or share combination, as applicable, or (b) with respect to a Fundamental Change or Make-Whole Fundamental Change,
the date such Fundamental Change or Make-Whole Fundamental Change becomes effective.


 


“Event of Default” has the meaning
specified in Section 6.01 hereof.


 


“Exchange Act” means the United
States Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.


 


“Exchange Election” has the
meaning specified in Section 14.11 hereof.


 


“Ex-Dividend Date” means, the
first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the
right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Common
Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.


 


“Form of Assignment and Transfer”
means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Security attached hereto as
Exhibit A.


 


“Form of Fundamental Change Repurchase
Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of
Security attached hereto as Exhibit A.


 


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


 


“Form of Security” means
the “Form of Security” attached hereto as Exhibit A.


 






    5 


     


    

 


“Fundamental Change” shall be
deemed to have occurred at the time after the Securities are originally issued if any of the following occurs:


 


(a)            a
 “person” or “group” (within the meaning of Section 13(d) of the Exchange Act), other than the Company,
its wholly-owned subsidiaries and its and their employee benefit plans files a Schedule TO or any schedule, form or report under the Exchange
Act that discloses that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3
under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common
Equity;


 


(b)            the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision
or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property
or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock shall be converted into
cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions
of all or substantially all of the consolidated assets of the Company and its subsidiaries, taken as a whole, to any Person other than
one of the Company’s wholly-owned subsidiaries; provided, however, that a transaction described in clause (B) in which the
holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than
50% of all classes of common equity of the continuing or surviving corporation or transferee or the parent thereof immediately after such
transaction in substantially the same proportions as such ownership immediately prior to such transaction shall not be a Fundamental Change
pursuant to this clause (b);


 


(c)            the
Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or


 


(d)            the
Common Stock (or other common stock underlying the Securities) ceases to be listed or quoted on any of The New York Stock Exchange, The
Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors).


 


A transaction
or transactions described in clause (a) or clause (b) above will not constitute a Fundamental Change, however, if at least 90%
of the consideration received or to be received by holders of the Common Stock, excluding cash payments for fractional shares, in connection
with such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange,
The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors) or will be so listed or quoted when
issued or exchanged in connection with such transaction or transactions, and as a result of such transaction or transactions the Securities
become convertible into such consideration, excluding cash payments for fractional shares (subject to Section 14.03).


 






    6 


     


    

 


If any transaction in which the Common Stock is replaced by the securities
of another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that
would have been a Fundamental Change or a Make-Whole Fundamental Change but for the immediately preceding paragraph, following the effective
date of such transaction), references to the Company in this definition of “Fundamental Change” above shall instead be references
to such other entity.


 


“Fundamental Change Company Notice”
has the meaning specified in Section 15.02(b) hereof.


 


“Fundamental
Change Expiration Time” has the meaning specified in Section 15.02(a)(i) hereof.


 


“Fundamental Change Repurchase Date”
has the meaning specified in Section 15.02(a) hereof.


 


“Fundamental
Change Repurchase Notice” has the meaning specified in Section 15.02(a)(i) hereof.


 


“Fundamental Change Repurchase Price”
has the meaning specified in Section 15.02(a) hereof.


 


“Global Security” has the meaning
specified in Section 2.05(b).


 


“Holder,” as applied to any
Security, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at the time
a particular Security is registered on the Security Register.


 


“Indenture” means this instrument
as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.


 


“Initial Dividend Threshold”
has the meaning specified in Section 14.04(d) hereof.


 


“Interest Payment Date” means
each February 1 and August 1 of each year, beginning on February 1, 2023.


 


“Issue Date” means, with respect
to the Securities, August 5, 2022.


 


“Last Reported Sale Price” of
the Common Stock for any date means the closing sale price per share (or, if no closing sale price is reported, the average of the bid
and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported
in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the
Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant Trading Day, the “Last
Reported Sale Price” will be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date
as reported by OTC Markets Group Inc. or a similar organization.  If the Common Stock is not so quoted, the “Last Reported
Sale Price” will be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each
of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.


 






    7 


     


    

 


“Make-Whole Fundamental Change”
means any event that is a Fundamental Change determined after giving effect to any exceptions to or exclusions from such definition but
without regard to the proviso in clause (b) of the definition thereof.


 


“Make-Whole Fundamental Change Period”
has the meaning specified in Section 14.06(a) hereof.


 


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


 


“Maturity Date” means, with
respect to any Security and the payment of the principal amount thereof, August 1, 2025.


 


“Measurement
Period” has the meaning specified in Section 14.01(b)(ii) hereof.


 


“Merger Event” has the meaning
specified in Section 14.07(a) hereof.


 


“Observation Period” with respect
to any Security surrendered for conversion means: (i) if the relevant Conversion Date occurs prior to May 1, 2025, the 40 consecutive
Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; and (ii) if the
relevant Conversion Date occurs on or after May 1, 2025, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled
Trading Day immediately preceding the Maturity Date.


 


“Offering Memorandum” means
the preliminary offering memorandum dated August 1, 2022, as supplemented by the related pricing term sheet dated August 2,
2022, relating to the offering and sale of the Securities.


 






    8 


     


    

 


“Officer” means, with respect
to the Company, the President, the Chief Executive Officer, the Treasurer, the Secretary, any Executive or Senior Vice President or any
Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).


 


“Officers’ Certificate,”
when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by (a) two of the
Chairman of the Board of Directors, Vice Chairman of the Board of Directors or any Officers of the Company. Each such certificate shall
include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section. One of the
Officers giving an Officers’ Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting
officer of the Company.


 


“Open of Business” means 9:00
A.M., New York City time.


 


“Opinion of Counsel” means an
opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, that is delivered to the Trustee, which
may contain customary exceptions and qualifications as to the matters set forth therein and which legal counsel may, in providing such
opinion, rely upon certifications or other representations as to matters of fact. Each such opinion shall include the statements provided
for in Section 17.05 if and to the extent required by the provisions of such Section 17.05.


 


“outstanding,” when used with
reference to Securities, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Securities authenticated
and delivered by the Trustee under this Indenture, except:


 


(a)            Securities
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;


 


(b)            Securities,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);


 


(c)            Securities
that have been paid pursuant to Section 2.06 or Securities in lieu of which, or in substitution for which, other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented
that any such Securities are held by protected purchasers in due course;


 


(d)            Securities
converted pursuant to Article 14 and required to be cancelled pursuant to
Section 2.08; and


 






    9 


     


    

 


(e)            Securities
repurchased by the Company pursuant to the penultimate sentence of Section 2.10.


 


“Paying Agent” has the meaning
specified in Section 4.02 hereof.


 


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


 


“Physical Securities” means
permanent certificated Securities in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.


 


“Physical Settlement” has the
meaning specified in Section 14.03(a)(iv) hereof.


 


“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 2.06 in lieu of or in exchange for
a mutilated, lost, destroyed or stolen Security shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security that it replaces.


 


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


 


“Reference Property” has the
meaning specified in Section 14.07(a) hereof.


 


“Regular Record Date” means,
with respect to any Interest Payment Date, the January 15 (whether or not a Business Day) or the July 15 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date (whether or not such date is a Business Day).


 


“Reporting Event of Default”
has the meaning specified in Section 6.03 hereof.


 


“Resale Restriction Termination Date”
has the meaning specified in Section 2.05(c) hereof.


 


“Responsible Officer” means,
when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.


 






    10 


     


    

 


“Restricted Securities” has
the meaning specified in Section 2.05(c) hereof.


 


“Restrictive Securities Legend”
has the meaning specified in Section 2.05(c) hereof.


 


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


 


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


 


“Scheduled Trading Day” means
a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day”
means a Business Day.


 


“Securities Act” means the United
States Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.


 


“Security” or “Securities”
has the meaning specified in the first paragraph of the recitals of this Indenture.


 


“Security Register” has the
meaning specified in Section 2.05(a) hereof.


 


“Security Registrar” has the
meaning specified in Section 2.05(a) hereof.


 


“Settlement
Amount” has the meaning specified in Section 14.03(a) hereof.


 


“Settlement Method” means, with
respect to any conversion of Securities, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have
been elected) by the Company.


 


“Settlement
Notice” has the meaning specified in Section 14.03(a)(iv) hereof.


 


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


 


“Specified Dollar Amount” has
the meaning specified in Section 14.03(a)(vi)(A) hereof.


 


“Spin-Off” has the meaning specified
in Section 14.04(c) hereof.


 






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“Stock
Price” has the meaning specified in Section 14.06(c) hereof.


 


“Subsidiary” means a corporation
or limited liability Company more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting-stock”
means the equity interest that ordinarily has voting power for the election of directors, managers or trustees of an entity, or persons
performing similar functions, whether at all times or only so long as no senior class of equity interest has such voting power by reason
of any contingency.


 


“Successor Company” has the
meaning specified in Section 11.01(a).


 


“Trading Day” means, except
for purposes of determining amounts due upon conversion, a day on which (i) trading in the Common Stock (or other security for which
a closing sale price must be determined) generally occurs on The New York Stock Exchange or, if the Common Stock (or such other security)
is not then listed on The New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which the Common
Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or
regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a
Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange
or market. If the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a “Business
Day.”


 


For the purposes of determining amounts due upon
conversion only, “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in
Common Stock generally occurs on The New York Stock Exchange or, if the Common Stock is not then listed on The New York Stock Exchange,
on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock
is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then
listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business
Day.


 


“Trading Price” of the Securities
on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $1,000,000
principal amount of Securities at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally
recognized securities dealers selected for this purpose by the Company; provided that if three such bids cannot reasonably be obtained
by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid
can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used.  If the Bid Solicitation Agent cannot reasonably
obtain at least one bid for $1,000,000 principal amount of Securities from a nationally recognized securities dealer, then the Trading
Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the product of (i) the Last Reported Sale Price
of the Common Stock on such date of determination and (ii) the Conversion Rate in effect on such determination date. If (x) the
Company is not acting as Bid Solicitation Agent and the Company does not, when it is required to, instruct the Bid Solicitation Agent
to obtain bids or if the Company gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such
determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination, then, in
either case, the Trading Price per $1,000 principal amount of Securities will be deemed to be less than 98% of the product of (i) Last
Reported Sale Price of the Common Stock on such determination date and (ii) the Conversion Rate in effect on such determination date
for each Trading Day of such failure.


 






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“transfer” has the meaning specified
in Section 2.05(c) hereof.


 


“Trigger Event” has the meaning
specified in Section 14.04(c) hereof.


 


“Trust Indenture Act” means
the United States Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.


 


“Trustee” means the Person named
as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder.


 


“Unit of Reference Property”
has the meaning specified in Section 14.07(a) hereof.


 


“U.S.” or “United States”
means the United States of America.


 


“Valuation Period” has the meaning
specified in Section 14.04(c) hereof.


 


Section 1.02. References to Interest.
Unless the context otherwise requires, any reference to interest on, or in respect of, any Security in this Indenture shall be deemed
to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.06(d),
Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest in
any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is
not made.


 






    13 


     


    

 



 


Article 2

Issue, Description, Execution, Registration and Exchange of Securities


 


Section 2.01. Designation and Amount.
The Securities shall be designated as the “7.50% Convertible Senior Notes due 2025.” The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is initially limited to $287,500,000, subject to Section 2.10 and except
for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Securities to the
extent expressly permitted hereunder.


 


Section 2.02. Form of Securities.
The Securities and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially in the respective
forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made
a part of this Indenture. To the extent applicable, the Company 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 that any provision of any Security conflicts with the
express provisions of this Indenture, the provisions of this Indenture will govern and control.


 


Any Global Security may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be
required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange or automated quotation system upon which the Securities may be listed or traded
or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to
which any particular Securities are subject.


 


Any of the Securities may have such letters, numbers
or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities
exchange or automated quotation system on which the Securities may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Securities are subject.


 


Each Global Security shall represent such principal
amount of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate principal amount
of outstanding Securities from time to time endorsed thereon and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be increased or reduced to reflect repurchases, cancellations, conversions, transfers or exchanges permitted
hereby. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the Holder of such Securities in accordance with this Indenture. Payment of principal (including the Fundamental Change Repurchase
Price, if applicable) of, and accrued and unpaid interest on, a Global Security shall be made to the Holder of such Security on the date
of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein.


 






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Section 2.03. Date and Denomination of
Securities; Payments of Interest and Defaulted Amounts. (a) The Securities shall be issuable in registered form without coupons
in denominations of $1,000 principal amount and integral multiples thereof. Each Security shall be dated the date of its authentication
and shall bear interest from the date specified on the face of such Security. Accrued interest on the Securities shall be computed on
the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed
in a 30-day month.


 


(b)           The
Person in whose name any Security (or its Predecessor Security) is registered on the Security Register at the Close of Business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment
Date. The Company shall pay, or cause the Paying Agent to pay, the principal amount of any Security (x) in the case of any Physical
Security, at the office or agency of the Company maintained by the Company for such purposes in the Borough of Manhattan, The City of
New York, which shall initially be the Corporate Trust Office and (y) in the case of any Global Security, in immediately available
funds to the account of the Depositary or its nominee. The Company shall pay, or cause the Paying Agent to pay, interest (i) on any
Physical Securities (A) to Holders holding Physical Securities having an aggregate principal amount of $5,000,000 or less, by check
mailed to the Holders of these Securities at their address as it appears in the Security Register and (B) to Holders holding Physical
Securities having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by
such a Holder to the Security Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds
to that Holder’s account within the United States or (ii) on any Global Security in immediately available funds to the account
of the Depositary or its nominee.


 


(c)           Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at
the rate borne by the Securities plus one percent, subject to the enforceability thereof under applicable law, from, and including,
such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election
in each case, as provided in clause (i) or (ii) below:


 


(i)            The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the Close of Business on a special record date for the payment of such Defaulted Amounts, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid
on each Security and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of
such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not
less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee
of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such
Defaulted Amounts shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered
at the Close of Business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this
Section 2.03(c).


 






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(ii)           The
Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Securities may be listed or designated for issuance, and upon such notice as may be
required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.


 


Section 2.04. Execution, Authentication
and Delivery of Securities. The Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signature
of its Chairman of the Board of Directors, Vice Chairman of the Board of Directors or any Officer of the Company.


 


At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities, without any further action by the Company hereunder.


 


Only such Securities as shall bear thereon a certificate
of authentication substantially in the form set forth on the Form of Security attached as Exhibit A hereto, executed manually
or by facsimile by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10),
shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such
an authenticating agent) upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.


 






    16 


     


    

 


In case the Chairman or Vice Chairman of the Board
of Directors or the Officer of the Company who shall have signed any of the Securities shall cease to be such Chairman, Vice Chairman
or Officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company,
such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not
ceased to be such Chairman, Vice Chairman or Officer; and any Security may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Security, shall be the Chairman or Vice Chairman of the Board of Directors or any Officers of the
Company, although at the date of the execution of this Indenture any such person was not such a Chairman, Vice Chairman or Officer.


 


Section 2.05.
Exchange and Registration of Transfer of Securities; Restrictions on Transfer; Depositary. (a) The Company shall cause to be
kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company
designated pursuant to Section 4.02, the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. Such register shall
be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby
initially appointed the “Security Registrar” for the purpose of registering Securities and transfers of Securities
as herein provided. The Company may appoint one or more co-Security Registrars in accordance with Section 4.02.


 


Upon surrender for registration of transfer of
any Security to the Security Registrar or any co-Security Registrar, and satisfaction of the requirements for such transfer set forth
in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture.


 


Securities may be exchanged for other Securities
of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such
office or agency maintained by the Company pursuant to Section 4.02. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Securities that the Holder making the exchange is entitled
to receive, bearing registration numbers not contemporaneously outstanding.


 






    17 


     


    

 


All Securities presented or surrendered for registration
of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-Security Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to
the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.


 


No service charge shall be imposed by the Company,
the Trustee, the Security Registrar, any co-Security Registrar or the Paying Agent for any exchange or registration of transfer of Securities,
but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required
in connection therewith as a result of the name of the Holder of new Securities issued upon such exchange or registration of transfer
being different from the name of the Holder of the old Securities surrendered for exchange or registration of transfer.


 


None of the Company, the Trustee, the Security
Registrar or any co-Security Registrar shall be required to exchange or register a transfer of (i) any Securities surrendered for
conversion or, if a portion of any Security is surrendered for conversion, such portion thereof surrendered for conversion or (ii) any
Securities, or a portion of any Security, surrendered for repurchase (and not withdrawn) in accordance with Article 15.


 


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


 


(b)           So
long as the Securities are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth
paragraph from the end of Section 2.05(c) all Securities shall be represented by one or more Securities in global form (each,
a “Global Security”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and exchange
of beneficial interests in a Global Security that does not involve the issuance of a Physical Security shall be effected through the Depositary
(but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and
the procedures of the Depositary therefor.


 


(c)            Every
Security that bears or is required under this Section 2.05(c) to bear the Restrictive Securities Legend (together with any Common
Stock issued upon conversion of the Securities that is required to bear the legend set forth in Section 2.05(d), collectively, the
 “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including
the Restrictive Securities Legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound
by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.


 






    18 


     


    

 


Until the date (the “Resale Restriction
Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the Securities,
or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any,
as may be required by applicable law, any certificate evidencing such Security (and all securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section 2.05(d),
if applicable) shall bear a legend in substantially the following form (the “Restrictive Securities Legend”) (unless
such Securities have been transferred pursuant to a registration statement that has become or been declared effective under the Securities
Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144
or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof
to the Trustee):


 


THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1)            REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)           AGREES
FOR THE BENEFIT OF ARBOR REALTY TRUST, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A)            TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


(B)            PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)            TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 






    19 


     


    

 


(D)            PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS
OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


No transfer of any Security prior to the Resale
Restriction Termination Date will be registered by the Security Registrar unless the applicable box on the Form of Assignment and
Transfer has been checked.


 


Any
Security (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance
with their terms, may, upon surrender of such Security for exchange to the Security Registrar in accordance with the provisions of this
Section 2.05, be exchanged for a new Security or Securities, of like tenor and aggregate principal amount, which shall not bear the
Restrictive Securities Legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company
shall be entitled to instruct the Custodian in writing to so surrender any Global Security as to which such restrictions on transfer shall
have expired in accordance with their terms for exchange, and, upon such instruction, the Custodian shall so surrender such Global Security
for exchange; and any new Global Security so exchanged therefor shall not bear the Restrictive Securities Legend specified in this Section 2.05(c) and
shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee upon the occurrence of the Resale
Restriction Termination Date and promptly after a registration statement, if any, with respect to the Securities or any Common Stock issued
upon conversion of the Securities has been declared effective under the Securities Act.


 


Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this Section 2.05(c)), a Global Security may not be transferred as a whole or in part except
(i) 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 and (ii) for
exchange of a Global Security or a portion thereof for one or more Physical Securities in accordance with the second immediately succeeding
paragraph.


 






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The Depositary shall be a clearing agency registered
under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Security.
Initially, each Global Security shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company
at any time that the Depositary is unwilling or unable to continue as depositary for the Global Securities and a successor depositary
is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor
depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Securities has occurred and is continuing
and a beneficial owner of any Security requests that its beneficial interest therein be issued as a Physical Security, the Company shall
execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Securities,
shall authenticate and deliver (x) in the case of clause (iii), a Physical Security to such beneficial owner in a principal amount
equal to the principal amount of such Security corresponding to such beneficial owner’s beneficial interest and (y) in the
case of clause (i) or (ii), Physical Securities to each beneficial owner of the related Global Securities (or a portion thereof)
in an aggregate principal amount equal to the aggregate principal amount of such Global Securities in exchange for such Global Securities,
and upon delivery of the Global Securities to the Trustee such Global Securities shall be canceled.


 


Physical Securities issued in exchange for all
or a part of the Global Security pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of
the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such Physical Securities to the Persons in whose names such Physical Securities are so registered.


 


At such time as all interests in a Global Security
have been converted, canceled, repurchased or transferred, such Global Security shall be, upon receipt thereof, canceled by the Trustee
in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to such cancellation,
if any interest in a Global Security is exchanged for Physical Securities, converted, canceled, repurchased or transferred to a transferee
who receives Physical Securities therefor or any Physical Security is exchanged or transferred for part of such Global Security, the principal
amount of such Global Security shall, in accordance with the standing procedures and instructions existing between the Depositary and
the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Security, by
the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.


 


None of the Company, the Trustee or any agent of
the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.


 






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(d)           Until
the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Security shall bear
a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant
to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or such
Common Stock has been issued upon conversion of a Security that has transferred pursuant to a registration statement that has become or
been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption
from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed
by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1)            REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2)            AGREES
FOR THE BENEFIT OF ARBOR REALTY TRUST, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE
TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL
ISSUE DATE OF THE SERIES OF SECURITIES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW, EXCEPT:


 


(A)            TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


(B)            PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 






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(C)            TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D)            PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE
DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE
AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


Any such Common Stock as to which such restrictions
on transfer shall have expired in accordance with their terms, may, upon surrender of the certificates representing such shares of Common
Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).


 


(e)            Any
Security or Common Stock issued upon the conversion or exchange of a Security that is repurchased or owned by any Affiliate of the Company
(or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not be resold by such
Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction that results in such Security or Common Stock, as the case may be, no
longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Security that is repurchased
or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.


 


Section 2.06. Mutilated, Destroyed, Lost
or Stolen Securities. In case any Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may
execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Security, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security
shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required
by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in
every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.


 






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The Trustee or such authenticating agent may authenticate
any such substituted Security and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Security Registrar,
any co-Security Registrar or the Paying Agent upon the issuance of any substitute Security, but the Company may require a Holder to pay
a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the
name of the Holder of the new substitute Security being different from the name of the Holder of the old Security that became mutilated
or was destroyed, lost or stolen. In case any Security that has matured or is about to mature or has been surrendered for required repurchase
or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may,
in its sole discretion, instead of issuing a substitute Security, pay or authorize the payment of or convert or authorize the conversion
of the same (without surrender thereof except in the case of a mutilated Security), as the case may be, if the applicant for such payment
or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity
as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent
or Conversion Agent of the destruction, loss or theft of such Security and of the ownership thereof.


 


Every substitute Security issued pursuant to the
provisions of this Section 2.06 by virtue of the fact that any Security is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately
with any and all other Securities duly issued hereunder. To the extent permitted by law, all Securities shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement, payment, conversion or repurchase of mutilated,
destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement, payment, conversion or repurchase of negotiable instruments or other
securities without their surrender.


 






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Section 2.07. Temporary Securities.
Pending the preparation of Physical Securities, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon written request of the Company, authenticate and deliver temporary Securities (printed or lithographed). Temporary Securities
shall be issuable in any authorized denomination, and substantially in the form of the Physical Securities but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security
shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the Physical Securities. Without unreasonable delay, the Company shall execute and deliver
to the Trustee or such authenticating agent Physical Securities (other than any Global Security) and thereupon any or all temporary Securities
(other than any Global Security) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant
to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Securities
an equal aggregate principal amount of Physical Securities. Such exchange shall be made by the Company at its own expense and without
any charge therefor. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits and subject to
the same limitations under this Indenture as Physical Securities authenticated and delivered hereunder.


 


Section 2.08. Cancellation of Securities
Paid, Converted, Etc. The Company shall cause all Securities surrendered for the purpose of payment, repurchase, registration of transfer
or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries
or Affiliates), to be surrendered to the Trustee for cancellation. All Securities delivered to the Trustee shall be canceled promptly
by it. Except for any Securities surrendered for registration of transfer or exchange, or as otherwise expressly permitted by any of the
provisions of this Indenture, no Securities shall be authenticated in exchange for any Securities surrendered to the Trustee for cancellation.
The Trustee shall dispose of canceled Securities in accordance with its customary procedures and, after such disposition, shall deliver
a certificate of such disposition to the Company, at the Company’s written request in a Company Order.


 


Section 2.09. CUSIP Numbers. The Company
in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Securities or on such notice and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall promptly notify the Trustee in writing of any change
in the “CUSIP” numbers.


 


Section 2.10.
Additional Securities; Repurchases. The Company may, without the consent of, or notice to, the Holders and notwithstanding Section 2.01,
reopen this Indenture and issue additional Securities hereunder with the same terms as the Securities initially issued hereunder (other
than differences in the issue date, issue price, interest accrued prior to the issue date of such additional Securities and, if applicable,
restrictions on transfer in respect of such additional Securities) in an unlimited aggregate principal amount; provided that if
any such additional Securities are not fungible with the Securities initially issued hereunder for U.S. federal income tax law purposes,
such additional Securities shall have a separate CUSIP number. Prior to the issuance of any such additional Securities, the Company shall
deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and
Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request.
In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Securities are surrendered
to the Company), repurchase Securities in the open market or otherwise, whether by the Company or its Subsidiaries or through a private
or public tender or exchange offer or through counterparties pursuant to private agreements, including by cash-settled swaps or other
derivatives. The Company shall cause any Securities so repurchased (other than Securities repurchased pursuant to cash-settled swaps or
other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such Securities shall no
longer be considered outstanding under this Indenture upon their repurchase.


 






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Article 3

Satisfaction and Discharge


 


Section 3.01. Satisfaction and Discharge.
When (a) the Company shall deliver to the Security Registrar for cancellation all Securities theretofore authenticated (other than
any Securities that have been destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated
and delivered) and not theretofore canceled, or (b) all the Securities not theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable (whether on the Maturity Date, on any Fundamental Change Repurchase Date, upon conversion or otherwise)
and the Company shall deposit with the Trustee, in trust, or deliver to the Holders, as applicable, an amount of cash or the combination
of cash and shares of Common Stock (or, if applicable, Reference Property), if any, as the case may be (solely to settle amounts due with
respect to outstanding conversions), sufficient to pay all amounts due on all of such Securities (other than any Securities that shall
have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated
and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and interest due, accompanied,
except in the event the Securities are due and payable solely in cash at the Maturity Date or upon an earlier Fundamental Change Repurchase
Date, by a verification report as to the sufficiency of the deposited amount from a firm of nationally recognized independent certified
accountants or other financial professionals, and if the Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except as to (i) rights hereunder of Holders to receive all
amounts owing upon the Securities and the other rights, duties and obligations of Holders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee and (ii) the rights, obligations and immunities of the Trustee hereunder), and the
Trustee, on written demand of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel and at the cost and
expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture; the Company, however,
hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee, including
the fees and expenses of its counsel, and to compensate the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.


 






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Section 3.02. Deposited Monies to Be Held
in Trust by Trustee.  Subject to Section 3.04 hereof, all monies and shares of Common Stock, if any, deposited with the
Trustee pursuant to Section 3.01 hereof shall be held in trust for the sole benefit of the Holders of the Securities, and such monies
and shares of Common Stock shall be applied by the Trustee to the payment, either directly or through any Paying Agent (including the
Company if acting as its own Paying Agent), to the Holders of the particular Securities for the payment or settlement of which such monies
or shares of Common Stock have been deposited with the Trustee, of all sums or amounts due and to become due thereon for principal and
interest, if any.


 


Section 3.03. Paying Agent to Repay Monies
Held.  Upon the satisfaction and discharge of this Indenture, all monies and shares of Common Stock, if any, then held by any
Paying Agent (if other than the Trustee) shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon
such Paying Agent shall be released from all further liability with respect to such monies and shares of Common Stock.


 


Section 3.04. Return of Unclaimed Monies. 
Subject to the requirements of applicable law, any monies and shares of Common Stock deposited with or paid to the Trustee for payment
of the principal of or interest, if any, on the Securities and not applied but remaining unclaimed by the Holders of the Securities for
two years after the date upon which the principal of or interest, if any, on such Securities, as the case may be, shall have become due
and payable, shall be repaid to the Company by the Trustee on demand, and all liability of the Trustee shall thereupon cease with respect
to such monies and shares of Common Stock; and the Holder shall thereafter look only to the Company for any payment or delivery that such
Holder may be entitled to collect unless an applicable abandoned property law designates another person.


 


Section 3.05. Reinstatement. 
If the Trustee or the Paying Agent is unable to apply any money or shares of Common Stock in accordance with Section 3.02 by reason
of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 3.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money and shares of Common
Stock in accordance with Section 3.02; provided, however, that if the Company makes any payment of interest on, principal
of or payment or delivery in respect of any Security following the reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the money or shares of Common Stock, if any, held by the Trustee
or Paying Agent.


 






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Article 4

Particular Covenants of the Company


 


Section 4.01. Payment of Principal and
Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Fundamental Change Repurchase
Price, if applicable) of, and accrued and unpaid interest, if any, on each of the Securities at the places, at the respective times and
in the manner provided herein and in the Securities.


 


Section 4.02. Maintenance of Office or
Agency. The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where the Securities may
be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office or the office or agency of the Trustee in the Borough of Manhattan, The City of New York.


 


The Company may also from time to time designate
as co-Security Registrars one or more other offices or agencies where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York, for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such
additional or other offices or agencies, as applicable.


 


The Company hereby initially designates the Trustee
as the Paying Agent, Security Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in the
Borough of Manhattan, The City of New York, where Securities may be surrendered for registration of transfer or exchange or for presentation
for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served.


 


Section 4.03. Appointments to Fill Vacancies
in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.09, a trustee, so that there shall at all times be a Trustee hereunder.


 


 


Section 4.04. Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:


 


(i)            that
it will hold all sums held by it as such agent for the payment of the principal of, accrued and unpaid interest, if any, on, and the Fundamental
Change Repurchase Price for, the Securities in trust for the benefit of the holders of the Securities;


 






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(ii)           that
it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal of, accrued and unpaid interest,
if any, on, or the Fundamental Change Repurchase Price for, the Securities when the same shall be due and payable; and


 


(iii)          that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.


 


The Company shall, on or before each due date of
the principal of, accrued and unpaid interest, if any, on, and Fundamental Change Repurchase Price for, the Securities, deposit with the
Paying Agent a sum sufficient to pay such principal, accrued and unpaid interest, or Fundamental Change Repurchase Price, as the case
may be, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action;
provided that, if such deposit is made on the due date, such deposit must be received by the Paying Agent by 10:00 a.m., New York
City time, on such date.


 


(b)           If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal of, accrued and unpaid interest, if
any, on, or Fundamental Change Repurchase Price for, the Securities, set aside, segregate and hold in trust for the benefit of the holders
of the Securities a sum sufficient to pay such principal, accrued and unpaid interest, if any, on or Fundamental Change Repurchase Price,
as the case may be, so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure
by the Company to make any payment of the principal of, accrued and unpaid interest on, or Fundamental Change Repurchase Price for, the
Securities when the same shall become due and payable.


 


(c)           Anything
in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust
by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon
the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying
Agent shall be released from all further liability but only with respect to such sums or amounts.


 






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(d)           Subject
to applicable abandoned property laws, any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal (including the Fundamental Change Repurchase Price, if applicable) of, accrued
and unpaid interest on and the consideration due upon conversion of any Security and remaining unclaimed for two years after such principal
(including the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable
shall be paid to the Company on request of the Company contained in an Officers’ Certificate, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and shares of Common Stock,
and all liability of the Company as trustee thereof, shall thereupon cease.


 


Section 4.05. Existence. Subject to
Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence.


 


Section 4.06. Rule 144A Information
Requirement and Annual Reports. (a)  At any time the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company shall, so long as any of the Securities or any shares of Common Stock issuable upon conversion thereof shall, at such
time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly
provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Securities or any shares
of Common Stock issuable upon conversion of such Securities, the information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act to facilitate the resale of such Securities or shares of Common Stock pursuant to Rule 144A. The Company shall
take such further action as any Holder or beneficial owner of such Securities may reasonably request to the extent from time to time required
to enable such Holder or beneficial owner to sell such Securities or shares of the Common Stock in accordance with Rule 144A.


 


(b)           The
Company shall file with the Trustee, within 15 days after it is required to file the same with the Commission (giving effect to any grace
period provided by Rule 12b-25 under the Exchange Act), copies of any documents or reports that the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act. Documents that the Company files with the Commission via
the EDGAR system will be deemed to be filed with the Trustee as of the time such documents are filed via EDGAR, it being understood that
the Trustee shall have no responsibility to determine if such filings have been made.


 


(c)           Delivery
of the reports and documents described in subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s
receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively
rely on an Officers’ Certificate). The Trustee shall have no responsibility to determine if any such filings have been made.


 






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(d)           If,
at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance
of the Securities, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other
than reports on Form 8-K), or the Securities are not otherwise freely tradable pursuant to Rule 144 by Holders other than the
Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding
(as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities), the Company shall pay
Additional Interest on the Securities. Such Additional Interest shall accrue on the Securities at a rate equal to 0.50% per annum of the
principal amount of the Securities outstanding for each day during the such period for which the Company’s failure to file has occurred
and is continuing or the Securities are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s
Affiliates (or Holders that were the Company’s Affiliates at any time during the three months immediately preceding) without restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Securities. As used in this Section 4.06(d), documents or
reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. For purposes of this Section 4.06(d), the phrase “restrictions pursuant to U.S. securities laws or the terms
of this Indenture or the Securities” shall not include, for the avoidance of doubt, the assignment of a restricted CUSIP to the
Securities or the existence of the Restrictive Securities Legend, in either case, during the six-month period described in this Section 4.06(d).


 


(e)            If,
and for so long as, the Restrictive Securities Legend on the Securities specified in Section 2.05(c) has not been removed, the
Securities are assigned a restricted CUSIP or the Securities are not otherwise freely tradable pursuant to Rule 144 by Holders other
than the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately
preceding (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities) as of the 380th day
after the last date of original issuance of the Securities, the Company shall pay Additional Interest on the Securities at a rate equal
to 0.50% per annum of the principal amount of Securities outstanding, until the Restrictive Securities Legend on the Securities has been
removed in accordance with Section 2.05(c), the Securities are assigned an unrestricted CUSIP and the Securities are freely tradable
pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at
any time during the three months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms of this Indenture
or the Securities.


 


(f)            Additional
Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Securities.


 






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(g)           Subject
to the immediately succeeding sentence, the Additional Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall
be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant
to Section 6.03. However, in no event shall any Additional Interest set forth in Section 4.06(d) and Section 4.06(e),
together with any Additional Interest that may accrue under Section 6.03, accrue at a rate in excess of 0.50% per annum pursuant
to this Indenture, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.


 


(h)           The
Company shall deliver to the Trustee, as soon as possible, and in any event within 30 days after the occurrence of any Default or Event
of Default, an Officers’ Certificate setting forth the details of such Default or Event of Default, its status and the action that
the Company proposes to take with respect thereto.


 


(i)            If
Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver
to the Trustee an Officers’ Certificate to that effect stating (i) the amount of such Additional Interest that is payable and
(ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the
Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. If the
Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officers’
Certificate setting forth the particulars of such payment.


 


Section 4.07. Stay, Extension and Usury
Laws. The Company covenants (to the extent that it may lawfully do so) that it shall 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 or other law that would prohibit or forgive
the Company from paying all or any portion of the principal of or interest on the Securities as contemplated herein, wherever enacted,
now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the
extent 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 had been enacted.


 


Section 4.08. Compliance Certificate; Statements
as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning
with the fiscal year ending on December 31, 2022) an Officers’ Certificate stating whether the signers thereof have knowledge
of any Default or any Event of Default that occurred during the previous year and, if so, specifying each such failure and the nature
thereof.


 


Section 4.09. Covenant to Take Certain
Actions.  Before taking any action which would cause an adjustment to the Conversion Rate such that the Conversion Price per
share of Common Stock issuable upon conversion of the Securities would be less than the par value of the Common Stock, the Company shall
take all corporate actions that may, in the opinion of its counsel, be necessary so it may validly and legally issue shares of Common
Stock at such adjusted Conversion Rate.


 






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Section 4.10. Further Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Indenture.


 


Article 5

Lists of Holders and Reports by the Company and the Trustee


 


Section 5.01. Lists of Holders. The
Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15 days after
each January 15 and July 15 in each year beginning with January 15, 2023, and at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request
in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished
so long as the Trustee is acting as Security Registrar.


 


Section 5.02. Preservation and Disclosure
of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its
capacity as Security Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.


 


Article 6

Defaults and Remedies


 


Section 6.01. Events of Default. Each
of the following events (and only the following events) shall be an “Event of Default” wherever used with respect to
the Securities:


 


(a)           default
in any payment of interest on any Security when due and payable, and the default continues for a period of 30 days;


 


(b)           default
in the payment of principal of any Security when due and payable on the Maturity Date, upon any required repurchase, upon declaration
of acceleration or otherwise;


 


(c)           failure
by the Company to comply with its obligation to convert the Securities in accordance with this Indenture upon exercise of a Holder’s
conversion right and such failure continues for three Business Days;


 


(d)           failure
by the Company to give a Fundamental Change Company Notice pursuant to Section 15.02(b) or
notice of a transaction pursuant to Section 14.01(b)(iii) or 14.01(b)(iv), in each case when due;


 






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(e)           failure
by the Company to comply with its obligations under Article 11;


 


(f)            failure
by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Securities
then outstanding has been received to comply with any of the Company’s other agreements contained in the Securities or this Indenture;


 


(g)           default
by the Company or any of its Significant Subsidiaries with respect to any mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $50,000,000 (or its foreign
currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness exists on the date
hereof or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting
a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required repurchase, upon
declaration of acceleration or otherwise;


 


(h)           the
Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking the liquidation, reorganization or other
relief with respect to the Company, any Significant Subsidiary or its or their debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company, any Significant Subsidiary or any substantial part of the Company’s or any Significant Subsidiary’s property, or
shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they
become due;


 


(i)            an
involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization
or other relief with respect to the Company or any Significant Subsidiary or its or their debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of the Company, any Significant Subsidiary or any substantial part of its or their property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of thirty consecutive days; or


 


(j)            a
final judgment or judgments for the payment of $100,000,000 (or its foreign currency equivalent) or more (excluding any amounts covered
by insurance) in the aggregate rendered against the Company or any of its Significant Subsidiaries, which judgment is not discharged,
bonded, paid, waived or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal
has commenced, or (ii) the date on which all rights to appeal have been extinguished.


 






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Section 6.02. Acceleration; Rescission
and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other
than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company or a Significant
Subsidiary), unless the principal of all of the Securities shall have already become due and payable, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the Securities then outstanding determined in accordance with Section 8.04, by notice
in writing to the Company (and to the Trustee if given by the Holders), may (and the Trustee, at the written request of such Holders,
shall) declare the unpaid principal of, and accrued and unpaid interest, if any, to be due and payable immediately, and upon any such
declaration the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the
Securities to the contrary notwithstanding. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with
respect to the Company or a Significant Subsidiary occurs and is continuing, then all unpaid principal amounts, and accrued and unpaid
interest, if any, shall immediately become due and payable, without any action by the Trustee or any Holder of Securities.


 


Section 6.03.
Additional Interest. Notwithstanding any provisions of this Indenture or in the Securities to the contrary, if the Company so elects,
the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) (a
 “Reporting Event of Default”), will, after the occurrence of such an Event of Default consist exclusively of the right
to receive Additional Interest on the Securities at a rate equal to (x) 0.25% per annum of the principal amount of the Securities
outstanding for the first 90 days during which such Event of Default has occurred and is continuing beginning on, and including the date
on which such Event of Default first occurs and (y) 0.50% per annum of the principal amount of the Securities outstanding for each
day during the next 90-day period during which such Event of Default is continuing beginning on, and including, the 91st day
after such an Event of Default first occurs. Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not
in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the Company so elects, such
Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Securities. On the
181st day after such Event of Default (if the Reporting Event of Default is not cured or waived prior to such 181st day), the Securities
will be subject to acceleration pursuant to Section 6.02. The provisions of this paragraph will not affect the rights of Holders
of Securities in the event of the occurrence of any Event of Default that is not a Reporting Event of Default. In the event the Company
does not elect to pay Additional Interest following an Event of Default in accordance with this Section 6.03 or the Company elected
to make such payment but does not pay the Additional Interest when due, the Securities will be immediately subject to acceleration as
provided in Section 6.02.


 






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In order to elect to pay Additional Interest as
the sole remedy during the first 180 days after the occurrence of any Reporting Event of Default, the Company must notify all Holders
of Securities, the Trustee and the Paying Agent of such election prior to the beginning of such 180-day period. Upon the Company’s
failure to timely give such notice, the Securities will be immediately subject to acceleration as provided in Section 6.02.


 


In
no event shall Additional Interest payable at the Company’s election for failure to comply with its obligations as set forth in
Section 4.06(b) as set forth in this Section 6.03, together
with any Additional Interest that may accrue as a result of the Company’s failure to timely file any document or report that the
Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable, pursuant
to Section 4.06(d) or Section 4.06(e), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless
of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.


 


Section 6.04. Waiver of Past Defaults. 
The Trustee may withhold notice to the Holders of Securities of any Default or Event of Default, except a Default or Event of Default
relating to the payment of principal or interest or the failure to deliver the consideration due upon conversion, if it determines that
withholding such notice is in the Holders’ interest. The Holders of a majority in principal amount of the Securities may waive any
Default or Event of Default and rescind any acceleration with respect to the Securities and its consequences, except a continuing Default
or Event of Default in the payment of principal or interest on the Securities or the failure to deliver the consideration due upon conversion
if (i) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (ii) all existing
Events of Default, other than the nonpayment of principal of and interest on the Securities that have become due solely by such declaration
of acceleration, have been cured or waived. Any such waiver shall cure such Default or Event of Default.


 


Section 6.05. Control by Majority.
At any time, the Holders of a majority of the aggregate principal amount of the then outstanding Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or for exercising any trust or power conferred on the Trustee,
with respect to the Securities, provided that:


 


(a)           the
Trustee may refuse to follow any direction that conflicts with law or this Indenture;


 


(b)           the
Trustee may take any other action deemed proper by it which is not inconsistent with such direction; and


 


(c)           the
Trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the Holders not involved
in the proceeding.


 






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Prior to taking any action hereunder, the Trustee
will be entitled to indemnification reasonably satisfactory to it against all losses and expenses caused by taking or not taking such
action.


 


Section 6.06. Limitation on Suits.
A Holder of the Securities will only have the right to institute a proceeding under this Indenture or to appoint a receiver or trustee,
or to seek other remedies if:


 


(a)           the
Holder has delivered to the Trustee written notice that an Event of Default has occurred and is continuing with respect to the Securities;


 


(b)           the
Holders of at least 25% of the aggregate principal amount of the Securities have requested the Trustee to pursue the remedy;


 


(c)           such
Holders have offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;


 


(d)           the
Trustee has not complied with such request within 60 days after the receipt of the request and the offer of such security or indemnity;
and


 


(e)           the
Holders of a majority in principal amount of the outstanding Securities have not given the Trustee a direction that, in the opinion of
the Trustee, is inconsistent with such request within such 60-day period.


 


A Holder may not use this Indenture to prejudice
the rights of any other Holder or to obtain a preference or priority over any other Holder, it being understood that the Trustee does
not have any affirmative duty to ascertain whether any usage of this Indenture by a Holder is unduly prejudicial to such other Holders.


 


Section 6.07. Rights of Holders to Receive
Payment and to Convert. Notwithstanding anything to the contrary elsewhere in this Indenture, the right of any Holder to receive payment
of the principal (including the Fundamental Change Repurchase Price, if applicable) of, interest on, and the consideration due upon conversion
of, its Securities, on or after the respective due date, or to bring suit for the enforcement of any such payment or conversion rights,
will not be impaired or affected without the consent of such Holder and will not be subject to the requirements of Section 6.06 hereof.


 


Section 6.08. Collection of Indebtedness;
Suit for Enforcement by Trustee. If an Event of Default specified in Section 6.01(a), 6.01(b) or 6.01(c) 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, interest on, Fundamental Change Repurchase Price for, and the amount of cash or the combination
of cash and shares of Common Stock, if any, as the case may be, due upon the conversion of, the Securities, as the case may be, and such
further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, as well as any other amounts that may be due under Section 7.06 of this Indenture.


 






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Section 6.09. Trustee May Enforce
Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted
and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.


 


Section 6.10. 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 to
have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, will be entitled 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 consents 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 7.06 of this Indenture. 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 7.06
of this Indenture out of the estate in any such proceeding, will be denied for any reason, payment of the same will be secured by a lien
on, and is 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 will be deemed to authorize the Trustee to authorize or consent to, or to accept or to adopt on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or composition affecting the Securities 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 6.11. Restoration of Rights and
Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.


 






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Section 6.12. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.06
of this Indenture, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.


 


Section 6.13. Delay or Omission Not a Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this
Article 6 or by law to the Trustee or to the Holders may be exercised from time to time and as often as may be deemed expedient by
the Trustee (subject to the limitations contained in this Indenture) or by the Holders, as the case may be.


 


Section 6.14. Priorities. If the Trustee
collects any money pursuant to this Article 6, it will pay out the money in the following order:


 


FIRST:
to the Trustee, its agents and attorneys for amounts due under Section 7.06 of this Indenture, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;


 


SECOND:
to the Holders, for any amounts due and unpaid on the principal of, accrued and unpaid interest on, Fundamental Change Repurchase Price
for, and any cash due upon conversion of, any Security, without preference or priority of any kind, according to such amounts due and
payable on all of the Securities; and


 


THIRD:
the balance, if any, to the Company or to such other party as a court of competent jurisdiction directs.


 


The Trustee may fix a record date and payment date
for any payment to the Holders pursuant to this Section 6.14. If the Trustee so fixes a record date and a payment date, at least
15 days prior to such record date, the Company will deliver to each Holder and the Trustee a written notice, which notice will state such
record date, such payment date and the amount of such payment.


 






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Section 6.15. Undertaking for Costs.
All parties to this Indenture agree, and each Holder, by such Holder’s acceptance of a Security, shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party
litigant; provided, however, that the provisions of this Section 6.15 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Securities
then outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of, accrued and unpaid interest,
if any, on, or Fundamental Change Repurchase Price for, any Security on or after the due date expressed or provided for in this Indenture
or to any suit for the enforcement of the right to convert any Security in accordance with the provisions of Article 14 hereof.


 


Section 6.16. Waiver of Stay, Extension
and Usury Laws. The Company covenants that, to the extent that it may lawfully do so, 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, 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 instead suffer and permit the execution
of every such power as though no such law has been enacted.


 


Section 6.17. Notices from the Trustee.
Whenever a Default occurs and is continuing and is known to the Trustee, the Trustee must deliver notice of such Default to the Holders
within 90 days after the date on which such Default first occurred. Except in the case of a Default in the payment of the principal of,
interest on, or Fundamental Change Repurchase Price for, any Security or of a Default in the payment or delivery, as the case may be,
of the consideration due upon conversion of a Security, the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders.


 


Article 7

Concerning the Trustee


 


Section 7.01. Duties and Responsibilities
of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that
may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense that might
be incurred by it in compliance with such request or direction.


 






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No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:


 


(a)           prior
to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:


 


(i)            the
duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and


 


(ii)           in
the absence of bad faith or willful misconduct on the part of the Trustee, 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; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated
therein);


 


(b)           the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;


 


(c)           the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority of the aggregate principal amount of the Securities at the time outstanding determined as provided
in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;


 


(d)           whether
or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;


 


(e)           the
Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating
to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Security Registrar with respect
to the Securities;


 






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(f)            if
any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to
the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless
a Responsible Officer of the Trustee had actual knowledge of such event;


 


(g)           in
the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing
trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon
or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing
such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment
direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment
direction from the Company; and


 


(h)           in
the event that the Trustee is also acting as Custodian, Security Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or
transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to
such Custodian, Security Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer agent.


 


None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers.


 


Section 7.02. Reliance on Documents, Opinions,
Etc. Except as otherwise provided in Section 7.01:


 


(a)           the
Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and
to have been signed or presented by the proper party or parties;


 


(b)           any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;


 


(c)           the
Trustee may consult with counsel of its selection and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;


 






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


 


(e)           the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians,
nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee
or attorney appointed by it with due care hereunder; and


 


(f)            the
permissive rights of the Trustee enumerated herein shall not be construed as duties.


 


In no event shall the Trustee be liable for any
special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if
the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action other than any such loss or
damage. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities, unless either
(1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default
or Event of Default shall have been given to the Trustee by the Company or by any Holder of the Securities.


 


Section 7.03. No Responsibility for Recitals,
Etc. The recitals contained herein and in the Securities (except in the Trustee’s certificate of authentication) shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application
by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with the provisions
of this Indenture.


 


Section 7.04. Trustee, Paying Agents, Conversion
Agents, Bid Solicitation Agent or Security Registrar May Own Securities. The Trustee, any Paying Agent, any Conversion Agent,
Bid Solicitation Agent (if other than the Company or any Affiliate thereof) or Security Registrar, in its individual or any other capacity,
may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee, Paying Agent, Conversion
Agent, Bid Solicitation Agent or Security Registrar.


 






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Section 7.05. Monies and Shares of Common
Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on
any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and the Trustee.


 


Section 7.06.
Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall
receive, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and the Company,
and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder (including the
reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ)
except any such expense, disbursement or advance as shall have been caused by its gross negligence, willful misconduct or bad faith.
The Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other document or transaction entered
into in connection herewith and its agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage,
liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its officers, directors,
agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance
or administration of this Indenture or in any other capacity hereunder, including the costs and expenses of defending themselves against
any claim of liability in the premises and the enforcement of this Section 7.06. The obligations of the Company under this Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured
by a senior claim to which the Securities are hereby made subordinate on all money or property held or collected by the Trustee, except,
subject to the effect of Section 6.14, funds held in trust herewith for the benefit of the Holders of particular Securities.
The Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability
or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge
of this Indenture and the earlier resignation or removal of the Trustee. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the
officers, directors, agents and employees of the Trustee.


 


Without
prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs,
the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency
or similar laws.


 






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Section 7.07. Officers’ Certificate
as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, willful
misconduct, recklessness and bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross negligence, willful misconduct, recklessness
and bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions
of this Indenture upon the faith thereof.


 


Section 7.08. Eligibility of Trustee.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as
if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If
such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article.


 


Section 7.09.
Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving 30 days’ prior written notice of such
resignation to the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 45 days after the giving of such notice of resignation to the Holders, the resigning
Trustee may, upon ten Business Days’ notice to the Company and the Holders, petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Holder who has been a bona fide holder of a Security or Securities for at least six months
(or since the date of this Indenture) may, subject to the provisions of Section 6.15, on behalf of himself or herself and
all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor trustee.


 






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(b)           In
case at any time any of the following shall occur:


 


(i)             the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Holder, or


 


(ii)            the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,


 


then, in
either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.15, any Holder who has been a bona fide holder of a Security
or Securities for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.


 


(c)           The
Holders of a majority in aggregate principal amount of the Securities at the time outstanding, as determined in accordance with Section 8.04,
may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within
ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder,
upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of competent jurisdiction
for an appointment of a successor trustee.


 


(d)           Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.


 


Section 7.10. Acceptance by Successor
Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and
to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor
trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Securities are hereby made subordinate on
all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular
Securities, to secure any amounts then due it pursuant to the provisions of Section 7.06.


 






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No successor trustee shall accept appointment
as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions
of Section 7.08.


 


Upon acceptance of appointment by a successor
trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense
of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the Company
fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause
such notice to be delivered at the expense of the Company.


 


Section 7.11. Succession by Merger, Etc.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture),
shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the
corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.


 


In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture, any of the Securities shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent appointed by
such predecessor trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate such
Securities either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the
Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Securities in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion
or consolidation.


 






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Section 7.12. Trustee’s Application
for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard
to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Securities under
this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not
be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer
that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer
shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any
omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying
the action to be taken or omitted.


 


Article 8

Concerning the Holders


 


Section 8.01. Action by Holders. Whenever
in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the
provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of
Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Securities, the Company or the Trustee
may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to
take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation
of such action.


 


Section 8.02.
Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05,
proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding
of Securities shall be proved by the Security Register or by a certificate of the Security Registrar. The record of any Holders’
meeting shall be proved in the manner provided in Section 9.06.


 






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Section 8.03. Who Are Deemed Absolute
Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Security Registrar may
deem the Person in whose name a Security shall be registered upon the Security Register to be, and may treat it as, the absolute owner
of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Security Registrar) for the purpose of receiving payment of or on account of the principal
(including any Fundamental Change Repurchase Price) of and (subject to Section 2.03) accrued and unpaid interest on such Security,
for conversion of such Security and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion
Agent nor any Security Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder
for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered,
effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Security. Notwithstanding anything
to the contrary in this Indenture or the Securities following an Event of Default, any holder of a beneficial interest in a Global Security
may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary
or any other Person, such holder’s right to exchange such beneficial interest for a Security in certificated form in accordance
with the provisions of this Indenture.


 


Section 8.04. Company-Owned Securities
Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Securities have concurred in any direction,
consent, waiver or other action under this Indenture, Securities that are owned by the Company, by any Subsidiary thereof or by any Affiliate
of the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent,
waiver or other action only Securities that a Responsible Officer knows are so owned shall be so disregarded. Securities so owned that
have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Securities and that the pledgee is not the
Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Company
to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall
be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are outstanding for the purpose of any such determination.


 


Section 8.05. Revocation of Consents;
Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the
taking of any action by the Holders of the percentage of the aggregate principal amount of the Securities specified in this Indenture
in connection with such action, any Holder of a Security that is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding
as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and
of any Securities issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation
in regard thereto is made upon such Security or any Security issued in exchange or substitution therefor or upon registration of transfer
thereof.


 






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Article 9

Holders’ Meetings


 


Section 9.01. Purpose of Meetings.
A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the
following purposes:


 


(a)           to
give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent
to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;


 


(b)           to
remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;


 


(c)           to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or


 


(d)           to
take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities
under any other provision of this Indenture or under applicable law.


 


Section 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time
and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01,
shall be delivered to Holders of such Securities. Such notice shall also be delivered to the Company. Such notices shall be delivered
not less than 20 nor more than 90 days prior to the date fixed for the meeting.


 


Any meeting of Holders shall be valid without
notice if the Holders of all Securities then outstanding are present in person or by proxy or if notice is waived before or after the
meeting by the Holders of all Securities then outstanding, and if the Company and the Trustee are either present by duly authorized representatives
or have, before or after the meeting, waived notice.


 






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Section 9.03. Call of Meetings by Company
or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal
amount of the Securities then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such
meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.


 


Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Securities on the record date
pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Securities
on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05. Regulations. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate principal
amount of the Securities represented at the meeting and entitled to vote at the meeting.


 


Subject to the provisions of Section 8.04,
at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Securities held
or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall
have no right to vote other than by virtue of Securities held by it or instruments in writing as aforesaid duly designating it as the
proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03
may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Securities represented at the meeting,
whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.


 






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Section 9.06. Voting. The vote upon
any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the outstanding aggregate principal amount of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
delivered as provided in Section 9.02. The record shall show the aggregate principal amount of the Securities voting in favor of
or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to
have attached thereto the ballots voted at the meeting.


 


Any record so signed and verified shall be conclusive
evidence of the matters therein stated.


 


Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting
of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Securities.


 


Article 10

Supplemental Indentures


 


Section 10.01. Supplemental Indentures
Without Consent of Holders. The Company, when authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s
expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto or amend the Securities for
one or more of the following purposes, to:


 


(a)           cure
any ambiguity, omission, defect or inconsistency under this Indenture or the Securities;


 


(b)           provide
for the assumption by a Successor Company of the Company’s obligations under this Indenture as set forth in Article 11;


 


(c)           add
guarantees with respect to the Securities;


 


(d)           secure
the Securities;


 


(e)           add
to the covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred upon the Company;


 






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(f)            make
any change that does not adversely affect the rights of any Holder;


 


(g)           in
connection with any Merger Event, provide that the Securities are convertible into Reference Property, subject to the provisions of Section 14.02,
and make such related changes to the terms of the Securities to the extent expressly required by Section 14.07;


 


(h)           provide
for the issuance of additional Securities pursuant to Section 2.10;


 


(i)            conform
the provisions of this Indenture or the Securities to the “Description of notes” section of the Offering Memorandum;


 


(j)            comply
with the rules of any applicable Depositary so long as such amendment does not adversely affect the rights of any Holder in any
material respect;


 


(k)           irrevocably
elect or eliminate one of the Settlement Methods and/or irrevocably elect a Specified Dollar Amount (or range of Specified Dollar Amounts);
or


 


(l)            increase
the Conversion Rate as provided in this Indenture.


 


Upon the written request of the Company, the Trustee
is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Any supplemental indenture authorized by the provisions
of this Section 10.01 may be executed by the Company and the Trustee without notice to or the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of Section 10.02.


 


Section 10.02. Supplemental Indentures
with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the
aggregate principal amount of the Securities then outstanding (determined in accordance with Article 8 and including, without limitation,
consents obtained in connection with a repurchase of, or tender or exchange offer for, Securities), the Company, when authorized by the
resolutions of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the Holders under this
Indenture; provided, however, that, without the consent of each Holder of an outstanding Security affected, no such supplemental
indenture shall:


 


(a)           reduce
the amount of Securities whose Holders must consent to an amendment;


 






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(b)           reduce
the rate of or extend the stated time for payment of interest, including Additional Interest, on any Security;


 


(c)           reduce
the principal of, or any premium on, or extend the stated maturity of any Security;


 


(d)           make
any change that adversely affects the conversion rights of any Securities;


 


(e)            reduce
the Fundamental Change Repurchase Price of any Security or amend or modify in any manner adverse to the Holders the Company’s obligation
to make such payments, whether through an amendment or waiver of provisions of the covenants, definitions or otherwise;


 


(f)            make
any Security payable in money, or at a place of payment, other than that stated in the Security;


 


(g)           change
the ranking of the Securities; or


 


(h)           impair
the right of any Holder to receive payment of principal and interest on such Holder’s Securities on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities.


 


Upon the written request of the Company, and upon
the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section 10.05, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.


 


Holders do not need under this Section 10.02
to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance thereof.
After any such supplemental indenture becomes effective, the Company shall mail to the Holders a notice briefly describing such supplemental
indenture. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity
of the supplemental indenture.


 


Section 10.03. Effect of Supplemental
Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.


 






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Section 10.04. Notation on Securities.
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10
may, at the Company’s expense, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s
expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee
pursuant to Section 17.10) and delivered in exchange for the Securities then outstanding, upon surrender of such Securities then
outstanding.


 


Section 10.05. Evidence of Compliance
of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by Section 17.05, the Trustee shall
receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture.


 


Article 11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. Company May Consolidate,
Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with, or merge with or
into, or sell, convey, transfer or lease all or substantially all of its properties and assets to, another Person, unless:


 


(a)           the
resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized
and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company
(if not the Company) expressly assumes, by supplemental indenture all of the Company’s obligations under the Securities and this
Indenture; and


 


(b)           immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.


 


Upon any such consolidation, merger or sale, conveyance,
transfer or lease, the resulting, surviving or transferee Person (if not the Company) shall succeed to, and may exercise every right
and power of, the Company under this Indenture, and the Company shall be discharged from its obligations under the Securities and this
Indenture except in the case of any such lease.


 






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For purposes of this Section 11.01, the sale,
conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to
another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially
all of the consolidated properties and assets of the Company and its direct or indirect Subsidiaries, taken as a whole, shall be deemed
to be the sale, conveyance, transfer or lease of all or substantially all of the consolidated properties and assets of the Company and
its direct or indirect Subsidiaries, taken as a whole, to another Person.


 


Section 11.02.
Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon
the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Securities, the due and
punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Securities and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the
Company) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated properties and assets of
the Company and its Subsidiaries, taken as a whole, shall be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered,
any Securities that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication,
and any Securities that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All
the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon
compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor
that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated
at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of
the Securities and from its obligations under this Indenture and the Securities.


 


In case of any such consolidation, merger, sale,
conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to
be issued as may be appropriate.


 


Section 11.03. Opinion of Counsel to Be
Given to Trustee. If the Successor Company is not the Company, no such consolidation, merger, sale, conveyance, transfer or lease
shall be effective unless the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel certifying that any
such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture complies with this Article 11.


 






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Article 12

Immunity of Incorporators, Stockholders, Officers and Directors


 


Section 12.01. Indenture and Securities
Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Security, nor
for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture or in any Security, nor because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present
or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.


 


Article 13

[Intentionally Omitted]


 


Article 14

Conversion of Securities


 


Section 14.01. Right to Convert. (a) Subject
to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert
its Securities, or any portion of its Securities such that the principal amount that remains outstanding of each Security that is not
converted in full equals $1,000 or an integral multiple of $1,000 in excess thereof, into the Settlement Amount determined in accordance
with Section 14.03(a) hereof, (x) prior to the Close of Business on the Business Day immediately preceding May 1,
2025, only upon satisfaction of one or more of the conditions described in Section 14.01(b) hereof, and (y) on or after
May 1, 2025, at any time prior to the Close of Business on the Business Day immediately preceding the Maturity Date.


 


(b)           (i)    Prior
to the Close of Business on the Business Day immediately preceding May 1, 2025, a Holder may surrender its Securities for conversion
at any time during any calendar quarter commencing after the calendar quarter ending on December 31, 2022 (and only during such
calendar quarter) if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during
the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter
is greater than or equal to 110% of the Conversion Price in effect on each applicable Trading Day.


 






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(ii)           Prior
to the Close of Business on the Business Day immediately preceding May 1, 2025, a Holder may surrender all or any portion of its
Securities for conversion at any time during the five Business Day period after any ten consecutive Trading Day period (the “Measurement
Period”) in which the Trading Price per $1,000 principal amount of Securities, as determined following a request by a Holder
of at least $1,000,000 principal amount of Securities in accordance with the procedures set forth in this subsection (b)(ii), for each
Trading Day of such Measurement Period was less than 98% of the product of (1) the Last Reported Sale Price of the Common Stock
on such Trading Day and (2) the Conversion Rate in effect on such Trading Day. The Trading Prices shall be determined by the Bid
Solicitation Agent pursuant to this subsection (b)(ii) and the definition of “Trading Price” set forth in this Indenture.
The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally
recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate
contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading
Price per $1,000 principal amount of Securities unless the Company has requested such determination; and the Company shall have no obligation
to make such request (or, if the Company is the Bid Solicitation Agent, the Company shall have no obligation to determine the Trading
Price of the Securities) unless a Holder of at least $1,000,000 principal amount of Securities provides the Company with reasonable evidence
that the Trading Price per $1,000 principal amount of Securities would be less than 98% of the product of (1) the Last Reported
Sale Price of the Common Stock on such Trading Day and (2) the Conversion Rate in effect on such Trading Day. At such time, the
Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine (or, if the Company is the Bid Solicitation
Agent, the Company shall determine) the Trading Price per $1,000 principal amount of the Securities beginning on the next Trading Day
and on each successive Trading Day until the Trading Price per $1,000 principal amount of Securities for a Trading Day is greater than
or equal to 98% of the product of (1) the Last Reported Sale Price of the Common Stock on such Trading Day and (2) the Conversion
Rate in effect on such Trading Day. Whenever the condition to conversion set forth in this subsection (b)(ii) has been met, but
was not met on the immediately preceding Trading Day, the Company will so notify the Holders, the Trustee and the Conversion Agent (if
other than the Trustee). If, at any time after the condition to conversion set forth in this subsection (b)(ii) has been met, the
condition to conversion set forth in this subsection (b)(ii) ceases to be met, the Company will so notify the Holders, the Trustee
and the Conversion Agent (if other than the Trustee) promptly after such condition ceases to be met. The Company will initially act as
Bid Solicitation Agent.


 






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(iii)          If,
prior to the Close of Business on the Business Day immediately preceding May 1, 2025, the Company elects to:


 


(A)            issue
to all or substantially all holders of the Common Stock any rights, options or warrants entitling them for a period of not more than
45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of such issuance (taking into account any consideration
received by the Company as described in Section 14.04(b)); or


 


(B)            distribute
to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase the Company’s
securities, which distribution has a per-share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported
Sale Price of the Common Stock on the Trading Day immediately preceding the date of announcement for such distribution,


 


then, in either case, the Company must deliver notice of
such issuance or distribution, and of the Ex-Dividend Date for such issuance or distribution, to the Holders at least 50 Scheduled Trading
Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, Holders may surrender all
or any portion of their Securities for conversion at any time until the earlier of (1) the Close of Business on the Business Day
immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such
issuance or distribution will not take place, even if the Securities are not otherwise convertible at such time; provided, however, that
Holders shall not have the right to convert their Securities pursuant to this subsection (b)(iii) if the Company provides that Holders
shall participate, at the same time and upon the same terms, as holders of the Common Stock in any of the transactions described above
without having to convert their Securities as if they held a number of shares of the Common Stock equal to the Conversion Rate in effect
immediately prior to the Open of Business on the Ex-Dividend Date for such issuance or distribution multiplied by the principal amount
(expressed in thousands) of Securities held by such Holder on the Ex-Dividend Date for such issuance or distribution.


 


(iv)          If
(A) a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately
preceding May 1, 2025, regardless of whether a Holder has the right to require the Company to repurchase the Securities as described
under Article 15, or (B) the Company is a party to a consolidation, merger, binding share exchange, or transfer or lease of
all or substantially all of its assets (other than a merger effected solely to change the Company’s jurisdiction of incorporation
that does not otherwise constitute a Fundamental Change or a Make-Whole Fundamental Change), in each case, pursuant to which the Common
Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s Securities may be surrendered
for conversion at any time from or after the effective date of the transaction or event until 35 Trading Days after such effective date
or, if such transaction or event also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date. The Company
will notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the effective date of such transaction
or event.


 






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(c)           Notwithstanding
any other provision of the Securities or this Indenture, no Holder of Securities will be entitled to receive Common Stock following conversion
of such Securities to the extent that receipt of such Common Stock would cause such Holder to exceed the ownership limitations contained
in the Company’s charter.


 


(d)           If
any delivery of shares of Common Stock owed to a Holder upon conversion of Securities is not made, in whole or in part, as a result of
the limitations described in Section 14.01(c), the Company’s obligation to make such delivery shall not be extinguished and
the Company shall deliver such shares as promptly as practicable after any such converting Holder gives notice to the Company that such
delivery would not result in it exceeding the ownership limitations in the Company’s charter.


 


Section 14.02. Conversion Procedures.


 


(a)           Each
Security shall be convertible at the office of the Conversion Agent and, if applicable, in accordance with the Applicable Procedures
of the Depositary.


 


(b)          To
exercise the conversion privilege with respect to a beneficial interest in a Global Security, the Holder must comply with the Applicable
Procedures of the Depositary in effect at that time, and pay the funds, if any, required by Section 14.02(f), and the Conversion
Agent must be informed of the conversion in accordance with the Applicable Procedures of the Depositary.


 


To exercise the conversion privilege with respect
to any Physical Securities, the Holder of such Physical Securities shall:


 


(i)            complete
and manually sign a conversion notice in the form set forth in the Form of Notice of Conversion (the “Conversion Notice”)
or a facsimile of the Conversion Notice;


 


(ii)            deliver
the Conversion Notice, which is irrevocable, and the Security to the Conversion Agent;


 


(iii)            if
required, furnish appropriate endorsements and transfer documents; and


 


(iv)            if
required, make any payment required under Section 14.02(f).


 






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If, upon conversion of a Security, any shares of Common Stock are
to be issued to a Person other than the Holder of such Security, the related Conversion Notice shall include such other Person’s
name and address.


 


If a Security is subject to a Fundamental Change
Repurchase Notice, such Security may not be converted unless such Fundamental Change Repurchase Notice is withdrawn in accordance with
Section 15.04 hereof prior to the relevant Fundamental Change Expiration Time. If a Holder submits its Securities for repurchase
pursuant to a Fundamental Change Repurchase Notice, such Holder’s right to withdraw the Fundamental Change Repurchase Notice and
convert the Securities that are subject to repurchase shall terminate at the Close of Business on the Business Day immediately preceding
the relevant Fundamental Change Repurchase Date.


 


For any Security, the first Business Day on which
the Holder of such Security satisfies all of the applicable requirements set forth above with respect to such Security and on which conversion
of such Security is not otherwise prohibited under this Indenture shall be the “Conversion Date” with respect to such
Security.


 


Each conversion shall be deemed to have been effected
as to any such Securities (or portion thereof) surrendered for conversion at the Close of Business on the applicable Conversion Date;
provided, however, that the Person in whose name the certificate for any shares of Common Stock delivered upon conversion
is registered shall be treated as a stockholder of record as of the Close of Business on (i) such Conversion Date (in the case of
Physical Settlement) or (ii) the last Trading Day of the applicable Observation Period (in the case of Combination Settlement) except
to the extent required by Section 14.04 hereof. At the Close of Business on the Conversion Date for a Security, the converting Holder
shall no longer be the Holder of such Security.


 


(c)           Endorsement.
Any Securities surrendered for conversion shall, unless shares of Common Stock issuable on conversion are to be issued in the same name
as the registration of such Securities, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the Holder or its duly authorized attorney.


 


(d)          Physical
Securities. If any Physical Securities in a denomination greater than $1,000 shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of the Securities so surrendered, without charge, new Securities
in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Securities.


 


(e)           Global
Securities. Upon the conversion of a beneficial interest in Global Securities, the Conversion Agent shall make a notation in its
records as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversions
of Securities effected through any Conversion Agent other than the Trustee.


 






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(f)            Interest
Due Upon Conversion. If a Holder converts a Security after the Close of Business on a Regular Record Date but prior to the Open of
Business on the Interest Payment Date corresponding to such Regular Record Date, such Holder must accompany such Security with an amount
of cash equal to the amount of interest payable on such Security on the corresponding Interest Payment Date (regardless of whether the
converting Holder was the Holder of record on the corresponding Regular Record Date); provided, however, that a Holder need not make
such payment (1) if the Conversion Date follows the Regular Record Date immediately preceding the Maturity Date; (2) if the
Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately
following the corresponding Interest Payment Date; or (3) to the extent of any overdue interest, if any overdue interest exists
at the time of conversion with respect to such Security.


 


(g)           Taxes
Due upon Conversion. If a Holder converts a Security, the Company will pay any documentary, stamp or similar issue or transfer tax
due on the issue of any shares of the Common Stock upon the conversion, unless the tax is due because the Holder requests that any shares
be issued in a name other than the Holder’s name, in which case the Holder will pay that tax.


 


Section 14.03. Settlement Upon Conversion.


 


(a)           Settlement
Amount.  Subject to Section 14.01(c), Section 14.01(d), this Section 14.03 and Section 14.06(b), if a Holder
converts a Security, the Company shall pay or deliver to such Holder, as the case may be, in respect of each $1,000 principal amount
of Securities being converted, solely cash, solely shares of Common Stock (together with cash in lieu of fractional shares as provided
herein) or a combination of cash and Common Stock (the “Settlement Amount”), at the Company’s election, as set
forth in this Section 14.03.


 


(i)            The
Company shall pay or deliver, as the case may be, the Settlement Amount on the second Business Day immediately following (i) the
last Trading Day of the Observation Period in the case of Cash Settlement or Combination Settlement or (ii) the Conversion Date
in the case of Physical Settlement.


 


(ii)            All
conversions for which the relevant Conversion Date occurs on or after May 1, 2025 will be settled using the same Settlement Method.


 


(iii)           Except
for any conversions for which the relevant Conversion Date occurs on or after May 1, 2025, the Company will use the same Settlement
Method for all conversions with the same Conversion Date, but the Company will not have any obligation to use the same Settlement Method
with respect to conversions with different Conversion Dates.


 






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(iv)          With
respect to each Conversion Date occurring prior to May 1, 2025, the Company shall deliver a notice (each, a “Settlement
Notice”) of the relevant Settlement Method not later than the Close of Business on the Trading Day immediately following the
related Conversion Date (or in the case of any conversions for which the relevant Conversion Date occurs on or after May 1, 2025,
no later than May 1, 2025).  Each such Settlement Notice shall specify whether the Company shall satisfy its conversion obligation
by (i) delivering solely shares of Common Stock (together with cash in lieu of fractional shares as provided herein) (“Physical
Settlement”), (ii) paying solely cash (“Cash Settlement”) or (iii) paying and delivering, as the
case may be, a combination of cash and shares of Common Stock (“Combination Settlement”).  In the case of an
election that provides for Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount.  If
the Company does not deliver a Settlement Notice within the time periods specified above, or if the Company provides a Settlement Notice
within the time periods specified above and elects Combination Settlement but the Settlement Notice does not specify a Specified Dollar
Amount, the Company will be deemed to have elected Combination Settlement with a Specified Dollar Amount of $1,000.


 


By notice to the Holders, the Company may, prior to May 1,
2025, at its option, irrevocably elect a Settlement Method and/or a Specified Dollar Amount (or a minimum Specified Dollar Amount or
range of Specified Dollar Amounts), or eliminate its right to elect a Settlement Method, for all Conversion Dates occurring subsequent
to delivery of such notice. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to
amend this Indenture or the Securities, including pursuant to Section 10.01(k) hereof; provided, that, the Company
may nonetheless choose to execute such an amendment at its option. Should the Company irrevocably elect a Settlement Method and/or a
Specified Dollar Amount (or a minimum Specified Dollar Amount or range of Specified Dollar Amounts), or eliminate its right to elect
a Settlement Method, pursuant to the terms of this Section 14.03(iv), then, concurrently with providing notice to Holders of such
change or election, the Company shall post notice of such election on its website or disclose the same in a current report on Form 8-K
(or any successor form) that is filed with the Commission.


 


(v)          The
Settlement Amount in respect of any conversion shall be computed as follows:


 


(A)            if
the Company elects (or is deemed to have elected) Physical Settlement, the Company will deliver to the converting Holder in respect of
each $1,000 principal amount of Securities being converted a number of shares of Common Stock equal to the Conversion Rate;


 


(B)             if
the Company elects (or is deemed to have elected) Cash Settlement, the Company shall pay to the converting Holder in respect of each
$1,000 principal amount of Securities being converted cash in an amount equal to the sum of the Daily Conversion Values for each of the
40 consecutive Trading Days during the related Observation Period; and


 






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(C)             if
the Company elects (or is deemed to have elected) Combination Settlement, the Company shall pay or deliver, as the case may be, to the
converting Holder in respect of each $1,000 principal amount of Securities being converted, a Settlement Amount equal to the sum of the
Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation Period.


 


(vi)          The
 “Daily Settlement Amount” for each of the 40 consecutive Trading Days of the applicable Observation Period, will consist
of:


 


(A)            cash
equal to the lesser of (i) the maximum cash amount per $1,000 principal amount of Securities to be received upon conversion as specified
in the Settlement Notice (or deemed specified as set forth above) (the “Specified Dollar Amount”), if any, divided
by 40 (such quotient being referred to as the “Daily Measurement Value”) and (ii) the Daily Conversion Value;
and


 


(B)             if
the Daily Conversion Value for such Trading Day exceeds the Daily Measurement Value for such Trading Day, a number of shares of Common
Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the
Daily VWAP for such Trading Day.


 


(vii)         In
the case of Cash Settlement or Combination Settlement, the Settlement Amount or Daily Conversion Values shall be determined by the Company
promptly following the last day of the Observation Period. Promptly after such determination, the Company shall notify the Trustee and
the Conversion Agent of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable
in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent shall be entitled to rely exclusively on the notice
given by the Company and shall have no responsibility for any such determination.


 


(b)           Fractional
Shares. Notwithstanding the foregoing, the Company will not issue fractional shares of Common Stock with respect to any converted
Security in respect of which shares of Common Stock are deliverable. Instead, if any such shares of Common Stock includes a fraction
of a share of Common Stock, the Company will, in lieu of delivering such fraction of a share of Common Stock, pay an amount of cash equal
to the product of (i) such fraction of a share and (ii) the Daily VWAP on the relevant Conversion Date (in the case of Physical
Settlement) or on the last Trading Day of the applicable Observation Period (in the case of Combination Settlement), subject in each
case to the following paragraph.


 






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If a Holder surrenders more than one Security
for conversion on a single Conversion Date, the Company will calculate the amount of cash and the number of shares of Common Stock due
with respect to such Securities as if such Holder had surrendered for conversion one Security having an aggregate principal amount equal
to the sum of the principal amounts of each of the Securities surrendered for conversion by such Holder on such Conversion Date.


 


(c)           Settlement
of Accrued Interest and Deemed Payment of Principal. Subject to Section 14.02(f), if a Holder converts a Security, the Company
will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Security and the Company’s delivery
of the amount of cash and the number of shares of Common Stock, if any, into which a Security is convertible will be deemed to satisfy
and discharge in full the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Security
to, but excluding, the Conversion Date; provided, however, that if a Holder converts a Security after the Close of Business
on a Regular Record Date and prior to the Open of Business on the corresponding Interest Payment Date, the Company will still be obligated
to pay the interest due on such Interest Payment Date to the Holder of such Security on such Regular Record Date. As a result of the
foregoing, and Section 14.02(f), the Company will pay accrued and unpaid interest on the Maturity Date on all Securities converted
after the Regular Record Date immediately preceding the Maturity Date to the holders of record of such Securities on such Regular Record
Date, and converting Holders will not be required to pay the Company equivalent amounts.


 


As a result, except as otherwise provided in the
proviso to the first sentence of the immediately preceding paragraph, any accrued and unpaid interest with respect to a converted Security
will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, except as otherwise provided in the
proviso to the first sentence of the immediately preceding paragraph, if the Settlement Amount for any Security includes both cash and
shares of the Common Stock, accrued and unpaid interest will be deemed to be paid first out of the amount of cash delivered upon such
conversion. Except as otherwise provided herein, in no event will a Holder be entitled to receive any dividend or other distribution
with respect to any Common Stock issued on conversion of such Holder’s Securities if the applicable Conversion Date is after the
Regular Record Date for such dividend or distribution. Prior to any conversion in accordance with this Section 14.03, a Holder shall
not be the owner of any Common Stock issuable upon conversion of such Holder’s Securities


 


(d)           Notices.
Whenever a Conversion Date occurs with respect to a Security, the Conversion Agent will, as promptly as possible, and in no event later
than the Business Day immediately following such Conversion Date, deliver to the Company and the Trustee, if it is not then the Conversion
Agent, notice that a Conversion Date has occurred, which notice will state such Conversion Date, the principal amount of Securities converted
on such Conversion Date and the names of the Holders that converted Securities on such Conversion Date.


 






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Section 14.04. Adjustment of Conversion
Rate. The Conversion Rate will be adjusted as described in this Section 14.04, except that the Company shall not make any adjustments
to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender
or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Securities,
in any of the transactions described below without having to convert their Securities, as if they held a number of shares of Common Stock
equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.


 


(a)            If
the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company
effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula:


 





 


where,


 


	


CR0


	=	the Conversion Rate in effect immediately prior to the Open of Business
                                            on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open
                                            of Business on the Effective Date of such share split or share combination, as applicable;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the Open of Business
                                            on such Ex-Dividend Date or such Effective Date;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to
                                            the Open of Business on such Ex-Dividend Date or Effective Date; and
	 	 	 
	OS'	=	the number of shares of Common Stock outstanding immediately after giving
                                            effect to such dividend, distribution, share split or share combination.



 


Any adjustment made under this Section 14.04(a) shall become
effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the
Open of Business on the Effective Date for such share split or share combination, as applicable.  If any dividend or distribution
of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately
readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution to the Conversion Rate
that would then be in effect if such dividend or distribution had not been declared.


 






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(b)           If
the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period
of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock,
at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion
Rate will be increased based on the following formula:


 





 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open of Business
                                            on the Ex-Dividend Date for such issuance;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the Open of Business
                                            on such Ex-Dividend Date;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to
                                            the Open of Business on such Ex-Dividend Date;
	 	 	 
	X	=	the total number of shares of Common Stock issuable pursuant to such
                                            rights, options or warrants; and
	 	 	 
	Y	=	the number of shares of Common Stock equal to the aggregate price payable
                                            to exercise such rights, options or warrants, divided by the average of the Last Reported
                                            Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and
                                            including, the Trading Day immediately preceding the date of announcement of the issuance
                                            of such rights, options or warrants.



 


Any increase made under this Section 14.04(b) will be made
successively whenever any such rights, options or warrants are issued and shall become effective immediately after the Open of Business
on the Ex-Dividend Date for such issuance.  To the extent that shares of Common Stock are not delivered after the expiration of
such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the
increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares
of Common Stock actually delivered.  If such rights, options or warrants are not so issued, or if no such rights, options or warrants
are exercised prior to their expiration, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if
such Ex-Dividend Date for such issuance had not occurred.


 


For the purpose of this Section 14.04(b) and
Section 14.01(b)(ii)(A) hereof, in determining whether any rights, options or warrants entitle the holders of the Common Stock
to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices for the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, and in
determining the aggregate offering price of such shares of the Common Stock, there shall be taken into account any consideration received
by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration,
if other than cash, to be determined by the Board of Directors.


 






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(c)           If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights,
options or warrants to acquire its Capital Stock or other securities (any of such shares of Capital Stock, evidences of indebtedness,
other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”),
to all or substantially all holders of the Common Stock, excluding: (i) dividends, distributions or issuances as to which an adjustment
was effected pursuant to Section 14.04(a) hereof or Section 14.04(b) hereof; (ii) dividends or distributions
paid exclusively in cash as to which the provisions set forth in Section 14.04(d) hereof shall apply; and (iii) Spin-Offs
as to which the provisions set forth below in this Section 14.04(c) hereof shall apply, then the Conversion Rate shall be increased
based on the following formula:


 





 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open of Business
                                            on the Ex-Dividend Date for such distribution;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the Open of Business
                                            on such Ex-Dividend Date;
	 	 	 
	SP0	=	the average of the Last Reported Sale Prices of the Common Stock over
                                            the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
                                            preceding the Ex-Dividend Date for such distribution; and
	 	 	 
	FMV	=	the fair market value (as determined by the Board of Directors) of the
                                            Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend
                                            Date for such distribution.



 


Any increase made under the portion of this Section 14.04(c) above
will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution.  If such distribution
is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution
had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0”
(as defined above), in lieu of the foregoing increase, each Holder of Securities shall receive, in respect of each $1,000 principal amount
thereof, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of Distributed Property that such
Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend
Date for the distribution.


 






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With respect to an adjustment pursuant to this
Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital
Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued,
will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate
will be increased based on the following formula:


 





 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the end of the Valuation
                                            Period;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the end of the Valuation
                                            Period;
	 	 	 
	FMV0	=	the average of the Last Reported Sale Prices of the Capital Stock or
                                            similar equity interest distributed to holders of the Common Stock applicable to one share
                                            of the Common Stock (determined by reference to the definition of Last Reported Sale Price
                                            as set forth in Section 1.01 as if references therein to Common Stock were to such Capital
                                            Stock or similar equity interest) over the first 10 consecutive Trading Day period after,
                                            and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”);
                                            and
	 	 	 
	MP0	=	the average of the Last Reported Sale Prices of the Common Stock over
                                            the Valuation Period.



 


The increase to the Conversion Rate under the
preceding paragraph of this Section 14.04(c) will occur on the last Trading Day of the Valuation Period; provided that
(x) in respect of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs
during the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Conversion Date in
determining the Conversion Rate and (y) in respect of any conversion of Securities for which Cash Settlement or Combination Settlement
is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period,
the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have
elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Trading Day in determining the Conversion
Rate as of such Trading Day. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day immediately preceding,
and including, the end of any Observation Period in respect of a conversion of Securities, references to “10” or “10th”
within this Section 14.04(c) shall be deemed to be replaced, solely in respect of that conversion, with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last Trading Day of
such Observation Period.


 






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Subject to Section 14.04(g), for the purposes
of this Section 14.04(c), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them
to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances),
which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are
deemed to be transferred with such shares of Common Stock; (2) are not exercisable; and (3) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c), (and no adjustment
to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon
such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 14.04(c).  If any such right, option or warrant, including any such existing rights,
options or warrants distributed prior to the Issue Date are subject to events, upon the occurrence of which such rights, options or warrants
become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any
and each such event shall be deemed to be the date of distribution and Ex-Dividend Date of such deemed distribution with respect to new
rights, options or warrants with such rights (in which case the original rights, options or warrants shall be deemed to terminate and
expire on such date without exercise by any of the holders).  In addition, in the event of any distribution or deemed distribution
of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was
made, (1) in the case of any such rights, options or warrants which shall all have been redeemed or purchased without exercise by
any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options
or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution,
deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or
purchase price received by holders of Common Stock with respect to such rights, options or warrants (assuming each such holder had retained
such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in
the case of such rights, options or warrants which shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.


 






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For
purposes of Section 14.04(a) hereof, Section 14.04(b) hereof
and this Section 14.04(c) hereof, if any dividend or
distribution to which this Section 14.04(c) applies includes one or both of:


 


(A)          a
dividend or distribution of shares of Common Stock to which Section 14.04(a) hereof also applies (the “Clause A Distribution”);
or


 


(B)           a
dividend or distribution of rights, options or warrants to which Section 14.04(b) hereof also applies (the “Clause
B Distribution”),


 


then (i) such dividend or distribution, other than the Clause
A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) applies
(the “Clause C Distribution”) and any Conversion Rate adjustment required to be made under this Section 14.04(c) with
respect to such Clause C Distribution shall be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow
the Clause C Distribution and any Conversion Rate adjustment required by Section 14.04(a) hereof with respect thereto shall
then be made, except that, if determined by the Company, (A) the “Ex-Dividend Date” of the Clause B Distribution, if
any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any shares of Common Stock included in the
Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date”
within the meaning of Section 14.04(b) hereof, and (iii) the Clause A Distribution, if any, shall be deemed to immediately
follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Company, (A) the
 “Ex-Dividend Date” of the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution,
and (B) any shares of Common Stock included in the Clause A Distribution shall not be deemed to be “outstanding immediately
prior to the Open of Business on such Ex-Dividend Date or such Effective Date” within the meaning of Section 14.04(a) hereof.


 


(d)           If
any cash dividend or distribution is made to all or substantially all holders of the Common Stock, other than a regular, quarterly cash
dividend that does not exceed $0.39 per share (the “Initial Dividend Threshold”), the Conversion Rate shall be adjusted
based on the following formula:


 





 




where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open of Business
                                            on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the Open of Business
                                            on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	SP0	=	the Last Reported Sale Price of the Common Stock on the Trading Day immediately
                                            preceding the Ex-Dividend Date for such dividend or distribution; and
	 	 	 
	C	=	the amount in cash per share the Company distributes to all or substantially
                                            all holders of the Common Stock; provided that, in the case of a regular quarterly
                                            cash dividend, such amount shall only include the amount of such dividend or distribution
                                            in excess of the Initial Dividend Threshold.



 






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The Initial Dividend Threshold is subject to adjustment in a manner
inversely proportional to adjustments to the Conversion Rate; provided that no adjustment will be made to the Initial Dividend
Threshold for any adjustment to the Conversion Rate under this Section 14.04(d).


 


Any increase made under this Section 14.04(d) shall become
effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution
is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay
such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder shall receive, for each $1,000 principal amount of Securities it holds, at the
same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if
such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.


 


(e)           If
the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock, to the extent that
the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding
the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased
based on the following formula:


 





 


where,


 


	CR0	=	the Conversion
                                            Rate in effect immediately prior to the Close of Business on the 10th Trading Day immediately
                                            following, and including, the Trading Day next succeeding the date such tender or exchange
                                            offer expires;



 


	CR'	=	the Conversion Rate in effect immediately after the Close of Business
                                            on the 10th Trading Day immediately following, and including, the Trading Day next succeeding
                                            the date such tender or exchange offer expires;



 






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	AC	=	the aggregate value of all cash and any other consideration (as determined
                                            by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender
                                            or exchange offer;



 


	OS0	=	the number
                                            of shares of Common Stock outstanding immediately prior to the date such tender or exchange
                                            offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted
                                            for purchase or exchange in such tender or exchange offer);



 


	OS'	=	the number of shares of Common Stock outstanding immediately after the
                                            date such tender or exchange offer expires (after giving effect to the purchase of all shares
                                            of Common Stock accepted for purchase or exchange in such tender or exchange offer); and



 


	SP'	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading
                                Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange
                                offer expires.



 


The increase to the Conversion Rate under the
preceding paragraph of this Section 14.04(e) will occur at the Close of Business on the 10th Trading Day immediately following,
and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect
of any conversion of Securities for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading
Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references
to “10” or “10th” in this Section 14.04(e) shall be deemed replaced with such lesser number of Trading
Days as have elapsed from, and including, the Trading Day next succeeding such expiration date of such tender or exchange offer to, and
including, such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Securities for which
Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such
conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of
any tender or exchange offer, references to “10” or “10th” in this Section 14.04(e) shall be deemed
replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding such expiration
date of such tender or exchange offer to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day.
In addition, if the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th Trading Day immediately
preceding, and including, the end of any Observation Period in respect of a conversion of Securities, references to “10 Trading
Days” or “10th” within this Section 14.04(e) shall be deemed to be replaced, solely in respect of that conversion,
with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or
exchange offer expires to, and including, the last Trading Day of such Observation Period.


 






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(f)           Special
Settlement Provisions.  Notwithstanding anything to the contrary herein, if a Conversion Rate adjustment becomes effective on
any Ex-Dividend Date as described above, and a Holder that has converted its Securities on or after such Ex-Dividend Date and on or prior
to the related Regular Record Date would be treated as the record holder of shares of Common Stock as of the related Conversion Date in
accordance with the provisions of the last paragraph of Section 14.02(b) based on an adjusted Conversion Rate for such Ex-Dividend
Date, then, notwithstanding the foregoing Conversion Rate adjustment provisions, the Conversion Rate adjustment relating to such Ex-Dividend
Date will not be made for such converting Holder. Instead, such Holder will be treated as if such Holder were the record owner of the
shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such
adjustment.


 


(g)           Poison
Pill. To the extent that the Company has a rights plan in effect upon conversion of a Security into Common Stock, the Holder converting
such Security will receive, in addition to any shares of Common Stock otherwise received in connection with such conversion, the rights
under the rights plan. However, if, prior to any conversion, the rights have separated from the shares of Common Stock in accordance with
the provisions of the applicable rights plan, the Conversion Rate will be adjusted at the time of separation as if the Company distributed
to all or substantially all holders of the Common Stock, Distributed Property as described in Section 14.04(c) hereof, subject
to readjustment in the event of the expiration, termination or redemption of such rights.


 


(h)           Deferral
of Adjustments. If an adjustment to the Conversion Rate otherwise required by this Section 14.04 would result in a change of
less than 1% to the Conversion Rate, then, notwithstanding anything to the contrary herein, the Company may, at its election, defer and
carry forward such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest to occur of
the following: (i) when all such deferred adjustments would result in an aggregate change of at least 1% to the Conversion Rate;
(ii) the Conversion Date of, or any Trading Day of an Observation Period for, any Security; (iii) the date a Fundamental Change
or Make-Whole Fundamental Change occurs; and (iv) May 1, 2025.


 


(i)           Limitation
on Adjustments.  Except as stated in this Section 14.04, the Company will not adjust the Conversion Rate for the issuance
of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares
of the Common Stock or such convertible or exchangeable securities.


 


In addition, notwithstanding anything to the contrary
herein, the Conversion Rate will not be adjusted:


 


(i)            upon
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;


 






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(ii)           upon
the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director
or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;


 


(iii)          upon
the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in the preceding clause (ii) and outstanding as of the date the Securities were first issued;


 


(iv)          upon
the issuance of any shares of Common Stock at a price below the Conversion Price or otherwise, other than any such issuance described
in Section 14.04(a), (b) or (c) above;


 


(v)           for
a third-party tender offer by any party other than a tender offer by one or more of the Company’s subsidiaries as described in Section 14.04(e);


 


(vi)          upon
the repurchase of any shares of the Common Stock pursuant to an open market share repurchase program or other buy-back transaction, including
structured or derivative transactions, that is not a tender offer or exchange offer of the kind described in Section 14.04(e);


 


(vii)         solely
for a change in the par value of the Common Stock; or


 


(viii)        for
accrued and unpaid interest on the Securities, if any.


 


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


 


(k)           Withholding
on Adjustments.  If, in connection with any adjustment to the Conversion Rate as set forth in this Section 14.04, a Holder
shall be deemed for U.S. federal tax purposes to have received a distribution and the Company reasonably believes it is required to collect
withholding tax with respect to any such deemed distribution, the Company may withhold from cash payments of interest in accordance with
the provisions of Section 2.03 hereof or from cash and Common Stock, if any, otherwise deliverable to a Holder upon a conversion
of Securities in accordance with the provisions of Section 14.03 hereof or repurchase of a Security in accordance with the provisions
of Article 15 hereof.


 






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Section 14.05. Other Adjustments.


 


(a)           Adjustments
of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs,
the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the Stock
Price for purposes of Section 14.06), the Board of Directors will make appropriate adjustments to each to account for any adjustment
to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date,
Effective Date or the expiration date of the event occurs, at any time during the period when such Last Reported Sale Prices, the Daily
VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated


 


(b)           Voluntary
Adjustments.  To the extent permitted by the rules of The New York Stock Exchange, the Company is permitted to increase
the Conversion Rate of the Securities by any amount for a period of at least 20 Business Days if the Board of Directors determines that
such increase would be in the Company’s best interest.  The Company may also (but is not required to) increase the Conversion
Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend
or distribution of shares (or rights to acquire shares) or similar event.


 


Section 14.06. Adjustment to Conversion
Rate Upon Conversion in Connection with a Make-Whole Fundamental Change.


 


(a)           Increase
in the Conversion Rate.  If the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder
elects to convert its Securities in connection with such Make-Whole Fundamental Change, the Company shall, under certain circumstances,
increase the Conversion Rate for the Securities so surrendered for conversion by a number of additional shares of Common Stock (the “Additional
Shares”), as described in this Section 14.06.  A conversion of Securities shall be deemed for these purposes to be
 “in connection with” such Make-Whole Fundamental Change if the relevant Conversion Notice is received by the Conversion Agent
during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Close of Business
on the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change
that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day
immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change
Period”).


 


(b)           Cash
Mergers.  Upon surrender of Securities for conversion in connection with a Make-Whole Fundamental Change, the Company shall,
at its option, satisfy its conversion obligation by Physical Settlement, Cash Settlement or Combination Settlement, pursuant to Section 14.03.
However, if the consideration paid for the Common Stock in any Make-Whole Fundamental Change described in clause (b) of the definition
of Fundamental Change is composed entirely of cash, then, for any conversion of Securities following the Effective Date of such Make-Whole
Fundamental Change, the payment and delivery obligations upon the conversion of a Security shall be calculated based solely on the Stock
Price for such Make-Whole Fundamental Change and shall be deemed to be an amount of cash, per $1,000 principal amount of Securities converted,
equal to the product of (i) the Conversion Rate in effect on the applicable Conversion Date (as increased by any number of Additional
Shares required by this Section 14.06) multiplied by (ii) such Stock Price. In such event, the Company will determine
the settlement amount and pay such amount of cash to a converting Holder on the second Business Day following the applicable Conversion
Date.


 






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(c)           Determining
the Number of Additional Shares.  The number of Additional Shares, if any, by which the Conversion Rate will be increased for
a Holder that converts its Securities in connection with a Make-Whole Fundamental Change shall be determined by reference to the table
attached as Schedule A hereto, based on the Effective Date the Make-Whole Fundamental Change and the price (the “Stock
Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change.  If the holders
of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of
the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share.  Otherwise, the Stock Price shall
be the average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.


 


(d)           Interpolation
and Limits.  The exact Stock Prices and Effective Dates may not be set forth in the table in Schedule A, in which case.


 


(i)            If
the Stock Price is between two Stock Prices expressed in the table or the Effective Date is between two Effective Dates in the table,
the number of Additional Shares by which the Conversion Rate shall be increased will be determined by a straight-line interpolation between
the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable,
based on a 365-day year.


 


(ii)           If
the Stock Price is greater than $25.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table in Schedule A pursuant to Section 14.06(d)(iv) hereof), the Conversion Rate shall not be increased.


 


(iii)          If
the Stock Price is less than $15.19 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table in Schedule A pursuant to Section 14.06(d)(iv) hereof), the Conversion Rate shall not be increased.


 


Notwithstanding the foregoing, in no event will
the Conversion Rate per $1,000 principal amount of Securities exceed 65.8327 shares of Common Stock, subject to adjustment in the same
manner as the Conversion Rate as set forth in Section 14.04 hereof.


 






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(iv)      
    The Stock Prices set forth in the column headings of the table in Schedule
A hereto shall be adjusted as of any date on which the Conversion Rate of the Securities is otherwise adjusted.  The
adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the
numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Conversion Rate as so adjusted.  The number of Additional Shares set forth in such table shall be
adjusted in the same manner and at the same time as the Conversion Rate is adjusted as set forth in Section 14.04.


 


(e)          Notices. 
The Company shall notify the Holders of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such
Effective Date no later than five Business Days after such Effective Date.


 


Section 14.07. Effect of Recapitalization,
Reclassification, Consolidation, Merger or Sale.


 


(a)          Merger
Events.  In the case of:


 


(i)            any
recapitalization, reclassification or change of the Common Stock (other than a change to the par value, or from par value to no par value,
or changes resulting from a subdivision or combination);


 


(ii)           any
consolidation, merger or combination involving the Company;


 


(iii)          any
sale, lease or other transfer to a third party of the consolidated assets of the Company and its Subsidiaries substantially as an entirety;
or


 


(iv)          any
statutory share exchange;


 


in each case, as a result of which the Common Stock would be converted
into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event,
a “Merger Event,” any such stock, other securities, other property or assets, “Reference Property,”
and the amount of kind of Reference Property that a holder of one share of Common Stock is entitled to receive in the applicable Merger
Event a “Unit of Reference Property”) then, at and after the effective time of such Merger Event, the right to convert
each $1,000 principal amount of Securities based on a number of shares of the Common Stock equal to the applicable Conversion Rate will,
without the consent of the Holders, be changed into a right to convert each $1,000 principal amount of Securities based on a number of
Units of Reference Property equal to the applicable Conversion Rate and, prior to or at the effective time of such Merger Event, the Company
or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing
for such change in the right to convert each $1,000 principal amount of Securities; provided, however, that at and after
the effective time of the Merger Event (i) the Company shall continue to have the right to determine the form of consideration to
be paid or delivered, as the case may be, upon conversion of the Securities in accordance with Section 14.02 and (ii) (A) any
amount payable in cash upon conversion of the Securities in accordance with Sections 14.03 and 14.06 hereof shall continue to be payable
in cash, (B) the number of shares of Common Stock that the Company would have been required to deliver upon conversion of the Securities
in accordance with Sections 14.03 and 14.06 hereof shall instead be deliverable in Units of Reference Property and (C) the Daily
VWAP and the Last Reported Sale Price will, to the extent reasonably possible, be calculated based on the value of a Unit of Reference
Property and the definitions of Trading Day and Market Disruption Event shall be determined by reference to the components of a Unit of
Reference Property.


 






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If the Merger Event causes the Common Stock to
be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any
form of stockholder election) as contemplated by the preceding paragraph, a Unit of Reference Property will be deemed to be (i) the
per-share of Common Stock weighted average of the types and amounts of consideration actually received by the holders of the Common Stock
and, in each case, the Company shall notify Holders of the weighted average as soon as practicable after such determination is made.


 


If the holders of the Common Stock to receive only
cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event, (i) the consideration
due upon conversion of each $1,000 principal amount of Securities shall be solely cash in an amount equal to the Conversion Rate in effect
on the Conversion Date (as may be increased pursuant to Section 14.06), multiplied by the price paid per share of the Common Stock
in such Merger Event and (ii) the Company shall satisfy its conversion obligation by paying cash to converting Holders on the second
Business Day immediately following such Conversion Date.


 


The Company shall not become a party to any Merger
Event unless its terms are consistent with this Section 14.07. Such supplemental indenture described in the third immediately preceding
paragraph shall provide for anti-dilution and other adjustments that are as nearly equivalent as possible to the adjustments described
in this Article 14. If the Reference Property in respect of any Merger Event includes shares of stock, securities or other property
or assets of a Person other than the successor or purchasing Person, as the case may be, in such Merger Event, then such supplemental
indenture shall also be executed by such other Person, and such supplemental indenture shall contain such additional provisions to protect
the interests of the Holders, including the right of Holders to require the Company to repurchase their Securities upon a Fundamental
Change pursuant to Article 15, as the Board of Directors reasonably considers necessary by reason of the foregoing.


 


In connection with any adjustment to the Conversion
Rate described herein, the Company shall also adjust the Initial Dividend Threshold based on the number of shares of common stock comprising
the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property. If the Reference
Property is composed solely of non-stock consideration, the Initial Dividend Threshold shall be zero.


 






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(b)           Notice
of Supplemental Indentures.  When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07,
the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount
of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to
be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all
Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder within 20 days
after execution thereof.  Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. 
The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.


 


Section 14.08. Stock Issued Upon Conversion.


 


(a)           Reservation
of Shares. To the extent necessary to satisfy its obligations under this Indenture, prior to issuing any shares of Common Stock, the
Company will reserve out of its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to permit
the conversion of the Securities.


 


(b)           Certain
other Covenants. The Company covenants that all shares of Common Stock that may be issued upon conversion of Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and non-assessable and shall be free from preemptive
rights and free from any tax, lien or charge (other than those created by the Holder or due to a change in registered owner).


 


The Company shall list or cause to have quoted
any shares of Common Stock to be issued upon conversion of Securities on each national securities exchange or over-the-counter or other
domestic market on which the Common Stock is then listed or quoted.


 


Section 14.09. Responsibility of Trustee.
The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Securities to determine
or calculate the Conversion Rate, to determine whether any facts exist which may require any adjustment of the Conversion Rate, or to
confirm the accuracy of any such adjustment when made or the appropriateness of the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect
to the validity or value (or the kind or amount) of any shares of Common Stock or of any other securities or property that may at any
time be issued or delivered upon the conversion of any Securities; and the Trustee and the Conversion Agent make no representations with
respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Securities
for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 14.
The rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation its right to be compensated,
reimbursed, and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, including
its capacity as Conversion Agent.


 






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Section 14.10. Notice to Holders.


 


(a)           Notice
to Holders Prior to Certain Actions. The Company shall deliver notices of the events specified below at the times specified below and
containing the information specified below unless, in each case, (i) pursuant to this Indenture, the Company is already required
to deliver notice of such event containing at least the information specified below at an earlier time or, (ii) the Company, at the
time it is required to deliver a notice, does not have knowledge of all of the information required to be included in such notice, in
which case, the Company shall (A) deliver notice at such time containing only the information that it has knowledge of at such time
(if it has knowledge of any such information at such time), and (B) promptly upon obtaining knowledge of any such information not
already included in a notice delivered by the Company, deliver notice to each Holder containing such information. In each case, the failure
by the Company to give such notice, or any defect therein, shall not affect the legality or validity of such event.


 


(i)            Issuances,
Distributions, and Dividends and Distributions. If the Company (A) announces any issuance of any rights, options or warrants that
would require an adjustment in the Conversion Rate pursuant to Section 14.04(b) hereof; (B) authorizes any distribution
that would require an adjustment in the Conversion Rate pursuant to Section 14.04(c) hereof (including any separation of rights
from the Common Stock described in Section 14.04(g) hereof); or (C) announces any dividend or distribution that would require
an adjustment in the Conversion Rate pursuant to Section 14.04(d) hereof, then the Company shall deliver to the Holders, as
promptly as possible, but in any event at least 15 calendar days prior to the applicable Ex-Dividend Date, notice describing such issuance,
distribution, dividend or distribution, as the case may be, and stating the expected Ex-Dividend Date and Record Date for such issuance,
distribution, dividend or distribution, as the case may be. In addition, the Company shall deliver to the Holders notice if the consideration
included in such issuance, distribution, dividend or distribution, or the Ex-Dividend Date or Record Date of such issuance, distribution,
dividend or distribution, as the case may be, changes.


 


(ii)           Voluntary
Increases. If the Company increases the Conversion Rate pursuant to Section 14.05(b), the Company shall deliver notice to the Holders
at least 15 calendar days prior to the date on which such increase will become effective, which notice shall state the date on which such
increased will become effective and the amount by which the Conversion Rate will be increased.


 






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(iii)          Dissolutions,
Liquidations and Winding-Ups. If there is a voluntary or involuntary dissolution, liquidation or winding-up of the Company, the Company
shall deliver notice to the Holders at promptly as possible, but in any event at least 15 calendar days prior to the earlier of (i) the
date on which such dissolution, liquidation or winding-up, as the case may be, is expected to become effective or occur, and (ii) the
date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such dissolution, liquidation or winding-up, as the case may be, which notice shall state the expected
effective date and Record Date for such event, as applicable, and the amount and kind of property that a holder of one share of the Common
Stock is expected to be entitled, or may elect, to receive in such event. The Company shall deliver an additional notice to holders, as
promptly as practicable, whenever the expected effective date or Record Date, as applicable, or the amount and kind of property that a
holder of one share of the Common Stock is expect to be entitled to receive in such event, changes.


 


(b)           Notices
After Certain Actions and Events. Whenever an adjustment to the Conversion Rate becomes effective pursuant to Sections 14.04, 14.05
or 14.06 hereof, the Company will (i) file with the Trustee an Officers’ Certificate stating that such adjustment has become
effective, the Conversion Rate, and the manner in which the adjustment was computed and (ii) deliver notice to the Holders stating
that such adjustment has become effective and the Conversion Rate or conversion privilege as adjusted. Failure to give any such notice,
or any defect therein, shall not affect the validity of any such adjustment.


 


Section 14.11. Exchange in Lieu of Conversion.
When a Holder surrenders its Securities for conversion, the Company may, at its election (an “Exchange Election”),
direct the Conversion Agent to surrender, on or prior to the Business Day following the Conversion Date, such Securities to a financial
institution designated by the Company for exchange in lieu of conversion. In order to accept any Securities surrendered for conversion,
the designated institution must agree to timely deliver, in exchange for such Securities, the Settlement Amount that would otherwise be
due upon conversion pursuant to Section 14.03. If the Company makes an Exchange Election, the Company shall, by the Close of Business
on the Business Day following the relevant Conversion Date, notify the Holder surrendering its Securities for conversion that the Company
has made the Exchange Election and the Company will notify the designated financial institution of the relevant deadline for delivery
of the Settlement Amount.


 


Any Securities exchanged by the designated institution
will remain outstanding, subject to the Applicable Procedures of the Depositary. If the designated institution agrees to accept any Securities
for exchange but does not timely deliver the related Settlement Amount, or if such designated financial institution does not accept the
Securities for exchange, the Company shall deliver the relevant Settlement Amount as if it had not made an Exchange Election.


 






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Article 15

Repurchase of Securities at Option of Holders


 


Section 15.01. Intentionally Omitted.


 


Section 15.02. Repurchase at Option of
Holders Upon a Fundamental Change. (a)  If a Fundamental Change occurs, then each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase for cash all of such Holder’s Securities, or any portion thereof that is equal to $1,000
or a multiple of $1,000, on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not
less than 20 or more than 35 calendar days following the date of the Fundamental Change Company Notice, at a purchase price equal to 100%
of the principal amount of the Securities to be repurchased, plus accrued and unpaid interest thereon, if any, to, but excluding,
the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”); provided, however,
that if the Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the Interest Payment Date corresponding
to such Regular Record Date, the Company shall instead pay the full amount of accrued and unpaid interest on such Security on the Interest
Payment Date to the Holder of record of such Security as of such Regular Record Date and the Fundamental Change Repurchase Price shall
be equal to 100% of the principal amount of the Securities to be purchased pursuant to this Article 15.


 


Purchases of Securities under this Section 15.02
shall be made, at the option of the Holder thereof, upon:


 


(i)            if
the Securities to be purchased are Physical Securities, delivery to the Paying Agent by the Holder of a duly completed notice (the “Fundamental
Change Repurchase Notice”) in the form set forth in Attachment 2 to the Form of Security attached hereto as Exhibit A
and of the Securities, duly endorsed for transfer, on or before the Close of Business on the Business Day immediately preceding the Fundamental
Change Repurchase Date (the “Fundamental Change Expiration Time”); and


 


(ii)           if
the Securities to be purchased are Global Securities, delivery of the Securities, by book-entry transfer, in compliance with the Applicable
Procedures of the Depositary and the satisfaction of any other requirements of the Depositary in connection with tendering beneficial
interests in a Global Security for purchase, by the Fundamental Change Expiration Time.


 


The Fundamental Change Repurchase Notice in respect
of any Securities to be purchased shall state:


 


(i)            if
certificated, the certificate numbers of such Securities;


 






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(ii)           the
portion of the principal amount of such Securities, which must be $1,000 or an integral multiple thereof; and


 


(iii)          that
such Securities are to be repurchased by the Company pursuant to the applicable provisions of the Securities and this Indenture;


 


Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have
the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the Fundamental Change Expiration
Time by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.04.


 


The
Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof.


 


(b)           On
or before the 20th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of the Securities,
the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a notice (the “Fundamental Change Company
Notice”) of the occurrence of such Fundamental Change and of the repurchase right at the option of the Holders arising as a
result thereof.  Such notice shall be sent by first class mail or, in the case of any Global Securities, in accordance with the Applicable
Procedures of the Depositary for providing notices.  Simultaneously with providing such Fundamental Change Company Notice, the Company
shall publish this information in a newspaper of general circulation in The City of New York or publish the information on the Company’s
website or through such other public medium as the Company may use at that time.


 


Each Fundamental Change Company Notice shall specify:


 


(i)            the
events causing the Fundamental Change;


 


(ii)           the
date of the Fundamental Change;


 


(iii)          the
last date on which a Holder of Securities may exercise the repurchase right pursuant to this Article 15;


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


(vi)          the
name and address of the Paying Agent and the Conversion Agent, if applicable;


 


(vii)         if
applicable, the Conversion Rate and any adjustments to the Conversion Rate;


 






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(viii)        that
the Securities with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the
Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and


 


(ix)           the
procedures that Holders must follow to require the Company to purchase their Securities.


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the repurchase rights of the Holders of Securities or affect the validity of the proceedings
for the purchase of the Securities pursuant to this Section 15.02.


 


(c)           Notwithstanding
the foregoing, there shall be no purchase of any Securities pursuant to this Section 15.02 if the principal amount of the Securities
has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the
case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect
to such Securities).  The Paying Agent will promptly return to the respective Holders thereof any Physical Securities held by it
during the acceleration of the Securities (except in the case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Repurchase Price with respect to such Securities) and shall deem to be cancelled any instructions for book-entry
transfer of the Securities in compliance with the Applicable Procedures of the Depositary, in which case, upon such return or cancellation,
as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.


 


Section 15.03. Effect of Fundamental Change
Repurchase Notice.  Upon receipt by the Paying Agent of a Fundamental Change Repurchase Notice specified in Section 15.02,
the Holder of the Security in respect of which such Fundamental Change Repurchase Notice was given shall (unless such Fundamental Change
Repurchase Notice is withdrawn in accordance with Section 15.04) thereafter be entitled to receive solely the Fundamental Change
Repurchase Price in cash with respect to such Security (and any previously accrued and unpaid interest on such Security).  Such Fundamental
Change Repurchase Price shall be paid to such Holder, subject to receipt of funds by the Paying Agent, on the later of (x) the applicable
Fundamental Change Repurchase Date (provided the conditions in Section 15.02 have been satisfied) and (y) the time of delivery
or book-entry transfer of such Security to the Paying Agent by the Holder thereof in the manner required by Section 15.02, subject
in each case to extensions to comply with applicable law


 


Section 15.04. Withdrawal of Fundamental
Change Repurchase Notice. (a)  A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written
notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice at any time prior to the Fundamental
Change Expiration Time, specifying:


 


(i)            the
principal amount of the Securities with respect to which such notice of withdrawal is being submitted;


 






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(ii)           if
Physical Securities have been issued, the certificate numbers of the withdrawn Securities; and


 


(iii)          the
principal amount, if any, which remains subject to the Fundamental Change Repurchase Notice;


 


provided, however, that if the Securities are Global Securities, the
notice must comply with Applicable Procedures of the Depositary.


 


The Paying Agent will promptly return to the respective
Holders thereof any Physical Securities with respect to which a Fundamental Change Repurchase Notice has been withdrawn in compliance
with the provisions of this Section 15.04.


 


Section 15.05. Deposit of Fundamental Change
Repurchase Price. Prior to 10:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided herein) an amount of money (in immediately available funds if deposited on such Business Day) sufficient
to pay the Fundamental Change Repurchase Price of all the Securities or portions thereof that are to be purchased as of the Fundamental
Change Repurchase Date.  If the Paying Agent holds cash sufficient to pay the Fundamental Change Repurchase Price of the Securities
for which a Fundamental Change Repurchase Notice has been tendered and not withdrawn in accordance with this Indenture on the Fundamental
Change Repurchase Date, then as of such Fundamental Change Repurchase Date, (a) such Securities will cease to be Outstanding and
interest will cease to accrue thereon (whether or not book-entry transfer of such Securities is made or such Securities have been delivered
to the Paying Agent) and (b) all other rights of the Holders in respect thereof will terminate (other than the right to receive the
Fundamental Change Repurchase Price and, if the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to
the Business Day immediately following the corresponding Interest Payment Date, the right of the Holder of record on such Regular Record
Date to receive the related interest payment).


 


Section 15.06. Securities Purchased in
Whole or in Part.  Any Security that is to be purchased, whether in whole or in part, shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires in the case of Physical Securities, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as requested by such Holder in aggregate principal amount
equal to, and in exchange for, the portion of the principal amount of the Security so surrendered that is not purchased. Any Holder whose
Securities are purchased pursuant to this Article 15 shall receive payment of the Fundamental Change Repurchase Price on the later
of (i) the Fundamental Change Repurchase Date or (ii) the time of book-entry transfer or the delivery of the Securities so purchased.


 






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Section 15.07. Covenant To Comply with
Applicable Laws upon Purchase of Securities.  In connection with any offer to purchase Securities under Section 15.02, the
Company shall, in each case if required by law, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under
the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise
comply with all federal and state securities laws in connection with such purchase offer.


 


Section 15.08. Repayment to the Company. 
To the extent that the aggregate amount of cash deposited by the Company pursuant to Section 15.05 exceeds the aggregate Fundamental
Change Repurchase Price of the Securities or portions thereof that the Company is obligated to purchase as of the Fundamental Change Repurchase
Date, then, following the Fundamental Change Repurchase Date, the Paying Agent shall promptly return any such excess to the Company.


 


Article 16

No Optional Redemption


 


Section 16.01. No Optional Redemption.
The Securities shall not be redeemable by the Company prior to the Maturity Date, and no sinking fund is provided for the Securities.


 


Article 17

Miscellaneous Provisions


 


Section 17.01. Provisions Binding on Company’s
Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors
and assigns whether so expressed or not.


 


Section 17.02. Official Acts by Successor
Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board,
committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer
of any corporation or other entity that shall at the time be the lawful sole successor of the Company.


 






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Section 17.03. Addresses for Notices, Etc.
Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders
on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the
Trustee) to Arbor Realty Trust, Inc., 333 Earle Ovington Boulevard, Suite 900, Uniondale, New York 11553, Attention: Paul Elenio,
Chief Financial Officer. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed to the Corporate Trust Office.


 


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


 


Any notice or communication delivered or to be
delivered to a Holder of Physical Securities shall be mailed to it by first class mail, postage prepaid, at its address as it appears
on the Security Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered
or to be delivered to a Holder of Global Securities shall be delivered in accordance with the Applicable Procedures of the Depositary
and shall be sufficiently given to it if so delivered within the time prescribed.


 


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


 


In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.


 


Section 17.04. Governing Law; Jurisdiction.
THIS INDENTURE, THE SECURITIES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE SECURITIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


The Company irrevocably consents and agrees, for
the benefit of the Holders from time to time of the Securities and the Trustee, that any legal action, suit or proceeding against it with
respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Securities may be brought
in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York
and, until amounts due and to become due in respect of the Securities have been paid, hereby irrevocably consents and submits to the non-exclusive
jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself
in respect of its properties, assets and revenues.


 






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The Company irrevocably and unconditionally waives,
to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the
courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.


 


Section 17.05. Evidence of Compliance with
Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee
an Officers’ Certificate stating that such action is permitted by the terms of this Indenture.


 


Each Officers’ Certificate provided for,
by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance with this Indenture (other than
the Officers’ Certificates provided for in Section 4.08) shall include (a) a statement that the person signing such certificate
is familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment of such person,
he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment as to whether
or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person, such
action is permitted by this Indenture.


 


Notwithstanding anything to the contrary in this
Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel
in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be entitled to, or entitled to request,
such Opinion of Counsel.


 


Section 17.06. Legal Holidays. In any
case where any Interest Payment Date, any Fundamental Change Repurchase Date or the Maturity Date is not a Business Day, then any action
to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day, and no interest shall accrue
in respect of the delay.


 


Section 17.07. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.


 


Section 17.08. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied, will give to any Person, other than the Holders, the parties hereto,
any Paying Agent, any Conversion Agent, any authenticating agent, any Security Registrar or their successors hereunder, any benefit or
any legal or equitable right, remedy or claim under this Indenture.


 






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Section 17.09. Table of Contents, Headings,
Etc. The table of contents and the titles and headings of the articles and sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 17.10. Authenticating Agent.
The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication
and delivery of Securities in connection with the original issuance thereof and transfers and exchanges of Securities hereunder, including
under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.05 as fully to
all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate
and deliver Securities. For all purposes of this Indenture, the authentication and delivery of Securities by the authenticating agent
shall be deemed to be authentication and delivery of such Securities “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Securities
for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 7.08.


 


Any corporation or other entity into which any
authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from
any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity succeeding
to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder, if such successor
corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of any paper or any further
act on the part of the parties hereto or the authenticating agent or such successor corporation or other entity.


 


Any authenticating agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee
may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company
and shall deliver notice of such appointment to all Holders.


 


The Company agrees to pay to the authenticating
agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines
such agent’s fees to be unreasonable.


 






    90


     


    

 


The provisions of Section 7.02, Section 7.03,
Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating agent.


 


If an authenticating agent is appointed pursuant
to this Section 17.10, the Securities may have endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:


 


	 	,	 
	as Authenticating Agent, certifies that
    this is one of the Securities described in the within-named Indenture.	 
	 	 
	By: 	 	 	 
	Authorized Officer	 



 


Section 17.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes.


 


Section 17.12. Severability. In the
event any provision of this Indenture or in the Securities shall be invalid, illegal or unenforceable, then (to the extent permitted by
law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.


 


Section 17.13. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 17.14. 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
that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.


 






    91


     


    

 


Section 17.15.
Calculations. Except as otherwise provided in this Indenture, the Company shall be responsible for making all calculations called
for under the Securities. These calculations include, but are not limited to, determinations of the Stock Price, Last Reported Sale Prices
of the Common Stock, the trading prices of the Securities (for purposes of determining whether the Securities are convertible pursuant
to Section 14.01), Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Securities
and the Conversion Rate. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations
shall be final and binding on Holders of Securities. The Company shall provide a schedule of its calculations to each of the Trustee,
the Paying Agent and the Conversion Agent, and each of the Trustee, the Paying Agent and Conversion Agent is entitled to rely conclusively
upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the Company’s calculations
to any Holder upon the request of that Holder at the sole cost and expense of the Company.


 


Whenever the Company is required to calculate the
Conversion Rate, the Company will do so to the nearest 1/10,000th of a share of Common Stock.


 


Section 17.16. USA PATRIOT Act. The
parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, 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
USA PATRIOT Act.


 


[Remainder of the page intentionally left
blank]


 






    92


     


    

 


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


 


	 	ARBOR REALTY TRUST, INC.
	 	 
	 	 
	 	By:	/s/ Paul Elenio
	 	 	Name: Paul Elenio
	 	 	Title: Chief Financial Officer


 


 


	 	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	 	 
	 	 
	 	By:	/s/ Benjamin J. Krueger
	 	 	Name: Benjamin J. Krueger
	 	 	Title: Vice President


 


[Signature
Page to Indenture]


 






     


     


    

 


SCHEDULE A


 


The following table sets forth the number of Additional
Shares by which the Conversion Rate shall be increased pursuant to Section 14.06 based on the Stock Price and Effective Date set
forth below:


 


	 	 	Stock price	 
	Effective date:	 	$15.19	 	 	$16.00	 	 	$16.71	 	 	$17.00	 	 	$17.50	 	 	$18.00	 	 	$18.50	 	 	$19.00	 	 	$20.00	 	 	$25.00	 
	August 5, 2022	 	 	5.9847	 	 	 	4.0113	 	 	 	2.6619	 	 	 	2.2018	 	 	 	1.5200	 	 	 	0.9683	 	 	 	0.5346	 	 	 	0.2205	 	 	 	0.0020	 	 	 	0.0000	 
	August 1, 2023	 	 	5.9847	 	 	 	4.0113	 	 	 	2.6619	 	 	 	2.2018	 	 	 	1.5200	 	 	 	0.9683	 	 	 	0.5346	 	 	 	0.2205	 	 	 	0.0020	 	 	 	0.0000	 
	August 1, 2024	 	 	5.9847	 	 	 	4.0113	 	 	 	2.5595	 	 	 	2.0494	 	 	 	1.3223	 	 	 	0.7711	 	 	 	0.3800	 	 	 	0.1363	 	 	 	0.0000	 	 	 	0.0000	 
	August 1, 2025	 	 	5.9847	 	 	 	2.6520	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 





 




 






     


     


    

 


EXHIBIT A


 


[FORM OF FACE OF SECURITY]


 


[INCLUDE FOLLOWING LEGEND IF A GLOBAL SECURITY]


 


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


 


[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]


 


[THIS SECURITY AND THE COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND


 


(2) AGREES
FOR THE BENEFIT OF ARBOR REALTY TRUST, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE
DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH
LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, OR


 


(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 






    A-1


     


    

 


(C) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER
IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]


 


NO AFFILIATE (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF ARBOR REALTY TRUST, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF ARBOR REALTY TRUST, INC. DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE
OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.


 






    A-2


     


    

 


ARBOR REALTY TRUST, INC.


 


7.50% Convertible Senior Notes due 2025


 


	No.
[_____]	[Initially]1
$[_________]



 


CUSIP No. [_________]


 


Arbor Realty Trust, Inc., a corporation duly
organized and validly existing under the laws of the State of Maryland (the “Company,” which term includes any successor
corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.]2 [_______]3, or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges
of Securities” attached hereto]4 [of $[_______]]5, which amount, taken together with the principal amounts
of all other outstanding Securities, shall not, unless permitted by the Indenture, exceed $287,500,000 in aggregate at any time, in accordance
with the rules and Applicable Procedures, on August 1, 2025, and interest thereon as set forth below.


 


This Security shall bear interest at the rate of
7.50% per year from August 5, 2022, or from the most recent date to which interest had been paid or provided for to, but excluding,
the next scheduled Interest Payment Date until August 1, 2025. Interest on this Security is payable semi-annually in arrears on each
February 1 and August 1, commencing on February 1, 2023, to Holders of record at the Close of Business on the preceding
January 15 and July 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set
forth in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to
interest on, or in respect of, any Security therein shall be deemed to include Additional Interest if, in such context, Additional Interest
is, was or would be payable pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express
mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional Interest in those
provisions thereof where such express mention is not made.


 


Any Defaulted Amounts shall accrue interest per
annum at the rate borne by the Securities plus one percent, subject to the enforceability thereof under applicable law, from, and including,
the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election,
in accordance with Section 2.03(c) of the Indenture.


 





 



1 Include if a global note.


2
Include if a global note.


3
Include if a physical note.


4
Include if a global note.


5
Include if a physical note.


 







    A-3


     


    

 


The Company shall pay, or cause the Paying Agent
to pay, the principal of and interest on this Security, if and so long as such Security is a Global Security, in immediately available
funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Security. As provided in and subject to the
provisions of the Indenture, the Company shall pay, or cause the Paying Agent to pay, the principal of any Securities (other than Securities
that are Global Securities) at the office or agency designated by the Company for that purpose. The Company has initially designated the
Trustee as its Paying Agent and Security Registrar in respect of the Securities and its agency in the Borough of Manhattan, The City of
New York, as a place where Securities may be presented for payment or for registration of transfer and exchange.


 


Reference is made to the further provisions of
this Security set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Security the right
to convert this Security into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on the
terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.


 


This Security, and any claim, controversy or
dispute arising under or related to this Security, shall be construed in accordance with and governed by the laws of the State of New
York.


 


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


 


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


 


[Remainder of page intentionally left blank]


 






    A-4


     


    

 


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


 


	 	ARBOR REALTY TRUST, INC.
	 	 
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


Dated:


 


	TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 
	 	 
	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

as Trustee, certifies that this is one of the Securities described in the within-named Indenture.	 
	 	 
	By:	 	 
	 	Authorized Officer	 



 






    A-5


     


    

 


[FORM OF REVERSE OF SECURITY]


 


ARBOR REALTY TRUST, INC.

7.50% Convertible Senior Notes due 2025


 


This Security is one of a duly authorized issue
of Securities of the Company, designated as its 7.50% Convertible Senior Notes due 2025 (the “Securities”), initially
limited to the aggregate principal amount of $287,500,000 all issued or to be issued under and pursuant to an Indenture dated as of August 5,
2022 (the “Indenture”), between the Company and U.S. Bank Trust Company, National Association (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. Additional Securities may
be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used
in this Security and not defined in this Security shall have the respective meanings set forth in the Indenture.


 


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


 


Subject to the terms and conditions of the Indenture,
the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase
Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Security to a Paying Agent to collect
such payments in respect of the Security. The Company will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts.


 


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


 


Each Holder shall have the right to receive payment
or delivery, as the case may be, of (x) the principal (including the Fundamental Change Repurchase Price, if applicable) of, (y) accrued
and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this Security at the place, at the respective
times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.


 






    A-6


     


    

 


The Securities are issuable in registered form
without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of the Company referred
to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Securities may be exchanged for a like
aggregate principal amount of Securities of other authorized denominations, without payment of any service charge but, if required by
the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith
as a result of the name of the Holder of the new Securities issued upon such exchange of Securities being different from the name of the
Holder of the old Securities surrendered for such exchange.


 


The Securities are not subject to redemption through
the operation of any sinking fund or otherwise.


 


Upon the occurrence of a Fundamental Change, the
Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Securities
or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase Date at a price
equal to the Fundamental Change Repurchase Price.


 


Subject to the provisions of the Indenture, the
Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified in the Indenture,
prior to the Close of Business on the Business Day immediately preceding the Maturity Date, to convert any Securities or portion thereof
that is $1,000 or a multiple thereof, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable,
at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.


 






    A-7


     


    

 


ABBREVIATIONS


 


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


 


TEN COM = as tenants in common


 


UNIF GIFT MIN ACT = Uniform Gifts to Minors Act


 


CUST = Custodian


 


TEN ENT = as tenants by the entireties


 


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


 


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


 






    A-8


     


    

 


SCHEDULE A6


 


SCHEDULE OF EXCHANGES OF SECURITIES


 


ARBOR REALTY TRUST, INC.

7.50% Convertible Senior Notes due 2025


 


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


 


	Date of exchange	 	Amount of 
 decrease in 
 principal amount 
 of this Global 
 Security	 	Amount of
 increase in 
 principal amount 
 of this Global 
 Security	 	Principal amount
 of this Global 
 Security following
 such decrease
 or increase	 	Signature of
 authorized 
 signatory of 
 Trustee or 
 Custodian
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 




 





 



6
Include if a global note.


 






    A-9


     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


ARBOR REALTY TRUST, INC.

7.50% Convertible Senior Notes due 2025


 


		To:	U.S. Bank Trust Company, National
Association






60 Livingston Avenue


Mailcode: EP-MN-WS3C


St. Paul, MN 55107


Attention: Global Corporate Trust Services —


Administrator for Arbor Realty Trust, Inc.


 


The undersigned registered owner of this Security
hereby exercises the option to convert this Security, or the portion hereof (that is $1,000 principal amount or a multiple thereof) below
designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in accordance with the
terms of the Indenture referred to in this Security, and directs that any cash payable and any shares of Common Stock issuable and deliverable
upon such conversion, together with any cash for any fractional share, and any Securities representing any unconverted principal amount
hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares of Common
Stock or any portion of this Security not converted are to be issued in the name of a Person other than the undersigned, the undersigned
will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(g) of the Indenture.
Any amount required to be paid to the undersigned on account of interest accompanies this Security. Capitalized terms used herein but
not defined shall have the meanings ascribed to such terms in the Indenture.


 


	Dated:	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	Signature(s)	 



 






    1


     


    

 


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



 


	Fill in for registration of shares if to be issued, and
Securities if to be delivered, other than to and in the name of the registered holder:	 
	 	 
	 	 
	(Name)	 
	 	 
	 	 
	(Street Address)	 
	 	 
	 	 
	(City, State and Zip Code)	 
	Please print name and address	 



 


	 	Principal amount to be converted (if less than all): $______,000
	 	 
	 	NOTICE: The above signature(s) of the Holder(s) hereof
must correspond with the name as written upon the face of the Security in every particular without alteration or enlargement or any change
whatever.
	 	 
	 	 
	 	Social Security or Other Taxpayer Identification
Number



 






    2


     


    

 


ATTACHMENT 2


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


ARBOR REALTY TRUST, INC.

7.50% Convertible Senior Notes due 2025


 


		To:	U.S. Bank Trust Company, National
Association






60 Livingston Avenue


Mailcode: EP-MN-WS3C


St. Paul, MN 55107


Attention: Global Corporate Trust Services —


Administrator for Arbor Realty Trust, Inc.


 


The undersigned registered owner of this Security
hereby acknowledges receipt of a notice from Arbor Realty Trust, Inc. (the “Company”) as to the occurrence of
a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the
Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Security (1) the
entire principal amount of this Security, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below
designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on
or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental
Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.


 


In the case of Physical Securities, the certificate
numbers of the Securities to be repurchased are as set forth below:


 


Dated:  _____________________


 


	 	 
	 	Signature(s)
	 	 
	 	 	 
	 	Social Security or Other Taxpayer Identification Number
	 	 
	 	Principal amount to be repaid (if less than all): $______,000
	 	 
	 	NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Security in every particular without alteration or enlargement or any change whatever.



 






    1


     


    

 


ATTACHMENT 3


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


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


 


In connection with any transfer of the within Security occurring prior
to the Resale Restriction Termination Date, as defined in the Indenture governing such Security, the undersigned confirms that such Security
is being transferred:


 


 ̈       To
Arbor Realty Trust, Inc. or a subsidiary thereof; or


 


 ̈       Pursuant
to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or


 


 ̈       Pursuant
to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or


 


 ̈       Pursuant
to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration
requirements of the Securities Act of 1933, as amended.


 






     


     


    

 


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



 


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