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SECURED REVOLVING PROMISSORY NOTE
FOR VALUE RECEIVED, and subject to the terms and conditions set forth herein, MannKind Corporation,
a Delaware corporation (the Borrower ), hereby unconditionally promises to pay to Aventisub LLC, a Delaware limited liability company (the Original Noteholder ), or its registered assigns (collectively, the
Noteholder , and together with the Borrower, the Parties ), the principal amount of $175.0 million or, if less, the aggregate unpaid amount of all Advances (as defined below) the Noteholder has disbursed to the
Borrower pursuant to Section 2.2, in each case, together with all accrued interest thereon (including any such interest added to the principal amount), as provided in this Promissory Note (the Note ).
1. Definitions. Capitalized terms used herein shall have the meanings set forth in this Section 1.
Advance means each disbursement made by the Noteholder to the Borrower pursuant to Section 2.2.
Applicable Rate means the rate equal to 8.5% per annum (or 2.0605% per quarter for purposes of calculating
the amount of accrued interest to be added to principal pursuant to Section 5.2).
meaning set forth in the introductory paragraph.
Borrowing Notice has the meaning set forth in
Business Day means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City and any country where a permitted assignee of the Noteholder is located, are authorized or required by law to close.
Code means the Internal Revenue Code of 1986, as amended.
Collateral has the meaning specified in the Security Agreement.
Collateral Documents means, collectively, the Security Agreement, each of the mortgages, security agreements, pledge
agreements or other similar agreements delivered pursuant to Sections 8.5 and 8.7 and each of the other agreements, instruments or documents that creates or purports to create a Lien or guarantee in favor of the Noteholder.
Commitment Letter means that certain Commitment Letter dated as of August 11, 2014 by and among the Borrower and
Commitment Period means the period from the date hereof to the Maturity Date.
Debt means all (a) indebtedness for borrowed money;
(b) obligations for the deferred purchase price of property or services (other than trade payables, obligations in respect of benefit plans and employment and severance arrangements, and other deferred compensation obligations to employees and
directors arising in the ordinary course of business and not related to any financing) which in accordance with GAAP would be shown as a liability (or on the liability side of the balance sheet); (c) obligations evidenced by notes, bonds,
debentures or other similar instruments; (d) obligations as lessee under capital leases; (e) obligations in respect of any interest rate swaps, currency exchange agreements, commodity swaps, caps, collar agreements or similar arrangements
entered into by the Borrower providing for protection against fluctuations in interest rates, currency exchange rates or commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies;
(f) obligations under acceptance facilities and letters of credit (other than letters of credit supporting other Debt of the Borrower or any Guarantor which is otherwise permitted hereunder); (g) guaranties, endorsements (other than for
collection or deposit in the ordinary course of business), and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss, in each case, in respect
of indebtedness set out in clauses (a) through (f) of a Person other than the Borrower; and (h) indebtedness set out in clauses (a) through (g) of any Person other than Borrower secured by any Lien on any asset of the
Borrower, whether or not such indebtedness has been assumed by the Borrower.
Deerfield Facility means that certain
Facility Agreement dated as of July 1, 2013 as amended February 28, 2014 and August 11, 2014, by and among MannKind and the purchasers party thereto (as may be further amended, restated, supplemented or otherwise modified from time to
Default means any of the events specified in Section 10 which constitutes an Event of Default
or which, upon the giving of notice, the lapse of time, or both pursuant to Section 10 would, unless cured or waived, become an Event of Default.
Default Rate means, at any time, the Applicable Rate plus 2% per annum.
Disbursement Date has the meaning set forth in Section 2.1.
Dollar and $ mean lawful money of the United States.
Event of Default has the meaning set forth in Section 10.
Excluded Taxes shall mean, with respect to any payment made by or on account of any obligation of any Borrower under this
Note or any of the Collateral Documents any of the following Taxes imposed on or with respect to any Person: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profit Taxes, in each case imposed on
any Person as a result of a present or former connection between such Person and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than connections arising
from such Person having
executed, delivered, performed its obligations under, received payments under, or enforced this Agreement or any of the Collateral Documents); (b) U.S. federal withholding Taxes to the
extent that the obligation to withhold amounts existed on the date that such Person became a party to this Agreement in the capacity under which such Person makes a claim for additional amounts under Section 6.1 in respect of Tax Deductions or
Section 6.7 or designates a new lending office (except to the extent the transferor to such Person (if any) was entitled, at the time the transfer to such Person became effective, to receive additional amounts under Section 6.1
or Section 6.7); (c) Taxes that are attributable to a failure to deliver the documentation required to be delivered pursuant to Section 6.6; and (d) any Tax imposed pursuant to FATCA.
FATCA means Sections 1471 through 1474 of the Code, as of the date of this Note (or any amended or successor version that
is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental
agreement entered into with a Governmental Authority (or any regulatory legislation, rules or practices adopted pursuant to such agreement).
GAAP means generally accepted accounting principles in the United States of America as in effect from time to time.
Governmental Authority means the government of any nation or any political subdivision thereof, whether at the
national, state, territorial, provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of, or pertaining to, government (including any supranational bodies such as the European Union or the European Central Bank).
Guarantors has the meaning specified in the Security Agreement.
Interest Payment Date means the last Business Day of each March, June, September and December commencing on the first
such date to occur after the execution of this Note.
Law as to any Person, means any law (including common law),
statute, ordinance, treaty, rule, regulation, policy or requirement of any Governmental Authority and authoritative interpretations thereon, whether now or hereafter in effect, in each case, applicable to or binding on such Person or any of its
properties or to which such Person or any of its properties is subject.
License Agreement means the License and
Collaboration Agreement dated as of August 11, 2014 by and among MannKind, Technosphere International C.V., a Dutch limited partnership, MannKind Netherlands B.V., a Dutch limited liability company, and Sanofi.
Lien means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or other), charge or other security
Loans means the Advances and other extensions of credit hereunder,
including without limitation, pursuant to Section 5.2.
Loss Amount means MannKind s Sharing
Percentage of any Losses (each as defined in Exhibit B of the License Agreement).
MannKind means MannKind Corporation,
a Delaware corporation.
Material Adverse Effect means a material adverse effect on (a) the business, assets,
properties, liabilities, operations or financial condition of the Borrower and its subsidiaries; (b) the validity or enforceability of the Note or the Collateral Documents; (c) the perfection or priority of any Lien purported to be created
under the Collateral Documents to the extent required under the Collateral Documents (except with respect to the perfection or priority of any Lien created pursuant to the Noteholder s control thereof); (d) the rights or
remedies of the Noteholder hereunder or under the Collateral Documents; or (e) the Borrower s ability to timely perform any of its obligations hereunder or under the Collateral Documents; provided, however, that none of the
following shall be deemed either alone or in combination to constitute, and none of the following shall be taken into account in determining whether there has been or would be a Material Adverse Effect: (A) any adverse effect that results
directly from general economic, business, financial or market conditions unrelated to the Borrower; and (B) any adverse effect arising directly from the industries or industry sectors in which the Borrower operates.
Maturity Date means the earlier of (a) September 23, 2024 and (b) the date on which all amounts under
this Note shall become due and payable pursuant to Section 11.
Maximum Amount means $175.0 million.
Note has the meaning set forth in the introductory paragraph.
Noteholder has the meaning set forth in the introductory paragraph.
Order as to any Person, means any order, decree, judgment, writ, injunction, settlement agreement, requirement or
determination of an arbitrator or a court or other Governmental Authority, in each case, applicable to or binding on such Person or any of its properties or to which such Person or any of its properties is subject.
Original Noteholder has the meaning set forth in the introductory paragraph.
Parties has the meaning set forth in the introductory paragraph.
Person means any individual, corporation, limited liability company, trust, joint venture, association, company,
limited or general partnership, unincorporated organization, Governmental Authority or other entity.
Profit Amount means MannKind s Sharing Percentage of any Profits (each as
defined in Exhibit B of the License Agreement).
Register has the meaning set forth in Section12.8.
Sanofi means Sanofi-Aventis Deutschland GmbH, a company organized and existing under the laws of Germany.
Security Agreement means the Guaranty and Security Agreement, dated as of the date hereof, by and between the
Borrower, the Guarantors and Noteholder, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms.
Specified Event of Default means any Event of Default pursuant to Sections 10.1, 10.3(a) (with respect to
Sections 9.1 and 9.2 only), 10.4 (with respect to a breach by any Licensor or any MannKind Affiliate (each as defined in the License Agreement) of the non-compete obligations in Section 2.8(a) of the License Agreement only),
Tax Deduction means a deduction or withholding for or on account of any Tax that is not an Excluded
Tax from a payment under the Note or the Collateral Documents.
Taxes means all present or future taxes, levies,
imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
2. Loan Disbursement Mechanics.
2.1 Commitment. Subject to Section 2.2, the Noteholder shall make available to the Borrower one Advance (or, in the case of
a dispute relating to the amount of the Loss, multiple Advances) with respect to each Calendar Quarter (as defined in the License Agreement) in an aggregate amount not to exceed the Loss Amount for such Calendar Quarter and each such Advance shall
be made within 15 days of receipt by the Borrower of the Profit/Loss Statement (as defined in the License Agreement) for such Calendar Quarter in accordance with Exhibit B to the License Agreement (or, in the case of a dispute relating to the amount
of the Loss, within 15 days after resolution thereof) (each such date of an Advance, a Disbursement Date ); provided that, (a) after giving effect to any such Advance, the aggregate outstanding amount of Loans shall not