UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 6-K 

 

REPORT OF FOREIGN PRIVATE ISSUER

PURSUANT TO RULE 13a-16 OR 15d-16 

UNDER THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report: June 2024

 

Commission File Number: 001-39368 

 

MAXEON SOLAR TECHNOLOGIES, LTD.

(Exact Name of registrant as specified in its charter)

 

8 Marina Boulevard #05-02 

Marina Bay Financial Centre

018981, Singapore

(Address of principal executive office)

 

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. 

 

Form 20-F              Form 40-F   

 

 

 

 

 

 

Closing of Private Exchange Transactions

 

On June 20, 2024, Maxeon Solar Technologies, Ltd. (the “Company”), in connection with the closing of the previously announced private exchange transactions contemplated by the exchange agreements (the “Exchange Agreements”) entered into between the Company and certain holders of the Company’s 6.50% Green Convertible Senior Notes due 2025 (the “Existing 2025 Notes”), issued (x) $138,950,000 principal amount of new Tranche A Note Adjustable-Rate Convertible Second Lien Senior Secured Notes due 2028 (the “Tranche A Exchange Notes”), (y) $65,069,403 principal amount of new Tranche B Note Adjustable-Rate Convertible Second Lien Senior Secured Notes due 2028 (the “Tranche B Exchange Notes,” and together with Tranche A Exchange Notes, the “Exchange Notes”) and (z) 9,925,000 warrants (the “Exchange Warrants” and, together with the Exchange Notes, the “Exchange Securities”) granting such holders the right to purchase ordinary shares, no par value (the “Shares”), of the Company subject to the terms and conditions set forth therein, in exchange for $198,500,000 aggregate principal amount of the Existing 2025 Notes, representing approximately 99.25% of the outstanding principal amount of the Existing 2025 Notes, and $5,519,403 of interest outstanding thereon on the closing date.

 

The Exchange Securities issued in the transactions contemplated by the Exchange Agreements were offered and sold pursuant to the exemption provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”). The Company did not receive any cash proceeds from the issuance of the Exchange Securities.

 

Indenture Relating to the Exchange Notes

 

The Exchange Notes were issued pursuant to, and are governed by, an indenture (the “Exchange Notes Indenture”), dated as of June 20, 2024, among the Company, the guarantors party thereto (the “Guarantors”), Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), DB Trustees (Hong Kong) Limited, as the collateral trustee (the “Collateral Trustee”) and, solely with respect to the Philippine collateral, RCBC Trust Corporation as supplemental collateral trustee. The Tranche A Exchange Notes and the Tranche B Exchange Notes have identical terms and conditions, except that (i) the conversion prices for Tranche A Exchange Notes and Tranche B Exchange Notes are different (as discussed below); (ii) the Tranche A Exchange Notes will be subject to the Optional Exchange (as defined below); (iii) the conversion rate with respect to the Tranche B Exchange Notes is subject to adjustment, as set forth in the Exchange Notes Indenture, in the event such Tranche B Exchange Notes are converted prior to the closing of the Company’s previously announced purchase of Shares (the “Forward Purchase Shares”) by the Investor (as defined below), subject to the terms and conditions set forth in that certain forward purchase agreement, at an aggregate purchase price of $100 million (the “Forward Purchase Investment”); and (iv) the Tranche B Exchange Notes Conversion Price will be reset based on the average of the daily VWAP of the Company’s Shares for 10 consecutive trading days ending on the trading day prior to the date on which all requisite regulatory approvals are obtained (the “Forward Purchase VWAP”) for the Forward Purchase Investment, if the Forward Purchase VWAP is lower than the Initial Pricing VWAP (as defined below).

   

The Exchange Notes will mature on January 15, 2028, unless earlier repurchased, redeemed or converted. The Exchange Notes will accrue interest at a rate of 9.50% per annum from the date of issuance until (a) December 20, 2024 or (b) if the Forward Purchase Investment does not occur on or prior to December 20, 2024, the interest payment date immediately after the closing of Forward Purchase Investment (such date, the “Rate Adjustment Date”). Such interest is payable semi-annually and will be paid as follows: (a) 4% shall be paid in cash and (b) the remainder shall be paid, at the Company’s election, (i) in cash, (ii) by increasing the principal amount of the outstanding Tranche A Exchange Notes or Tranche B Exchange Notes as applicable, or by issuing additional Tranche A Exchange Notes or Tranche B Exchange Notes as applicable in a corresponding amount, (iii) subject to certain conditions, in Shares with the number of Shares determined using the daily VWAP of the Company’s Shares for the 10 consecutive trading days ending three business days prior to the payment date or (iv) in a combination of the forms of payment as described in clauses (i), (ii), and (iii) above. On and from the Rate Adjustment Date, the Exchange Notes will accrue interest at a rate of 8.00% per annum, payable solely in cash.

 

The Exchange Notes are convertible, at the option of each holder of the Exchange Notes, from and after the Conversion Commencement Date (as defined in the Exchange Notes Indenture) until the fifth scheduled trading day immediately preceding the maturity date of the Exchange Notes, in accordance with the terms and conditions set forth in the Exchange Notes Indenture.

 

Upon the conversion of any Tranche A Exchange Note, the Company has the option to settle such conversion by way of cash and/or newly issued Shares, at an initial conversion price of US$0.3543 per Share, subject to adjustment as set forth in the Exchange Notes Indenture (the “Tranche A Exchange Notes Conversion Price”). Upon the conversion of any Tranche B Exchange Note, the Company has the option to settle such conversion by way of cash and/or newly issued Shares, at an initial conversion price of US$1.6422 per Share, which is equal to the average of the daily VWAP of the Company’s Shares for the 10 consecutive trading days starting from May 31, 2024 (the “Initial Pricing VWAP”), subject to adjustment as set forth in the Exchange Notes Indenture (the “Tranche B Exchange Notes Conversion Price,” and together with the Tranche A Exchange Notes Conversion Price, the “Exchange Notes Conversion Price”). The Tranche B Exchange Notes Conversion Price will be reset based on the Forward Purchase VWAP, if the Forward Purchase VWAP is lower than the Initial Pricing VWAP.

 

1

 

 

The Company may redeem the Exchange Notes (a) on or after January 15, 2026 if the closing sale price per Share exceeds 150% of the Exchange Notes Conversion Price then in effect for at least 20 trading days (whether or not consecutive) during the 30 consecutive trading days ending on, and including, the trading day immediately before the date of the redemption notice and (b) at any time upon the occurrence of certain changes in relevant tax laws, at a redemption price equal to 100% of the principal amount of the Exchange Notes plus accrued and unpaid interest, in accordance with the terms and conditions set forth in Exchange Notes Indenture.

 

Upon the receipt (or waiver) of all requisite regulatory approvals with respect to the Forward Purchase Investment, the Company may, at its option, at any time until the fifth scheduled trading immediately preceding the maturity date of the Exchange Notes, require all of the then-outstanding Tranche A Exchange Notes to be exchanged into the Company’s Shares at the Tranche A Exchange Notes Conversion Price (the “Optional Exchange”).

 

The Company is entitled to not effect any conversion (including in connection with the Optional Exchange) that will result in any holder thereof, together with any Attribution Parties (as defined in the Exchange Notes Indenture), beneficially owning more than 9.9% of the Company’s Shares (the “Exchange Cap”), after giving effect to such conversion (including in connection with the Optional Exchange). The Company’s obligation to deliver any Shares that will result in any holder thereof to exceed the Exchange Cap (the “Excess Shares”) is not extinguished and is suspended until such holder advises the Company in writing that it may receive the Excess Shares without exceeding the Exchange Cap. In the event that (i) all of the Tranche A Exchange Notes and the Tranche B Exchange Notes were to be fully converted into Shares by the holders thereof on the basis of the Tranche A Exchange Notes Conversion Price or the Tranche B Exchange Notes Conversion Price, as the case may be, in effect on June 20, 2024 in accordance with the terms and conditions of the Exchange Notes Indenture, and (ii) the Company elects physical settlement, the holders of the Exchange Notes would hold approximately 89% of the outstanding Shares of the Company (based on the closing share price as of June 18, 2024, without giving effect to the consummation of the other transactions described in this Form 6-K or approximately 32% of the outstanding Shares of the Company (assuming that the share price of any future priced securities is $1.11 per share, which was the closing share price on June 18, 2024, and the consummation of all other transactions described in this Form 6-K).

 

Payment of principal of, and premium, if any, and interest on the Exchange Notes is fully and unconditionally guaranteed on a senior secured basis, jointly and severally, by the Guarantors.

 

In addition, to secure respective obligations under the Exchange Notes Indenture and the Exchange Notes, the Company, the Guarantors and a certain other subsidiary of the Company entered into or have agreed to enter into, on June 20, 2024 or such other later date as set forth in the Exchange Notes Indenture, as the case may be, one or more security agreements, pledge agreements, collateral assignments, joinders or other grants or transfers, or other customary secured transaction documentation (together with any ancillary documentation required in order to give effect to the foregoing security documentation, the “Exchange Notes Security Documents”), which grants the holders of the Exchange Notes second lien security interest over the collateral as described in the Exchange Notes Security Documents. The Exchange Notes Security Documents include all-asset debentures (subject to certain exceptions) over the assets of the Company and assets of certain of its subsidiaries incorporated in Singapore, Hong Kong, Bermuda, the Cayman Islands and Switzerland, including but not limited to certain intellectual property, and pledges of the shares of certain subsidiaries incorporated in Singapore, Hong Kong, Bermuda, the Cayman Islands, Switzerland, France, Malaysia and the Philippines. In addition, the Exchange Notes Indenture contains certain covenants which, among other things, restrict the Company’s ability to incur secured indebtedness, subject to exceptions to be set forth in the Exchange Notes Indenture.

 

The foregoing description is only a summary and is qualified in its entirety by reference to the Exchange Notes Indenture that is attached to this Form 6-K as an exhibit and incorporated herein by reference.

 

2

 

 

Exchange Warrants

 

The terms of the Exchange Warrants are governed by a warrant agency agreement, dated June 20, 2024 (the “Warrant Agreement”), between the Company and Computershare, Inc., as warrant agent.

 

The Exchange Warrants have an initial exercise price per warrant equal to 175% of the price per Share at which the purchaser purchases the Forward Purchase Shares pursuant to the terms of the Forward Purchase Investment. The Exchange Warrants will be exercisable at any time on or after the 10th business day after the closing of the Forward Purchase Investment until January 15, 2028, unless terminated earlier as described below. The Exchange Warrants entitle the holders thereof to purchase a number of Ordinary Shares equal in the aggregate to 9.925% of the equity interest in the Company on a fully diluted basis on the 10th business day after the closing of the Forward Purchase Investment. The Exchange Warrants shall automatically terminate and be of no effect, if following the closing of the Forward Purchase Investment and the issuance of Shares in the Optional Exchange, the former holders of Tranche A Exchange Notes and their transferees would beneficially own at least 30.0% of the Company’s equity interests in the aggregate. The Exchange Warrants are exercisable on a cashless basis under certain circumstances.

 

The number of Shares for which an Exchange Warrant is exercisable, and the exercise price thereof, are subject to adjustment from time to time upon the occurrence of certain events, including: (1) any dividends paid and distributions of any kind issued to all holders of Shares; (2) any combination (by share split, share dividend, recapitalization or otherwise) or subdivision (by consolidation, combination, reverse share split or otherwise) in respect of Shares; (3) any grant, issuance or sale of any options, convertible securities or rights to purchase share, warrants, securities or other property, in each case pro rata to the holders of Shares; or (4) certain fundamental transaction, including change of control and sale of all or substantially all assets of the Company, subject to the adjustment set out in the Exchange Warrants.

 

The foregoing description is only a summary and is qualified in its entirety by reference to the Warrant Agreement that is attached to this Form 6-K as an exhibit and incorporated herein by reference.

 

Amendment of Existing 1L Notes

 

On June 20, 2024, the Company entered into a supplemental indenture (the “Supplemental Indenture”) to the indenture dated as of August 17, 2022, as amended and/or supplemented from time to time prior to the date hereof (the “Existing 1L Indenture” and, as supplemented by the Supplemental Indenture, the “1L Indenture”), among the Company, the Guarantors, the Trustee and the Collateral Trustee, relating to the Company’s existing 7.50% Convertible First Lien Senior Secured Notes due 2027 (the “Existing 1L Notes” and, as amended by the Supplemental Indenture, the “Amended 1L Notes,” and together with the New 1L Notes (as defined below), the “1L Notes”). The Supplemental Indenture relating to the Amended 1L Notes amends and modifies the terms of the Existing 1L Notes in order to, among other things, (a) extend the maturity date of the Existing 1L Notes from August 17, 2027 to August 17, 2029; (b) amend the interest rate of the Existing 1L Notes from 7.50% per annum to (i) 8.50% per annum, if the Company elects to pay the interest in cash and payment-in-kind interest or (ii) 7.50% per annum, if the Company elects to pay the interest solely in cash; (c) change the per share conversion price to equal the New 1L Notes Conversion Price as defined below, subject to reset in the future based on the Forward Purchase VWAP, if the Forward Purchase VWAP is less than the then-current New 1L Notes Conversion Price (such new conversion price, the “Amended 1L Notes Conversion Price”); (d) amend certain covenants of the Existing 1L Notes to permit the incurrence of indebtedness under the New 1L Notes, the Exchange Notes and certain additional senior secured indebtedness of the Company and/or certain other parties to the Supplemental Indenture (the “Permitted Secured Indebtedness”); (d) amend certain covenants of the Existing 1L Notes to permit the incurrence of security interest over the collateral securing the Amended 1L Notes, to secure the New 1L Notes on a pari passu basis and to secure the Exchange Notes on a second lien basis, and to secure the Permitted Secured Indebtedness on a pari passu basis or on a second lien basis, as the case may be; and (e) add new provisions with respect to the entry of an intercreditor agreement. The Amended 1L Notes are currently 100% held by Zhonghuan Singapore Investment and Development Pte. Ltd. (the “Investor”). The Investor is a direct wholly owned subsidiary of Zhonghuan Renewable Energy Technology Co., Ltd. (“TZE”), and is a current shareholder of the Company with shared voting and dispositive power over 23.53% of the Shares as of June 20, 2024, and , in the event all of the Amended 1L Notes were to be fully converted into Shares by the Investor on the basis of the Amended 1L Notes Conversion Price in effect as of June 20, 2024, and in accordance with the terms and conditions of the 1L Indenture, the Investor would hold approximately 70% of the outstanding Shares of the Company (inclusive of its existing 23.53% ownership as of June 20, 2024 and without giving effect to the other transactions described in this Form 6-K).

 

3

 

 

The foregoing description is only a summary and is qualified in its entirety by reference to the Supplemental Indenture that is attached to this Form 6-K as an exhibit and the Existing 1L Indenture that was attached to the Company’s Form 6-K submitted with the Commission on August 17, 2022 and, in each case, incorporated herein by reference.

 

Issuance of New 1L Notes

 

On June 20, 2024, the Company completed its previously announced sale of US$97,500,000 in aggregate principal amount of the Company’s 9.00% Convertible First Lien Senior Secured Notes due 2029 (the “New 1L Notes”) to the Investor at an aggregate purchase price of US$97,500,000, which consists of (x) US$70,000,000 paid by the Investor in the form of cash consideration for its purchase of US$70,000,000 principal amount of New 1L Notes, (y) US$25,000,000 in aggregate principal amount of additional Existing 1L Notes that were tendered by the Investor to the Company in exchange for US$25,000,000 principal amount of New 1L Notes and (z) US$2,500,000, which amount is being paid by the Investor on behalf of the Company to a global consulting firm for services rendered on or prior to the date hereof, as consideration for the Investor’s purchase of US$2,500,000 aggregate principal amount of New 1L Notes, pursuant to the terms of a securities purchase agreement entered into between the Company and the Investor on May 30, 2024. In connection with the issuance of the New 1L Notes, the Company also issued to the Investor of a warrant (the “Investor Warrant”) for no additional consideration granting such holder the right to purchase Shares of the Company (as described in more detail below). The offer and sale of the New 1L Notes and the Investor Warrant were made pursuant to an exemption from registration provided by Regulation D under the Securities Act.

 

In connection with the issuance of the New 1L Notes, the Company received gross cash proceeds of $70,000,000. The Company will use such cash proceeds for general corporate purposes, as approved by the Strategy and Transformation Committee of the Board of Directors of the Company.

 

Indenture Relating to the New 1L Notes

 

The New 1L Notes were issued pursuant to, and are governed by, an indenture (the “New 1L Notes Indenture”), dated as of June 20, 2024, among the Company, the Guarantors, the Trustee, the Collateral Trustee and, solely with respect to the Philippine collateral, RCBC Trust Corporation as supplemental collateral trustee.

 

The New 1L Notes will mature on June 20, 2029, unless earlier repurchased, redeemed or converted. Interest on the New 1L Notes accrues at a rate of 9.00% per annum and is payable aid semi-annually as follows: (a) a portion shall be paid in cash and (b) the remainder shall be paid, at the Company’s election, (i) in cash, (ii) by increasing the principal amount of the outstanding New 1L Notes in global form or issuing additional certificated New 1L Notes in a corresponding amount and/or (iii) a combination of the forms of payment as described in clauses (i) and (ii) above.

 

The New 1L Notes are convertible, at the option of the holder of the New 1L Notes, from and after the issuance date until the fifth scheduled trading day immediately preceding the maturity date of the New 1L Notes, in accordance with the terms and conditions set forth in the New 1L Indenture. Upon the conversion of any New 1L Note, the Company has the option to settle such conversion by way of cash and/or newly issued Shares, at an initial conversion price of the Initial VWAP, subject to adjustments to be set forth in the New 1L Indenture (the “New 1L Notes Conversion Price”). The Company shall reset the New 1L Notes Conversion Price based on the Forward Purchase VWAP, if the Forward Purchase VWAP is lower than the Initial Pricing VWAP. In the event all of the New 1L Notes were to be fully converted into Shares by the Investor on the basis of the New 1L Notes Conversion Price in effect as of June 20, 2024, and in accordance with the terms and conditions of the New 1L Indenture, the Investor would hold approximately 51% of the outstanding Shares of the Company (inclusive of its existing 23.53% ownership as of June 20, 2024 and without giving effect to the other transactions described in this Form 6-K).

 

The Company may redeem the New 1L Notes (a) on or after June 20, 2026, if the closing sale price per Share exceeds 130% of the New 1L Notes Conversion Price then in effect on at least 20 trading days (whether or not consecutive) during the 30 consecutive trading days ending on, and including, the trading day immediately before the date of the redemption notice and (b) at any time upon the occurrence of certain changes in relevant tax laws, at a redemption price equal to 100% of the principal amount of the New 1L Notes plus accrued and unpaid interest, in accordance with the terms and conditions to be set forth in the New 1L Notes Indenture.

 

4

 

 

The New 1L Indenture contains financial covenants that require the Company to maintain (i) consolidated net leverage ratio of no greater than (a) 8.00 to 1.00 as of December 31, 2025, March 31, 2026, June 30, 2026 and September 30, 2026, (b) 3.00 to 1.00 as of December 31, 2026, March 31, 2027, June 30, 2027 and September 30, 2027 and (c) 2.00 to 1.00 as of December 31, 2027, and (ii) total cash liquidity of no less than $40 million, as measured at the end of each quarter, commencing on the first quarter of 2025.

 

Payment of principal of, and premium, if any, and interest on the New 1L Notes is fully and unconditionally guaranteed on a senior secured basis, jointly and severally by the Guarantors.

 

In addition, to secure their respective obligations under the New 1L Indenture and the New 1L Notes, the Company and/or the Guarantors, as applicable entered into or have agreed to enter into, on June 20, 2024 or such other later date as will be set forth in the New 1L Indenture, one or more security agreements, pledge agreements, collateral assignments, joinders or other grants or transfers, or other customary secured transaction documentation (together with any ancillary documentation required in order to give effect to the foregoing security documentation, the “New 1L Security Documents”) which grant the holders of the New 1L Notes first lien security interest over the collateral described in the New 1L Security Documents. The New 1L Security Documents include all-asset debentures (subject to certain exceptions) over the assets of the Company and assets of certain of its subsidiaries incorporated in Singapore, Hong Kong, Bermuda, the Cayman Islands and Switzerland, including but not limited to certain intellectual property, and pledges of the shares of certain subsidiaries incorporated in Singapore, Hong Kong, Bermuda, the Cayman Islands, Switzerland, France, Malaysia and the Philippines. In addition, the New 1L Indenture contains certain covenants which, among other things, restrict the Company’s ability to incur indebtedness, incur liens, make investments in subsidiaries of the Company that are not Guarantors and make restricted payments, in each case subject to exceptions to be set forth in the New 1L Indenture.

 

The foregoing description is only a summary and is qualified in its entirety by reference to the New 1L Notes Indenture that is attached to this Form 6-K as an exhibit and incorporated herein by reference. 

   

Investor Warrant

 

In connection with the issuance of the New 1L Notes, the Company also issued to the Investor on June 20, 2024, the Investor Warrant. The Investor Warrant grants the Investor the right to purchase a certain number of Shares as described below. The Investor Warrant has an initial exercise price of $0.01 per Share. The Investor Warrant is exercisable after the date of issuance upon the occurrence of (a) one or more of the holders of the Exchange Notes converting all or a portion of such Exchange Notes for Shares or (b) the Company exercising its option with respect to the Optional Exchange of the Exchange Notes as described under “Closing of Private Exchange Transactions” above (each, an “Exercisability Event”). Following the occurrence of any Exercisability Event, the Investor is entitled to purchase a number of Shares under the Investor Warrant such that it maintains an ownership of 23.53% of the equity interest of the Company after giving effect to the relevant Exercisability Event and the potential issuance under the Investor Warrant. The Investor Warrant expires on the later of (a) the closing of the Forward Purchase Investment or (b) five Business Days after the consummation of the Optional Exchange, and only upon the occurrence of any conversion and/or the Optional Exchange of the Exchange Notes as described under “Closing of Private Exchange Transactions” above.

 

The Investor Warrant is exercisable on a cashless basis under certain circumstances. The number of Shares for which the Investor Warrant is exercisable is subject to adjustment from time to time upon the occurrence of certain events, including: (1) any dividends paid and distributions of any kind issued to all holders of Shares; (2) any combination (by share split, share dividend, recapitalization or otherwise) or subdivision (by consolidation, combination, reverse share split or otherwise) in respect of Shares; (3) any grant, issuance or sale of any options, convertible securities or rights to purchase share, warrants, securities or other property, in each case pro rata to the holders of Shares; or (4) certain fundamental transaction, including change of control and sale of all or substantially all assets of the Company, subject to the adjustment set out in the Investor Warrant.

  

The foregoing description is only a summary and is qualified in its entirety by reference to the Investor Warrant that is attached to this Form 6-K as an exhibit and incorporated herein by reference.

 

5

 

 

Registration Rights Agreement

 

On June 20, 2024, in connection with the amendment to the Existing 1L Notes and the issuance of the New 1L Notes, the Company entered into an amended and restated registration rights agreement with the Investor (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, the Company has agreed to file with the Commission no later than 90 days after the date of a written demand made by the Investor, a shelf registration statement for the resale of all of the Registrable Securities (as defined in the Registration Rights Agreement) (the “Shelf Registration Statement”). Pursuant to the Registration Rights Agreement, the Company shall use its reasonable best efforts to keep such Shelf Registration Statement continuously effective in order to permit the sales of all of the Registrable Securities on any day after such Shelf Registration Statement has been declared effective by the Securities and Exchange Commission, for so long as the securities registered under the Shelf Registration Statement continue to constitute Registrable Securities under the Registration Rights Agreement. If such Shelf Registration Statement ceases to be effective, the Company shall promptly notify each holder of registrable securities and shall file with the Commission another shelf registration statement within 20 business days, in accordance with the terms and conditions of the Registration Rights Agreement. The Company will generally pay all expenses incurred in connection with the Shelf Registration Statement, except for any underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of the Registrable Securities. The Registration Rights Agreement also provides for customary indemnification obligations of both the Company and the Investor in connection with any registration statement.

 

The foregoing description is only a summary and is qualified in its entirety by reference to the Registration Rights Agreement that is attached to this Form 6-K as an exhibit and incorporated herein by reference.

 

As of June 19, 2024, there were 55,705,553 Shares of the Company outstanding.

 

Amendment of Shareholders Agreement

 

On June 20, 2024, in connection with transactions described in this Form 6-K, the Company entered into a supplemental deed to its existing shareholders agreement, dated August 26, 2020 (the “SHA Amendment”) with TotalEnergies Solar INTL SAS, TotalEnergies Gaz Electricite Holdings SAS and the Investor, in order to, among other things, provide for the establishment of the Strategy and Transformation Committee (the “Strategy and Transformation Committee”) of the Board of Directors (the “Board”) of the Company, effective as of June 20, 2024. Pursuant to the SHA Amendment, the Strategy and Transformation Committee will consist of one TZE designee and two other directors as selected by the Board. The Company has appointed Xu Luo Luo, a current member of the Board, as Chief Transformation Officer of the Company effective June 20, 2024, in accordance with the charter of the Strategy and Transformation Committee.

 

The foregoing description is only a summary and is qualified in its entirety by reference to the SHA Amendment that is attached to this Form 6-K as an exhibit and incorporated herein by reference.

 

Incorporation by Reference

 

The information contained in this report is hereby incorporated by reference into the Company’s registration statements on Form F-3 (File No. 333-271971), Form F-3 (File No. 333-265253), Form F-3 (File No. 333-268309), Form S-8 (File No. 333-277501) and Form S-8 (File No. 333-241709), each filed with the Securities and Exchange Commission.

 

6

 

 

Forward-Looking Statements

 

This current report on Form 6-K contains “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including but not limited to, statements regarding the Company’s anticipated use of the net proceeds from the Issuance. The forward-looking statements can be also identified by terminology such as “may,” “might,” “could,” “will,” “aims,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates” and similar statements.

 

These forward-looking statements are based on our current assumptions, expectations and beliefs and involve substantial risks and uncertainties that may cause results, performance or achievement to materially differ from those expressed or implied by these forward-looking statements. These statements are not guarantees of future performance and are subject to a number of risks. The reader should not place undue reliance on these forward-looking statements, as there can be no assurances that the plans, initiatives or expectations upon which they are based will occur. A detailed discussion of factors that could cause or contribute to such differences and other risks that affect our business is included in filings we make with the Commission from time to time, including our most recent report on Form 20-F, particularly under the heading “Risk Factors”. Copies of these filings are available online from the SEC at www.sec.gov, or on the SEC Filings section of our Investor Relations website at https://corp.maxeon.com/investor-relations. All forward-looking statements in this current report on Form 6-K are based on information currently available to us, and we assume no obligation to update these forward-looking statements in light of new information or future events.

 

7

 

 

EXHIBIT INDEX

 

Exhibit No.   Description
99.1+   Indenture, dated June 20, 2024, relating to the Adjustable-Rate Convertible Second Lien Senior Secured Notes due 2028, by and among, Maxeon Solar Technologies, Ltd., the guarantors party thereto, Deutsche Bank Trust Company Americas, as trustee, DB Trustees (Hong Kong) Limited, as the collateral trustee and, solely with respect to the Philippine collateral, RCBC Trust Corporation. 
99.2   Warrant Agency Agreement, dated June 20, 2024, between Maxeon Solar Technologies, Ltd. and Computershare, Inc., as warrant agent.
99.3+   Supplemental Indenture No. 7, dated June 20, 2024, , to the indenture dated August 17, 2022, by and among, Maxeon Solar Technologies, Ltd., the guarantors party thereto, Deutsche Bank Trust Company Americas, as trustee, DB Trustees (Hong Kong) Limited, as the collateral trustee and, solely with respect to the Philippine collateral, Rizal Commercial Banking Corporation – Trust and Investment Group.
99.4+   Indenture, dated June 20, 2024, relating to the 9.00% Convertible First Lien Senior Secured Notes due 2029, by and among, Maxeon Solar Technologies, Ltd., the guarantors party thereto, Deutsche Bank Trust Company Americas, as trustee, DB Trustees (Hong Kong) Limited, as the collateral trustee and, solely with respect to the Philippine collateral, Rizal Commercial Banking Corporation – Trust and Investment Group.
99.5   Warrant to Purchase Ordinary Shares, dated June 20, 2024, by and between Maxeon Solar Technologies, Ltd. and Zhonghuan Singapore Investment and Development Pte. Ltd. 
99.6   Amended and Restated Registration Rights Agreement, dated June 20, 2024, by and between Maxeon Solar Technologies, Ltd. and Zhonghuan Singapore Investment and Development Pte. Ltd.
99.7  

Supplemental Deed to the Shareholders Agreement, dated as of June 20, 2024, by and among Maxeon Solar Technologies, Ltd., TotalEnergies Solar INTL SAS, TotalEnergies Gaz Electricite Holdings SAS and Zhonghuan Singapore Investment and Development Pte. Ltd.

 

+ Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Company agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

 

8

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  MAXEON SOLAR TECHNOLOGIES, LTD. (Registrant)
       
Date: June 21, 2024 By: /s/ Kai Strohbecke
    Name:  Kai Strohbecke
    Title: Chief Financial Officer

 

 

9

 

Exhibit 99.1

 

 

 

MAXEON SOLAR TECHNOLOGIES, LTD.,

 

THE GUARANTORS PARTY HERETO,

 

and

 

DEUTSCHE BANK TRUST COMPANY AMERICAS

 

as Trustee

 

and

 

DB TRUSTEES (HONG KONG) LIMITED

 

as Collateral Trustee

 

and

 

RCBC TRUST CORPORATION

 

as Philippine Supplemental Collateral Trustee

 

 

 

INDENTURE

 

Dated as of June 20, 2024

 

 

 

Adjustable-Rate Convertible Second Lien Senior Secured Notes due 2028

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THIS INDENTURE IS SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT (AS DEFINED HEREIN).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

        Page
         
Article 1. DEFINITIONS; RULES OF CONSTRUCTION   1
         
Section 1.01.   Definitions   1
Section 1.02.   Other Definitions.   24
Section 1.03.   Rules of construction.   25
Section 1.04.   Conflict with Trust Indenture Act.   25
         
Article 2. THE NOTES   26
         
Section 2.01.   Form, Dating and Denominations.   26
Section 2.02.   Execution, Authentication and Delivery.   26
Section 2.03.   Initial Notes, Additional Notes and PIK Notes   27
Section 2.04.   Method of Payment.   27
Section 2.05.   Accrual of Interest; Defaulted Amounts; When Payment Date is not a Business Day.   29
Section 2.06.   Registrar, Paying Agent and Conversion Agent.   30
Section 2.07.   Paying Agent and Conversion Agent to Hold Property in Trust.   31
Section 2.08.   Holder Lists.   31
Section 2.09.   Legends.   31
Section 2.10.   Transfers and Exchanges; Certain Transfer Restrictions.   32
Section 2.11.   Exchange and Cancellation of Notes to be Converted or to be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.   36
Section 2.12.   Removal of Transfer Restrictions.   37
Section 2.13.   Replacement Notes.   37
Section 2.14.   Registered Holders; Certain Rights with Respect to Global Notes.   38
Section 2.15.   Cancellation.   38
Section 2.16.   Notes Held by the Company or its Affiliates.   38
Section 2.17.   Temporary Notes.   38
Section 2.18.   Outstanding Notes.   38
Section 2.19.   Repurchases by the Company.   39
Section 2.20.   CUSIP and ISIN Numbers.   39
         
Article 3. COVENANTS   40
         
Section 3.01.   Payment on Notes.   40
Section 3.02.   Exchange Act Reports.   40
Section 3.03.   Rule 144A Information.   41
Section 3.04.   Rule 144 Information.   41
Section 3.05.   Additional Amounts.   41
Section 3.06.   Compliance and Default Certificates.   43
Section 3.07.   Stay, Extension and Usury Laws.   43
Section 3.08.   Corporate Existence.   44
Section 3.09.   Acquisition of Notes by the Company and its Affiliates.   44

 

i

 

 

Section 3.10.   Further Instruments and Acts.   44
Section 3.11.   Future Subsidiary Guarantors   44
Section 3.12.   Limitation on Indebtedness   44
Section 3.13.   Limitation on Transactions with Affiliates   47
Section 3.14.   Accounts; Control Agreements.   48
Section 3.15.   Intellectual Property.   49
Section 3.16.   Environmental Compliance.   49
Section 3.17.   Post-Closing Obligations.   50
Section 3.18.   Additional Collateral.   50
         
Article 4. REPURCHASE, REDEMPTION and Optional exchange   51
         
Section 4.01.   No Sinking Fund.   51
Section 4.02.   Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.   51
Section 4.03.   Right of the Company to Redeem the Notes.   55
Section 4.04.   Right of the Company to Exchange Notes.   59
Section 4.05.   Limitations on Conversion and Optional Exchange.   62
         
Article 5. Conversion   65
         
Section 5.01.   Right to Convert.   65
Section 5.02.   Conversion Procedures.   66
Section 5.03.   Settlement Upon Conversion.   68
Section 5.04.   Reserve and Status of Ordinary Shares Issued upon Conversion.   71
Section 5.05.   Adjustments to the Conversion Rate.   71
Section 5.06.   Voluntary Adjustments.   82
Section 5.07.   Adjustments To The Conversion Rate In Connection With A Make- Whole Event.   82
Section 5.08.   Exchange In Lieu Of Conversion.   82
Section 5.09.   Effect Of Ordinary Share Change Event.   83
Section 5.10.   Responsibility of Trustee.   85
         
Article 6. SUCCESSORS   86
         
Section 6.01.   When The Company May Merge, Etc.   86
Section 6.02.   Successor Corporation Substituted.   87
         
Article 7. DEFAULTS AND REMEDIES   87
         
Section 7.01.   Events Of Default.   87
Section 7.02.   Acceleration.   90
Section 7.03.   Sole Remedy For A Failure To Report.   90
Section 7.04.   Other Remedies.   91
Section 7.05.   Waiver Of Past Defaults.   91
Section 7.06.   Control By Majority.   92
Section 7.07.   Limitation On Suits.   92
Section 7.08.   Absolute Right Of Holders To Institute Suit For The Enforcement Of The Right To Receive Payment And Conversion Consideration.   93

 

ii

 

 

Section 7.09.   Collection Suit By Trustee.   93
Section 7.10.   Preferential Collection of Claims Against Company.   93
Section 7.11.   Trustee May File Proofs Of Claim.   93
Section 7.12.   Payment of the Soulte.   94
Section 7.13.   Sums Received by Debtors and Third-Party Security Providers.   94
Section 7.14.   Priorities.   95
Section 7.15.   Undertaking For Costs.   95
Section 7.16.   Collateral Trustee Expense Reimbursement   96
         
Article 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS   96
         
Section 8.01.   Without The Consent Of Holders.   96
Section 8.02.   With The Consent Of Holders.   97
Section 8.03.   With The Consent Of Supermajority Holders.   98
Section 8.04.   Notice Of Amendments, Supplements And Waivers.   99
Section 8.05.   Revocation, Effect And Solicitation Of Consents; Special Record Dates; Etc.   100
Section 8.06.   Notations And Exchanges.   100
Section 8.07.   Trustee and Collateral Trustee To Execute Supplemental Indentures.   101
         
Article 9. SATISFACTION AND DISCHARGE   101
         
Section 9.01.   Termination Of Company’s Obligations.   101
Section 9.02.   Repayment To Company.   102
Section 9.03.   Reinstatement.   102
         
Article 10. TRUSTEE   102
         
Section 10.01.   Duties of the Trustee.   102
Section 10.02.   Rights Of The Trustee.   103
Section 10.03.   Individual Rights Of The Trustee.   105
Section 10.04.   Trustee’s Disclaimer.   105
Section 10.05.   Notice Of Defaults.   105
Section 10.06.   Compensation And Indemnity.   105
Section 10.07.   Replacement Of The Trustee.   106
Section 10.08.   Successor Trustee By Merger, Etc.   107
Section 10.09.   Eligibility; Disqualification.   107
Section 10.10.   Reports by the Trustee.   108
         
Article 11. Collateral and Security   108
         
Section 11.01.   Collateral.   108
Section 11.02.   Notes Security Documents.   108
Section 11.03.   Authorization of Actions to Be Taken.   108
Section 11.04.   Parallel Debt   112
Section 11.05.   Release of Collateral   113
Section 11.06.   Application of Proceeds of Collateral.   114
Section 11.07.   Collateral Trustee.   115

 

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Section 11.08.   Appointment of the Collateral Trustee for German Security Documents.   116
Section 11.09.   Appointment of the Collateral Trustee for French Security Documents.   118
Section 11.10.   Appointment of Supplemental Collateral Trustee.   122
         
Article 12. GUARANTEES   123
         
Section 12.01.   Subsidiary Guarantees   123
Section 12.02.   Execution and Delivery   125
Section 12.03.   [Reserved].   125
Section 12.04.   Releases of Subsidiary Guarantees.   125
Section 12.05.   Instrument for the Payment of Money.   126
Section 12.06.   Limitation on Guarantor Liability   126
Section 12.07.   “Trustee” to Include Paying Agent   129
         
Article 13. MISCELLANEOUS   129
         
Section 13.01.   Notices.   129
Section 13.02.   Delivery Of Officer’s Certificate And Opinion Of Counsel As To Conditions Precedent.   132
Section 13.03.   Statements Required In Officer’s Certificate And Opinion Of Counsel.   132
Section 13.04.   Rules By The Trustee, The Registrar And The Paying Agent.   133
Section 13.05.   No Personal Liability Of Directors, Officers, Employees And Shareholders.   133
Section 13.06.   Governing Law; Waiver Of Jury Trial.   133
Section 13.07.   Submission To Jurisdiction.   134
Section 13.08.   No Adverse Interpretation Of Other Agreements.   134
Section 13.09.   Successors.   134
Section 13.10.   Force Majeure.   134
Section 13.11.   U.S.A. Patriot Act.   134
Section 13.12.   Calculations.   135
Section 13.13.   Severability.   135
Section 13.14.   Counterparts.   135
Section 13.15.   Table Of Contents, Headings, Etc.   135
Section 13.16.   Service Of Process.   135
Section 13.17.   Provision Required By Trust Indenture Act to Control.   136
Section 13.18.   U.S. FEDERAL INCOME TAX MATTERS.   136
         
Article 14. Intercreditor arrangements   136
         
Section 14.01.   Intercreditor Agreement   136
Section 14.02.   Additional Intercreditor Agreement   136

 

Exhibits

 

Exhibit A-1:   Form of Tranche A Note  A1-1
        
Exhibit A-2:   Form of Tranche B Note  A2-1
        
Exhibit B-1:   Form of Restricted Note Legend  B1-1
        
Exhibit B-2:   Form of Global Note Legend  B2-1
        
Exhibit C:   Form of Supplemental Indenture  C-1

 

iv

 

 

CONVERTIBLE SECOND LIEN SENIOR SECURED NOTES INDENTURE, dated as of June 20, 2024, among Maxeon Solar Technologies, Ltd. (Company Registration No: 201934268H), a company incorporated in Singapore, as issuer (the “Company”), the guarantors listed on the signature pages hereof (each, a “Guarantor” and collectively, the “Guarantors”), Deutsche Bank Trust Company Americas, a New York Banking Corporation, as trustee (the “Trustee”), DB Trustees (Hong Kong) Limited as the collateral trustee (in such capacity, and including any successor collateral trustee or additional collateral trustee, the Philippine Supplemental Collateral Trustee (as defined below) or Supplemental Collateral Trustee (as defined herein) pursuant to the applicable provisions of this Indenture, and thereafter, the “Collateral Trustee”) and RCBC Trust Corporation as collateral trustee with respect to the Philippine Collateral (as defined below) (in such capacity and solely with respect to the Philippine Collateral, the “Philippine Supplemental Collateral Trustee”).

 

Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s Adjustable-Rate Convertible Second Lien Senior Secured Notes due 2028 (the “Notes”).

 

Article 1. DEFINITIONS; RULES OF CONSTRUCTION

 

Section 1.01. Definitions.

 

2025 Notes” means any 6.50% Green Convertible Senior Notes due 2025 of the Company outstanding as of the Issue Date, after giving effect to the issuance of the Notes and certain warrants in exchange for certain 2025 Notes, that were issued originally in $200.0 million aggregate principal amount under an indenture dated July 17, 2020 between the Company and Deutsche Bank Trust Company Americas, as trustee.

 

Additional Notes” means additional Notes in aggregate principal amount of up to US$18,800,000, which, for the avoidance of doubt, have the same terms and conditions as the initial Tranche B Notes issued pursuant to Section 2.03(A) (including the benefit of the Subsidiary Guarantees and the Collateral) in all respects except for the issue date, issue price, the date of the first payment of interest and, to the extent not fungible with the initial Tranche B Notes for U.S. federal income tax purposes, CUSIP and ISIN numbers. For the avoidance of doubt, the Additional Notes may only be issued in the form of Tranche B Notes.

 

Affiliate” has the meaning set forth in Rule 144 as in effect on the Issue Date.

 

Amended 2029 First Lien Notes” means $207 million Variable-Rate First Lien Senior Secured Convertible Notes due 2029 of the Company, which is evidenced by an amendment of the Company’s $207 million 7.50% Convertible First Lien Senior Secured Notes due 2027 pursuant to the Amended 2029 First Lien Notes Indenture, and any additional notes which may be issued pursuant to and in accordance with the terms of the Amended 2029 First Lien Notes Indenture, as may be further amended and supplemented from time to time.

 

Amended 2029 First Lien Notes Collateral Trustee” means DB Trustees (Hong Kong) Limited, as the collateral trustee for the Amended 2029 First Lien Notes, and/or any successor collateral trustee, additional collateral trustee, or supplemental collateral trustee appointed pursuant to the terms of the Amended 2029 First Lien Notes Indenture.

 

1

 

 

Amended 2029 First Lien Notes Indenture” means the indenture entered into among the Company, the Guarantors named therein, Deutsche Bank Trust Company Americas, as trustee, DB Trustees (Hong Kong) Limited, as the collateral trustee, and RCBC Trust Corporation, as Philippine Supplemental Collateral Trustee, as amended and supplemented by a supplemental indenture dated June 20, 2024, in relation to the Amended 2029 First Lien Notes, as may be further amended and supplemented from time to time.

 

Amended 2029 First Lien Notes Philippine Supplemental Collateral Trustee” means RCBC Trust Corporation as collateral trustee with respect to the Philippine Collateral (as defined in the Amended 2029 First Lien Notes Indenture), in such capacity and solely with respect to such collateral.

 

Amended 2029 First Lien Notes Trustee” means Deutsche Bank Trust Company Americas, a New York Banking Corporation, as trustee for the Amended 2029 First Lien Notes or its successors or assignees appointed pursuant to the terms of the Amended 2029 First Lien Notes Indenture.

 

“Appropriated Instruments Holders” means the Notes Secured Parties (or their Affiliates) in their capacity as holders of any Charged Property as a result of an Appropriation of such Charged Property.

 

Appropriation” means the appropriation (or similar process) of the shares or financial securities issued by the Company or any of the Company’s Subsidiaries by the Collateral Trustee (or any receiver or delegate) which is effected (to the extent permitted and subject to any requirements under the relevant Notes Security Document and applicable law) by enforcement of the security interest created under any Notes Security Document (including, in respect of French Security Documents, pursuant to a pacte commissoire or a foreclosure (attribution judiciaire)).

 

Attribution Parties” means, with respect to a holder of the Notes, collectively, the following persons and entities: (i) any direct or indirect Affiliates of the holder, (ii) any person acting or who could be deemed to be acting as a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) together with such holder or any Attribution Parties and (iii) any other persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated with the holder’s and/or any other Attribution Parties for purposes of Section 13(d) of the Exchange Act.

 

Authorized Denomination” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1.00 in excess thereof.

 

Average Life” means, at any date of determination with respect to any Indebtedness, the quotient obtained by dividing (1) the sum of the products of (a) the number of years from such date of determination to the dates of each successive scheduled principal payment of such Indebtedness and (b) the amount of such principal payment by (2) the sum of all such principal payments.

 

Bankruptcy Law” means title 11 of the United States Code or any similar U.S. federal or state or non-U.S. law for the relief of debtors.

 

2

 

 

Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.

 

Business Day” means any day other than a Saturday, a Sunday, or any day on which banking institutions in The City of New York, Hong Kong or Singapore (or in any other place in which payments on the Notes are to be made) are authorized by law or governmental regulation to close.

 

Capital Expenditures” means with respect to the Company and the Subsidiaries for any period, the aggregate amount, without duplication, of (a) all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized as a capital lease) that would, in accordance with U.S. GAAP, be included as additions to property, plant and equipment, (b) other capital expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized as capital leases) that are reported in the Company’s consolidated statement of cash flows for such period and (c) other capital expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized as capital leases, including, without limitation, any capitalized bonus payment).

 

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

 

Change in Tax Law” means any change or amendment in the laws, rules or regulations of a Relevant Taxing Jurisdiction, or any change in an official written interpretation, administration or application of such laws, rules or regulations by any legislative body, court, governmental taxing authority or regulatory or administrative authority of such Relevant Taxing Jurisdiction (including the enactment of any legislation and the publication of any judicial decision or regulatory or administrative interpretation or determination) affecting taxation, which change or amendment (A) had not been publicly announced before; and (B) becomes effective on or after the Issue Date (or, if the Relevant Taxing Jurisdiction was not a Relevant Taxing Jurisdiction on such date, the date on which such Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction).

 

Charged Property” means all of the assets which from time to time are, or are expressed to be, the subject of any security interest created under a French Security Document.

 

Close of Business” means 5:00 p.m., New York City time.

 

Closing Security Documents” means the Security Document set forth in Schedule V hereto.

 

Collateral” means, other than the Excluded Assets, all of the property and assets now owned or at any time hereafter acquired by the Company and Restricted Subsidiaries or in which the Company or any Restricted Subsidiary now has or at any time in the future may acquire any right, title or interest wherever located, upon which a Lien is granted or purported to be granted by the Company or the relevant Restricted Subsidiary as security for all or any part of the Obligations in accordance with the terms of this Indenture, the relevant Notes Security Documents and the Intercreditor Agreement.

 

3

 

 

Collections” means (i) all cash net proceeds (including all cash net proceeds received in the form of checks, credit card slips or receipts, notes, instruments, and other items of payment) from Sales Contracts of the Company Indenture Parties (including cash net proceeds from any Receivable Financing permitted under the Priority Lien Debt Documents to the extent such Receivable Financing is entered into with respect to any Sales Contract) but not including any revenue from any Sales Contract which constitutes Receivable Financing Assets) and (ii) all net cash proceeds from dispositions permitted under the Priority Lien Debt Documents.

 

Company” means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.

 

Company Indenture Parties” means, collectively, the Company and each Guarantor and each of them is a “Company Indenture Party”.

 

Company Order” means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.

 

Conversion Commencement Date” means July 2, 2024.

 

Conversion Date” means, with respect to a Note, the first Business Day on or after the Conversion Commencement Date on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied.

 

Conversion Price” means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect at such time.

 

Conversion Rate” means:

 

(a) with respect to Tranche A Notes, initially 2,822.2288 Ordinary Shares per $1,000 principal amount of Notes; and

 

(b) with respect to Tranche B Notes, initially (A) the number of Ordinary Shares equal to (i) one thousand dollars ($1,000) divided by (ii) the Initial Pricing VWAP, or (B) upon the occurrence of Forward Purchase Adjustment Event, the number of Ordinary Shares equal to (i) one thousand dollars ($1,000) divided by (ii) the FPA VWAP, whichever is greater;

 

in each case of (a) and (b), provided, that the Conversion Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.

 

Conversion Share” means any Ordinary Share issued or issuable upon conversion of any Note.

 

Daily Cash Amount” means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such VWAP Trading Day.

 

4

 

 

Daily Conversion Value” means, with respect to any VWAP Trading Day, one-thirtieth (1/30th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the Daily VWAP per Ordinary Share on such VWAP Trading Day.

 

Daily Maximum Cash Amount” means, with respect to the conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such conversion by (B) thirty (30).

 

Daily Share Amount” means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum Cash Amount.

 

Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Ordinary Shares as displayed under the heading “Bloomberg VWAP” on Bloomberg page identified by “MAXN” (or such other ticker symbol for such Ordinary Shares) appended by the suffix “<EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume- weighted average price is unavailable, the market value of one Ordinary Share on such VWAP Trading Day, reasonably determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected 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.

 

Default” means any event that is (or, after notice, passage of time or both, would be) an Event of Default.

 

Default Settlement Method” means Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes; provided, however, that subject to Section 5.03(A)(ii), the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default Settlement Method to the Holders, the Trustee and the Conversion Agent.

 

Depositary” means The Depository Trust Company or its successor.

 

Depositary Participant” means any member of, or participant in, the Depositary.

 

Depositary Procedures” means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.

 

“Early Conversion Adjustment” means, with respect to the conversion of any Tranche B Notes prior to the Forward Purchase Closing on any Conversion Date, for each $1,000 principal amount of the Notes being converted, (i) the Relevant Amount set forth on Schedule IV hereof in respect of (a) the Relevant Date falling immediately preceding to such Conversion Date, if such Conversion Date does not fall on a Relevant Date set forth on Schedule IV, or (b) such Conversion Date, if such Conversion Date falls on a Relevant Date set forth on Schedule IV, divided by (ii) the simple average of the Daily VWAP for the 10 consecutive Trading Days ending on, and including, the Trading Day immediately preceding such Conversion Date.

 

5

 

 

Enforcement Action” means any action or decision taken in connection with the exercise of remedial rights of the Holders of the Notes and the Trustee and/or Collateral Trustee, representing the interests of the Holders of the Notes (including in respect of the Collateral pursuant to the Notes Security Documents) following the occurrence and during the continuation of an Event of Default in accordance with the terms of this Indenture, the Intercreditor Agreement and/or the relevant Notes Security Documents, as the case may be.

 

Environmental Law” means any applicable law in any jurisdiction in which the Company or any Restricted Subsidiary conducts its business, which relates to the pollution or protection of the environment or harm to or the protection of human health or the health of animals or plants.

 

Equity Payment Conditions” means, at the time of the relevant payment to a Holder, any necessary approval of the Company’s shareholders shall have been obtained for such issuance of Ordinary Shares.

 

Ex-Dividend Date” means, with respect to an issuance, dividend or distribution on the Ordinary Shares, the first date on which Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of the Ordinary Shares under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.

 

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

 

Excluded Accounts” means a deposit or securities account (i) which is used for the sole purpose of (x) making payroll and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements) and/or (y) making payments to applicable government authorities or bodies, including with respect to withholding, sales and other taxes or duties and utilities, (ii) is a zero balance account, (iii) constituting a custodian, trust, fiduciary or other escrow account established for the benefit of third parties in the ordinary course of business in connection with transactions permitted hereunder, (iv) the incurrence of a Lien in favor the Collateral Trustee over which is prohibited under applicable laws, rules or regulations; (v) the creation of any Lien on which would restrict the use of funds in the ordinary course of business any time prior to the time when such Lien becomes enforceable, or have a material adverse effect on the normal operations of the relevant Company Indenture Party in its ordinary course of business; (vi) which constitutes Receivable Financing Assets; (vii) the Company’s account that is pledged to secure the Indebtedness under the SCB Agreement; (viii) which, together with other accounts (other than those identified in clauses (i) through (vii)), collectively has average daily closing balances for any fiscal quarter of less than the equivalent of $5,000,000 in the aggregate; and (ix) for as long as any Priority Lien Secured Obligations are still outstanding, which constitutes an “Excluded Account” under the Priority Lien Debt Documents.

 

6

 

 

Excluded Assets” means:

 

(A) shares in SunPower Corporation Mexico, S. de R.L. de C.V. and dividends and other related rights in respect of such shares; and

 

(B) solely in respect to any property in the United States, the property and assets described in the definition of “Excluded Property,” as such term is defined in the security agreement, dated as of June 20, 2024, by and between the Company, each grantor party thereto, and the Collateral Trustee.

 

Final Discharge Date” means the first date on which all Obligations have been fully and finally discharged in accordance with the terms of this Indenture, whether or not as the result of an enforcement, and the Notes Secured Parties (in that capacity) are under no further obligation to provide financial accommodation to the Company or any of the Guarantors under the Indenture Documents.

 

First Lien Notes” means, collectively, the Amended 2029 First Lien Notes and the New 2029 First Lien Notes.

 

First Lien Notes Collateral Trustees” means, collectively, the Amended 2029 First Lien Notes Collateral Trustee and the New 2029 First Lien Notes Collateral Trustee.

 

First Lien Notes Indentures” means, collectively, the Amended 2029 First Lien Notes Indenture and the New 2029 First Lien Notes Indenture.

 

First Lien Notes Philippine Supplemental Collateral Trustee” means, collectively, the Amended 2029 First Lien Notes Philippine Supplemental Collateral Trustee and the New 2029 First Lien Notes Philippine Supplemental Collateral Trustee.

 

Forward Purchase Adjustment Event” occurs, as soon as practicable after the FPA VWAP is known to the Company, if the Company has determined, in good faith, that the FPA VWAP is less than the Initial Pricing VWAP.

 

Forward Purchase Agreement” means that certain forward purchase agreement dated June 14, 2024 between the Company and Zhonghuan Singapore Investment and Development Pte. Ltd. (in such capacity, the “Forward Purchaser”), pursuant to which the Forward Purchaser agrees to purchase certain Ordinary Shares for an aggregate purchase price of $100,000,000 (the “FPA Shares”), subject to the terms and conditions therein (the “Forward Purchase Investment”). The closing of the issuance, sale and purchase of the FPA Shares pursuant to the terms and conditions of the Forward Purchase Agreement is hereinafter referred to as “Forward Purchase Closing.”

 

FPA VWAP” means the average of the Daily VWAP for 10 consecutive Trading Days used in calculating the per share price that the Forward Purchaser will pay for each FPA Share at the Forward Purchase Closing, as determined pursuant to the terms and conditions of the Forward Purchase Agreement.

 

7

 

 

French Civil Code” means the French Code civil.

 

French Security Documents” means any Notes Security Document governed by the laws of France.

 

Fundamental Change” means any of the following events:

 

(A) a “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company or its Wholly Owned Subsidiaries, or their respective employee benefit plans), files a Schedule TO (or any successor schedule, form or report) or any report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner” (as defined below) of Ordinary Shares representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares; provided, however, that, for purposes of this clause (A), no person or group will be deemed to be a beneficial owner of any securities tendered pursuant to a tender offer or exchange offer made by or on behalf of such person or group until such tendered securities are accepted for purchase or exchange in such offer;

 

(B) the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person, other than solely to one or more of the Company’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) (other than changes solely resulting from a subdivision or combination of the Ordinary Shares or solely a change in the par value or nominal value of the Ordinary Shares) all of the Ordinary Shares are exchanged for, converted into, acquired for, or constitute solely the right to receive, other securities, cash or other property; provided, however, that any transaction described in clause (B)(ii) above pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);

 

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

 

(D) at any time after Issue Date, the Ordinary Shares are not listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors)(each, the “Stock Exchange”); or

 

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(E) the Investor or any of its Affiliates become the direct or indirect “beneficial owner” of Ordinary Shares representing more than the greater of (i) eighty-five percent (85%) of the voting power of all of the Ordinary Shares, and (ii) the Relevant Investor Ownership Percentage;

 

provided, however, that (i) a transaction or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent (90%) of the consideration received or to be received by the holders of Ordinary Shares (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with such transaction or event, consists of ordinary shares or shares of common stock or other corporate common equity listed on any of the Stock Exchanges, or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event constitutes an Ordinary Share Change Event whose Reference Property consists of such consideration; or (ii) a transaction or event described in clause (A) above will not constitute a Fundamental Change, if such a transaction or event occurs as a result of (w) the Investor’s beneficial ownership of any First Lien Notes or any of the Notes or the Ordinary Shares such First Lien Notes or Notes are convertible into, (x) the Investor’s exercise of its right to convert any First Lien Notes or Notes beneficially owned by it pursuant to the terms of the First Lien Notes Indentures or the Indenture, (y) the receipt by the Investor of any Ordinary Shares issued by the Company in payment of interest due and payable on any First Lien Notes or the Notes pursuant to the terms of the First Lien Notes Indentures or the Indenture, as the case may be, (z) the receipt by the Investor of the FPA Shares at the Forward Purchase Closing, (aa) the receipt by the Investor of any Ordinary Shares in connection with any exercise under the Investor Warrant, and/or (bb) any other transaction entered into or action taken by the Investor pursuant to other agreements and/instruments existing on the Issue Date, through which the Investor acquires Capital Stock of the Company or options, warrants, convertible notes or other securities convertible or exercisable into Capital Stock of the Company (the events and/or transactions described in clauses (w) through (bb), collectively, the “Relevant Investor Events”).

 

For the purposes of this definition, any transaction or event described in both clause (A) and in clause (B) above (without regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such proviso).

 

For the purpose of this Indenture, whether a Person is a “beneficial owner” and whether shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.

 

Fundamental Change Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.

 

Fundamental Change Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase Notice” set forth in Exhibit A-1 or Exhibit A-2) containing the information, or otherwise complying with the requirements, set forth in Section 4.02(F)(i) and Section 4.02(F)(ii).

 

Fundamental Change Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 4.02(D).

 

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Global Note” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A-1 or Exhibit A-2, registered in the name of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee, as custodian for the Depositary.

 

Global Note Legend” means a legend substantially in the form set forth in Exhibit B-2.

 

Guaranteed Obligations” shall have the meaning specified in Section 12.01(A)(ii).

 

Guarantors” means SunPower Corporation Limited, SunPower Energy Corporation Limited, SunPower Manufacturing Corporation Limited, Maxeon Rooster HoldCo, Ltd., Maxeon Solar Pte. Ltd., SunPower Bermuda Holdings, SunPower Technology Ltd., SunPower Philippines Manufacturing Ltd., Rooster Bermuda DRE, LLC, SunPower Systems Sàrl and any Person that hereafter provides a Guarantee hereunder pursuant to a joinder (or supplemental indenture) to this Indenture, and each of them is a “Guarantor.”

 

Hedging Agreement” means any rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging agreement or agreement designed to protect a Person against fluctuations in interest rates, current exchange or commodity prices.

 

Holder” means a person in whose name a Note is registered on the Registrar’s books.

 

Indebtedness” means as to any Person, without duplication, whether or not contingent, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances or other financial products, (c) all obligations or liabilities of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices), (d) all obligations of such Person owing under Hedging Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedging Agreement were terminated on the date of determination), (e) all obligations or liabilities of others secured by a Lien on the assets of such Person, irrespective of whether such obligation or liability is assumed; provided that the amount of such Indebtedness shall be the lesser of the (y) the fair market value of such asset at such date of determination and (z) the amount of such Indebtedness, (f) all finance leases that appear as a liability on such Person’s consolidated balance sheet (excluding the footnotes thereto), and any obligation of such Person guarantying or intended to guaranty (whether directly or indirectly) any obligation of any other Person that constitutes Indebtedness under clauses (a) through (f) above.

 

The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided that:

 

(A) the amount outstanding at any time of any Indebtedness issued with original issue discount is the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with the applicable accounting principles; and

 

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(B) money borrowed and set aside at the time of the incurrence of any Indebtedness in order to prefund the payment of the interest on such Indebtedness shall not be deemed to be “Indebtedness” so long as such money is held to secure the payment of such interest.

 

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

 

Indenture Documents” means this Indenture, the Notes, the Intercreditor Agreement, the Notes Security Documents, the Subsidiary Guarantees, and any other instrument or agreement entered into, now or in the future, by any Company Indenture Party or any of its Subsidiaries or the Collateral Trustee, the Philippine Supplemental Collateral Trustee and/or Trustee in connection with the Indenture.

 

Initial Pricing VWAP” means $1.6422.

 

Intellectual Property” means any patents, trademarks, service marks, designs, business and trade names, copyrights, database rights, design rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered, and the benefit of all applications and rights to use such assets, of the Company and/or its Subsidiaries.

 

Interest Make-Whole Amount” means a number of Ordinary Shares calculated by dividing (i) an amount in cash equal to the present value as of the applicable Make-Whole Event Effective Date of all scheduled interest payments due on $1,000 principal amount of the Notes on each Interest Payment Date through the Maturity Date (assuming (1) the then-applicable interest rate shall apply through the Maturity Date and (2) the maximum amount of PIK Interest is paid on each Interest Payment Date and interest payable for subsequent periods is payable on such PIK Interest), computed using a discount rate equal to the Treasury Rate as of such Make-Whole Event Effective Date plus 50 basis points by (ii) the simple average of the Daily VWAP for the 10 consecutive Trading Days ending on, and including, the Trading Day immediately preceding such Make-Whole Event Effective Date.

 

Intercreditor Agreement” means the intercreditor agreement, dated on or about the Issue Date, made between, among others, the Company, the Guarantors, the Trustee, the Amended 2029 First Lien Notes Trustee, the New 2029 First Lien Notes Trustee, the Collateral Trustee, the Amended 2029 First Lien Notes Collateral Trustee, the New 2029 First Lien Notes Collateral Trustee, the Philippine Supplemental Collateral Trustee, the Amended 2029 First Lien Notes Philippine Supplemental Collateral Trustee and the New 2029 First Lien Notes Philippine Supplemental Collateral Trustee and the other parties named therein, as amended, restated or otherwise modified or varied from time to time.

 

Interest Payment Date” means, with respect to a Note, each June 20 and December 20 of each year, commencing on December 20, 2024 (or commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an Interest Payment Date.

 

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Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.

 

Investor” means Zhonghuan Singapore Investment and Development Pte. Ltd., and/or its Affiliates.

 

Investor Warrant” means a warrant of the Company, dated June 20, 2024, issued to the Investor.

 

Issue Date” means June 20, 2024.

 

Junior Lien Indebtedness” means any Indebtedness of the Company or any Restricted Subsidiary secured by a Lien on all or any portion of the Collateral that has a priority that is contractually (or otherwise) junior in priority to the Lien on such Collateral that secure the Notes.

 

Last Reported Sale Price” of the Ordinary Shares for any Trading Day means the closing sale price per Ordinary Share (or, if no closing sale price is reported, the average of the last bid price and the last ask price per Ordinary Share or, if more than one in either case, the average of the average last bid prices and the average last ask prices per Ordinary Share) on such Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed. If the Ordinary Shares are not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will be the last quoted bid price per Ordinary Share on such Trading Day in the over-the- counter market as reported by OTC Markets Group Inc. or a similar organization. If the Ordinary Shares are not so quoted on such Trading Day, then the Last Reported Sale Price will be the average of the mid-point of the last bid price and the last ask price per Ordinary Share on such Trading Day from each of at least three (3) nationally recognized independent investment banking firms selected by the Company. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.

 

Lien” means any statutory or other lien, security interest, mortgage, pledge, charge, hypothecation, assignment for collateral purposes, encumbrance, option, purchase right, call right, easement, right-of-way, restriction (including zoning restrictions), defect, preferential arrangement, preference, priority, exception or material irregularity in title or similar charge or encumbrance, including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof; provided that in no event shall an operating lease be deemed to constitute a Lien.

 

Majority Holders” means, at any applicable time, Holders owning more than 50.0% of the aggregate principal amount of the Notes then outstanding.

 

Make-Whole Event” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause (E) of the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition) (an event referred to in this clause (A), a “Make-Whole Fundamental Change”); or (B) the sending of a Redemption Notice pursuant to Section 4.03(G) in respect of a Provisional Redemption or a Tax Redemption; provided, however, that the sending of a Redemption Notice for a Provisional Redemption of less than all of the outstanding Notes will constitute a Make-Whole Event only with respect to the Notes called (or deemed to be called pursuant to Section 4.03(K)) for Provisional Redemption pursuant to such Redemption Notice and not with respect to any other Notes. For the avoidance of doubt, the sending of any Redemption Notice for a Tax Redemption will constitute a Make-Whole Event with respect to all outstanding Notes.

 

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Make-Whole Event Conversion Period” has the following meaning:

 

(A) in the case of a Make-Whole Event pursuant to clause (A) of the definition thereof, the period from, and including, the Make-Whole Event Effective Date of such Make-Whole Event to, and including, the thirty fifth (35th) Trading Day after such Make-Whole Event Effective Date (or, if such Make-Whole Event also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date); and

 

(B) in the case of a Make-Whole Event pursuant to clause (B) of the definition thereof, the period from, and including, the Redemption Notice Date for the related Redemption to, and including, the second (2nd) Business Day immediately before the related Redemption Date;

 

provided, however, that if the Conversion Date for the conversion of a Note that has been called (or deemed, pursuant to Section 4.03(K), to be called) for Redemption occurs during the Make- Whole Event Conversion Period for both a Make-Whole Fundamental Change occurring pursuant to clause (A) of the definition of “Make-Whole Event” and a Make-Whole Event resulting from such Redemption pursuant to clause (B) of such definition, then, notwithstanding anything to the contrary in Section 5.07, solely for purposes of such conversion, (x) such Conversion Date will be deemed to occur solely during the Make-Whole Event Conversion Period for the Make-Whole Event with the earlier Make-Whole Event Effective Date; and (y) the Make-Whole Event with the later Make-Whole Event Effective Date will be deemed not to have occurred.

 

Make-Whole Event Effective Date” means (A) with respect to a Make-Whole Event pursuant to clause (A) of the definition thereof, the date on which such Make-Whole Event occurs or becomes effective; and (B) with respect to a Make-Whole Event pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.

 

Make-Whole Fundamental Change” has the meaning set forth in the definition of Make-Whole Event.

 

Market Disruption Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Ordinary Shares are listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Ordinary Shares or in any options contracts or futures contracts relating to the Ordinary Shares.

 

Maturity Date” means January 15, 2028.

 

New 2029 First Lien Notes” means $97.5 million 9.00% Convertible First Lien Senior Secured Convertible Notes due 2029 issued by the Company pursuant to the New 2029 First Lien Notes Indenture, and any additional notes which may be issued pursuant to and in accordance with the terms of the New 2029 First Lien Notes Indenture, as may be further amended and supplemented from time to time.

 

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New 2029 First Lien Notes Collateral Trustee” means DB Trustees (Hong Kong) Limited, as the collateral trustee for the New 2029 First Lien Notes, and/or any successor collateral trustee, additional collateral trustee, and/or New 2029 First Lien Notes Philippine Supplemental Collateral Trustee, and/or any other supplemental collateral trustee appointed pursuant to the terms of New 2029 First Lien Notes Indenture.

 

New 2029 First Lien Notes Indenture” means an indenture dated June 20, 2024 between the Company, the Guarantors named therein, DB Trustees (Hong Kong) Limited, as the collateral trustee, and Deutsche Bank Trust Company Americas, as trustee, in relation to the New 2029 First Lien Notes, as may be amended and supplemented from time to time.

 

New 2029 First Lien Notes Philippine Supplemental Collateral Trustee” means RCBC Trust Corporation as collateral trustee with respect to the Philippine Collateral (as defined in the New 2029 First Lien Notes Indenture), in such capacity and solely with respect to such collateral.

 

New 2029 First Lien Notes Trustee” means Deutsche Bank Trust Company Americas, a New York Banking Corporation, as trustee for New 2029 First Lien Notes or its successors or assignees appointed pursuant to the terms of New 2029 First Lien Notes Indenture.

 

Non-recourse Receivable Financing” means Receivable Financing (i) under which none of the Company nor the Restricted Subsidiaries (other than pursuant to Standard Non-recourse Receivable Financing Undertakings) provides guarantee or recourse with respect to the Receivable Financing Assets, undertakes to repurchase any Receivable Financing Assets, subjects any of its properties or assets, directly or indirectly, contingently or otherwise, to the satisfaction of any obligation related to the Receivable Financing Assets or undertakes to maintain or preserve the financial condition or operating results of the entity that purchases or otherwise receives the Receivable Financing Assets and (ii) is not reflected as liability on the consolidated balance sheet of the Company.

 

Note Agent” means any Registrar, Paying Agent or Conversion Agent.

 

Notes” means (i) the Initial Notes, (ii) following the issuance of the Additional Notes pursuant to the terms of this Indenture, the Additional Notes, and (iii) the PIK Notes, treated as a single class. For the avoidance of doubt, Tranche A Notes and Tranche B Notes shall vote together on all matters as one class, and except as where expressly provided otherwise, shall be deemed to constitute a single class or series for all purposes under this Indenture.

 

Notes Secured Parties” means, collectively, the Collateral Trustee (or any receiver and delegate appointed by the Collateral Trustee on any Notes Security Document), the Philippine Supplemental Collateral Trustee, the Trustee and the Holders.

 

Notes Security Documents” means all security and/or other collateral documents that create or purport to create a Lien in favor of the Collateral Trustee for the benefit of itself and of the Notes Secured Parties and entered into in connection with the Indenture and the Notes (including the Closing Security Documents and Post-Closing Security Documents), as amended, restated, modified and/or supplemented in accordance with the provisions hereof.

 

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Notes Security Property” means:

 

(A) the security interest over the Collateral expressed to be granted in favour of the Collateral Trustee for the benefit of itself and of the Notes Secured Parties, which shall include Holders, the Trustee and the Collateral Trustee;

 

(B) all obligations expressed to be undertaken by any grantor of the security interest over the Collateral to pay amounts in respect of the Obligations to the Collateral Trustee for the benefit of itself and of the Notes Secured Parties, which shall include Holders, the Trustee and the Collateral Trustee; or

 

(C) any other amounts or property, whether rights, entitlements, choses in action or otherwise, actual or contingent, which the Collateral Trustee is required by the terms of the Indenture Documents to hold as trustee on trust for the Notes Secured Parties or as agent in favour of the Notes Secured Parties.

 

Obligations” means (a) obligations of the Company and the other Company Indenture Parties from time to time to pay (and otherwise arising under or in respect of the due and punctual payment of) (i) principal, interest (including interest accruing during the pendency of any insolvency proceeding, regardless of whether allowed or allowable in such proceeding) and all other obligations under the Indenture Documents (including, without limitation, any applicable premium) of the Company and the other Company Indenture Parties under this Indenture, the Notes issued hereunder and the other Indenture Documents when and as due, whether at maturity, by acceleration, upon one or more dates set for redemption or otherwise (including, for the avoidance of doubt, the “Parallel Debt”, the “Collateral Trustee Claim” and any similar defined term as defined in this Indenture (or the equivalent provision thereof), including all Parallel Debt and the Collateral Trustee Claim described in Section 11 of this Indenture), and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any insolvency proceeding, regardless of whether allowed or allowable in such proceeding), of the Company and the other Company Indenture Parties under this Indenture and the other Indenture Documents, and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company and the other Company Indenture Parties under or pursuant to this Indenture and the other Indenture Documents.

 

Observation Period” means, with respect to any Note to be converted, (A) subject to clause (B) below, if the Conversion Date for such Note occurs on or before the thirty fifth (35th) Scheduled Trading Day immediately before the Maturity Date, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day immediately after such Conversion Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice calling all or any Notes for Provisional Redemption or Tax Redemption pursuant to Section 4.03(G) and before the related Redemption Date, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the thirty first (31st) Scheduled Trading Day immediately before such Redemption Date; and (C) subject to clause (B) above, if such Conversion Date occurs after the thirty fifth (35th) Scheduled Trading Day immediately before the Maturity Date, the thirty (30) consecutive VWAP Trading Days beginning on, and including, the thirty first (31st) Scheduled Trading Day immediately before the Maturity Date.

 

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Officer” means any member of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Group Treasurer, any Treasury Director, the Controller, the Secretary or any Vice-President of the Company.

 

Officer’s Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section 13.03.

 

Open of Business” means 9:00 a.m., New York City time.

 

Opinion of Counsel” means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably acceptable to the Trustee, and, when applicable, the Collateral Trustee, that meets the requirements of Section 13.03, subject to customary qualifications and exclusions.

 

Optional Exchange Date” means the date fixed, pursuant to Section 4.04(C), for the settlement of the exchange of any Notes by the Company pursuant to the Optional Exchange.

 

Optional Exchange Notice Date” means, with respect to the Optional Exchange, the date on which the Company sends the Optional Exchange Notice for the Optional Exchange pursuant to Section 4.04(E). For the avoidance of doubt, the Optional Exchange Date shall be no less than five (5) Scheduled Trading Days and no more than eight (8) Scheduled Trading Days after the Optional Exchange Notice Date.

 

Optional Exchange Triggering Event” means the receipt (including the receipt, termination or expiration, as applicable, of waivers, consents, approvals, waiting periods or agreements required under the applicable laws and regulations) or waiver by the Company and the Forward Purchaser, each in its sole discretion (as the case may be), of each of the regulatory and other authorizations set forth in Schedule III – Part 1 hereof.

 

Ordinary Shares” means the ordinary shares of the Company, subject to Section 5.09.

 

Permitted Investment” has the meaning given to it in the First Lien Notes Indentures.

 

Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or series of a limited liability company, limited partnership or trust will constitute a separate “person” under this Indenture.

 

Philippine Collateral” means the Collateral governed by a “second ranking” Philippine law governed all-asset omnibus security agreement to be entered into between the Philippine Supplemental Collateral Trustee and SunPower Philippines Manufacturing Ltd., as may be amended or supplemented from time to time (the “Philippine Security Document”).

 

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Physical Note” means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit A-1 or Exhibit A-2, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.

 

Post-Closing Security Documents” means the security documents and all other security and/or other collateral documents to be entered into in connection with the Indenture and the Notes listed on Schedule 1.01 and each of the other agreements, instruments or documents entered into or to be entered into in connection with such security documents that create or purport to create a Lien in favor of the Collateral Trustee, on behalf of and for the benefit of the Notes Secured Parties, which shall include, among others, the Holders, the Trustee and the Collateral Trustee.

 

PP&E” means, as of any date, the total consolidated property, plant and equipment of the Company and its Subsidiaries measured in accordance with U.S. GAAP as of the last date of the most recent fiscal quarter for which consolidated financial statements of the Company (which the Company will use its reasonable best efforts to compile in a timely manner) are available (which may be internal consolidated financial statements).

 

Priority Lien” means a Lien granted by the Company Indenture Parties in favor of the Priority Lien Secured Parties at any time, upon any property of any Company Indenture Party to secure Priority Lien Secured Obligations.

 

Priority Lien Debt Documents” means the definitive documents in respect of the Priority Lien Secured Obligations as determined in accordance with the Intercreditor Agreement, which, for the avoidance of doubt, shall initially include the First Lien Notes Indentures.

 

Priority Lien Secured Obligations” means all obligations of and all other present and future liabilities and obligations at any time due, owing or incurred by the Company Indenture Parties and by each of them to any Priority Lien Secured Party under (or in connection with) the Priority Lien Debt Documents, both actual and contingent and whether incurred solely or jointly and as principal or surety or in any other capacity (including any refinancing thereof).

 

Priority Lien Secured Parties” means, collectively, the creditors of the Priority Lien Secured Obligations as determined in accordance with the Intercreditor Agreement.

 

Priority Lien Security Documents” means all security and/or other collateral documents that create or purport to create a Lien in favor of the applicable First Lien Notes Collateral Trustees for the benefit of itself and of the relevant Priority Lien Secured Parties, and entered into in connection with the applicable First Lien Notes Indenture and the applicable series of First Lien Notes, as amended, restated, modified and/or supplemented in accordance with the provisions thereof.

 

Rate Adjustment Date” means (A) December 20, 2024, or (B) if the Forward Purchase Closing does not occur on or prior to December 20, 2024, the Interest Payment Date immediately after the Forward Purchase Closing.

 

Receivable Financing” means any financing transaction or series of financing transactions that have been or may be entered into by any of the Company and the Restricted Subsidiaries pursuant to which the Company or such Restricted Subsidiary, as the case may be, may sell, convey or otherwise transfer to another Person, or may grant a security interest in, any receivables, royalty, other revenue streams or interests therein (including without limitation, all security interests in goods financed thereby (including equipment and property), the proceeds of such receivables, and other assets which are customarily sold or in respect of which security interests are customarily granted in connection with securitization or factoring transactions involving such assets) for credit or liquidity management purposes (including discounting, securitization or factoring transactions) either (i) in the ordinary course of business or (ii) by way of selling securities that are, or are capable of being, listed on any stock exchange or in any securities market and are offered using an offering memorandum or similar offering document.

 

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Receivable Financing Assets” means assets that are underlying and are sold, conveyed or otherwise transferred or pledged in a Receivable Financing.

 

Redemption” means a Provisional Redemption or a Tax Redemption.

 

Redemption Date” means the date fixed, pursuant to Section 4.03(E), for the settlement of the repurchase of any Notes by the Company pursuant to a Provisional Redemption or a Tax Redemption.

 

Redemption Notice Date” means, with respect to a Provisional Redemption or a Tax Redemption, the date on which the Company sends the Redemption Notice for such Redemption pursuant to Section 4.03(G).

 

Redemption Price” means in the case of a Provisional Redemption or Tax Redemption, the cash price determined and payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(F).

 

Regular Record Date” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on June 20, the immediately preceding June 5; (B) if such Interest Payment Date occurs on December 20, the immediately preceding December 5 and (C) if such Interest Payment Date occurs on the Maturity Date, the date falling 15 calendar days prior to the Maturity Date.

 

Relevant Cash Interest Rate” means 4.00% per annum.

 

Relevant Investor Ownership Percentage” means, at any time of determination, a percentage equal to the sum of (A) (x) the voting power of all of the Ordinary Shares beneficially owned by the Investor or any of its Affiliates at such time, after giving effect to the Relevant Investor Events, divided by (y) the voting power of all of the outstanding Ordinary Shares of the Company, after giving effect to the Relevant Investor Events and assuming the settlement of the Optional Exchange in full (without giving any effect to Section 4.05 hereof) and (B) five percent (5%).

 

Relevant PIK Interest Rate” means 5.50% per annum.

 

Repurchase Upon Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.

 

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Responsible Officer” means (A) any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) having direct responsibility for the administration of this Indenture; and (B) with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject.

 

Restricted Collateral Subsidiary” means, SunPower Systems Sàrl, SunPower Philippines Manufacturing Ltd., SunPower Energy Solutions France SAS, or to the extent it is not a Guarantor, SunPower Malaysia Manufacturing Sdn Bhd, or any successor thereof.

 

Restricted Note Legend” means a legend substantially in the form set forth in Exhibit B-1.

 

Restricted Payment” has the meaning given to it in the First Lien Notes Indentures.

 

Restricted Share Legend” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of such Conversion Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise transferred except pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject to, the registration requirements of the Securities Act.

 

Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted Subsidiary.

 

Rule 144” means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

 

Rule 144A” means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.

 

Sales Contract” means contracts or agreements pursuant to which any Company Indenture Party provides services or goods to their respective customers.

 

Sale/Leaseback Transaction” means an arrangement relating to property now owned or acquired after the Issue Date by the Company or any Restricted Subsidiary whereby the Company or such Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary contemporaneously lease it from such Person pursuant to a lease on reasonable market terms.

 

SCB Agreement” means the revolving credit agreement dated February 15, 2018 between SunPower Malaysia Manufacturing Sdn. Bhd. and Standard Chartered Bank Malaysia Berhad, as amended or supplemented from time to time.

 

Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed or, if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Ordinary Shares are then traded. If the Ordinary Shares are not so listed or traded, then “Scheduled Trading Day” means a Business Day.

 

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SDA” means that certain Separation and Distribution Agreement dated November 8, 2019 by and between SunPower Corporation, a Delaware corporation, and the Company, as amended, restated, modified and/or supplemented from time to time.

 

SEC” means the U.S. Securities and Exchange Commission.

 

Securities Act” means the U.S. Securities Act of 1933, as amended.

 

Security” means any Note or Conversion Share.

 

Secured Indebtedness” means, with respect to any Person, any Indebtedness of such Person that is secured by any Lien on any of such Person’s property or assets or any of the property or assets of its Subsidiaries, whether owned on the date hereof or thereafter acquired.

 

Settlement Method” means Cash Settlement, Physical Settlement or Combination Settlement.

 

Significant Subsidiary” has the meaning set forth in Article I, Rule 1-02(w) of Regulation S-X promulgated by the SEC (or any successor rule); provided, however, that if a Subsidiary that meets the criteria of clause (3) of such rule but not clause (1) or (2) thereof, in each case as such rule is in effect on the Issue Date, then such Subsidiary will not be deemed to be a Significant Subsidiary unless such Subsidiary’s income (or loss) from continuing operations before income taxes, exclusive of amounts attributable to any non-controlling interests, for the last completed fiscal year prior to the date of determination exceeds twenty five million dollars ($25,000,000) (with such amount calculated pursuant to Rule 1-02(w) as in effect on the Issue Date). For the avoidance of doubt, a Subsidiary that satisfies the condition set forth in the proviso to the preceding sentence will not be deemed to be a “Significant Subsidiary” unless such Subsidiary also constitutes a “Significant Subsidiary” within the meaning set forth in Article I, Rule 1-02(w) of Regulation S-X promulgated by the SEC (or any successor rule).

 

Soulte” means, in relation to any enforcement of any Notes Security Document occurring by way of Appropriation (including pursuant to a pacte commissoire or a foreclosure (attribution judiciaire) or any similar enforcement mechanism) or judicial foreclosure of any French Security Document, the amount by which the value of the Charged Property (as determined on the date of the relevant Appropriation by a valuation expert in accordance with the provisions of the relevant Notes Security Document) appropriated or foreclosed pursuant to that enforcement exceeds the amount of obligations secured by that security interest which is discharged as a result of that enforcement being carried out.

 

Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.

 

Specified Dollar Amount” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional Ordinary Share).

 

Standard Non-recourse Receivable Financing Undertakings” means representations, warranties, undertakings, covenants and indemnities entered into by the Company or any Restricted Subsidiary which the Company or such Restricted Subsidiary has determined in good faith to be customary for a seller or servicer of assets in Non-recourse Receivable Financings.

 

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Stated Interest” means (1) from (and including) the Issue Date to (but excluding) the Rate Adjustment Date, 9.50% per annum, payable at the Relevant Cash Interest Rate and Relevant PIK Interest Rate, and (2) on and from the Rate Adjustment Date, 8.00% per annum, payable solely in cash.

 

Stated Maturity” means, (1) with respect to any Indebtedness, the date specified in such debt security as the fixed date on which the final installment of principal of such Indebtedness is due and payable as set forth in the documentation governing such Indebtedness and (2) with respect to any scheduled installment of principal of or interest on any Indebtedness, the date specified as the fixed date on which such installment is due and payable as set forth in the documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

 

Stock Transfer Agent” means initially Computershare Trust Company, N.A., or any other stock transfer agent engaged by the Company from time to time.

 

Subsidiary” means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or shareholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.

 

Subsidiary Guarantee” means the joint and several guarantee pursuant to Article 12 hereof by a Guarantor of its Guaranteed Obligations.

 

Supermajority Holders” means, at any applicable time, Holders owning more than 66 ⅔ % of the aggregate principal amount of the Notes then outstanding.

 

Swiss Federal Tax Administration” means the tax authorities referred to in article 34 of the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer).

 

Swiss Withholding Tax” means any taxes imposed under the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer).

 

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Tax” means any tax, duty, levy, impost, assessment or other governmental charge (including penalties and interest and other similar liabilities related thereto).

 

Tax Redemption” means the Redemption of any Note pursuant to Section 4.03(C)(i).

 

Total Solarization Agreement” means the Second Amended and Restated Initial Implementing Agreement, dated February 22, 2021, between the Company and TotalEnergies SE in relation to the supply of certain PV modules to TotalEnergies SE.

 

Trading Day” means any day on which (A) trading in the Ordinary Shares generally occurs on the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed or, if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Ordinary Shares are then traded; and (B) there is no Market Disruption Event. If the Ordinary Shares are not so listed or traded, then “Trading Day” means a Business Day.

 

Tranche A Notes” means any Notes evidenced by a certificate substantially in the form set forth in Exhibit A-1, registered in the name of the Depositary or its nominee (in case of a Global Note), or the name of Holder of such Note (in case of a Physical Note), duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee (in case of a Global Note), as custodian for the Depositary, such Notes being subject to the provisions set forth in Section 4.04.

 

Tranche B Notes” means any Notes evidenced by a certificate substantially in the form set forth in Exhibit A-2, registered in the name of the Depositary or its nominee (in case of a Global Note), or the name of Holder of such Note (in case of a Physical Note), duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee (in case of a Global Note), as custodian for the Depositary.

 

Transfer-Restricted Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided, however, that such Security will cease to be a Transfer- Restricted Security upon the earliest to occur of the following events:

 

(A) such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration statement that was effective under the Securities Act at the time of such sale or transfer;

 

(B) such Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to, the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security” (as defined in Rule 144); and

 

(C) such Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume, manner of sale, availability of current public information or notice.

 

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The Trustee is under no obligation to determine whether any Security is a Transfer- Restricted Security and may conclusively rely on an Officer’s Certificate with respect thereto.

 

Treasury Rate” means, as of the applicable Conversion Date, as determined by the Company, the yield to maturity as of such Conversion Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to such Conversion Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Conversion Date to the Maturity Date; provided, however, that if the period from such Conversion Date to the Maturity Date is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.

 

Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as amended.

 

Trustee” means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of this Indenture and, thereafter, means such successor.

 

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

 

Unsecured Indebtedness” means, with respect to any Person, any Indebtedness of such Person that is not secured, in whole or in part, by a Lien.

 

Unrestricted Subsidiary” means each of Maxeon Power, Inc., SunPower Energy Systems Southern Africa (Pty) Ltd, SunPower Technologies France SAS, SunPower Manufacturing de Vernejoul SAS, Maxeon Americas, Inc, any future Subsidiaries of the Company which is primarily engaged in projects and/or business which are initially primarily funded by Capital Expenditures duly approved by the Board of Directors (as designated from time to time by the Company through the delivery of written notices to the Trustee and the Holders) and their respective Subsidiaries; provided, however, that (A) prior to the Forward Purchase Closing, any Subsidiary of the Company may be designated as an “Unrestricted Subsidiary” under this Indenture only if and for so long as such Subsidiary is designated as an “Unrestricted Subsidiary” under each of the First Lien Notes Indentures (to the extent either of the First Lien Notes Indentures remains in force and effect) and any other Indebtedness of the Company and its Restricted Subsidiaries, to the extent the instrument governing such other Indebtedness provides for the designation of “Unrestricted Subsidiaries” similar to that provided for under this Indenture; or (B) on and from the Forward Purchase Closing, to the extent either of the First Lien Notes Indentures remains in force and effect, any Subsidiary of the Company may be designated as an “Unrestricted Subsidiary” under this Indenture only if and for so long as such Subsidiary is designated as an “Unrestricted Subsidiary” under such First Lien Notes Indenture.

 

VWAP Market Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed, or, if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, the principal other market on which the Ordinary Shares are then traded, to open for trading during its regular trading session on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Ordinary Shares or in any options contracts or futures contracts relating to the Ordinary Shares, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.

 

VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Ordinary Shares generally occurs on the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed or, if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Ordinary Shares are then traded. If the Ordinary Shares are not so listed or traded, then “VWAP Trading Day” means a Business Day.

 

Wholly Owned Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such Person.

 

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section 1.02. Other Definitions.

 

Term   Defined in
Section
“Additional Amounts”   3.05(A)
“Additional Intercreditor Agreement”   14.02(A)
“Applicable Terrorism Law”   13.11  
“Bank Account Perfection Actions”   3.12(A)
“Business Combination Event”   6.01(B)
“Cash Settlement”   5.03(A)
“Combination Settlement”   5.03(A)
“Company Business Combination Event”   6.01(A)
“Confidential Information”   3.02(A)
“Conversion Agent”   2.06(A)
“Conversion Consideration”   5.03(B)(i)
“Default Interest”   2.05(B)
“Defaulted Amount”   2.05(B)
“Event of Default”   7.01(A)
“Excess Shares”   4.05(F)
“Exchange Cap”   4.05(F)
“Exchange Cap Limitation”   4.05(F)
“Executed Documentation”   13.01  
“Expiration Date”   5.05(A)(v)
“Expiration Time”   5.05(A)(v)
“FATCA”   3.05(A)(iv)
“Freely Disposable Amount”   12.06(B)(i)
“Fundamental Change Notice”   4.02(E)
“Fundamental Change Repurchase Right”   4.02(A)
“Guarantor Business Combination Event”   6.01(B)
“holder of the Notes”   4.05(F)
“Initial Notes”   2.03(A)
“Italian Security Documents”   11.03(D)
“Maximum Percentage”   4.05(F)
“Optional Exchange”   4.04(A)
“Optional Exchange Consideration”   4.04(D)
“Ordinary Share Change Event”   5.09(A)
“Paying Agent”   2.06(A)
“Physical Settlement”   5.03(A)
“PIK Interest”   2.05(D)(i)
“PIK Notes”   2.05(D)(i)
“PIK Payment”   2.05(D)(i)
“Pro Forma Outstanding Share Numbers”   4.05(F)
“Pro Forma Owned Shares”   4.05(F)
“Provisional Redemption”   4.03(B)
“Redemption Notice”   4.03(G)
“Reference Property”   5.09(A)
“Reference Property Unit”   5.09(A)
“Register”   2.06(B)
“Registrar”   2.06(A)
“Relevant Taxing Jurisdiction”   3.05(A)
“Reported Outstanding Share Number”   4.05(F)
“Reporting Event of Default”   7.03(A)
“Restricted Obligations”   12.06(B)(i)
“Specified Courts”   13.07  
“Spin-Off Valuation Period”   5.05(A)(iii)(2)
“Successor Corporation”   6.01(A)(i)
“Successor Guarantor”   6.01(B)(i)
“Successor Person”   5.09(A)
“Supplemental Collateral Trustee”   11.09(A)
“Swiss Guarantor”   12.06(B)(i)
“Tax Redemption Opt-Out Election”   4.03(C)(ii)
“Tax Redemption Opt-Out Election Notice”   4.03(C)(ii)(1)
“Tender/Exchange Offer Valuation Period”   5.05(A)(v)
“Transfer Taxes”   3.05(B)
“Underlying Issuer”   5.09(A)

 

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Section 1.03. Rules of Construction.

 

For purposes of this Indenture:

 

(A) “or” is not exclusive;

 

(B) “including” means “including without limitation”;

 

(C) “will” expresses a command;

 

(D) the “average” of a set of numerical values refers to the arithmetic average of such numerical values;

 

(E) a merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust, or any unwinding of any such division or allocation;

 

(F) words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;

 

(G) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;

 

(H) references to currency mean the lawful currency of the United States of America, unless the context requires otherwise;

 

(I) the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture;

 

(J) notwithstanding anything to the contrary in this Indenture, solely for purposes of determining whether any notice, direction, action to be taken or consent to be given under this Indenture is authorized, provided or given (as the case may be) by Holders of a sufficient aggregate principal amount of Notes, a beneficial owner of an interest in a Note shall be treated as a Holder, and the Trustee shall accept evidence of such beneficial ownership provided by such owner, which may be in the form of “screenshots” or other reasonable or customary electronic or other evidence of such beneficial owner’s position; and

 

(K) the term “interest,” when used with respect to a Note, includes any Special Interest, unless the context requires otherwise.

 

Section 1.04. Conflict with Trust Indenture Act.

 

(A) If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Trust Indenture Act to be part of and govern this Indenture, the Trust Indenture Act provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the Trust Indenture Act provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

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Article 2. THE NOTES

 

Section 2.01. Form, Dating and Denominations.

 

The Initial Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A-1 or Exhibit A-2, as applicable. Any Additional Notes and PIK Notes and the Trustee’s certificate of authentication will be substantially in the form set forth in Exhibit A-2. The Notes will bear the legends required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or the Depositary. Each Note will be dated as of the date of its authentication.

 

Except to the extent otherwise provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will be issued initially in the form of one or more Global Notes. Physical Notes may be exchanged for Global Notes, and Global Notes may be exchanged for Physical Notes, only as provided in Section 2.10.

 

The Notes will be issuable only in registered form without interest coupons and only in Authorized Denominations.

 

Each certificate representing a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.

 

The terms contained in the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes of this Indenture and such Note.

 

Section 2.02. Execution, Authentication and Delivery.

 

(A) Due Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual, electronically or facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note to hold, at the time such Note is authenticated, the same or any other office at the Company.

 

(B) Authentication by the Trustee and Delivery.

 

(i) No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually or electronically signs the certificate of authentication of such Note.

 

(ii) The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually or electronically sign the certificate of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated. If such Company Order also requests the Trustee to deliver such Physical Note to any Holder, then the Trustee will promptly electronically deliver such Note in accordance with such Company Order.

 

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(iii) The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication agent was validly appointed to undertake.

 

Section 2.03. Initial Notes, Additional Notes and PIK Notes

 

(A) Initial Notes. On the Issue Date, there will be originally issued (i) one hundred and thirty-eight million nine hundred and fifty thousand dollars ($138,950,000) aggregate principal amount of Tranche A Notes and (ii) sixty-five million sixty-nine thousand four hundred and three dollars ($65,069,403) aggregate principal amount of Tranche B Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”

 

(B) At any time and from time to time after the execution and delivery of this Indenture and in accordance with the terms of this Indenture, the Company may deliver (a) the Additional Notes executed by the Company to the Trustee for authentication, or (b) the PIK Notes executed by the Company to the Trustee for authentication, together with a written order of the Company in the form of an Officer’s Certificate for the authentication and delivery of such Additional Notes and PIK Notes, as the case may be, and the Trustee in accordance with such written order of the Company shall authenticate and deliver such Additional Notes and PIK Notes. The Additional Notes shall have the same terms and conditions as the initial Tranche B Notes issued pursuant to Section 2.03(A) (including the benefit of the Subsidiary Guarantees and the Collateral) in all respects except for the issue date, issue price and the date of the first payment of interest, and upon issuance, the Additional Notes shall be consolidated with and form a single class with the previously outstanding Notes and vote together as one class on all matters with respect to the Notes. For the avoidance of doubt, the Additional Notes may only be issued in the form of Tranche B Notes; provided that, if the Additional Notes are not fungible with the initial Tranche B Notes for U.S. federal income tax purposes, the Additional Notes will be assigned a separate CUSIP and ISIN number.

 

Section 2.04. Method of Payment.

 

(A) Global Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, cash, interest on, and any cash Conversion Consideration for, any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided in this Indenture.

 

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(B) Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or repurchase on a Fundamental Change Repurchase Date or otherwise) of, cash, interest on, and any cash Conversion Consideration for, any Physical Note no later than the time the same is due as provided in this Indenture by wire transfer of immediately available funds to an account of the Holder, as specified by the Holder.

 

(C) PIK Notes. At all times prior to the Rate Adjustment Date, PIK Interest on the Notes shall be payable: (i) with respect to Notes represented by one or more Global Notes registered in the name of, or held by, the Depositary (or any successor depository) or its nominee on the relevant record date, by increasing the principal amount of the outstanding Global Notes, effective as of the applicable Interest Payment Date, by an amount equal to the amount of PIK Interest for the applicable interest period (rounded up to the nearest whole dollar) at the request of the Company to increase the principal amount of the outstanding Global Note and (ii) with respect to Physical Notes, if any, by issuing PIK Notes in certificated form, dated as of the applicable Interest Payment Date, in an aggregate principal amount equal to the amount of the PIK Interest for the applicable interest period (rounded up to the nearest whole dollar), and the Trustee will, upon receipt of a Company Order, authenticate and deliver such PIK Notes in certificated form for original issuance to the Holders on the relevant record date, as shown by the records of the register of holders. Following an increase in the principal amount of the outstanding Global Notes as a result of a PIK Payment, such Global Notes will bear interest on such increased principal amount from and after the Interest Payment Date in respect of which such PIK Payment was made. Any PIK Notes issued in certificated form will be dated as of the applicable Interest Payment Date and will bear interest from and after such date. Any certificated PIK Notes will be issued with the description “PIK” on the face of such PIK Note. All Notes issued pursuant to a PIK Payment will mature on the same maturity date as the Notes issued on the Issue Date and will be governed by, and subject to the terms, provisions and conditions of, the Indenture and shall have the same rights and benefits as the Notes issued on the Issue Date.

 

(D) Payment of Interest in Ordinary Shares. If the Company elects to pay interest on the Notes in Ordinary Shares in accordance with the terms of this Indenture, the Company shall notify the Holders, the Trustee and the Stock Transfer Agent in writing of whether it will make such interest payment in Ordinary Shares at least three Trading Days before the relevant Interest Payment Date. If the Company chooses to make such payment in Ordinary Shares, on the applicable Interest Payment Date, the Company shall either (x) if the Stock Transfer Agent is participating in The Depository Trust Company’s Fast Automated Securities Transfer Program, credit the number of Ordinary Shares payable as an interest payment to such Holder’s or its designee’s balance account with the Depositary through its Deposit/Withdrawal at Custodian system, or (y) if the Stock Transfer Agent is not participating in The Depository Trust Company’s Fast Automated Securities Transfer Program, issue and dispatch by overnight courier to each Holder, a certificate, or a statement evidencing the Ordinary Shares in book-entry format, registered in the Company’s share register in the name of such Holder or its designee for the number of Ordinary Shares to which such Holder is entitled in connection with such payment. If, after providing notice that it will pay an interest payment in Ordinary Shares, the Company becomes unable to deliver such Ordinary Shares on the relevant Interest Payment Date, the Company shall pay such interest payment in cash.

 

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Section 2.05. Accrual of Interest; Defaulted Amounts; When Payment Date is not a Business Day.

 

(A) Accrual of Interest. Each Note will accrue interest at a rate per annum equal to the Stated Interest, plus any Special Interest that may accrue pursuant to Section 7.03. Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and (ii) be, subject to Sections 4.02(D), 4.03(F), 4.04(D) and 5.02(D) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date. Stated Interest, and, if applicable, Special Interest, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.

 

(B) Defaulted Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i) such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment, other than pursuant to clause (iii) below; (ii) to the extent lawful, interest (“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal to the rate per annum at which Stated Interest accrues, from, and including, such due date to, but excluding, the date of payment of such Defaulted Amount and Default Interest; (iii) such Defaulted Amount and Default Interest will be paid on a payment date selected by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company, provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such payment date; and (iv) at least fifteen (15) calendar days before such special record date, the Company will send notice to the Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount and Default Interest to be paid on such payment date.

 

(C) Delay of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on the immediately following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business Day.”

 

(D) Issuance of PIK Notes; Notice of PIK Interest and Interest payable in Ordinary Shares.

 

(i) From (and including) the Issue Date to (but excluding) the Rate Adjustment Date, on each Interest Payment Date, (x) an amount equal to the interest payable at the Relevant Cash Interest Rate as of such Interest Payment Date will be paid solely in cash, and (y) without duplication, an amount equal to the interest payable at the Relevant PIK Interest Rate as of such Interest Payment Date may be paid, at the Company’s election, (a) in cash, (b) by (x) increasing the principal amount of the outstanding Notes or (y) if, and in the limited circumstances where, the Notes are no longer held in global form, by issuing Physical Notes (the “PIK Notes”) (rounded up to the nearest $1.00) under this Indenture, having the same terms and conditions as the Notes (“PIK Interest”) (in each case, a “PIK Payment”), (c) if the Equity Payment Conditions are met, in Ordinary Shares; or (d) a combination of the forms of payment set forth in sub-clauses (a), (b) and (c) above. The value of Ordinary Shares issued to pay any interest on Physical Notes and Global Notes, if the Company elects to make payment of such interest in Ordinary Shares, will be the simple average of the Daily VWAP for the 10 consecutive Trading Days ending on, and including, the third Trading Day immediately preceding the relevant Interest Payment Date as set forth in an Officer’s Certificate and delivered to the Trustee and Paying Agent. The Company may only elect to make payment of interest in Ordinary Shares if such Ordinary Shares are not subject to restrictions on transfer under the Securities Act, whether based on an effective registration statement covering such shares or on an applicable exemption from such registration requirement for resale thereof. On and from the Rate Adjustment Date, the interest payable on an Interest Payment Date will be payable solely in cash.

 

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(ii) PIK Interest on the Notes, if elected to be paid, will be payable (x) with respect to Notes represented by one or more global notes registered in the name of, or held by, the Depositary or its nominee on the relevant record date, by increasing the principal amount of the outstanding global Note by an amount equal to the amount of PIK Interest for the applicable interest period (rounded up to the nearest whole dollar) and (y) with respect to Notes represented by certificated notes, by issuing PIK Notes in certificated form in an aggregate principal amount equal to the amount of PIK Interest for the applicable period (rounded up to the nearest whole dollar), and the Trustee will, at the request of the Company, authenticate and deliver such PIK Notes for original issuance to the Holders on the relevant record date, as shown by the records of the register of Holders. Following an increase in the principal amount of the outstanding Global Notes as a result of a PIK Payment, such Global Notes will bear interest on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued in certificated form will be dated as of the applicable Interest Payment Date and will bear interest from and after such date. Any certificated PIK Notes will be issued with the description “PIK” on the face of such PIK Note. All Notes issued pursuant to a PIK Payment will mature on the Maturity Date and will be governed by, and subject to the terms, provisions and conditions of this Indenture and shall have the same rights and benefits as the Notes issued on the Issue Date. The references to the “principal” or “principal amount” of all of the PIK Notes shall include any increase in the principal amount of the outstanding Notes as a result of any PIK Payment.

 

(iii) PIK Interest will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The calculation of PIK Interest will be made by the Company or on behalf of the Company by such Person as the Company shall designate, and such calculation and the correctness thereof shall not be a duty or obligation of the Trustee. Notwithstanding anything in this Indenture to the contrary, the payment of accrued interest (including interest that would be PIK Interest when paid) in connection with any redemption of Notes as described in Sections 4.02 or 4.03 shall be made solely in cash. PIK Interest on the Notes will be paid in denominations of $1.00 and integral multiples of $1.00 in excess thereof.

 

Section 2.06. Registrar, Paying Agent and Conversion Agent.

 

(A) Generally. The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United States where Notes may be presented for conversion (the “Conversion Agent”). If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.

 

(B) Duties of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders, the Notes held by each Holder and the transfer, exchange, repurchase, Redemption and conversion of Notes. Absent manifest error, the entries in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written form reasonably promptly.

 

(C) Co-Agents; Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion Agent, as applicable, under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder. The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement the provisions of this Indenture that relate to such Note Agent.

 

(D) Initial Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent.

 

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Section 2.07. Paying Agent and Conversion Agent to Hold Property in Trust.

 

The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to Section 7.01(A)(x) or 7.01(A)(xi) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.

 

Section 2.08. Holder Lists.

 

(A) If the Trustee is not the Registrar, the Company and any other obligor of the Notes will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date, and at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably require, of the names and addresses of the Holders.

 

(B) The Trustee shall preserve in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders (1) contained in the most recent list furnished to it as provided in Section 2.08(A) and (2) received by it in the capacity of Paying Agent (if so acting).

 

(C) The Holders may communicate pursuant to Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or any or all series of the Notes.

 

(D) Each and every Holder, by receiving the Notes and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of the Holders in accordance with the provisions of this Section 2.08.

 

Section 2.09. Legends.

 

(A) Global Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture, required by the Depositary for such Global Note).

 

(B) [Reserved.]

 

(C) Restricted Note Legend. Subject to Section 2.12,

 

(i) solely to the extent that any Note is issued in one or more transactions that result in such Note constituting a “restricted security” (as defined in Rule 144), each such Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and

 

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(ii) if a Note is issued in exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being referred to as the “old Note” for purposes of this Section 2.09(C)(ii)), including pursuant to Section 2.10(B), 2.10(C), 2.11 or 2.13, then such Note will bear the Restricted Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.

 

(D) Other Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law or by any securities exchange or automated quotation system on which such Note is traded or quoted.

 

(E) Acknowledgment and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09 will constitute such Holder’s acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.

 

(F) Restricted Share Legend.

 

(i) Each Conversion Share will bear the Restricted Share Legend if the Note upon the conversion of which such Conversion Share was issued was (or would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued; provided, however, that such Conversion Share need not bear the Restricted Share Legend if the Company determines, in its reasonable discretion, that such Conversion Share need not bear the Restricted Share Legend.

 

(ii) Notwithstanding anything to the contrary in this Section 2.09(F), a Conversion Share need not bear a Restricted Share Legend if such Conversion Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the transfer restrictions referred to in the Restricted Share Legend.

 

Section 2.10. Transfers and Exchanges; Certain Transfer Restrictions.

 

(A) Provisions Applicable to All Transfers and Exchanges.

 

(i) Subject to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time and the Registrar will record each such transfer or exchange in the Register.

 

(ii) Each Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company, evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof, as applicable.

 

(iii) The Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Section 2.11, 2.17 or 8.05 not involving any transfer.

 

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(iv) Notwithstanding anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion to be so transferred or exchanged is in an Authorized Denomination.

 

(v) The Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance as to form with the requirements of this Indenture.

 

(vi) Each Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.

 

(vii) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the date of such satisfaction.

 

(viii) For the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10, an “exchange” of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend affixed to such Global Note or Physical Note; and (y) if such Global Note or Physical Note is identified by a “restricted” CUSIP number, an exchange effected for the sole purpose of causing such Global Note or Physical Note to be identified by an “unrestricted” CUSIP number.

 

(B) Transfers and Exchanges of Global Notes.

 

(i) Subject to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. No Global Note (or any portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:

 

(1) (x) the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;

 

(2) an Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest, as applicable, for one or more Physical Notes; or

 

(3) the Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes at the request of the owner of such beneficial interest.

 

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(ii) Upon satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):

 

(1) the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to Section 2.15);

 

(2) if required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other Global Note;

 

(3) if required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09; and

 

(4) if such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Global Note to be so exchanged; (y) are registered in such name(s) as the Depositary specifies (or as otherwise determined pursuant to customary procedures); and (z) bear each legend, if any, required by Section 2.09.

 

(iii) Each transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.

 

(C) Transfers and Exchanges of Physical Notes.

 

(i) Subject to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination) for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:

 

(1) surrender such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments reasonably required by the Company, the Trustee or the Registrar; and

 

(2) deliver such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).

 

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(ii) Upon the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion of such old Physical Note in an Authorized Denomination):

 

(1) such old Physical Note will be promptly cancelled pursuant to Section 2.15;

 

(2) if such old Physical Note is to be so transferred or exchanged only in part, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be so transferred or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;

 

(3) in the case of a transfer:

 

(a) to the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s), which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; and (y) bear each legend, if any, required by Section 2.09; and

 

(b) to a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend, if any, required by Section 2.09; and

 

(4) in the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was registered; and (z) bear each legend, if any, required by Section 2.09.

 

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(D) Requirement to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP number or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:

 

(i) cause such Note to be identified by an “unrestricted” CUSIP number;

 

(ii) remove such Restricted Note Legend; or

 

(iii) register the transfer of such Note to the name of another Person,

 

then the Company, the Trustee and the Registrar may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Trustee and the Registrar such certificates or other documentation or evidence as the Company, the Trustee and the Registrar may reasonably require to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable securities laws.

 

(E) Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been surrendered for conversion, except to the extent that any portion of such Note is not subject to conversion; (ii) is subject to a Fundamental Change Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F), except to the extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change Repurchase Price when due; or (iii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject to Redemption or the Company fails to pay the applicable Redemption Price when due.

 

Section 2.11. Exchange and Cancellation of Notes to be Converted or to be Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.

 

(A) Partial Conversions of Physical Notes and Partial Repurchases of Physical Notes Pursuant to a Repurchase Upon Fundamental Change or Redemption. If only a portion of a Physical Note of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, as soon as reasonably practicable after such Physical Note is surrendered for such conversion or repurchase, as applicable, the Company will cause such Physical Note to be exchanged, pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased, as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the principal amount to be so converted or repurchased, as applicable, which Physical Note will be converted or repurchased, as applicable, pursuant to the terms of this Indenture; provided, however, that the Physical Note referred to in this clause (ii) need not be issued at any time after which such principal amount subject to such conversion or repurchase, as applicable, is deemed to cease to be outstanding pursuant to Section 2.18.

 

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(B) Cancellation of Notes that Are Converted and Notes that Are Repurchased Pursuant to a Repurchase Upon Fundamental Change or Redemption.

 

(i) Physical Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A)) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.15; and (2) in the case of a partial conversion or repurchase, as applicable, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased, as applicable; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09.

 

(ii) Global Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change or Redemption, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding pursuant to Section 2.18, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted or repurchased, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note pursuant to Section 2.15).

 

Section 2.12. Removal of Transfer Restrictions.

 

Without limiting the generality of any other provision of this Indenture (including Section 3.04), the Restricted Note Legend affixed to any Note will be deemed, pursuant to this Section 2.12 and the footnote to such Restricted Note Legend, to be removed therefrom upon the Company’s delivery to the Trustee of notice, signed on behalf of the Company by one (1) of its Officers, to such effect (and, for the avoidance of doubt, such notice need not be accompanied by an Officer’s Certificate or an Opinion of Counsel in order to be effective to cause such Restricted Note Legend to be deemed to be removed from such Note). If such Note bears a “restricted” CUSIP or ISIN number at the time of such delivery, then, upon such delivery, such Note will be deemed, pursuant to this Section 2.12 and the footnotes to the CUSIP and ISIN numbers set forth on the face of the certificate representing such Note, to thereafter bear the “unrestricted” CUSIP and ISIN numbers identified in such footnotes; provided, however, that if such Note is a Global Note and the Depositary thereof requires a mandatory exchange or other procedure to cause such Global Note to be identified by “unrestricted” CUSIP and ISIN numbers in the facilities of such Depositary, then (i) the Company will effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 3.04, such Global Note will not be deemed to be identified by “unrestricted” CUSIP and ISIN numbers until such time as such exchange or procedure is effected.

 

Section 2.13. Replacement Notes.

 

If a Holder of any Note claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Trustee to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced.

 

Every replacement Note issued pursuant to this Section 2.13 will be an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and ratably with all other Notes issued under this Indenture.

 

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Section 2.14. Registered Holders; Certain Rights with Respect to Global Notes.

 

Only the Holder of a Note will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its nominee, or by the Trustee as its custodian, and the Company, the Trustee and the Note Agents, and their respective agents, may treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that (A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give effect to any written certification, proxy or other authorization furnished by the Depositary.

 

Section 2.15. Cancellation.

 

The Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.

 

Section 2.16. Notes Held by the Company or its Affiliates.

 

In determining whether the holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, by the Company’s Subsidiaries, the Investor and its Affiliates or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company, its Subsidiaries, the Investor or its Affiliates shall be disregarded and deemed not to be outstanding; except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which the Trustee actually knows are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.

 

Section 2.17. Temporary Notes.

 

Until definitive Notes are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive Notes.

 

Section 2.18. Outstanding Notes.

 

(A) Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.15; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full (including upon conversion) in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.18. Subject to Section 2.16, the Notes do not cease to be outstanding because the Company or an Affiliate of the Company holds such Notes.

 

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(B) Replaced Notes. If a Note is replaced pursuant to Section 2.13, then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “protected purchaser” under applicable law.

 

(C) Maturing Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental Change Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the extent provided in Section 4.02(D), 4.03(F) or 5.02(D); and (ii) the rights of the Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or principal amount, as applicable, of, and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in this Indenture.

 

(D) Notes to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D) or Section 5.08.

 

(E) Notes to Be Exchanged. At the Close of Business on the Optional Exchange Date for the Tranche A Notes to be converted, such Tranche A Notes will (unless there occurs a Default in the delivery of the Optional Exchange Consideration or interest due, pursuant to Section 5.03(B) or Section 5.02(D), upon such exchange) be deemed to cease to be outstanding, except to the extent provided in Section 5.02(D).

 

(F) Cessation of Accrual of Interest. Except as provided in Section 4.02(D), 4.03(F) or 5.02(D), interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.18, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due on such Note.

 

Section 2.19. Repurchases by the Company.

 

Without limiting the generality of Section 2.15, the Company may, from time to time, repurchase Notes in open market purchases or in negotiated transactions without delivering prior notice to Holders. The Company may, to the extent permitted by applicable law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or the Company’s Subsidiaries or through a private or public tender or exchange offer or through counterparties pursuant to private agreements, including cash-settled swaps or other derivatives, in each case, without prior notice to, or consent of, the Holders. The Company will promptly surrender to the Trustee for cancellation any Notes that the Company may repurchase. Any Notes that the Company may repurchase will be considered “outstanding” under this Indenture (except as provided in Section 2.16) unless and until such time the Company causes them to be surrendered to the Trustee for cancellation, and, upon receipt of a written order from the Company, the Trustee will cancel all Notes so surrendered.

 

Section 2.20. CUSIP and ISIN Numbers.

 

Subject to Section 2.12, the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected by any defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee, in writing, of any change in the CUSIP or ISIN number(s) identifying any Notes.

 

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Article 3. COVENANTS

 

Section 3.01. Payment on Notes.

 

(A) Generally. The Company will pay or cause to be paid in cash (or as applicable by increasing the principal amount of the Notes or issuing PIK Notes, or issuing Ordinary Shares) all the principal of, the Fundamental Change Repurchase Price and Redemption Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.

 

(B) Deposit of Funds. Before 10:00 A.M., New York City time, on each Redemption Date, Fundamental Change Repurchase Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. All the funds provided to the Paying Agent must be in U.S. dollars. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose. PIK Interest shall be considered paid on the date due if on such date, the Trustee has received delivery of a Company Order on or prior to the date the payment is due of (x) any PIK Notes to be authenticated and delivered or written direction as provided in Section 2.05(D); or (y) any increased principal amount of the applicable Global Notes, in amount equal to all PIK Interest then due.

 

Section 3.02. Exchange Act Reports.

 

(A) Generally. The Company will send to the Trustee and the Collateral Trustee copies of all reports that the Company is required to file with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company need not send to the Trustee and the Collateral Trustee any material or information for which the Company has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC or which the Company has redacted in accordance with the applicable rules and regulations of the SEC, or any correspondence with the SEC (such material or information, “Confidential Information”). Any report that the Company files with the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee and the Collateral Trustee at the time such report is so filed via the EDGAR system (or such successor) and notice thereof has been provided to the Trustee and the Collateral Trustee. Upon the request of any Holder, the Trustee and the Collateral Trustee will provide to such Holder a copy of any report that the Company has sent the Trustee and the Collateral Trustee pursuant to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee and the Collateral Trustee pursuant to the preceding sentence.

 

(B) Confidential Information. To the extent any Holder requests in writing from the Company any document or material which contains Confidential Information and such document or material is, in the Company’s reasonable judgment, of the type that such Holder is entitled to receive under the terms of this Indenture, the Company shall make such document or material available to such Holder; provided that such Holder shall have executed and delivered to the Company a confidentiality agreement in form and substance satisfactory to the Company, acting reasonably. The Company shall not be obligated to deliver any Confidential Information to any Holder which has not executed and delivered to the Company a confidentiality agreement in form and substance satisfactory to the Company, acting reasonably.

 

(C) Trustee’s Disclaimer. The Trustee and the Collateral Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor). The sending or filing of reports pursuant to Section 3.02(A) will not be deemed to constitute constructive notice to the Trustee and/or Collateral Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture. Any such reports delivered or filed by the Company with the Trustee and Collateral Trustee shall be considered for informational purposes only and the Trustee’s and Collateral Trustee’s receipt of such reports shall not constitute notice or actual knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).

 

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Section 3.03. Rule 144A Information.

 

If the Company is not subject to Section 13 or 15(d) of the Exchange Act at any time when any Notes or Ordinary Shares issuable upon conversion of the Notes are outstanding and constitute “restricted securities” (as defined in Rule 144), then the Company (or its successor) will promptly provide, to the Trustee and, upon written request, to any Holder, beneficial owner or prospective purchaser of such Notes or shares, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares pursuant to Rule 144A.

 

Section 3.04. Rule 144 Information.

 

The Company shall timely file any report that is required in order for the Company to satisfy the requirements set forth in Rule 144(c)(1) (after giving effect to all grace periods permitted thereunder).

 

Section 3.05. Additional Amounts.

 

(A) Requirement to Pay Additional Amounts. All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to the Notes (including payment of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any premium or interest (including any Special Interest) on, the delivery of any Optional Exchange Consideration due upon the Optional Exchange of, or the delivery of any Conversion Consideration due upon conversion of, any Note (together with payments of cash for any fractional share)) will be made without withholding or deduction for, or on account of, any present or future Taxes, unless such withholding or deduction is required by law or regulation or by governmental policy having the force of law. The Company or any successor to the Company and any applicable withholding agent is authorized to (a) liquidate a portion of any non-cash payment to be made under the Notes to generate sufficient funds to pay applicable withholding Taxes or (b) take such other actions as are reasonably appropriate to make the Company or any successor to the Company or any applicable withholding agent whole for any previously-paid “cashless” withholding Tax in respect of the Notes. If any Taxes imposed or levied by or on behalf of Singapore, or any other jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the Company or any successor to the Company is, for tax purposes, organized or resident or doing business or through which payment or delivery is made or deemed to be made (each such jurisdiction, subdivision or authority, as applicable, a “Relevant Taxing Jurisdiction”) are required to be withheld or deducted from any payments or deliveries made under or with respect to the Notes, then, subject to Section 4.03(C)(ii), the Company or any successor to the Company, as applicable, will (i) make such withholding or deduction, (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law, and (iii) pay or deliver to the Holder of each Note such additional amounts (the “Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner of such Note after such withholding or deduction (and after withholding or deducting any Taxes on the Additional Amounts) will equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided, however, that such obligation to pay Additional Amounts will not apply to:

 

(i) any Tax that would not have been imposed but for:

 

(1) the existence of any present or former connection between the Holder or beneficial owner of such Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner (or such fiduciary, settlor, beneficiary, member or shareholder) is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such Note or the receipt of payments or enforcement of rights thereunder), including such Holder or beneficial owner being or having been a national, domiciliary or resident, or treated as a resident, of, or being or having been physically present or engaged in a trade or business, or having had a permanent establishment, in, such Relevant Taxing Jurisdiction;

 

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(2) in cases where presentation of such Note is required to receive such payment or delivery, the presentation of such Note after a period of thirty (30) days after the later of (x) the date on which such payment or delivery became due and payable or deliverable, as applicable, pursuant to the terms of this Indenture and (y) the date such payment or delivery was made or duly provided for, except, in each case, to the extent that such Holder or beneficial owner would have been entitled to Additional Amounts if it presented such Note for payment or delivery, as applicable, at the end of such thirty (30) day period; or

 

(3) the failure of such Holder or beneficial owner to comply with a timely written request from the Company or the Successor Corporation, addressed to such Holder or beneficial owner, to (x) provide certification, information, documentation or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with such Relevant Taxing Jurisdiction; or (y) make any declaration or satisfy any other reporting requirement relating to such matters, in each case if and to the extent that such Holder or beneficial owner is legally entitled and due and timely compliance with such request is required by statute, regulation or government policy of such Relevant Taxing Jurisdiction in order to reduce or eliminate such withholding or deduction;

 

(ii) any estate, inheritance, gift, use, sale, transfer, personal property or similar Tax or excise tax imposed on transfer of the Notes;

 

(iii) any Tax that is payable other than by withholding or deduction from payments or deliveries under or with respect to the Notes;

 

(iv) any withholding or deduction required by (x) sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Indenture (or any amended or successor version that is substantively comparable and not materially more burdensome to comply with) and any current or future U.S. Treasury regulations or rulings promulgated thereunder (“FATCA”); (y) any inter-governmental agreement between the United States and any other non-U.S. jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement; or (z) any agreement with the U.S. Internal Revenue Service pursuant to Section 1471(b)(1) of the Internal Revenue Code;

 

(v) any taxes imposed on or with respect to any payment by the Company to such Holder if such Holder is a fiduciary, partnership or person other than the sole beneficial owner of such payment, to the extent that such payment would be required, under the laws of such Relevant Taxing Jurisdiction, to be included for tax purposes in the income of a beneficiary or settlor with respect to such fiduciary, a partner or member of such partnership, or a beneficial owner, who would not have been entitled to such Additional Amounts had such beneficiary, settlor, partner, member or beneficial owner been the Holder thereof; or

 

(vi) any combination of items referred to in the preceding clauses (i) through (v), inclusive, above.

 

(B) Indemnification for Transfer Taxes. The Company or any successor to the Company will, jointly and severally, pay and indemnify each Holder and beneficial owner of Notes for any present or future stamp, issue, registration, value added, transfer, court or documentary Taxes, or any other excise, property or similar Taxes (including penalties, interest and any other reasonable expenses related thereto) (“Transfer Taxes”) levied by any Relevant Taxing Jurisdiction (and in the case of enforcement, any jurisdiction) on or in connection with the execution, delivery, registration, issuance or enforcement of any of the Notes, this Indenture or any other document or instrument referred to herein or the receipt of any payments or deliveries with respect to the Notes (including the receipt of shares (together with payment of cash for any fractional Share) or other Conversion Consideration).

 

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(C) Special Provision Regarding Interest. For the avoidance of doubt, if any Note is called for a Tax Redemption and the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then the Company’s obligation to pay Additional Amounts will apply to the interest payment due on such Note on such Interest Payment Date unless such Note is subject to a Tax Redemption Opt-Out Election Notice.

 

(D) Tax Receipts. If the Company or any successor to the Company is required to make any deduction or withholding from any payments or deliveries with respect to the Notes, then the (i) Company or such successor to the Company will deliver to the Trustee official tax receipts (or, if, after expending reasonable efforts, the Company is unable to obtain such receipts, an Officer’s Certificate reasonably satisfactory to each Holder evidencing the payment of any applicable Taxes so deducted or withheld) evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted; and (ii) the Trustee or the Company or such successor to the Company will provide a copy of such receipts or evidence, as applicable, to any Holder or beneficial owner of any Notes upon request.

 

(E) Interpretation of Indenture and Notes. All references in this Indenture or the Notes to any payment on, or delivery with respect to, the Notes (including payment of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any premium or interest (including Special Interest) on, the delivery of any Optional Exchange Consideration due upon the Optional Exchange of, or the delivery of any Conversion Consideration due upon conversion of, any Note (together with payments of cash for any fractional share)) will, to the extent that Additional Amounts are payable in respect thereof, be deemed to include the payment of such Additional Amounts.

 

(F) Survival of Obligations. The obligations set forth in this Section 3.05 will survive any termination, defeasance or discharge of this Indenture and any transfer of Notes by a Holder (or, in the case of a Global Note, a holder of a beneficial interest therein).

 

Section 3.06. Compliance and Default Certificates.

 

(A) Annual Compliance Certificate. Within one hundred twenty (120) days after the earlier of (x) the end of the fiscal year of 2024 and each fiscal year of the Company thereafter, and (y) January 5 of the following year, the Company will deliver an Officer’s Certificate to the Trustee and the Collateral Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company Indenture Parties during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action any Company Indenture Party is taking or proposes to take with respect thereto).

 

(B) Default Certificate. If a Default or Event of Default occurs, then the Company will, within thirty (30) days after its occurrence, deliver an Officer’s Certificate to the Trustee and the Collateral Trustee describing the same and what action the Company or any Company Indenture Party is taking or proposes to take with respect thereto; provided, however, that such notice will not be required if such Default or Event of Default has been cured or waived before the date the Company is required to deliver such notice.

 

Section 3.07. Stay, Extension and Usury Laws.

 

To the extent that it may lawfully do so, each of the Company Indenture Party (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

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Section 3.08. Corporate Existence.

 

Subject to Article 6, each Company Indenture Party will cause to preserve and keep in full force and effect:

 

(A) its corporate existence in accordance with the organizational or constitutional documents of such Company Indenture Party; and

 

(B) the material rights (charter and statutory), licenses and franchises of each Company Indenture Party and their respective Subsidiaries;

 

provided, however, that each Company Indenture Party need not preserve or keep in full force and effect any such license or franchise if the Board of Directors determines that (x) the preservation thereof is no longer desirable in the conduct of the business of the Company Indenture Parties, taken as a whole; and (y) the loss thereof is not, individually or in the aggregate, materially adverse to the Holders or the Collateral Trustee.

 

Section 3.09. Acquisition of Notes by the Company and its Affiliates.

 

Without limiting the generality of Section 2.18, Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired will be deemed to remain outstanding (except to the extent provided in Section 2.16) until such time as such Notes are delivered to the Trustee for cancellation. The Company will use commercially reasonable efforts to prevent any of its controlled Affiliates (other than the Investor) from acquiring any Note (or any beneficial interest therein).

 

Section 3.10. Further Instruments and Acts.

 

At the Trustee’s request, each Company Indenture Party will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to more effectively carry out the purposes of this Indenture.

 

Section 3.11. Future Subsidiary Guarantors

 

The Company shall cause (A) prior to the Forward Purchase Closing, each Restricted Subsidiary that guarantees or becomes an obligor under the First Lien Notes or that guarantees any other Indebtedness of the Company or any of the Guarantors; or (B) on and from the Forward Purchase Closing, each Restricted Subsidiary that guarantees or becomes an obligor under the First Lien Notes to (i) execute and deliver to the Trustee a supplemental indenture substantially in the form of Exhibit C hereto pursuant to which such Restricted Subsidiary will guarantee the Company’s Obligations under the Notes and this Indenture, (ii) execute and deliver joinders to or new Notes Security Documents and (iii) take all actions required thereunder to perfect the Liens created thereunder with respect to its assets that constitute Collateral; provided that this Section 3.11 shall not be applicable to SunPower Systems International Limited.

 

Section 3.12. Limitation on Indebtedness

 

The Company will not, and will cause the Restricted Subsidiaries not to, directly or indirectly, create, incur, issue, assume, guarantee, suffer to exist or otherwise become directly or indirectly liable, contingently or otherwise with respect to, any Secured Indebtedness, except for the following, without duplication:

 

(A) Secured Indebtedness in respect of the Obligations;

 

(B) Secured Indebtedness existing as of the Issue Date (other than the Indebtedness described in clauses (A), (C) and (D));

 

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(C) (i) Secured Indebtedness incurred pursuant to the Amended 2029 First Lien Notes Indenture; (ii) Secured Indebtedness incurred pursuant to the New 2029 First Lien Notes Indenture, in each case as in effect on the Issue Date; and (iii) Secured Indebtedness comprised of Additional Notes in aggregate principal amount of not more than US$2,500,000, which shall solely constitute Indebtedness incurred to refinance (as defined below) the 2025 Notes (including any premium, interest accrued and unpaid and/or any other amount payable thereon);

 

(D) Secured Indebtedness incurred pursuant to repayment obligations under the Total Solarization Agreement and any Secured Indebtedness of the Company or any Restricted Subsidiary issued in exchange for, or the net proceeds of which are used to refinance or refund, replace, exchange, renew, repay, redeem, defease, discharge or extend, in full or in part, such repayment obligations (including premiums, accrued interest, fees and expenses), in an amount not to exceed the amount so refinanced or refunded;

 

(E) Secured Indebtedness of the Company or any Restricted Subsidiary issued in exchange for, or the net proceeds of which are used to refinance or refund, replace, exchange, renew, repay, redeem, defease, discharge or extend (collectively, “refinance,” “refinances,” “refinancing” and “refinanced” shall have a correlative meaning) (“Permitted Refinancing Secured Indebtedness”), then outstanding Secured Indebtedness (or Indebtedness repaid substantially concurrently with, but in any case before, the incurrence of such Permitted Refinancing Secured Indebtedness) incurred under Sections 3.12(A), 3.12(B), 3.12(C), 3.12(F), 3.12(G), 3.12(H), 3.12(I) and 3.12(J) and any refinancing thereof in an amount not to exceed the amount so refinanced or refunded (plus reasonable premiums, accrued interest, fees and expenses); provided that (i) Secured Indebtedness the proceeds of which are used to refinance or refund the Notes or Secured Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this Section 3.12(E) if (y) in case the Notes are refinanced in part or the Secured Indebtedness to be refinanced is pari passu with the Notes, such new Secured Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Secured Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, if any, as applicable, or (z) in case the Secured Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Secured Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Secured Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent and in the same manner that the Secured Indebtedness to be refinanced is subordinated to the Notes, (ii) such new Secured Indebtedness, determined as of the date of incurrence of such new Secured Indebtedness, does not mature prior to the Stated Maturity of the Secured Indebtedness to be refinanced, and the Average Life of such new Secured Indebtedness is at least equal to the remaining Average Life of the Secured Indebtedness to be refinanced, (iii) such new Secured Indebtedness will not have additional obligors or greater (including higher ranking priority) guarantees; and provided, further, that the Liens securing such Secured Indebtedness (x) do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Secured Indebtedness being refinanced, and (y) do not rank higher in priority than the Liens on such property or assets securing the Secured Indebtedness being refinanced, whether by priority of such Lien or the priority of payment on enforcement of such Lien;

 

(F) Secured Indebtedness of the Company or any Company Indenture Party not to exceed US$50,000,000; provided that such Secured Indebtedness shall not constitute refinancing Indebtedness;

 

(G) Secured Indebtedness incurred (i) in connection with the acquisition, lease, construction, repair, replacement or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) or (ii) in respect of Sale/Leaseback Transactions of equipment and property of the Company or any Restricted Subsidiary, in an aggregate amount in the case of (i) and (ii), at any time outstanding (together with refinancing thereof) not to exceed an amount equal to 25.0% of PP&E; provided, that the Liens securing such Indebtedness shall not be permitted to exist on any portion of the Collateral and such Lien secures only the assets that are the subject of the Indebtedness referred to in this Section 3.12(G);

 

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(H) Secured Indebtedness incurred by the Company or any Restricted Subsidiary with a maturity of one year or less for working capital in an aggregate principal amount at any one time outstanding (together with any refinancings thereof, including any Permitted Refinancing Indebtedness under Section 3.12(E) (which must for such purposes have a maturity of one year or less and be for working capital)) of all Secured Indebtedness incurred under this Section 3.12(H), together with the aggregate principal amount at such time outstanding of any Indebtedness incurred (i) pursuant to the SCB Agreement and (ii) pursuant to any Receivable Financing (other than Non-recourse Receivable Financing) under Section 3.12(I), not to exceed 15.0% of Total Revenue (or the Dollar Equivalent thereof);

 

(I) Secured Indebtedness arising in connection with Hedging Agreements entered into in the ordinary course of business (and not for speculative purposes) (a) to hedge or mitigate risks to which the Company or any of its Subsidiaries has actual or potential exposure (other than those in respect of equity interest of the Company or any of its Subsidiaries), including to hedge or mitigate foreign currency and commodity price risks and (b) to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability of the Company or any of its Subsidiaries; provided that the Liens secured such Secured Indebtedness are encumbering customary initial deposits or margin deposits or are otherwise within the general parameters customary in the industry and incurred in the ordinary course of business;

 

(J) Secured Indebtedness of the Company or any Restricted Subsidiary in respect of Receivable Financing (other than Non-recourse Receivable Financing) in an aggregate principal amount any time outstanding (together with any refinancing thereof, including any Permitted Refinancing Indebtedness under Section 3.12(E)) not to exceed $15,000,000; provided that the Liens securing such Secured Indebtedness are on accounts receivables and other assets of the type specified in the definition of “Receivable Financing;”

 

(K) Secured Indebtedness incurred to finance Capital Expenditures duly approved by the Board of Directors; provided, that the Liens securing such Indebtedness shall not be permitted to exist on any portion of the Collateral and such Lien secures only the assets that are the subject of the Indebtedness referred to in this Section 3.12(K);

 

(L) Secured Indebtedness with respect to letters of credit, bank guarantee, or similar instruments posted to support (i) pension obligations that arise in the ordinary course of business; and (ii) contracts with trade creditors, contracts (other than in respect of debt for borrowed money), leases, bids, statutory obligations, customs, surety, stay, appeal and performance bonds, performance and completion guarantees and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case, incurred in the ordinary course of business or consistent with industry practice;

 

(M) Secured Indebtedness owed to (i) any Person providing worker’s compensation to the Company or any of its Subsidiaries incurred in connection with such Person providing such benefits pursuant to customary reimbursement or indemnification obligations to such Person and (ii) appeal or similar bonds, or bonds with respect to worker’s compensation claims; provided that the Liens securing such Indebtedness shall be incurred in the ordinary course of business and exclusive of obligations for the payment of borrowed money;

 

(N) any Junior Lien Indebtedness; and

 

(O) on and from the Forward Purchase Closing, any other Secured Indebtedness that the Company or its Restricted Subsidiary is permitted to incur pursuant to any of the Priority Lien Debt Documents.

 

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Section 3.13. Limitation on Transactions with Affiliates

 

The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly (whether by merger, consolidation, amendment, recapitalization or otherwise) make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan (including intercompany loans), advance or guarantee with, or for the benefit of, any Affiliate of the Company (other than the Company and its Subsidiaries) involving aggregate consideration in excess of $5,000,000 (each of the foregoing, an “Affiliate Transaction”), unless (i) such Affiliate Transaction is on terms that are not materially less favorable to the Company or the relevant Subsidiary than those that could have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person on an arm’s length basis, and (ii) the Company delivers to the Trustee (x) a resolution adopted by the Board of Directors, including a majority of the disinterested directors with respect to such transaction, approving such Affiliate Transaction, or (y) an opinion issued to the Board of Directors by an accounting, appraisal or investment banking firm of nationally recognized standing as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view or that the terms of such Affiliate Transaction are no less favorable to the Company or the relevant Subsidiary, taken as a whole, than those that could have been obtained in a comparable arm’s-length transaction by the Company or such Subsidiary with a Person that is not an Affiliate of the Company, except for the following transactions:

 

(A) transactions with a joint venture in which one or more of the Company and any of its Restricted Subsidiaries is a participant (whether in the form of a partnership, limited liability company or other entity) for the purchase or sale of goods, equipment and services, in each case, entered into in the ordinary course of business and on an arm’s length basis;

 

(B) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options or share options and stock or share ownership plans or similar employee benefit plans approved by the Board of Directors in good faith;

 

(C) (i) any employment agreements entered into by the Company or any of its Subsidiaries in the ordinary course of business; (ii) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with employees, officers or directors; and (iii) any employee compensation, benefit plan or arrangement, any health, disability or similar insurance plan which covers employees, and any reasonable employment contract and transactions pursuant thereto;

 

(D) any Restricted Payment or any Permitted Investment permitted under the First Lien Notes Indentures;

 

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(E) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case, in the ordinary course of business and otherwise in compliance with the terms of this Indenture that are fair to the Company and its Subsidiaries;

 

(F) any contribution to the capital of the Company;

 

(G) the existence of, or the performance by the Company or any Subsidiary of its obligations under the terms of, any agreement as in effect as of the Issue Date or any amendment thereto (so long as any such agreement together with all amendments thereto, taken as a whole, is not more disadvantageous to the holders of the Notes in any material respect than the original agreement as in effect on the Issue Date, as determined in good faith by the Company) or any transaction contemplated thereby;

 

(H) the transactions in connection with the incurrence of the Indebtedness pursuant to the First Lien Notes Indentures;

 

(I) the transactions in connection with the issuance of the Investor Warrant;

 

(J) the transactions in connection with the Forward Purchase Investment; and

 

(K) payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Subsidiaries.

 

Section 3.14. Accounts; Control Agreements.

 

(A) Subject to clauses (B) and (C) below, the Company Indenture Parties shall cause their respective accounts maintained, or opened at any time after the Issue Date, at any bank or financial institution (other than any Excluded Accounts) to be subject to an account control agreement or its equivalent or shall take such other actions necessary to create a Lien over any such account in favor of the Collateral Trustee for the benefit of the Notes Secured Parties pursuant to applicable law, including providing notice to the bank or financial institution with which any such account is held of the Liens granted in favor of the Collateral Trustee for the benefit of the Notes Secured Parties over such account pursuant to applicable law (collectively, the “Bank Account Perfection Actions”), and shall cause all Collections to be deposited in an account that is subject to an account control agreement or other Bank Account Perfection Actions; provided, however, that, so long as no Event of Default has occurred and is continuing, any Company Indenture Party may open new accounts at any bank or financial institution; provided that, within forty-five (45) days after opening each such account, the relevant Company Indenture Party shall have delivered to the Collateral Trustee an account control agreement with respect to such account (or taken such other Bank Account Perfection Actions) (other than any Excluded Account) (but, with respect to any such accounts opened after the Issue Date, shall not deposit or transfer funds into such account prior to taking such Bank Account Perfection Actions).

 

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(B) (i) At any time prior to the discharge in full of Priority Lien Secured Obligations in accordance with the terms of the Priority Lien Debt Documents and the Intercreditor Agreement, with respect to any account for which an account control agreement with the applicable First Lien Notes Collateral Trustee is in effect or is subject to other Bank Account Perfection Actions by the applicable First Lien Notes Collateral Trustee (any such account, a “First Lien Notes Collateral Trustee Controlled Account”), the Company Indenture Parties shall not be required to cause such account to be subject to an account control agreement or other Bank Account Perfection Actions in favor of the Notes Secured Parties pursuant to Section 3.14(A) and (ii) with respect to any such First Lien Notes Collateral Trustee Controlled Account, upon the discharge in full of Priority Lien Secured Obligations in accordance with the terms of the Priority Lien Debt Documents and the Intercreditor Agreement or such account otherwise ceasing to be a First Lien Notes Collateral Trustee Controlled Account, to the extent the Obligations have not been discharged in full in accordance with the terms of this Indenture and the Intercreditor Agreement, the Company Indenture Parties shall promptly use commercially reasonably efforts to cause such account to be subject to an account control agreement or other Bank Account Perfection Actions as required by Section 3.14(A).

 

(C) Neither the deposit account control agreement or its equivalent nor any Bank Account Perfection Actions shall restrict the Company Indenture Parties’ ability to freely receive, withdraw or otherwise transfer any credit balance from time to time on such any account prior to the occurrence of an Event of Default; provided that following the occurrence of an Event of Default any Company Indenture Party that receives or otherwise has dominion over or control of any Collections, such Company Indenture Party shall hold such Collections in trust for the Collateral Trustee and shall not commingle such Collections with any other funds of any Company Indenture Party or other Person (unless otherwise instructed by the Collateral Trustee).

 

Section 3.15. Intellectual Property.

 

(A) Notwithstanding anything to the contrary contained herein, Maxeon Solar Pte. Ltd. shall hold ownership of or an exclusive license in all Intellectual Property, which are material to the conduct of the business or operation of the Company or its Subsidiaries taken as a whole and shall not be permitted to dispose of any such Intellectual Property except to the extent permitted under the Priority Lien Debt Documents.

 

(B) The Company Indenture Parties shall cause any Intellectual Property that is assigned to the Company or any of its Subsidiaries in accordance with the SDA to be registered in the name of Maxeon Solar Pte. Ltd. in relevant jurisdictions as soon as practicable.

 

(C) The Company Indenture Parties shall take or cause to be taken all commercial reasonable actions to preserve, renew, and keep in full force and effect the legal existence of all Intellectual Property, which are material to the conduct of the business or operation of the Company and its Subsidiaries taken as a whole.

 

Section 3.16. Environmental Compliance.

 

The Company and its Restricted Subsidiaries shall comply in all material respects with all Environmental Law and obtain and maintain any permits and take all reasonable steps in anticipation of known or expected future changes to or obligations under the same, except where failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

 

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Section 3.17. Post-Closing Obligations.

 

(A) The Company Indenture Parties shall use commercially best efforts to satisfy their respective obligations described on Schedule 3.17, in each case, within the time periods set forth therein with respect to the relevant obligations.

 

(B) Any Notes Security Documents entered into on or after the Issue Date shall be substantially in the form of the corresponding Priority Lien Security Document securing the Priority Lien Secured Obligations then in effect, or to the extent there is no such corresponding Priority Lien Security Document then in effect, the corresponding Priority Lien Security Document securing the Priority Lien Secured Obligations in place on the Issue Date, in each case, with such changes as are reasonably necessary to reflect the terms of the Intercreditor Agreement.

 

Section 3.18. Additional Collateral.

 

Not later than sixty (60) days (or such longer date as may be reasonably agreed by the Collateral Trustee upon receiving written instruction, advice or concurrence of the Holders of twenty five percent (25%) or more in aggregate principal amount of Notes outstanding provided in accordance with this Indenture, subject to the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction, as it deems appropriate) after the acquisition or creation by any Restricted Collateral Subsidiary of any asset (including Intellectual Property but only to the extent that a second priority perfected Lien would have been required under the terms of the Notes Security Documents granted by Maxeon Solar Pte. Ltd. had such Intellectual Property been registered under the name of Maxeon Solar Pte. Ltd.), except for any asset that constitutes Excluded Assets, that is material to the business or operations of the Company and its Subsidiaries taken as a whole, which asset would not automatically be subject to the Collateral Trustee’s second priority perfected Lien pursuant to pre-existing Notes Security Documents due to restrictions under applicable laws or regulations, the applicable Restricted Collateral Subsidiary shall, to the extent practicable under applicable law cause such asset to be subject to a second priority perfected Lien (subject to the Priority Liens, any lien permitted under the Priority Lien Debt Documents, and any limitations required under the applicable law and/or, if applicable, the exclusions set forth in the relevant Notes Security Document(s)) in favor of the Collateral Trustee for the benefit of the Notes Secured Parties and take such actions as shall be necessary or reasonably requested by the Collateral Trustee to grant and perfect or record such second priority Lien, in each case to the extent practicable under the applicable law; provided that this Section 3.18 shall not apply to the extent such assets are of the type over which Liens are permitted under Section 3.12(G) and Section 3.12(K); provided further that the applicable Restricted Collateral Subsidiary shall be required to cause such asset to be subject to a second priority perfected Lien (subject to the Priority Lien, any lien permitted under the Priority Lien Debt Documents, any limitations required under the applicable law, the exclusions set forth in the relevant Notes Security Document(s), if applicable, the terms of the Indenture and/or the terms of the Intercreditor Agreement) in favor of the Collateral Trustee for the benefit of the Notes Secured Parties and/or take such actions as shall be necessary or reasonably requested by the Collateral Trustee to grant and perfect or record such second priority Lien, in each case to the extent practicable under the applicable law, pursuant to this Section 3.18, only if any such asset becomes part of the collateral securing the Priority Lien Secured Obligations.

 

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Article 4. REPURCHASE, REDEMPTION and Optional exchange

 

Section 4.01. No Sinking Fund.

 

No sinking fund is required to be provided for the Notes.

 

Section 4.02. Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change.

 

(A) Right of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section 4.02, if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”) to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.

 

(B) Repurchase Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (including as a result of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to Section 4.02(D), on such Fundamental Change Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section 4.02; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase Upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).

 

(C) Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty-five (35) and not less than twenty (20) Business Days after the date the Company sends the related Fundamental Change Notice pursuant to Section 4.02(E).

 

(D) Fundamental Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental Change following a Fundamental Change is an amount in cash equal to one hundred percent (100%) of the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however, that if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase Upon Fundamental Change, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but excluding, such Fundamental Change Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the Close of Business on the immediately preceding Regular Record Date; and (y) the Fundamental Change Repurchase Price will include interest on Notes to be repurchased from, and including, such Interest Payment Date.

 

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(E) Fundamental Change Notice. On or before the twentieth (20th) calendar day after the effective date of a Fundamental Change, the Company will send to each Holder, the Trustee and the Paying Agent a notice of such Fundamental Change (a “Fundamental Change Notice”). Substantially contemporaneously, the Company will issue a press release through such national newswire service as the Company then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing the information set forth in the Fundamental Change Notice.

 

Such Fundamental Change Notice must state:

 

(i) briefly, the events causing such Fundamental Change;

 

(ii) the effective date of such Fundamental Change;

 

(iii) the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;

 

(iv) the Fundamental Change Repurchase Date for such Fundamental Change;

 

(v) the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.02(D));

 

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

 

(vii) the Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);

 

(viii) that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;

 

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(ix) that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and

 

(x) the CUSIP and ISIN numbers, if any, of the Notes.

 

Neither the failure to deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.

 

(F) Procedures to Exercise the Fundamental Change Repurchase Right.

 

(i) Delivery of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:

 

(1) before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and

 

(2) such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).

 

The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.

 

(ii) Contents of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:

 

(1) if such Note is a Physical Note, the certificate number of such Note;

 

(2) the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and

 

(3) that such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;

 

provided, however, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).

 

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(iii) Withdrawal of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to a Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date. Such withdrawal notice must state:

 

(1) if such Note is a Physical Note, the certificate number of such Note;

 

(2) the principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and

 

(3) the principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized Denomination;

 

provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).

 

Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance with Section 2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth in such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Note in accordance with the Depositary Procedures).

 

(G) Payment of the Fundamental Change Repurchase Price. Without limiting the Company’s obligation to deposit the Fundamental Change Repurchase Price within the time proscribed by Section 3.01(B), the Company will cause the Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be repurchased are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G).

 

(H) Repurchase by Third Party. Notwithstanding anything to the contrary in this Section 4.02, the Company will be deemed to satisfy its obligations under this Section 4.02 if (i) one or more third parties conduct any Repurchase Upon Fundamental Change and related offer to repurchase Notes otherwise required by this Section 4.02 in a manner that would have satisfied the requirements of this Section 4.02 if conducted directly by the Company; and (ii) an owner of a beneficial interest in any Note repurchased by such third party or parties will not (after giving effect to the payment of any Additional Amounts pursuant to Section 3.05) receive a lesser amount as a result of withholding or similar taxes than such owner would have received had the Company repurchased such Note.

 

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(I) Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in this Indenture; provided, however, that, to the extent that any securities laws or regulations enacted after the Issue Date conflict with the Section 4.02, the Company will comply with such securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.02 by virtue of such conflict.

 

(J) Repurchase in Part. Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental Change in part, but only in Authorized Denominations. Provisions of this Section 4.02 applying to the repurchase of a Note in whole will equally apply to the repurchase of a permitted portion of a Note.

 

Section 4.03. Right Of The Company To Redeem The Notes.

 

(A) No Right to Redeem Before January 15, 2026. The Company may not redeem the Notes at any time before January 15, 2026, except pursuant to a Tax Redemption.

 

(B) Right to Redeem the Notes on or after January 15, 2026. Subject to the terms of this Section 4.03, the Company has the right, at its election, to redeem (a “Provisional Redemption”) all, or any portion in an Authorized Denomination, of the Notes, at any time, and from time to time, on a Redemption Date that falls on or after January 15, 2026 and on or before the sixtieth (60th) Scheduled Trading Day immediately before the Maturity Date, for a cash purchase price equal to the Redemption Price, but only if the Last Reported Sale Price per Ordinary Share exceeds one hundred and fifty percent (150%) of the Conversion Price on each of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including, the Trading Day immediately before the Redemption Notice Date for such Redemption.

 

For the avoidance of doubt, the calling of any Notes for Provisional Redemption will constitute a Make-Whole Event with respect to such Notes pursuant to clause (B) of the definition thereof.

 

(C) Right to Redeem the Notes After a Change in Tax Law.

 

(i) Generally. Subject to the terms of this Section 4.03, and without limiting the Company’s right to redeem any Notes pursuant to Section 4.03(B), the Company has the right, at its election, to redeem (a “Tax Redemption”) all, but not less than all, of the Notes, at any time (subject to Section 4.03(H)), on a Redemption Date before the Maturity Date, for a cash purchase price equal to the Redemption Price, but only if (i) the Company has (or, on the next Interest Payment Date, would) become obligated to pay any Additional Amounts to Holders as a result of any Change in Tax Law; (ii) the Company cannot avoid such obligation by taking reasonable measures available to the Company; and (iii) the Company delivers to the Trustee (1) an Opinion of Counsel of outside legal counsel of recognized standing in the Relevant Taxing Jurisdiction attesting to clause (i) above; and (2) an Officer’s Certificate attesting to clauses (i) and (ii) above. For the avoidance of doubt, the calling of any Notes for a Tax Redemption will constitute a Make-Whole Event pursuant to clause (B) of the definition thereof.

 

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(ii) Tax Redemption Opt-Out Election. If the Company calls the Notes for a Tax Redemption, then, notwithstanding anything to the contrary in this Section 4.03 or in Section 3.05, each Holder will have the right to elect (a “Tax Redemption Opt-Out Election”) not to have such Holder’s Notes (or any portion thereof in an Authorized Denomination) redeemed pursuant to such Tax Redemption, in which case, from and after the Redemption Date for such Tax Redemption (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, from and after such time as the Company pays such Redemption Price in full), the Company will no longer have any obligation to pay any Additional Amounts with respect to such Notes solely as a result of such Change in Tax Law, and all future payments (other than any payment or delivery of any Conversion Consideration (including payments of cash in lieu of any fractional shares)) with respect to such Notes will be subject to the deduction or withholding of such Relevant Taxing Jurisdiction’s taxes required by law to be deducted or withheld as a result of such Change in Tax Law (it being understood and agreed, for the avoidance of doubt, that if such Holder converts such Notes at any time, then the Company will be obligated to pay Additional Amounts, if any, with respect to such conversion).

 

(1) Tax Redemption Opt-Out Election Notice. To make a Tax Redemption Opt-Out Election with respect to any Note (or any portion thereof in an Authorized Denomination), the Holder of such Note must deliver a notice (a “Tax Redemption Opt-Out Election Notice”) to the Paying Agent before the Close of Business on the second (2nd) Business Day immediately before the related Redemption Date, which notice must state: (x) if such Note is a Physical Note, the certificate number of such Note; (y) the principal amount of such Note as to which the Tax Redemption Opt-Out Election will apply, which must be an Authorized Denomination; and (z) that such Holder is making a Tax Redemption Opt-Out Election with respect to such Note (or such portion thereof); provided, however, that if such Note is a Global Note, then such notice must comply with the Depositary Procedures (and any such notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(C)(ii)(1)).

 

(2) Withdrawal of Tax Redemption Opt-Out Election Notice. A Holder that has delivered a Tax Redemption Opt-Out Election Notice with respect to any Note (or any portion thereof in an Authorized Denomination) may withdraw such Tax Redemption Opt-Out Election Notice by delivering a withdrawal notice to the Paying Agent at any time before the Close of Business on the second (2nd) Business Day immediately before the related Redemption Date, which withdrawal notice must state: (x) if such Note is a Physical Note, the certificate number of such Note; (y) the principal amount of such Note as to which the Tax Redemption Opt-Out Election is being withdrawn, which must be an Authorized Denomination; and (z) that such Holder is withdrawing the Tax Redemption Opt-Out Election with respect to such Note (or such portion thereof); provided, however, that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.03(C)(ii)(2)).

 

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(iii) Right to Convert Not Affected. For the avoidance of doubt, a Tax Redemption will not affect any Holder’s right to convert any Notes on or after the Conversion Commencement Date and the Company’s obligation to pay any Additional Amounts with respect to such conversion. For the avoidance of doubt, if a Tax Redemption Opt-Out Election Notice is not delivered (or is delivered but thereafter withdrawn) with respect to any Note as of the Close of Business on the second (2nd) Business Day immediately before the related Redemption Date, then such Note will be redeemed pursuant to the Tax Redemption without any further action.

 

(D) Redemption Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Redemption Date (including as a result of the payment of the related Redemption Price, and any related interest pursuant to the proviso to Section 4.03(F), on such Redemption Date), then (i) the Company may not call for Provisional Redemption or Tax Redemption or otherwise redeem any Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for such Redemption to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such Notes in accordance with the Depositary Procedures).

 

(E) Redemption Date. The Redemption Date for a Tax Redemption will be a Business Day of the Company’s choosing that is no more than eighty-five (85) and not less than sixty-five (65) Scheduled Trading Days after the related Redemption Notice Date for such Tax Redemption. The Redemption Date for a Provisional Redemption will be a Business Day of the Company’s choosing that is no more than sixty (60) Scheduled Trading Days and not less than twenty (20) Scheduled Trading Days after the related Redemption Notice Date for such Provisional Redemption.

 

(F) Redemption Price. The Redemption Price for any Note called for Provisional Redemption or Tax Redemption is an amount in cash equal to one hundred percent (100%) of the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such Redemption; provided, however, that if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the Close of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Interest Payment Date. For the avoidance of doubt, Additional Amounts will be added to the Redemption Price if, and to the extent, provided for in Section 3.05.

 

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(G) Redemption Notice. To call any Notes for Provisional Redemption or Tax Redemption, the Company must (i) send to each Holder of such Notes, the Trustee and the Paying Agent a written notice of such Provisional Redemption or Tax Redemption (a “Redemption Notice”); and (ii) substantially contemporaneously therewith, either (x) issue a press release through such national newswire service as the Company then uses; (y) publish the same through such other widely disseminated public medium as the Company then uses, including its website; or (z) file or furnish a Form 8-K or Form 6-K (or any successor form) with the SEC, in each case of clauses (x), (y) and (z), containing the information set forth in the Redemption Notice.

 

Such Redemption Notice must state:

 

(i) that such Notes have been called for Redemption, briefly describing the Company’s Redemption right under this Indenture;

 

(ii) the Redemption Date for such Redemption;

 

(iii) the Redemption Price per $1,000 principal amount of Notes for such Redemption (and, if the Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 4.03(F));

 

(iv) the name and address of the Paying Agent and the Conversion Agent;

 

(v) that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Company pays such Redemption Price in full);

 

(vi) the Conversion Rate in effect on the Redemption Notice Date for such Redemption and a description and quantification of any adjustments to the Conversion Rate that may result from such Redemption (including pursuant to Section 5.07);

 

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(vii) the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after such Redemption Notice Date and on or before the second (2nd) Business Day before such Redemption Date; and

 

(viii) the CUSIP and ISIN numbers, if any, of the Notes.

 

On or before the Redemption Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.

 

(H) Special Requirement for Notice of Tax Redemption. A Redemption Notice relating to a Tax Redemption must be sent pursuant to Section 4.03(G) no earlier than one hundred and eighty (180) calendar days before the earliest date on which the Company would have been required to make the related payment or withholding (assuming a payment in respect of the Notes were then due), and the obligation to pay Additional Amounts must be in effect as of the date the Company sends such Redemption Notice and must be expected to remain in effect at the time of the next payment or delivery in respect of the Notes.

 

(I) Selection and Conversion of Notes to Be Redeemed in Part. If less than all Notes then outstanding are called for Redemption, then:

 

(i) the Notes to be redeemed will be selected by the Company as follows: (1) in the case of Global Notes, in accordance with the Depositary Procedures; and (2) in the case of Physical Notes, pro rata, by lot or by such other method the Company considers fair and appropriate; and

 

(ii) if only a portion of a Note is subject to Redemption and such Note is converted in part, then the converted portion of such Note will be deemed to be from the portion of such Note that was subject to Redemption.

 

(J) Payment of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price by the time proscribed by Section 3.01(B), the Company will cause the Redemption Price for a Note (or portion thereof) subject to Redemption to be paid to the Holder thereof on or before the applicable Redemption Date. For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.03(F) on any Note (or portion thereof) subject to Redemption must be paid pursuant to such proviso.

 

(K) Right to Convert Not Affected. For the avoidance of doubt, a Provisional Redemption will not affect any Holder’s right to convert any Notes on or after the Conversion Commencement Date and prior to the Close of Business on the second (2nd) Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture.

 

Section 4.04. Right of the Company to Exchange Notes.

 

(A) Right to Exchange Notes upon the Occurrence of the Optional Exchange Triggering Event. Subject to the terms of this Section 4.04 and Section 4.05, upon and following the occurrence of the Optional Exchange Triggering Event, the Company has the right, at its election at any time until the fifth scheduled Trading Day immediately preceding the Maturity Date, to exchange (the “Optional Exchange”) all outstanding Tranche A Notes, on the Optional Exchange Date, for the Optional Exchange Consideration. For the avoidance of doubt, the Optional Exchange will not apply to the Tranche B Notes, and the Optional Exchange of the Tranche A Notes will not constitute a Make-Whole Event with respect to the Notes.

 

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(B) Optional Exchange Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Optional Exchange Date (including as a result of the delivery of the Optional Exchange Consideration, on such Optional Exchange Date), then (i) the Company may not require any Tranche A Notes to be exchanged for the Optional Exchange Consideration pursuant to this Section 4.04; and (ii) the Company will cause any Tranche A Notes theretofore surrendered for the Optional Exchange to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in such Notes in accordance with the Depositary Procedures).

 

(C) Optional Exchange Date. The Optional Exchange Date will be a Business Day of the Company’s choosing that is no less than five (5) Scheduled Trading Days and no more than eight (8) Scheduled Trading Days after the Optional Exchange Notice Date for the Optional Exchange.

 

(D) Optional Exchange Consideration. The consideration for the Tranche A Notes called for Optional Exchange shall consists of the type and amount of consideration identical to the Conversion Consideration due in respect of the Tranche A Notes, if the Tranche A Notes were to be converted on a Conversion Date that falls on the Optional Exchange Notice Date, and Physical Settlement applies to such conversion, as determined pursuant to Section 5.03(B), subject to the other terms of Article 5 as applicable (the “Optional Exchange Consideration”). For the avoidance doubt, the Company shall not be obligated to delivery any Interest Make-Whole Amount in connection with the Optional Exchange.

 

(E) Optional Exchange Notice. To call the Tranche A Notes for Optional Exchange, the Company must (i) send to each Holder of the Tranche A Notes, the Trustee, the Paying Agent and the Conversion Agent a written notice of the Optional Exchange (the “Optional Exchange Notice”); and (ii) substantially contemporaneously therewith, either (x) issue a press release through such national newswire service as the Company then uses; (y) publish the same through such other widely disseminated public medium as the Company then uses, including its website; or (z) file or furnish a Form 8-K or Form 6-K (or any successor form) with the SEC, in each case of clauses (x), (y) and (z), containing the information set forth in the Optional Exchange Notice.

 

Other than provided in Section 4.04(B), the Optional Exchange Notice, once delivered, shall be irrevocable.

 

The Optional Exchange Notice must state:

 

(i) the aggregate principal amount of the Tranche A Notes (including the relevant PIK Notes issued on or prior to the Optional Exchange Date) which have been called for Optional Exchange, which shall include all of the Tranche A Notes then outstanding, briefly describing the Company’s right to require the Optional Exchange under this Indenture;

 

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(ii) the Optional Exchange Date for the Optional Exchange;

 

(iii) the Optional Exchange Consideration per $1,000 principal amount of Tranche A Notes for the Optional Exchange;

 

(iv) the name and address of the Paying Agent and the Conversion Agent;

 

(v) that the Tranche A Notes may be converted at any time before the Close of Business on the second (2nd) Business Day immediately before the Optional Exchange Date (or, if the Company fails to pay the Optional Exchange Consideration due on such Optional Exchange Date in full, at any time until such time as the Company pays such Optional Exchange Consideration in full);

 

(vi) the number of outstanding Ordinary Shares of the Company as of the date of the Optional Exchange Notice;

 

(vii) the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the Optional Exchange Notice Date and on or before the second (2nd) Business Day before the Optional Exchange Date; and

 

(viii) the CUSIP and ISIN numbers, if any, of the Tranche A Notes being called for Optional Exchange.

 

On or before the Optional Exchange Notice Date, the Company will send a copy of such Optional Exchange Notice to the Trustee, the Paying Agent and the Conversion Agent.

 

(F) [Reserved].

 

(G) Delivery of the Optional Exchange Consideration. Subject to Section 4.05(C), the Company will cause the Optional Exchange Consideration for a Note (or portion thereof) subject to Optional Exchange to be paid or delivered, as applicable, to the Holder thereof on the Optional Exchange Date.

 

(H) Effect of Optional Exchange. At the Close of Business on the Optional Exchange Date, the Tranche A Notes will (unless there occurs a Default in the delivery of the Optional Exchange Consideration) be deemed to cease to be outstanding and, for the avoidance of doubt, no Person will be deemed to be a Holder of the Tranche A Notes as of the Close of Business on the Optional Exchange Date.

 

(I) Holder of Record of Option Exchange Shares. The Person in whose name any Ordinary Share is issuable upon the exchange of the Tranche A Notes will be deemed to become the holder of record of such share as of the Close of Business on the Optional Exchange Date.

 

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(J) Deemed Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Optional Exchange. The Company’s delivery of the Optional Exchange Consideration due in respect of such conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of the Tranche A Notes. As a result, any accrued and unpaid interest on the Tranche A Notes will be cancelled, extinguished and forfeited.

 

(K) Status of Ordinary Shares Issued in Optional Exchange; Listing. Each Ordinary Share delivered upon the exchange of the Tranche A Notes in the Optional Exchange will be a newly issued share, will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of the Tranche A Notes or the Person to whom such Ordinary Share will be delivered), will rank pari passu with the existing Ordinary Shares, will satisfy the Equity Payment Condition and will be listed on a Stock Exchange.

 

Section 4.05. Limitations on Conversion and Optional Exchange.

 

(A) Limitations on Conversion and Optional Exchange. Notwithstanding anything to the contrary contained herein, the Company is entitled to not effect any conversion (including in connection with the Optional Exchange) of any Note (or portion thereof), and the holders of the Notes shall not have the right to convert or surrender any Note (or portion thereof) for conversion (including in connection with the Optional Exchange), to the extent that immediately following such conversion, such holder of the Notes, together with the Attribution Parties, beneficially owns or would beneficially own the Ordinary Shares in excess of the Exchange Cap.

 

(B) Exchange Cap Limitation.

 

(i) Conversion other than the Optional Exchange.

 

(1) On or prior to the second (2nd) Business Day preceding to submitting a conversion notice for any Note (or complying with the Depositary Procedures for converting such beneficial interest) pursuant to Article 5, the relevant holder of the Notes shall deliver to the Company, the Trustee and the Conversion Agent a written notice setting forth the principal amount of Notes proposed to be converted, the Pro Forma Owned Shares, the Exchange Cap and the Excess Share, if any, (the “Holder’s Ownership Information Notice”) in connection with such conversion.

 

(2) If such holder of the Notes fails or refuses to provide the Company, the Trustee and the Conversion Agent the Holder’s Ownership Information Notice in connection with such conversion by the time specified in the preceding paragraph, such holder of the Notes shall be deemed to represent and warrant to the Company, the Trustee and the Conversion Agent that no Exchange Cap Limitation shall apply to such conversion, and the Company shall be entitled to disregard any Exchange Cap Limitation in connection with such conversion.

 

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(3) In connection with any conversion as to which the Company has received the relevant Holder’s Ownership Information Notice in accordance with the Section 4.05(B)(i)(1), the Company shall use reasonable efforts to deliver, or caused to be delivered, to such holder of the Notes such number of the Ordinary Share so that, immediately following such delivery, such holder of the Notes, together with the applicable Attribution Parties, does not beneficially own in excess of the Exchange Cap (as set forth in the Holder’s Ownership Information Notice).

 

(ii) Optional Exchange.

 

(1) With respect to the Optional Exchange pursuant to Section 4.04, within three (3) Scheduled Trading Days after the Optional Exchange Notice Date, each holder of the Notes shall deliver to the Company, the Trustee and the Conversion Agent the Holder’s Ownership Information Notice in connection with the Optional Exchange.

 

(2) If any holder of the Notes fails or refuses to provide the Company, the Trustee and the Conversion Agent the Holder’s Ownership Information Notice in connection with the Optional Exchange by the time specified in the preceding paragraph, such holder of the Notes shall be deemed to represent and warrant to the Company, the Trustee and the Conversion Agent that no Exchange Cap Limitation shall apply to the Optional Exchange, and the Company shall be entitled to disregard any Exchange Cap Limitation with respect to such holder of the Notes in connection with the Optional Exchange.

 

(3) In connection with the Optional Exchange and in the event that the Company has received the Holder’s Ownership Information Notice from any holder of the Notes in accordance with the Section 4.05(B)(ii)(1), the Company shall use reasonable efforts to deliver, or caused to be delivered, to such holder of the Notes such number of the Ordinary Share so that, immediately following such delivery, such holder of the Notes, together with the applicable Attribution Parties, does not beneficially own in excess of the Exchange Cap (as set forth in the Holder’s Ownership Information Notice).

 

(C) The Delivery of Excess Shares. The Company’s obligation to deliver the Excess Shares in connection with any conversion (including in connection with the Optional Exchange) shall be suspended and not extinguished, and the Company shall deliver such Excess Shares within five (5) Business Days following delivery of written notice from the relevant holder of the Notes to the Company that the receipt of such Excess Share will not be restricted under Section 4.05(A).

 

(D) The Holder’s Rights. Following the delivery of the Conversion Consideration or the Optional Exchange Consideration in accordance with Section 4.05(B)(i)(3) or Section 4.05(B)(ii)(3), as the case may be, notwithstanding anything to the contrary in this Indenture, the converted (or exchanged) Notes shall be deemed to cease to be outstanding, and the right or claims of the holders of the Notes under this Indenture following such delivery shall be limited solely to the right to receive the Excess Shares pursuant to Section 4.05(C).

 

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(E) Notwithstanding anything to the contrary in this Indenture, this Section 4.05 shall not restrict the number of Ordinary Shares which any holder of the Notes or the applicable Attribution Parties may receive or beneficially own in order to determine the amount of securities or other consideration that such holder of the Notes or the Attribution Parties may receive in the event of an Ordinary Share Change Event as contemplated in Section 5.09.

 

(F) Relevant Definitions. For purposes of this Section 4.05, the following terms shall have the following meaning:

 

Excess Shares” means, with respect to a holder of the Notes, in connection with any conversion (including in connection with the Optional Exchange), the number of Ordinary Shares equal to (i) the Pro Forma Owned Shares less (ii) the Exchange Cap, to the extent it is greater than zero.

 

Exchange Cap” means, with respect to a holder of the Notes, in connection with any conversion (including in connection with the Optional Exchange), the number of Ordinary Shares equal to the product of the Maximum Percentage and the Pro Forma Outstanding Share Numbers.

 

Exchange Cap Limitation” means the limitation on the Company to issue any Ordinary Shares to any holder of the Notes as a result of this Section 4.05.

 

A “holder of the Notes” means (i) an owner of a beneficial interest in a Global Note, if the Notes is evidenced by one or more Global Notes, or (ii) the Holder of a Physical Note, if the Notes is evidenced by one or more Physical Notes, as the case may be.

 

Maximum Percentage” means 9.9%.

 

Pro Forma Outstanding Share Numbers” means, with respect to any conversion (including in connection with the Optional Exchange), the sum of the most recent Reported Outstanding Share Numbers and the number of Ordinary Shares to be issued in connection with such conversion, which, for the avoidance of doubt, shall be the number of Ordinary Shares to be issued in the Optional Exchange if such conversion is in connection with the Optional Exchange, without giving effect to Section 4.05.

 

Pro Forma Owned Shares” means with respect to any holder of the Notes, in connection with any conversion (including in connection with the Optional Exchange), the aggregate number of Ordinary Shares held and/or beneficially owned by a holder together with the applicable Attribution Parties, shall include the number of Ordinary Shares held and/or beneficially owned by such holder together with the applicable Attribution Parties plus the number of Ordinary Shares issuable upon the conversion (including in connection with the Optional Exchange) of any Note (or portion thereof) with respect to which the determination is being made, without giving effect to this Section 4.05, but, for the avoidance of doubt, shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining outstanding Notes held and/or beneficially owned by the holder or the applicable Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company held and/or beneficially owned by such holder or any applicable Attribution Party (including, without limitation, any convertible notes, convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 4.05.

 

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Reported Outstanding Share Number” means the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent Form 20-F, Current Report on Form 6-K or other public filing with the SEC, as the case may be, or (2) a more recent public announcement by the Company.

 

Article 5. CONVERSION

 

Section 5.01. Right to Convert.

 

(A) Generally. Notwithstanding anything to the contrary in this Indenture or the Notes, the Notes will not be convertible on the Issue Date. From and after the Conversion Commencement Date until the fifth scheduled Trading Day immediately preceding the Maturity Date, subject to the provisions of Section 4.05 and this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion Consideration.

 

(B) Conversions in Part. Subject to the terms of this Indenture, Notes may be converted in part, but only in Authorized Denominations. Provisions of this Article 5 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion of a Note.

 

(C) When Notes May Be Converted.

 

(i) [Reserved]

 

(ii) Limitations and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:

 

(1) Notes may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business Day;

 

(2) in no event may any Note be converted after the Close of Business on the fifth (5th) Scheduled Trading Day immediately before the Maturity Date;

 

(3) if the Company calls any Note for Redemption pursuant to Section 4.03, then the Holder of such Note may not convert such Note after the Close of Business on the second (2nd) Business Day immediately before the applicable Redemption Date, except to the extent the Company fails to pay the Redemption Price for such Note in accordance with this Indenture;

 

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(4) if a Fundamental Change Repurchase Notice is validly delivered pursuant to Section 4.02(F) with respect to any Note, then such Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn in accordance with Section 4.02(F); or (c) the Company fails to pay the Fundamental Change Repurchase Price for such Note in accordance with this Indenture; and

 

(5) if the Company calls any Note for Optional Exchange pursuant to Section 4.04, then the Holder of such Note may not convert such Note after the Close of Business on the second (2nd) Business Day immediately before the Optional Exchange Date, except to the extent the Company fails to pay the Optional Exchange Consideration due on such Optional Exchange Date in accordance with the Indenture.

 

Section 5.02. Conversion Procedures.

 

(A) Generally.

 

(i) Global Notes. To convert a beneficial interest in a Global Note that is convertible pursuant to Section 5.01, the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).

 

(ii) Physical Notes. To convert all or a portion of a Physical Note that is convertible pursuant to Section 5.01, the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the conversion notice attached to such Physical Note or a facsimile/email of such conversion notice; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).

 

(B) Effect of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B) or 5.02(D), upon such conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(D).

 

(C) Holder of Record of Conversion Shares. The Person in whose name any Ordinary Share is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on (i) the Conversion Date for such conversion, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

 

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(D) Interest Payable upon Conversion in Certain Circumstances. If the Conversion Date of a Note is after a Regular Record Date and before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence), to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent, at the time of such surrender, an amount of cash equal to the amount of such interest referred to in clause (i) above; provided, however, that the Holder surrendering such Note for conversion need not deliver such cash (v) if the Company has specified a Redemption Date for a Provisional Redemption or Tax Redemption that is after such Regular Record Date and on or before the second (2nd) Business Day immediately after such Interest Payment Date; (w) if such Conversion Date occurs after the Regular Record Date immediately before the Maturity Date; (x) if the Company has specified a Fundamental Change Repurchase Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or (y) if the Company has specified an Optional Exchange Date for an Optional Exchange Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or (z) to the extent of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is converted with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided above, the interest that would have accrued on such Note to, but excluding, the Maturity Date. For the avoidance of doubt, if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the Close of Business on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(D).

 

(E) Taxes and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue or delivery (including, for the avoidance of doubt, pursuant to Section 5.08) of any Ordinary Shares upon such conversion; provided, however, that if any tax or duty is due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay such tax or duty.

 

(F) Conversion Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives any notice of conversion with respect to a Note, then the Conversion Agent will promptly notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note.

 

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Section 5.03. Settlement Upon Conversion.

 

(A) Settlement Method. Upon the conversion of any Note, the Company will settle such conversion by paying or delivering, as applicable and as provided in this Article 5, either (x) Ordinary Shares, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in Section 5.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and Ordinary Shares, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(3) (a “Combination Settlement”).

 

(i) The Company’s Right to Elect Settlement Method. The Company will have the right to elect the Settlement Method applicable to any conversion of a Note; provided, however, that:

 

(1) if any Notes are called for Redemption, then the Company will specify, in the related Redemption Notice (and, in the case of a Redemption of less than all outstanding Notes, in a notice simultaneously sent to all Holders of Notes not called for Redemption) sent pursuant to Section 4.03(G), the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the related Redemption Notice Date and before the related Redemption Date;

 

(2) the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes with different Conversion Dates, except as provided in clause (1) above);

 

(3) if the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default);

 

(4) if the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be deemed to be $1,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification will not constitute a Default or Event of Default); and;

 

(5) the Settlement Method will be subject to Section 5.09(A)(2).

 

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(ii) The Company’s Right to Irrevocably Fix the Settlement Method. The Company will have the right, exercisable at its election by sending notice of such exercise to the Holders (with a copy to the Trustee and the Conversion Agent), to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders, provided that (x) such Settlement Method must be a Settlement Method that the Company is then permitted to elect (for the avoidance of doubt, including pursuant to, and subject to, the other provisions of this Section 5.03(A)); (y) no such irrevocable election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to the other provisions of this Section 5.03(A); and (z) upon any such irrevocable election, the Default Settlement Method will automatically be deemed to be set to the Settlement Method so fixed. Such notice, if sent, must set forth the applicable Settlement Method and expressly state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 8.01(G) (it being understood, however, that the Company may nonetheless choose to execute such an amendment at its option).

 

(iii) Requirement to Publicly Disclose the Fixed or Default Settlement Method. If the Company changes the Default Settlement Method pursuant to clause (x) of the proviso to the definition of such term or irrevocably fixes the Settlement Method pursuant to Section 5.03(A)(i), then the Company will either post the Default Settlement Method or fixed Settlement Method, as applicable, on its website or disclose the same in a Current Report on Form 8-K or Form 6-K (or any successor form) that is filed with the SEC.

 

(B) Conversion Consideration.

 

(i) Generally. Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the type and amount of consideration (the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to be converted will be as follows:

 

(1) if Physical Settlement applies to such conversion, consideration consisting of: (x) a number of Ordinary Shares equal to the Conversion Rate in effect on the Conversion Date for such conversion and (y) solely in connection with any conversion of Tranche B Notes prior to the Forward Purchase Closing, a number of Ordinary Shares equal to the Early Conversion Adjustment in effect on the Conversion Date for such Conversion;

 

(2) if Cash Settlement applies to such conversion, consideration consisting of: (x) cash in an amount equal to the sum of the Daily Conversion Values for each VWAP Trading Day in the Observation Period for such conversion and (y) solely in connection with any conversion of Tranche B Notes prior to the Forward Purchase Closing, cash in an amount equal to the Early Conversion Adjustment in effect on the Conversion Date for such Conversion multiplied by the simple average of the Daily VWAP for the 10 consecutive Trading Days ending on, and including, the Trading Day immediately preceding such Conversion Date; or

 

(3) if Combination Settlement applies to such conversion, consideration consisting of (x) (a) a number of Ordinary Shares equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion, and (b) an amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period and (y) solely in connection with any conversion of Tranche B Notes prior the Forward Purchase Closing, at the election of the Company, either (i) a number of Ordinary Shares equal to the Early Conversion Adjustment in effect on the Conversion Date for such Conversion or (ii) cash in an amount equal to the Early Conversion Adjustment in effect on the Conversion Date for such Conversion multiplied by the simple average of the Daily VWAP for the 10 consecutive Trading Days ending on, and including, the Trading Day immediately preceding such Conversion Date.

 

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(ii) Cash in Lieu of Fractional Shares. If Physical Settlement or Combination Settlement applies to the conversion of any Note and the number of Ordinary Shares deliverable pursuant to Section 5.03(B)(i) upon such conversion is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) (x) the Daily VWAP on the Conversion Date for such conversion (or, if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.

 

(iii) Conversion of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.

 

(iv) Notice of Calculation of Conversion Consideration. If Cash Settlement or Combination Settlement applies to the conversion of any Note, then the Company will determine the Conversion Consideration due thereupon promptly following the last VWAP Trading Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any duty to make any such determination.

 

(C) Delivery of the Conversion Consideration. Except as set forth in Sections 5.05(D) and 5.09, the Company will pay or deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the second (2nd) Business Day immediately after the last VWAP Trading Day of the Observation Period for such conversion; and (ii) if Physical Settlement applies to such conversion, on or before the second (2nd) Business Day immediately after the Conversion Date for such conversion.

 

(D) Deemed Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion. If a Holder converts a Note, then the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Note, and, except as provided in Section 5.02(D), the Company’s delivery of the Conversion Consideration due in respect of such conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of such Note. As a result, except as provided in Section 5.02(D), any accrued and unpaid interest on a converted Note will be cancelled, extinguished and forfeited.

 

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Section 5.04. Reserve and Status of Ordinary Shares Issued upon Conversion.

 

(A) Share Reserve. At all times from and after the Issue Date when any Notes are outstanding, the Company will reserve, out of its share issue mandate, a number of Ordinary Shares sufficient to permit the conversion of all then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y) the Conversion Rate is adjusted pursuant to Section 5.05 or Section 5.06, or increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 5.07.

 

(B) Status of Conversion Shares; Listing. Each Conversion Share, if any, delivered upon conversion of any Note will be a newly issued share (except that any Conversion Share delivered by a designated financial institution pursuant to Section 5.08 need not be a newly issued share), will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered), will rank pari passu with the existing Ordinary Shares, will satisfy the Equity Payment Condition and will be listed on a Stock Exchange.

 

Section 5.05. Adjustments to the Conversion Rate.

 

(A) Events Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows:

 

(i) Share Dividends, Splits and Combinations. If the Company issues solely the Ordinary Shares as a dividend or distribution on all or substantially all of the Ordinary Shares, or if the Company effects a split or a combination of the Ordinary Shares (in each case excluding an issuance solely pursuant to an Ordinary Share Change Event, as to which Section 5.09 will apply), then the Conversion Rate will be adjusted based on the following formula:

 

 

where:

 

CR0 =the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such split or combination, as applicable;
     
 CR1 =the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or effective date, as applicable;
     
 OS0 =the number of Ordinary Shares outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, split or combination; and
     
 OS1 =the number of Ordinary Shares outstanding immediately after giving effect to such dividend, distribution, split or combination.

 

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If any dividend, distribution, split or combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such split or combination, to the Conversion Rate that would then be in effect had such dividend, distribution, split or combination not been declared or announced.

 

(ii) Rights, Options and Warrants. If the Company distributes, to all or substantially all holders of the Ordinary Shares, rights, options or warrants (other than rights issued or otherwise distributed pursuant to a shareholder rights plan, as to which Sections 5.05(A)(iii)(1) and 5.05(F) will apply) entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase Ordinary Shares at a price per share that is less than the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate will be increased based on the following formula:

 

 

 

where:

 

 CR0 =the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
     
 CR1 =the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
     
 OS =the number of Ordinary Shares outstanding immediately before the Open of Business on such Ex-Dividend Date;
     
 X =the total number of Ordinary Shares issuable pursuant to such rights, options or warrants; and
     
 Y =a number of Ordinary Shares obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.

 

To the extent such rights, options or warrants referred to in this Section 5.05(A)(ii) are not so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of only the rights, options or warrants, if any, actually distributed. In addition, to the extent that Ordinary Shares are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of Ordinary Shares actually delivered upon exercise of such rights, option or warrants.

 

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For purposes of this Section 5.05(A)(ii), in determining whether any rights, options or warrants entitle holders of Ordinary Shares to subscribe for or purchase Ordinary Shares at a price per share that is less than the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Company in good faith.

 

(iii) Spin-Offs and Other Distributed Property.

 

(1) Distributions Other than Spin-Offs. If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Ordinary Shares, excluding:

 

(a) dividends, distributions, rights, options or warrants (including Ordinary Share splits) for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(i) or 5.05(A)(ii);

 

(b) dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iv);

 

(c) rights issued or otherwise distributed pursuant to a shareholder rights plan, except to the extent provided in Section 5.05(F);

 

(d) Spin-Offs for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant to Section 5.05(A)(iii)(2);

 

(e) a distribution solely pursuant to a tender offer or exchange offer for Ordinary Shares, as to which Section 5.05(A)(v) will apply; and

 

(f) a distribution solely pursuant to an Ordinary Share Change Event, as to which Section 5.09 will apply,

 

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then the Conversion Rate will be increased based on the following formula:

 

 

where:

 

 CR0 =the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
     
 CR1 =the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
     
 SP =the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and
     
 FMV =the fair market value (as determined by the Company in good faith), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per Ordinary Share pursuant to such distribution;

 

provided, however, that if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Ordinary Shares, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date, a number of Ordinary Shares equal to the Conversion Rate in effect on such record date.

 

To the extent such distribution is not so paid or made, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the distribution, if any, actually made or paid.

 

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(2) Spin-Offs. If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Company to all or substantially all holders of the Ordinary Shares (other than solely pursuant to (x) an Ordinary Share Change Event, as to which Section 5.09 will apply; or (y) a tender offer or exchange offer for Ordinary Shares, as to which Section 5.05(A)(v) will apply), and such Capital Stock or equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange (a “Spin- Off”), then the Conversion Rate will be increased based on the following formula:

 

 

where:

 

  CR0 = the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Spin-Off Valuation Period for such Spin-Off;
       
  CR1 = the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Spin-Off Valuation Period;
       
  FMV = the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, the Ex- Dividend Date for such Spin-Off (such average to be determined as if references to Ordinary Shares in the definitions of Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per Ordinary Share in such Spin-Off; and
       
  SP = the average of the Last Reported Sale Prices per Ordinary Share for each Trading Day in the Spin-Off Valuation Period.

 

Notwithstanding anything to the contrary in this Section 5.05(A)(iii)(2), (i) if any VWAP Trading Day of the Observation Period for a Note whose conversion will be settled pursuant to Cash Settlement or Combination Settlement occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Rate for such VWAP Trading Day for such conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin- Off to, and including, such VWAP Trading Day; and (ii) if the Conversion Date for a Note whose conversion will be settled pursuant to Physical Settlement occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Consideration for such conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Conversion Date.

 

To the extent any dividend or distribution of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

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(iv) Cash Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Ordinary Shares, then the Conversion Rate will be increased based on the following formula:

 

 

where:

 

  CR0 = the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
       
  CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
       
  SP = the Last Reported Sale Price per Ordinary Share on the Trading Day immediately before such Ex-Dividend Date; and
       
  D = the cash amount distributed per Ordinary Share in such dividend or distribution;

 

provided, however, that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution, at the same time and on the same terms as holders of Ordinary Shares, the amount of cash that such Holder would have received if such Holder had owned, on such record date, a number of Ordinary Shares equal to the Conversion Rate in effect on such record date.

 

To the extent such dividend or distribution is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.

 

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(v) Tender Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer that is subject to the then- applicable tender offer rules under the Exchange Act (other than solely pursuant to an odd- lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto), for Ordinary Shares, and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration paid per Ordinary Share in such tender or exchange offer exceeds the Last Reported Sale Price per Ordinary Share on the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), then the Conversion Rate will be increased based on the following formula:

 

 

where:

 

  CR0 = the Conversion Rate in effect immediately before the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period for such tender or exchange offer;
       
  CR1 = the Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period;
       
  AC = the aggregate value (determined as of the time (the “Expiration Time”) such tender or exchange offer expires by the Board of Directors) of all cash and other consideration paid for Ordinary Shares purchased or exchanged in such tender or exchange offer;
       
  OS0 = the number of Ordinary Shares outstanding immediately before the Expiration Time (including all Ordinary Shares accepted for purchase or exchange in such tender or exchange offer);
       
  OS1 = the number of Ordinary Shares outstanding immediately after the Expiration Time (excluding all Ordinary Shares accepted for purchase or exchange in such tender or exchange offer); and
       
  SP = the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the Expiration Date;

 

provided, however, that the Conversion Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v), except to the extent provided in the immediately following paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(v), (i) if any VWAP Trading Day of the Observation Period for a Note whose conversion will be settled pursuant to Cash Settlement or Combination Settlement occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining the Conversion Rate for such VWAP Trading Day for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date for such tender or exchange offer to, and including, such VWAP Trading Day; and (ii) if the Conversion Date for a Note whose conversion will be settled pursuant to Physical Settlement occurs during the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely for purposes of determining the Conversion Consideration for such conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Trading Day immediately after the Expiration Date to, and including, such Conversion Date.

 

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To the extent such tender or exchange offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange offer under applicable law), or any purchases or exchanges of Ordinary Shares in such tender or exchange offer are rescinded, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the purchases or exchanges of Ordinary Shares, if any, actually made, and not rescinded, in such tender or exchange offer.

 

(B) No Adjustments in Certain Cases.

 

(i) Where Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section 5.05(A), the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to Section 5.05(A) (other than a split or combination of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(v)) if each Holder participates, at the same time and on the same terms as holders of Ordinary Shares, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such Holder’s Notes and as if such Holder held a number of Ordinary Shares equal to the product of (i) the Conversion Rate in effect on the related record date; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such date.

 

(ii) Certain Events. The Company will not be required to adjust the Conversion Rate except as provided in Section 5.05 or Section 5.07. Without limiting the foregoing, the Company will not be obligated to adjust the Conversion Rate on account of:

 

(1) [Reserved];

 

(2) the issuance of any Ordinary Shares 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 Ordinary Shares under any such plan;

 

(3) the issuance of any Ordinary Shares or options or rights to purchase Ordinary Shares pursuant to any present or future employee, director or consultant benefit or incentive plan (including pursuant to an evergreen provision) or program of, or assumed by, the Company or any of its Subsidiaries or in connection with any shares withheld for tax withholding purposes;

 

(4) the issuance of any Ordinary Shares pursuant to any option, warrant, right or convertible or exchangeable security of the Company outstanding or announced as of the Issue Date;

 

(5) for a tender offer or exchange offer by any party other than a tender offer or exchange offer by the Company or one or more of its Subsidiaries as described in Section 5.05(A)(v);

 

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(6) an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto;

 

(7) upon the repurchase of any of the Ordinary Shares pursuant to an open-market repurchase program or other buy-back transaction (including through any structured or derivative transactions, such as accelerated share repurchase transactions, prepaid forward transactions or similar forward derivatives) that is not a tender offer or exchange offer of the nature described in Section 5.05(A)(v);

 

(8) solely a change in the par value of the Ordinary Shares;

 

(9) accrued and unpaid interest on the Notes; or

 

(10) an Optional Exchange pursuant to the terms of this Indenture.

 

(iii) Notwithstanding anything to the contrary in this Indenture or the Notes (but without limiting the operation of Section 5.05(H)), the Conversion Rate will not be adjusted pursuant to Section 5.05(A) on an account of any event described in any of clauses (i) through (v), inclusive Section 5.05(A) where the Ex- Dividend Date, effective date or Expiration Date, as applicable, of such event occurs before the Issue Date.

 

(C) If an adjustment to the Conversion Rate otherwise required by this Article 5 would result in a change of less than one percent (1%) to the Conversion Rate, then, notwithstanding anything to the contrary in this Article 5, the Company may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest of the following: (i) when all such deferred adjustments not already given effect would result in a change of at least one percent (1%) to the Conversion Rate; (ii) the Conversion Date of, or any VWAP Trading Day of an Observation Period for, any Note; (iii) the date a Fundamental Change or Make- Whole Event occurs; (iv) the date the Company calls any Notes for Redemption; and (v) the thirty fifth (35th) VWAP Trading Day before the Maturity Date.

 

(D) Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

 

(i) a Note is to be converted pursuant to Physical Settlement or Combination Settlement;

 

(ii) the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section 5.05(A) has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement) or on or before any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day, as applicable;

 

(iii) the Conversion Consideration due upon such conversion includes any whole Ordinary Shares (in the case of Physical Settlement) or due in respect of such VWAP Trading Day includes any whole or fractional Ordinary Shares (in the case of Combination Settlement); and

 

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(iv) such shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),

 

then, solely for purposes of such conversion, the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement) or such VWAP Trading Day (in the case of Combination Settlement). In such case, if the date on which the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second (2nd) Business Day after such first date.

 

(E) Conversion Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the contrary in this Indenture or the Notes, if:

 

(i) a Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.05(A);

 

(ii) a Note is to be converted pursuant to Physical Settlement or Combination Settlement;

 

(iii) the Conversion Date for such conversion (in the case of Physical Settlement) or any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related record date;

 

(iv) the Conversion Consideration due upon such conversion includes any whole Ordinary Shares (in the case of Physical Settlement) or due in respect of such VWAP Trading Day includes any whole or fractional Ordinary Shares (in the case of Combination Settlement), in each case based on a Conversion Rate that is adjusted for such dividend or distribution; and

 

(v) such shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)),

 

then (x) in the case of Physical Settlement, such Conversion Rate adjustment will not be given effect for such conversion and the Ordinary Shares issuable upon such conversion based on such unadjusted Conversion Rate will not be entitled to participate in such dividend or distribution, but there will be added, to the Conversion Consideration otherwise due upon such conversion, the same kind and amount of consideration that would have been delivered in such dividend or distribution with respect to such Ordinary Shares had such shares been entitled to participate in such dividend or distribution; and (y) in the case of Combination Settlement, the Conversion Rate adjustment relating to such Ex-Dividend Date will be made for such conversion in respect of such VWAP Trading Day, but the Ordinary Shares issuable with respect to such VWAP Trading Day based on such adjusted Conversion Rate will not be entitled to participate in such dividend or distribution.

 

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(F) Shareholder Rights Plans. If any Ordinary Shares are to be issued or delivered upon conversion of any Note and, at the time of such conversion, the Company has in effect any shareholder rights plan, then the Holder of such Note will be entitled to receive, in addition to, and concurrently with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion, the rights set forth in such shareholder rights plan, unless such rights have separated from the Ordinary Shares at such time, in which case, and only in such case, the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section to all holders of the Ordinary Shares, subject to readjustment in accordance with such Section if such rights expire, terminate or are redeemed.

 

(G) Limitation on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction or event that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section 5.07 to an amount that would result in the Conversion Price per Ordinary Share being less than the par value per Ordinary Share.

 

(H) Equitable Adjustments to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported Sale Prices, or any function thereof, over a period of multiple days (including to calculate an adjustment to the Conversion Rate), or to calculate the Daily Conversion Values or Daily VWAPs over an Observation Period, the Company will make appropriate adjustments, if any, to such calculations to account for any adjustment to the Conversion Rate pursuant to Section 5.05(A), would have resulted in an adjustment to the Conversion Rate) that becomes effective, or any event that requires such an adjustment to the Conversion Rate where the Ex- Dividend Date, effective date or Expiration Date, as applicable, of such event occurs, at any time during such period, or Observation Period, as applicable.

 

(I) Calculation of Number of Outstanding Ordinary Shares. For purposes of Section 5.05(A), the number of Ordinary Shares outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of Ordinary Shares; and (ii) exclude Ordinary Shares held in the Company’s treasury (unless the Company pays any dividend or makes any distribution on Ordinary Shares held in its treasury).

 

(J) Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made, by the Company, to the nearest 1/10,000th of an Ordinary Share (with 5/100,000ths rounded upward).

 

(K) Notice of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A), the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after such adjustment; and (iii) the effective time of such adjustment.

 

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Section 5.06. Voluntary Adjustments.

 

(A) Generally. To the extent permitted by law and applicable listing standards of The Nasdaq Global Stock Market (or any other securities exchange on which the Ordinary Shares (or other applicable security) is then listed), the Company, from time to time, may (but is not required to) increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Ordinary Shares or rights to purchase Ordinary Shares as a result of any dividend or distribution of shares (or rights to acquire shares) of Ordinary Shares or any similar event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) subject to applicable law, such increase is irrevocable during such period.

 

(B) Notice of Voluntary Increases. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 5.06(A) or upon the occurrence of a Forward Purchase Adjustment Event, then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A), the Company will send notice to each Holder, the Trustee and the Conversion Agent of such increase, the amount thereof and the period during which such increase will be in effect.

 

Section 5.07. Adjustments To The Conversion Rate In Connection With A Make- Whole Event.

 

(A) Generally. If a Make-Whole Event occurs on or after the Issue Date and the Conversion Date for the conversion of a Note occurs during the related Make-Whole Event Conversion Period, then, subject to this Section 5.07, the Conversion Rate applicable to such conversion will be increased by the applicable Interest Make-Whole Amount.

 

(B) Notice of the Occurrence of a Make-Whole Event. The Company will notify the Holders, the Trustee and the Conversion Agent of each Make-Whole Event (i) occurring pursuant to clause (A) of the definition thereof; and (ii) occurring pursuant to clause (B) of the definition thereof in accordance with Section 4.03(G).

 

Section 5.08. Exchange In Lieu Of Conversion.

 

Notwithstanding anything to the contrary in this Article 5, and subject to the terms of this Section 5.08, if a Note is submitted for conversion, the Company may elect, in lieu of conversion, to transfer such Note to a financial institution designated by the Company and arrange to have such financial institution deliver to the Holder of such Note the Conversion Consideration that would have been due upon conversion. To make such election, the Company must send notice of such election to the Holder of such Note, the Trustee and the Conversion Agent before the Close of Business on the Business Day immediately following the Conversion Date for such Note. If the Company has made such election, then:

 

(A) no later than the Business Day immediately following such Conversion Date, the Company must deliver (or cause the Conversion Agent to deliver) such Note, together with delivery instructions for the Conversion Consideration due upon such conversion (including wire instructions, if applicable), to a financial institution designated by the Company that has agreed to deliver such Conversion Consideration in the manner and at the time the Company would have had to deliver the same pursuant to this Article 5;

 

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(B) if such Note is a Global Note, then (i) such designated institution will send written confirmation to the Conversion Agent promptly after wiring the cash Conversion Consideration, if any, and delivering any other Conversion Consideration, due upon such conversion to the Holder of such Note; and (ii) the Conversion Agent will as soon as reasonably practicable thereafter contact such Holder’s custodian with the Depositary to confirm receipt of the same; and

 

(C) such Note will not cease to be outstanding by reason of such exchange in lieu of conversion;

 

provided, however, that if such financial institution does not accept such Note or fails to timely deliver such Conversion Consideration, then the Company will be responsible for delivering such Conversion Consideration in the manner and at the time provided in this Article 5 as if the Company had not elected to make an exchange in lieu of conversion.

 

Section 5.09. Effect Of Ordinary Share Change Event.

 

(A) Generally. If there occurs any:

 

(i) recapitalization, reclassification or change of the Ordinary Shares (other than (x) changes solely resulting from a subdivision or combination of the Ordinary Shares, (y) a change only in par value or from par value to no par value or no par value to par value and (z) splits and combinations that do not involve the issuance of any other series or class of securities);

 

(ii) consolidation, merger, combination or binding or statutory share exchange involving the Company;

 

(iii) sale, lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person; or

 

(iv) other similar event,

 

and, as a result of which, the Ordinary Shares is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Ordinary Share Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) Ordinary Share would be entitled to receive on account of such Ordinary Share Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then the Company and the resulting, surviving or transferee person (if not the Company) of such Ordinary Share Change Event (the “Successor Person”), and, if applicable as set forth below, the Underlying Issuer, will execute and deliver to the Trustee a supplemental indenture, without the consent of the Holders, providing, notwithstanding anything to the contrary in this Indenture or the Notes, as follows:

 

(1) from and after the effective time of such Ordinary Share Change Event, (I) the Conversion Consideration due upon conversion of any Note, and the conditions to any such conversion, will be determined in the same manner as if each reference to any number of Ordinary Shares in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; (II) for purposes of Section 4.03, each reference to any number of Ordinary Shares in such Section (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and (III) for purposes of the definition of “Fundamental Change” and “Make-Whole Event,” references to Ordinary Shares or to “Common Equity” will be deemed to refer to the common equity (including depositary receipts representing common equity), if any, forming part of such Reference Property;

 

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(2) if such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Physical Settlement in respect of all conversions whose Conversion Date occurs on or after the effective date of such Ordinary Share Change Event and will pay the cash due upon such conversions no later than the second (2nd) Business Day after the relevant Conversion Date;

 

(3) for these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of common equity securities will be determined by reference to the definition of “Daily VWAP,” substituting, if applicable, the Bloomberg page for such class of securities in such definition; and (II) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof); and

 

(4) if such Reference Property includes any shares of Capital Stock, then the Conversion Rate will be subject to subsequent adjustments in a manner consistent with Section 5.05(A).

 

If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of shareholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per Ordinary Share, by the holders of the Ordinary Shares. The Company will notify Holders of such weighted average as soon as practicable after such determination is made.

 

At or before the effective time of such Ordinary Share Change Event, the Company and the Successor Person will execute and deliver to the Trustee a supplemental indenture pursuant to Section 8.01(F) as set forth above. If the Reference Property includes shares of stock or other securities or assets (other than cash) of a Person other than the Successor Person (such person, the “Underlying Issuer”), then such Underlying Issuer will also execute such supplemental indenture.

 

(B) Notice of Ordinary Share Change Events. The Company will provide notice of each Ordinary Share Change Event to Holders, the Trustee and the Conversion Agent no later than the effective date of such Ordinary Share Change Event.

 

(C) Compliance Covenant. The Company will not become a party to any Ordinary Share Change Event unless its terms are consistent with this Section 5.09.

 

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Section 5.10. Responsibility of Trustee.

 

(A) The Trustee, the Collateral Trustee and the Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or in the Indenture or in any supplemental indenture provided to be employed, in making the same. The Trustee and the Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Ordinary Shares, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and the Conversion Agent make no representations with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Ordinary Shares or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article 5. Without limiting the generality of the foregoing, neither the Trustee nor the Conversion Agent shall be under any responsibility to (a) determine whether a supplemental indenture needs to be entered into or (b) determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 5.09 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 5.09 or to any adjustment to be made with respect thereto, but, subject to the provisions of Section 13.02 of the Indenture, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in conclusively relying upon, the Officer’s Certificate (which the Company shall be obligated to file with the Trustee and the Conversion Agent prior to the execution of any such supplemental indenture) with respect thereto.

 

(B) The Conversion Agent will open a non-interest bearing account in the name of the Company in relation to its Settlement Method.

 

(C) Conversion Agent’s wire instructions are listed in Schedule I to receive wire from the Company for cash in lieu for fractional shares.

 

(D) Schedule II lists Company’s wire instructions for interest reimbursement.

 

(E) If there is a conversion between the Regular Record Date and Interest Payment Date (for regular period), the Holders will return the interest back to Conversion Agent and the Conversion Agent will reimburse the Company.

 

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Article 6. SUCCESSORS

 

Section 6.01. When The Company May Merge, Etc.

 

(A) Generally. The Company will not consolidate with or merge with or into, dissolve or liquidate voluntarily into, or (directly, or indirectly through one or more of its Subsidiaries) sell, lease or otherwise Dispose, in one transaction or a series of transactions, all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to another Person (a “Company Business Combination Event”), unless:

 

(i) the resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor Corporation”) duly organized and existing under the laws of the United States of America, any State thereof, the District of Columbia or Singapore that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Company Business Combination Event, a supplemental indenture pursuant to Section 8.01(E)) all of the Company’s obligations under this Indenture, the Notes Security Documents to which the Company is a party, and the Notes (including, for the avoidance of doubt, the obligation to pay Additional Amounts pursuant to Section 3.05);

 

(ii) immediately after giving effect to such Company Business Combination Event, no Default or Event of Default will have occurred and be continuing; and

 

(iii) before the effective time of any Company Business Combination Event, the Company will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Company Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(A); and (ii) all conditions precedent to such Company Business Combination Event provided in this Indenture have been satisfied.

 

(B) Guarantors. The Company shall not permit any Guarantor to consolidate with or merge with or into, dissolve or liquidate voluntarily into, or (directly, or indirectly through one or more of its Subsidiaries) sell, lease or otherwise Dispose, in one transaction or a series of transactions, all or substantially all of the consolidated assets (other than to the Company or another Guarantor) (a “Guarantor Business Combination Event” together with a Company Business Combination Event, a “Business Combination Event”) unless:

 

(i) the resulting, surviving or transferee Person (the “Successor Guarantor”) either (x) is the Guarantor or (y) if not the Guarantor, is a corporation duly organized and existing under the laws of the jurisdiction of the Company or any of the Guarantors that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Guarantor Business Combination Event, a supplemental indenture pursuant to Section 8.01(B)) all of such Guarantor’s obligations under this Indenture, the Notes Security Documents to which it is a party, the Notes and its Guarantee (including, for the avoidance of doubt, the obligation to pay Additional Amounts pursuant to Section 3.05);

 

(ii) immediately after giving effect to such Guarantor Business Combination Event, no Default or Event of Default will have occurred and be continuing; and

 

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(iii) before the effective time of any Guarantor Business Combination Event, the Company and the Guarantor, as applicable, will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such Guarantor Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(B); and (ii) all conditions precedent to such Guarantor Business Combination Event provided in this Indenture have been satisfied.

 

Section 6.02. Successor Corporation Substituted.

 

At the effective time of any Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) or the Successor Guarantor (if not the applicable Guarantor), as the case may be, will succeed to, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture, the Notes Security Documents, the Notes and/or Guarantee, as is applicable, with the same effect as if such Successor Corporation or Successor Guarantor, as the case may be, had been named as the Company or Guarantor, as the case may be, in this Indenture, the Notes Security Documents, the Notes and such Guarantee; provided that in the case of a lease, the predecessor Company will be discharged from its obligations under this Indenture and the Notes.

 

Article 7. DEFAULTS AND REMEDIES

 

Section 7.01. Events Of Default.

 

(A) Definition of Events of Default. “Event of Default” means the occurrence of any of the following:

 

(i) a default in the payment when due (whether at maturity, upon Redemption or Repurchase Upon Fundamental Change or otherwise) of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, any Note;

 

(ii) a default in the payment when due of interest on any Note, which default continues for thirty (30) days;

 

(iii) the Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, such failure is not cured within three (3) Business Days after its occurrence;

 

(iv) a default in the payment or delivery when due of the Optional Exchange Consideration for any Note subject to an Optional Exchange;

 

(v) a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion right with respect thereto, if such default is not cured within two (2) Business Days after its occurrence;

 

(vi) a default in the Company’s obligations under Article 6;

 

(vii) [Reserved];

 

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(viii) a default in any of the Company’s obligations or agreements under the Indenture Documents (other than a default set forth in clause (i), (ii), (iii), (iv), (v) or (vi) of this Section 7.01(A)) where such default is not cured or waived within thirty (30) days after notice to the Company by the Trustee and the Collateral Trustee, or to the Company, the Trustee and the Collateral Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such default, demand that it be remedied and state that such notice is a “Notice of Default”, provided that any issuance of Ordinary Shares in connection with any conversion (including in connection with the Optional Exchange) that results in any holder of the Notes, together with the Attribution Parties, beneficially owns or would beneficially own the number of Ordinary Shares in excess of the Exchange Cap shall not constitute a Default or an Event of Default;

 

(ix) a default by a Company Indenture Party or any of its Significant Subsidiaries with respect to indebtedness for money borrowed (whether pursuant to one or more agreements or other instruments) of greater than twenty-five million dollars ($25,000,000) (or its foreign currency equivalent) in the aggregate of a Company Indenture Party or any of its Significant Subsidiaries, whether such indebtedness exists as of the Issue Date or is thereafter created, either: (x) resulting in such indebtedness becoming or being declared due and payable prior to its stated maturity, or (y) constituting a failure to pay the principal of any such indebtedness when due and payable (after the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration or otherwise, and, in the case of either clause (x) or (y), such acceleration is not, after the expiration of any applicable grace period, rescinded or annulled or such indebtedness is not paid or discharged, as the case may be, within thirty (30) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding in accordance with this Indenture;

 

(x) one or more final judgments being rendered against a Company Indenture Party or any of its Subsidiaries for the payment of at least twenty-five million dollars ($25,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;

 

(xi) a Company Indenture Party or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:

 

(1) commences a voluntary case or proceeding;

 

(2) consents to the entry of an order for relief against it in an involuntary case or proceeding;

 

(3) consents to the appointment of a custodian of it or for any substantial part of its property (other than that arises from any solvent liquidation or restructuring of a Significant Subsidiary in the ordinary course of business that shall result in the net assets of such Significant Subsidiary being transferred to or otherwise vested in such Company Indenture Party or any of its other subsidiaries on a pro rata basis or on a basis more favorable to such Company Indenture Party);

 

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(4) makes a general assignment for the benefit of its creditors;

 

(5) takes any comparable action under any foreign Bankruptcy Law; or

 

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

 

(xii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:

 

(1) is for relief against a Company Indenture Party or any of its Significant Subsidiaries in an involuntary case or proceeding;

 

(2) appoints a custodian of a Company Indenture Party or any of its Significant Subsidiaries, or for any substantial part of the property of a Company Indenture Party or any of its Significant Subsidiaries;

 

(3) orders the winding up or liquidation of a Company Indenture Party or any of its Significant Subsidiaries; or

 

(4) grants any similar relief under any foreign Bankruptcy Law,

 

(5) and, in each case under this Section 7.01(A)(xii), such order or decree remains unstayed and in effect for at least sixty (60) days;

 

(xiii) If the obligation of any Guarantor under its Guarantee or any other Indenture Document to which any Guarantor is a party is limited or terminated by operation of law or by such Guarantor (other than, in each case, in accordance with the terms of this Indenture or such other Indenture Documents), or if any Guarantor fails to perform any obligation under its Guarantee or under any such Indenture Document, or repudiates or revokes or purports to repudiate or revoke in writing any obligation under its Guarantee, or under any such Indenture Document, or any Guarantor ceases to exist for any reason (other than as permitted or not prohibited by this Indenture); or

 

(xiv) Except as permitted or not prohibited by this Indenture and other Indenture Documents, if this Indenture or any other Indenture Document that purports to create a Lien on Collateral, shall, for any reason, fail or cease to be in full force and effect for any reason, being declared fully or partially void in judicial, regulatory or administrative proceeding or becoming enforceable against the relevant Company Indenture Parties.

 

(B) Cause Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or 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.

 

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Section 7.02. Acceleration.

 

(A) Automatic Acceleration in Certain Circumstances. If an Event of Default set forth in Section7.01(A)(xi) or 7.01(A)(xii) occurs with respect to the Company (and not solely with respect to a Significant Subsidiary of the Company), then the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without any further action or notice by any Person.

 

(B) Optional Acceleration. Subject to Section 7.03, if an Event of Default (other than an Event of Default set forth in Section 7.01(A)(xi) or 7.01(A)(xii) with respect to the Company and not solely with respect to a Significant Subsidiary of the Company) occurs and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, by notice to the Company, the Trustee and the Collateral Trustee, may declare the principal amount of, and all accrued and unpaid interest on, all of the Notes then outstanding (subject to the Trustee and the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction) to become due and payable immediately.

 

(C) Rescission of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Majority Holders, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction; (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the Notes that has become due solely because of such acceleration) have been cured or waived; and (iii) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements and advances of the Trustee and the Collateral Trustee and their agents and counsel have been paid. No such rescission will affect any subsequent Default or impair any right consequent thereto.

 

Section 7.03. Sole Remedy For A Failure To Report.

 

(A) Generally. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event of Default (a “Reporting Event of Default”) pursuant to Section 7.01(A)(viii) arising from the Company’s failure to comply with Section 3.02 will, for each of the first one hundred and eighty (180) calendar days on which a Reporting Event of Default has occurred and is continuing, consist exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election, then (i) the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of Default from, and including, the one hundred and eighty first (181st) calendar day on which a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will cease to accrue on any Notes from, and including, such one hundred and eighty first (181st) calendar day (it being understood that interest on any defaulted Special Interest will nonetheless accrue pursuant to Section 2.05(B)).

 

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(B) Amount and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Special Interest accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided, however, that in no event will Special Interest accrue on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note.

 

(C) Notice of Election. To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes the report(s) that the Company failed to file with the SEC; (ii) states that the Company is electing that the sole remedy for such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account of such Reporting Event of Default.

 

(D) Notice to Trustee and Paying Agent; Trustee’s Disclaimer. If Special Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Special Interest is payable or the amount thereof.

 

(E) No Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting Event of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.

 

Section 7.04. Other Remedies.

 

(A) Trustee May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture or the Notes.

 

(B) Procedural Matters. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in such proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be cumulative to the extent permitted by law.

 

Section 7.05. Waiver Of Past Defaults.

 

An Event of Default pursuant to clause (i), (ii), (v) or (viii) of Section 7.01(A) (that, in the case of clause (viii) only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default that could lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or Event of Default may be waived, on behalf of all Holders, by the Majority Holders. If an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then it will be deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend to any subsequent or other Default or Event of Default or impair any right arising therefrom.

 

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Section 7.06. Control By Majority.

 

Majority Holders may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it under this Indenture. However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 10.01, the Trustee determines may be unduly prejudicial to the rights of other Holders or may involve the Trustee in liability, unless the Trustee is offered security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following such direction.

 

Section 7.07. Limitation On Suits.

 

No Holder may pursue any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to Article 5), unless:

 

(A) such Holder has previously delivered to the Trustee notice that an Event of Default is continuing;

 

(B) Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a request to the Trustee to pursue such remedy;

 

(C) such Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result from the Trustee’s following such request;

 

(D) the Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security or indemnity; and

 

(E) during such sixty (60) calendar day period, the Majority Holders do not deliver to the Trustee a direction that is inconsistent with such request.

 

A Holder of a Note may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.

 

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Section 7.08. Absolute Right Of Holders To Institute Suit For The Enforcement Of The Right To Receive Payment And Conversion Consideration.

 

Notwithstanding anything to the contrary in this Indenture or the Notes (but without limiting Section 8.01), the right of each Holder of a Note to bring suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the consent of such Holder.

 

Section 7.09. Collection Suit By Trustee.

 

The Trustee will have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv) of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total unpaid or undelivered principal of, or Redemption Price or Fundamental Change Repurchase Price for, or interest on, or Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided for in Section 10.06.

 

Section 7.10. Preferential Collection of Claims Against Company.

 

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

Section 7.11. Trustee May File Proofs Of Claim.

 

The Trustee has the right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to the Trustee pursuant to Section 10.06. To the extent that the payment of any such compensation, expenses, disbursements, advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise). Nothing in this Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

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Section 7.12. Payment of the Soulte.

 

If, following any Appropriation, a Soulte is owed by the Notes Secured Parties to the Company or any Guarantor, the Company or that Guarantor agrees that such Soulte shall only become due and payable by the relevant Notes Secured Parties on the earlier of:

 

(a) the date falling 12 months after the date of the Appropriation; and

 

(b) the Final Discharge Date.

 

For the avoidance of doubt, the obligations of each Notes Secured Party to pay its proportionate share of any Soulte are several (conjointes et non solidaires).

 

Any payment of the Soulte under paragraph (a) above to the Company or any Guarantor which occurs on or prior to the Final Discharge Date shall be made by the relevant Notes Secured Parties (or the Collateral Trustee on their behalf) to a bank account of the Company or relevant Guarantor and in each case held with the Collateral Trustee and pledged in a manner satisfactory to the Collateral Trustee acting on behalf of the Notes Secured Parties as security for any obligation of the Company or relevant Guarantor under any of the Indenture Documents to which it is party including any obligation under this Indenture to pay back any Soulte or any amounts to be turned over by it as the Company or Guarantor pursuant to Section 7.12 on or prior to the Final Discharge Date. This pledge agreement shall include an irrevocable instruction from the Company or the relevant Guarantor to make from such pledged bank accounts any payment required to be fulfilled under this Indenture or any Indenture Document.

 

The provisions of this Section 7.12 override any conflicting provisions in the French Security Documents.

 

Section 7.13. Sums Received by Debtors and Third-Party Security Providers.

 

Without prejudice to Section 7.11, if the Company or any Guarantor receives or recovers (i) any Soulte or (ii) any other sum which, under the terms of any of the Indenture Documents, should have been paid to the Collateral Trustee, the Company or that Guarantor will:

 

(a) hold an amount of that receipt or recovery equal to the relevant Obligations (or, if less, the amount received or recovered) on trust for (or otherwise on behalf and for the account of) the Collateral Trustee and promptly pay that amount to the Collateral Trustee (or as the Collateral Trustee may direct) for application in accordance with the terms of this Indenture; and

 

(b) promptly pay an amount equal to the amount (if any) by which the receipt or recovery exceeds the relevant Obligations to the Collateral Trustee (or as the Collateral Trustee may direct) for application in accordance with the terms of this Indenture.

 

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Section 7.14. Priorities.

 

Subject to the terms of the Intercreditor Agreement, the Collateral Trustee and Trustee (acting in any capacity) will pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:

 

First:to the Collateral Trustee and Trustee (acting in any capacity) and its agents and attorneys for amounts due under Section 10.06, including payment of all fees (including any reasonably incurred and documented fees and expenses of legal counsel; provided that there shall not be more than one counsel in each relevant jurisdiction), compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;

 

Second:if an Appropriation has occurred, in payment to the Collateral Trustee on behalf of the Appropriated Instruments Holders which have paid all or part of any Soulte for distribution of each Appropriated Instruments Holder in an amount equal to the amount of Soulte paid and not yet reimbursed for application towards the discharge of (for the avoidance of doubt, on a pari passu basis) the corresponding relevant Obligations;

 

Third:to the Trustee for the benefit of the Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and

 

Fourth:to the Company or such other Person as a court of competent jurisdiction directs, including upon or following an Appropriation, (i) in payment or distribution of any Soulte payable and not yet paid to it; or (ii) an amount equal to any Soulte previously paid to it (to the extent the Company paid such Soulte back to the Collateral Trustee in accordance with this Indenture) as a result of an Appropriation.

 

The Trustee (acting in any capacity) may fix a record date and payment date for any payment or delivery to the Holders pursuant to this Section 7.14, in which case the Trustee will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery, as applicable.

 

Section 7.15. Undertaking For Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court, in its discretion, may (A) require the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and (B) 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 this Section 7.15 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section 7.08, any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding, or any suit by any Holder for the enforcement of the payment of the principal of or interest on any Note, on or after the respective due dates expressed in such Note.

 

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Section 7.16. Collateral Trustee Expense Reimbursement

 

The Company Indenture Parties, jointly and severally, agree to reimburse or pay the Trustee or Collateral Trustee for its fees and expenses incurred under this Indenture or the Notes Security Documents (including all reasonably incurred and documented fees and disbursements of legal counsel; provided that there shall not be more than one counsel in each relevant jurisdiction) that may be paid or incurred by the Trustee or Collateral Trustee in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations or Guaranteed Obligations and/or enforcing any rights with respect to, or collecting against, the Company Indenture Parties under this Indenture or the Notes Security Documents.

 

Article 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

Section 8.01. Without The Consent Of Holders.

 

Notwithstanding anything to the contrary in Section 8.02, the Company and the Trustee may amend or supplement the Indenture Documents without the consent of any Holder to:

 

(A) cure any ambiguity or correct any omission, defect or inconsistency in any Indenture Document;

 

(B) add guarantees or security with respect to the Company’s obligations under this Indenture or the Notes, including for greater certainty, to allow any additional Guarantor to execute a supplemental indenture, a joinder to any Notes Security Document and/or a Guarantee with respect to the Notes;

 

(C) [Reserved];

 

(D) add to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred on the Company;

 

(E) provide for the assumption of the Company’s or any Guarantor’s obligations under this Indenture, the Notes and the Notes Security Document, as applicable, pursuant to, and in compliance with, Article 6;

 

(F) enter into supplemental indentures pursuant to, and in accordance with, Section 5.09 in connection with an Ordinary Share Change Event;

 

(G) irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to Section 5.03(A);

 

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(H) adjust the Conversion Rate or the Conversion Price (including the establishment of the Conversion Rate or the Conversion Price ) in accordance with, and subject to the terms of, this Indenture;

 

(I) evidence or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee or Collateral Trustee;

 

(J) effect such amendment, restatement, supplement, modification, waiver or consent in respect of the Priority Lien Debt Documents that shall apply automatically to this Indenture without the consent of any Holder in accordance with the Intercreditor Agreement;

 

(K) comply with the rules of any applicable Depositary in a manner that does not adversely affect the rights of the Holders;

 

(L) comply with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the Trust Indenture Act, as then in effect;

 

(M) make any other change to the Indenture Documents that does not, individually or in the aggregate with all other such changes, adversely affect the rights of the Holders, as such, in any material respect; or

 

(N) effect, confirm and evidence the release, termination or discharge or any guarantee of or Lien securing the Notes when such release, termination or discharge is permitted by the Indenture Documents.

 

Section 8.02. With The Consent Of Holders.

 

(A) Generally. Subject to Sections 8.01, 7.05 and 7.08, the immediately following sentence and the terms of the Intercreditor Agreement, the Company and the Trustee may, with the consent of the Majority Holders, amend or supplement the Indenture Documents or waive compliance with any provision of the Indenture Documents. Notwithstanding anything to the contrary in the foregoing sentence, but subject to Section 8.01 and the terms of the Intercreditor Agreement, without the consent of each affected Holder, no amendment or supplement to the Indenture Documents, or waiver of any provision of the Indenture Documents, may:

 

(i) reduce the principal, or extend the stated maturity, of any Note;

 

(ii) reduce the Redemption Price or Fundamental Change Repurchase Price for any Note, amend the definition of “Optional Exchange Consideration” or change the times at which, or the circumstances under which, the Notes may or will be redeemed, repurchased or exchanged by the Company;

 

(iii) reduce the rate, or extend the time for the payment, of interest on any Note;

 

(iv) make any change that adversely affects the conversion rights of any Note other than as permitted or required by this Indenture or the Notes;

 

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(v) impair the rights of any Holder set forth in Section 7.08 (as such section is in effect on the Issue Date);

 

(vi) change the ranking of the Notes;

 

(vii) make any Note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;

 

(viii) make any change to Section 3.05, or in any related definitions, in any manner that is adverse to the rights of the Holders or beneficial owners of the Notes;

 

(ix) make any change to Section 13.18(A), or in any related definitions, in any manner that is adverse to the rights of the Holders or beneficial owners of the Notes;

 

(x) reduce the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or

 

(xi) make any change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that requires the consent of each affected Holder.

 

For the avoidance of doubt, pursuant to clauses (i), (ii), (iii) and (iv) of this Section 8.02(A), no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date or the Maturity Date or upon an Optional Exchange or conversion, or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder.

 

(B) Holders Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.02 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.

 

(C) Guarantors Bound. The Guarantors shall be bound by any supplemental indenture or amendment to the Indenture Documents entered into by the Company and the Trustee pursuant to the terms of this Indenture and may but shall not be required to execute any such supplemental indenture or amendment, other than in the case of a joinder of a new Guarantor the execution by such Guarantor.

 

Section 8.03. With The Consent Of Supermajority Holders.

 

(A) Notwithstanding anything contained in Section 8.01 or Section 8.02, without the consent of the Supermajority Holders, no amendment or supplement to the Indenture Documents, or waiver of any provision of the Indenture Documents, may:

 

(i) subordinate, or change the priority with respect to the Liens securing the Obligations and then only to the extent provided or permitted under the Intercreditor Agreement;

 

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(ii) release all or substantially all of the Collateral except as otherwise may be provided or permitted under this Indenture, the Intercreditor Agreement or the other Indenture Documents; or

 

(iii) discharge any Company Indenture Party from its respective payment Obligations under the Indenture Documents, in each case, except as otherwise may be provided or permitted under this Indenture, the Intercreditor Agreement or the other Indenture Documents.

 

(B) Notwithstanding anything contrary under this Indenture, the Holders are deemed to have consented to, and shall be deemed to have directed the Trustee and/or the Collateral Trustee (as applicable), to execute and deliver any of the following amendments, waivers and other modifications to the Indenture Documents, in each case, as evidenced by an Officer’s Certificate and Opinion of Counsel delivered to the Trustee and the Collateral Trustee pursuant to Section 13.02 and Section 13.03 hereof:

 

(i) to establish that the Liens on any Collateral securing any Indebtedness replacing the applicable series of First Lien Notes permitted to be incurred under the Priority Lien Debt Documents that represent Priority Lien Secured Obligations shall be senior to the Liens on such Collateral securing any Obligations under this Indenture, the Notes and the Subsidiary Guarantees, which obligations shall continue to be secured on a second-priority basis on the Collateral;

 

(ii) to give effect to any amendment, waiver or consent to any of the Priority Lien Debt Documents, to the extent applicable to the Collateral (including the release of any Liens on Collateral), that applies automatically to the comparable Notes Security Documents with respect to the security interest of the Holders in such Collateral pursuant to the terms of the Intercreditor Agreement; and

 

(iii) upon any cancellation, repayment, redemption or termination of the First Lien Notes and all other Priority Lien Secured Obligations without a replacement thereof, and to the extent the Obligations have not been discharged in full in accordance with the terms of this Indenture and the Intercreditor Agreement, to establish that the Liens on the Collateral securing any Obligations under this Indenture, the Notes and the Subsidiary Guarantees shall become first priority perfect Lien, except as set forth below under Section 11.05.

 

(C) Holders Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.03 need approve only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.

 

Section 8.04. Notice Of Amendments, Supplements And Waivers.

 

As soon as reasonably practicable after any amendment, supplement or waiver pursuant to Section 8.01, 8.02 or 8.03 becomes effective, the Company will send to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail and (B) states the effective date thereof; provided, however, that the Company will not be required to provide such notice to the Holders if such amendment, supplement or waiver is included in a periodic report filed by the Company with the SEC within four (4) Business Days of its effectiveness. The failure to send, or the existence of any defect in, such notice will not impair or affect the validity of such amendment, supplement or waiver.

 

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Section 8.05. Revocation, Effect And Solicitation Of Consents; Special Record Dates; Etc.

 

(A) Revocation and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.05(B)) any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement or waiver becomes effective.

 

(B) Special Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled to consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8. If a record date is fixed, then, notwithstanding anything to the contrary in Section 8.05(A), only Persons who are Holders as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously given or to take any such action, regardless of whether such Persons continue to be Holders after such record date; provided, however, that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days after such record date.

 

(C) Solicitation of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.

 

(D) Effectiveness and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder of such Note (or such portion).

 

Section 8.06. Notations And Exchanges.

 

If any amendment, supplement or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.06 will not impair or affect the validity of such amendment, supplement or waiver.

 

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Section 8.07. Trustee and Collateral Trustee To Execute Supplemental Indentures.

 

The Trustee and/or the Collateral Trustee, as the case may be, will execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however, that the Trustee and/or the Collateral Trustee, as the case may be, need not (but may, in their respective sole and absolute discretion) execute or deliver any such amendment or supplemental indenture that adversely affects the rights, duties, liabilities or immunities of the Trustee and/or the Collateral Trustee, as the case may be. In executing any amendment or supplemental indenture, the Trustee and/or the Collateral Trustee, as the case may be will be entitled to receive, and (subject to Sections 10.01 and 10.02) will be fully protected in relying on, an Officer’s Certificate and an Opinion of Counsel, provided in accordance with Section 13.02, each stating that (A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by this Indenture; and (B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms. Every amendment or supplement to this Indenture or the Notes will be set forth in an amended or supplemental indenture.

 

Article 9. SATISFACTION AND DISCHARGE

 

Section 9.01. Termination Of Company’s Obligations.

 

This Indenture will be discharged, and will cease to be of further effect as to all Notes issued under this Indenture, when:

 

(A) all Notes then outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, the Maturity Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;

 

(B) the Company or any Guarantor has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion Consideration, the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or other property (including, if applicable, all related Additional Amounts) due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.13);

 

(C) the Company has performed all other Obligation by it under this Indenture; and

 

(D) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions precedent to the discharge of this Indenture have been satisfied;

 

provided, however, that Article 10 and Section 11.01 will survive such discharge and, until no Notes remain outstanding, Section 2.15 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property deposited with them will survive such discharge.

 

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At the Company’s written request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.

 

Section 9.02. Repayment To Company.

 

Subject to applicable unclaimed property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at the Company’s request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery was due. After such delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the payment or delivery of such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.

 

Section 9.03. Reinstatement.

 

If the Trustee, the Paying Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 9.01 because of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise prohibits such application, then the discharge of this Indenture pursuant to Section 9.01 will be rescinded; provided, however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof, then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.

 

Article 10. TRUSTEE

 

Section 10.01. Duties of the Trustee.

 

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

 

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

 

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

 

(ii) in the absence of bad faith or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel that are provided to the Trustee and conform to the requirements of this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.

 

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

 

(i) this paragraph will not limit the effect of Section 10.01(B);

 

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

 

(iii) the Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 7.06.

 

(D) Each provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C) of this Section 10.01, regardless of whether such provision so expressly provides.

 

(E) No provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.

 

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

 

Section 10.02. Rights Of The Trustee.

 

(A) The Trustee may conclusively rely on any document that it believes to be genuine and signed or presented by the proper Person, and the Trustee need not investigate any fact or matter stated in such document.

 

(B) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel; and the advice of such counsel, or any Opinion of Counsel, will constitute full and complete authorization of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.

 

(C) The Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent appointed with due care.

 

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

 

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

 

(F) The Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless such Holder has offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that it may incur in complying with such request or direction.

 

(G) The Trustee will not be responsible or liable for any punitive, special, indirect or consequential loss or damage (including lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(H) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in each of its capacities under this Indenture (including in its capacity as Conversion Agent) and each agent, custodian and other Person employed to act under this Indenture, including the Conversion Agent.

 

(I) The permissive rights of the Trustee enumerated in this Indenture will not be construed as duties.

 

(J) Neither the Trustee nor the Registrar will have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary Participants, members of the Depositary or owners of beneficial interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements of this Indenture.

 

(K) Except with respect to receipt of payments of principal and interest on the Notes payable by the Company pursuant to Section 3.01 and any Default or Event of Default information contained in the Officer’s Certificate delivered to it pursuant to Section 3.06(B), the Trustee will have no duty to monitor the Company’s compliance with or the breach of any representation, warranty or covenant made in this Indenture.

 

(F) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Company and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.

 

(G) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.

 

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Section 10.03. Individual Rights Of The Trustee.

 

(A) The Trustee, in its individual or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates with the same rights that it would have if it were not Trustee; provided, however, that if the Trustee acquires a “conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such conflict within ninety (90) days or resign as Trustee. Each Note Agent will have the same rights and duties as the Trustee under this Section 10.03.

 

Section 10.04. Trustee’s Disclaimer.

 

The Trustee will not be (A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other than the Trustee; and (D) responsible for any statement or recital in this Indenture, the Notes or any other document relating to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.

 

Section 10.05. Notice Of Defaults.

 

If a Default or Event of Default occurs, then the Trustee will send Holders a notice of such Default or Event of Default within ninety (90) days after it occurs or, if it is not known to the Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes known to a Responsible Officer; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal of, or interest on, any Note, the Trustee shall be protected in withholding such notice if and for so long as it in good faith determines that withholding such notice is in the interests of the Holders. The Trustee will not to be charged with knowledge of any Default or Event of Default, or knowledge of any cure of any Default or Event of Default, unless written notice of such Default or Event of Default, or of such cure of any Default or Event of Default, has been given by the Company or any Holder to a Responsible Officer of the Trustee.

 

Section 10.06. Compensation And Indemnity.

 

(A) The Company will, from time to time, pay the Trustee reasonable compensation for its acceptance of this Indenture and services under this Indenture. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust. In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

(B) The Company will indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance and administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 10.06) and defending itself against any claim (whether asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties under this Indenture, except to the extent any such loss, liability or expense may be attributable to its gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. The Trustee will promptly notify the Company of any claim for which it may seek indemnity, but the Trustee’s failure to so notify the Company will not relieve the Company of its obligations under this Section 10.06(B). The Company will defend such claim, and the Trustee will cooperate in such defense. If the Trustee is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company, or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will pay the reasonable fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such a conflict exists). The Company need not pay for any settlement of any such claim made without its consent, which consent will not be unreasonably withheld.

 

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(C) The obligations of the Company under this Section 10.06 will survive the resignation or removal of the Trustee and the satisfaction or discharge of this Indenture.

 

(D) To secure the Company’s payment obligations in this Section 10.06, the Trustee will have a lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular Notes, which lien will survive the discharge of this Indenture.

 

(E) If the Trustee incurs expenses or renders services after an Event of Default pursuant to Section 7.01(A)(xi) or 7.01(A)(xii) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.

 

Section 10.07. Replacement Of The Trustee.

 

(A) Notwithstanding anything to the contrary in this Section 10.07, a resignation or removal of the Trustee, and the appointment of a successor Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section 10.07.

 

(B) The Trustee may resign at any time and be discharged from the trust created by this Indenture by so notifying the Company. The Majority Holders may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

 

(i) the Trustee fails to comply with the provisions of Section 310(b) of the Trust Indenture Act with respect to any series of Notes after written request therefor by the Company or by any Holder who has been a bona fide holder of a Note or Notes of such series for at least six (6) months;

 

(ii) the Trustee fails to comply with Section 10.09;

 

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

 

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

 

(v) the Trustee becomes incapable of acting.

 

(C) If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Majority Holders may appoint a successor Trustee to replace such successor Trustee appointed by the Company.

 

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

 

(E) If the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 10.09, then such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(F) A successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice the resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring Trustee will, upon payment of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee to the successor Trustee, which property will, for the avoidance of doubt, be subject to the lien provided for in Section 10.06(D).

 

(G) For as long as any Priority Lien Secured Obligations remain outstanding, the successor Trustee shall concurrently with its appointment as the successor Trustee accede as a party to the Intercreditor Agreement.

 

Section 10.08. Successor Trustee By Merger, Etc.

 

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

 

Section 10.09. Eligibility; Disqualification.

 

There will at all times be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America or of any state or territory thereof or the District of Columbia, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal, state, territorial or District of Columbia authorities and that has a combined capital and surplus of at least $50.0 million as set forth in its most recent published annual report of condition. Neither the Company nor any Guarantor nor any person directly or indirectly controlling, controlled by, or under common control with the Company or any Guarantor shall serve as Trustee under this Indenture.

 

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Section 10.10. Reports by the Trustee.

 

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act (including, without limitation, Sections 313(a), (b) and (c)) at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty (60) days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a) (but if no event described in Section 313(a) has occurred within the twelve (12) months preceding the reporting date, no report need be transmitted).

 

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange upon which any Notes are listed, with the SEC and with the Company. The Company shall promptly notify the Trustee in writing when any Notes are listed on any securities exchange.

 

Article 11. Collateral and Security

 

Section 11.01. Collateral.

 

(A) The Obligations will be secured by a Lien on the Collateral, subject to perfection in accordance with the terms of this Indenture and the Notes Security Documents, subject to the Priority Liens and the terms of the Intercreditor Agreement.

 

Section 11.02. Notes Security Documents.

 

(A) The Notes Security Documents to be entered into by the applicable Company Indenture Parties on or after the Issue Date, in each case, shall create the second priority Liens on the Collateral securing their respective Obligations, subject to the Priority Liens and the terms of the Intercreditor Agreement. In the event of a conflict between the terms of this Indenture and the Notes Security Documents in regards to the Collateral, this Indenture shall control. The Company will take, and will cause its Subsidiaries to take any and all actions reasonably required to cause the Notes Security Documents to create and maintain, as security for the Obligations hereunder, a valid and enforceable second priority Lien in and on all the Collateral, in favor of the Collateral Trustee for the benefit of the Holders, the Trustee and the Collateral Trustee, subject to the Priority Liens, the terms of the Notes Security Documents and the terms of the Intercreditor Agreement and perfected in accordance with the terms of this Indenture and the Notes Security Documents.

 

Section 11.03. Authorization of Actions to Be Taken.

 

(A) Each Holder of Notes, by its acceptance thereof, hereby designates and appoints the Collateral Trustee as its agent under this Indenture, the Notes Security Documents and the Intercreditor Agreement and each Holder by acceptance of the Notes consents and agrees to the terms of each Notes Security Document and the Intercreditor Agreement, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture and the Intercreditor Agreement, authorizes and directs the Collateral Trustee to enter into the Notes Security Documents and the Intercreditor Agreement, and irrevocably authorizes and empowers the Collateral Trustee to perform its obligations and duties, exercise its rights and powers and take any action permitted or required thereunder that are expressly delegated to the Collateral Trustee by the terms of this Indenture, the Notes Security Documents and the Intercreditor Agreement. Subject to the terms of the Intercreditor Agreement, the Collateral Trustee shall hold (directly or through any agent) and is directed by each Holder to so hold, and shall be entitled to enforce (in accordance with the terms of the Notes Security Documents and the Intercreditor Agreement) on behalf of the Holders all Liens on the Collateral created by the Notes Security Documents for their benefit.

 

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(B) Subject to the provisions of the applicable Notes Security Documents and the Intercreditor Agreement, the Trustee and each Holder, by acceptance of any Notes, agrees that (x) the Collateral Trustee may, in its sole discretion and without the consent of the Trustee or the Holders, take all actions it deems necessary or appropriate, subject to the terms of the Intercreditor Agreement, in order to (i) preserve the Collateral or rights under the Notes Security Documents, and (ii) collect and receive any and all amounts payable in respect of the Obligations of the Company and the Guarantors hereunder and under the Indenture Documents and (y) the Collateral Trustee shall, subject to the terms of the Intercreditor Agreement, have power to institute and to maintain such suits and proceedings as it may deem expedient to protect or enforce the Liens securing the Obligations and/or to prevent any impairment of the Collateral by any act that may be unlawful or in violation of the Indenture Documents, and such suits and proceedings as the Collateral Trustee may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Collateral Trustee, the Holders or the Trustee). Notwithstanding the foregoing, the Collateral Trustee may, at the expense of the Company, request the written direction of the Holders with respect to any such actions and upon receipt of the written consent of the Holders of twenty five percent (25%) or more in aggregate principal amount of Notes outstanding provided in accordance with this Indenture (subject to the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction), shall take such actions. Subject to the terms of the Intercreditor Agreement, until the Notes and the other Obligations are discharged in full or are otherwise no longer outstanding, all remedies and Enforcement Actions in respect of the Collateral and any foreclosure actions in respect of any Liens on all or any portion of the Collateral, and all actions, undertakings or consents by the Collateral Trustee in respect of all or any portion of the Collateral, in each case, shall be undertaken solely at the written instruction of the Holders of twenty five percent (25%) or more in aggregate principal amount of Notes outstanding provided in accordance with this Indenture, subject to the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction.

 

(C) Unless expressly provided to the contrary in any Indenture Document, in relation to any Collateral governed by the laws of Switzerland (the “Swiss Security Documents”) or Italian Security Documents, as the case may be:

 

(i) the Collateral Trustee:

 

A.holds:

 

(1) any Collateral created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document by way of a security assignment (Sicherungsabtretung) or transfer for security purposes (Sicherungsübereignung) or any other non-accessory (nicht akzessorische) Collateral;

 

(2) the benefit of any Collateral Trustee Claims; and

 

(3) any proceeds and other benefits of such Collateral,

 

(4) as fiduciary (treuhänderisch) in its own name but for the account of all relevant Notes Secured Parties which have the benefit of such Collateral in accordance with this Indenture and the respective Swiss Security Document and so that they are not available to the personal creditors of the Collateral Trustee; and

 

B.In respect of any Italian Security Documents (as defined below) where the relevant Collateral cannot be granted to the Collateral Trustee by way of trust, the Collateral Trustee declares that, in respect of such Italian Security Documents, it shall (to the extent possible under applicable law) hold such Collateral as mandatario con rappresentanza and representative for the security pursuant to article 2414-bis of the Italian Civil Code of the relevant Notes Secured Parties on the terms contained in this Indenture;

 

(ii) each present and future Notes Secured Party hereby authorizes the Collateral Trustee:

 

(1) to (a) accept and execute as its direct representative (direkter Stellvertreter) any Swiss law pledge or any other Swiss law accessory (akzessorische) Collateral created or evidenced or expressed to be created or evidenced under or pursuant to a Swiss Security Document for the benefit of such Notes Secured Party and (b) hold, administer and, if necessary, enforce any such Collateral on behalf of each relevant Notes Secured Party which has the benefit of such Collateral;

 

(2) to agree as its direct representative (direkter Stellvertreter) to amendments and alterations to any Swiss Security Document which creates or evidences or expressed to create or evidence a pledge or any other Swiss law accessory (akzessorische) Collateral;

 

(3) to effect as its direct representative (direkter Stellvertreter) any release of a Collateral created or evidenced or expressed to be created or evidenced under a Swiss Security Document in accordance with this Indenture; and

 

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(4) to exercise as its direct representative (direkter Stellvertreter) such other rights granted to the Collateral Trustee hereunder or under the relevant Swiss Security Document;

 

(iii) each present and future Notes Secured Party hereby authorizes the Collateral Trustee, when acting in its capacity as creditor of the Collateral Trustee Claim, to hold:

 

(1) any Swiss law pledge or any other Swiss law accessory (akzessorische) Collateral;

 

(2) any proceeds of such Collateral; and

 

(3) the benefit of this paragraph and of the Collateral Trustee Claims;

 

(iv) as creditor in its own right but for the benefit of the Notes Secured Parties in accordance with this Indenture.

 

(D) in relation to any Collateral governed by the laws of the Republic of Italy (the “Italian Security Documents”) each present and future Notes Secured Party hereby:

 

(i) appoints, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, the Collateral Trustee to act as its agent with representative powers (mandatario con rappresentanza) and special attorney-in-fact (procuratore speciale) and representative for the security pursuant to article 2414-bis of the Italian Civil Code so that, acting in the name and on behalf of each Notes Secured Party, but also in its own name and on its own interest, it takes all the actions that it considers proper or necessary as provided under this Indenture and executes, also in the name and on behalf of the Notes Secured Parties, the Italian Security Documents, and the Collateral Trustee hereby accepts such appointment;

 

(ii) grants the Collateral Trustee the power to negotiate and approve the terms and conditions of such Italian Security Documents and any amendment and/or restatement, confirmation and/or confirmation and extension thereof, execute any other agreement or instrument, give or receive any notice or declaration, identify and specify to third parties the names of the Notes Secured Parties at any given date, collect any and all amounts due to the Notes Secured Parties under each Italian Security Document and take any other action in relation to the creation, perfection, maintenance, confirmation and extension, enforcement and release of the security created thereunder and the performance of the Italian Security Documents, any amendments and/or waivers thereof which is made in accordance with this Indenture and any other such agreement, instrument, notices or declaration, in each case in the name and on behalf of the Notes Secured Parties;

 

(iii) confirms that the Collateral Trustee is entitled to release any Italian Security Documents upon payment in full of any amounts due thereunder before the expiry of the applicable claw-back or ineffectiveness period, subject to satisfaction of the conditions set out in the relevant Italian Security Documents;

 

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(iv) confirms that in the event that any security created under any Italian Security Documents remains registered in the name of a Notes Secured Party after it has ceased to be a Notes Secured Party, then the Collateral Trustee shall remain empowered to execute a release of such security in its name and on its behalf;

 

(v) undertakes to grant any power of attorney as it might be needed or appropriate for the Collateral Trustee to act in accordance with and within the limits of this Indenture and any Italian Security Document;

 

(vi) undertakes to ratify and approve any such action taken in the name and on behalf of the Notes Secured Parties by the Collateral Trustee acting in its appointed capacity;

 

(vii) confirms that the Collateral Trustee has authority to accept on its behalf the terms of any reliance letter or engagement letter relating to any reports or letters provided in connection with the Italian Security Document or the transactions contemplated therein, to bind it in respect of those reports or letters and to sign that reliance letter or engagement letter on its behalf and, to the extent that reliance letter or engagement letter has already been entered into, ratifies those actions;

 

(viii) confirms that it accepts the terms and qualifications set out in that reliance letter or engagement letter; and

 

(ix) acknowledges and agrees that the Collateral Trustee may enter in its name and on its behalf as agent with representative powers (mandatario con rappresentanza) into contractual arrangements pursuant to or in connection with the Italian Security Documents to which the Collateral Trustee is also a party (in its capacity as agent, trustee, mandatario con rappresentanza, representative for the security pursuant to article 2414-bis of the Italian Civil Code or otherwise) and expressly authorizes the Collateral Trustee, pursuant to article 1395 of the Italian Civil Code. The Notes Secured Parties expressly waive any right they may have under article 1394 of the Italian Civil Code in respect of contractual arrangements entered into by the Collateral Trustee in their name and on their behalf pursuant to or in connection with the Italian Security Documents, in each case to the extent legally possible to such Notes Secured Party.

 

(E) Notwithstanding anything else to the contrary herein, whenever reference is made in this Indenture to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Trustee or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction, reasonable satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Trustee, it is understood that in all cases the Collateral Trustee shall be fully justified in failing or refusing to take any such action under this Indenture if it shall not have received such written instruction, advice or concurrence of the Holders of twenty five percent (25%) or more in aggregate principal amount of Notes outstanding provided in accordance with this Indenture, subject to the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction, as it deems appropriate. This provision is intended solely for the benefit of the Collateral Trustee and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

 

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Section 11.04. Parallel Debt

 

(A) In this Section 11.04:

 

Collateral Trustee Claim” has the meaning given to it in Section 11.04(C) below; and

 

Notes Secured Party Claim” means any amount which a Company Indenture Party owes to a Notes Secured Party under and in connection with the Indenture Documents.

 

(B) As relevant, any Lien over any portion of the Collateral created pursuant to a Notes Security Document (other than for any Italian Security Document) is granted to the Collateral Trustee in its individual capacity as an independent creditor of the Collateral Trustee Claim created pursuant to this Section 11.04(B).

 

(C) Subject to Section 12.06 (Guarantee Limitations), each Company Indenture Party must pay the Collateral Trustee, as an independent and separate creditor, in its own right and not as a trustee, agent or representative of the other Notes Secured Parties, an amount equal to its Notes Secured Party Claim on its due date when that amount falls due for payment under the relevant Indenture Document (each a “Collateral Trustee Claim”).

 

(D) Each Collateral Trustee Claim is created on the understanding that the Collateral Trustee must:

 

(i) share the proceeds of each Collateral Trustee Claim with itself and the other Notes Secured Parties; and

 

(ii) pay those proceeds to the Notes Secured Parties,

 

(iii) in accordance with Section 7.11 subject to limitations (if any) expressly provided for in any Notes Security Document.

 

(E) The Collateral Trustee may, subject to any indemnification and/or prefunding and/or security to its satisfaction and its rights in Section 11.07 (Collateral Trustee), demand and receive payment and enforce performance of any Collateral Trustee Claim in its own name as an independent and separate right. This includes any payment demand, suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceeding. Each Company Indenture Party shall have all objections and defenses against a Collateral Trustee Claim as such Company Indenture Party has against a Notes Secured Party Claim.

 

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(F) Each Company Indenture Party irrevocably and unconditionally waives any right it may have to require a Notes Secured Party to join in any proceedings as co-claimant with the Collateral Trustee in respect of any Collateral Trustee Claim.

 

(G) The Collateral Trustee Claims do not limit or affect the existence of the Notes Secured Party Claims for which the Notes Secured Parties have an independent right to demand payment.

 

(H) Discharge by a Company Indenture Party of a Notes Secured Party Claim will discharge the corresponding Collateral Trustee Claim in the same amount.

 

(I) Discharge by Company Indenture Party of a Collateral Trustee Claim will discharge the corresponding Notes Secured Party Claim in the same amount.

 

(J) The aggregate amount of the Collateral Trustee Claims will never exceed the aggregate amount of Notes Secured Party Claims and vice versa.

 

(K) A defect affecting a Collateral Trustee Claim against a Company Indenture Party will not affect any Notes Secured Party Claim.

 

(L) A defect affecting a Notes Secured Party Claim against a Company Indenture Party will not affect any Collateral Trustee Claim.

 

(M) If the Collateral Trustee returns to any Company Indenture Party whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Notes Secured Party, that Notes Secured Party must repay an amount equal to that recovery to the Collateral Trustee; provided that the Collateral Trustee shall have no obligation to make any such return payment until it has received the repayment of the full amount due from the relevant Notes Secured Party.

 

(N) In no event will the “parallel debt” provisions (including, for the avoidance of doubt, the provisions of this Section 11.04) apply to the Italian Security Documents.

 

Section 11.05. Release of Collateral

 

(A) Subject to the terms of the Intercreditor Agreement and to Section 11.05(D), the Liens securing the Obligations on the applicable Collateral shall be automatically terminated and released without further action by any party (other than satisfaction of any requirements in the Notes Security Documents, if any), in whole or in part, as the case may be: (i) upon any disposition of any portion of Collateral in accordance with a disposition permitted under the terms of any Priority Lien Debt Document; provided that Liens on such Collateral under any Priority Lien Debt Document are also released under any such Priority Lien Debt Document substantially concurrently; (ii) upon the full and final payment and performance of all Obligations of the Company Indenture Parties under the Indenture Documents or the satisfaction and discharge of this Indenture and the other Indenture Documents in accordance with Article 9; (iii) as described under Section 8.03; (iv) if the Collateral is owned by a Guarantor, upon release of such Guarantor from its Subsidiary Guarantee of the Obligations in accordance with the provisions hereof and the terms of the Intercreditor Agreement and/or the Priority Lien Debt Document; (v) to the extent the Liens on the Collateral securing the Priority Lien Secured Obligations are released by the First Lien Notes Collateral Trustees (other than a discharge or release by or as a result of payment under such guarantee after the occurrence of a payment default or acceleration thereunder (it being understood that a release subject to a contingent reinstatement is still a release)), upon release of such Liens and (vi) pursuant to the Intercreditor Agreement and the Notes Security Documents.

 

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(B) Without the necessity of any consent of or notice to the Trustee or any Holder of the Notes, any Company Indenture Party may request and instruct the Collateral Trustee to, on behalf of each Holder of Notes, (i) execute and deliver to any Company Indenture Party, as the case may be, for the benefit of any Person, such release documents as may be reasonably requested, of all or any Liens held by the Collateral Trustee in any Collateral securing the Obligations, and (ii) deliver any such assets in the possession of the Collateral Trustee to any Company Indenture Party, as the case may be; and Collateral Trustee shall as soon as practicable take such actions provided that any such release complies with and is expressly permitted in accordance with the terms of this Indenture, the Notes Security Documents and the Intercreditor Agreement and is accompanied by an Officer’s Certificate and an Opinion of Counsel.

 

(C) The release of any Collateral from the Liens securing the Obligations or the release of, in whole or in part, the Liens securing the Obligations created by any of the Notes Security Documents will not be deemed to impair the Liens securing the Obligations in contravention of the provisions hereof if and to the extent the Collateral or the Liens securing the Obligations are released pursuant to the terms of this Indenture, the applicable Notes Security Documents and the Intercreditor Agreement. Each of the Holders of the Notes acknowledges that a release of Collateral or Liens securing the Obligations strictly in accordance with the terms of this Indenture, the Notes Security Documents and the Intercreditor Agreement will not be deemed for any purpose to be an impairment of the Notes Security Documents or otherwise contrary to the terms of this Indenture.

 

(D) The Company shall furnish to the Collateral Trustee and the Trustee on or prior to any proposed releases of Collateral an Officer’s Certificate certifying and an Opinion of Counsel stating that all requirements relating to such release have been complied with and that such release has been authorized by, permitted by and made in accordance with the provisions of this Indenture, the relevant Notes Security Documents and the Intercreditor Agreement. No release of the Collateral shall be effective against the Collateral Trustee, the Trustee or the Holders until the Company has delivered to the Collateral Trustee and the Trustee the Officer’s Certificate and the Opinion of Counsel required under this ‎Section 11.05.

 

Section 11.06. Application of Proceeds of Collateral.

 

(A) Upon any realization upon the Collateral from the exercise of any rights or remedies under any Notes Security Document or any other agreement with any Company Indenture Party which secures any of the Obligations, the proceeds thereof shall, subject to the terms of the Intercreditor Agreement, be applied in accordance with Section 7.11 of this Indenture.

 

(B) Subject to the terms of the Intercreditor Agreement, each of the Collateral Trustee and the Trustee is authorized and empowered to receive any funds collected or distributed under the Notes Security Documents and to apply and distribute such funds according to the provisions of this Indenture.

 

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Section 11.07. Collateral Trustee.

 

(A) Subject to the provisions of Section 10.01, neither the Trustee, nor the Collateral Trustee nor any of their respective officers, directors, employees, attorneys or agents shall be responsible or liable (i) for the legality, enforceability, effectiveness or sufficiency of the Notes Security Documents, for the creation, perfection, priority, sufficiency, maintenance, renewal or protection of any Lien, or for any defect or deficiency as to any such matters, or (ii) for any failure to demand, collect, foreclose or realize upon or otherwise enforce any of the Liens or Notes Security Documents or any delay in doing so; except, in the case of the Collateral Trustee, to the extent such action or omission constitutes gross negligence or willful misconduct (as determined by a final order of a court of competent jurisdiction that is not subject to appeal) on the part of the Collateral Trustee, (iii) for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral, (iv) for the legality, enforceability, effectiveness or sufficiency of the Intercreditor Agreement, or (v) for the legality, enforceability, effectiveness or sufficiency of any subordination agreement or other similar agreement entered into in connection with this Indenture.

 

(B) The rights, privileges, protections, immunities and benefits given to the Trustee under this Indenture, including, without limitation, its right to be indemnified and compensated and all other rights, privileges, protections, immunities and benefits set forth in this Indenture (including those set forth in Article 10), are extended to the Collateral Trustee, and its agents, receivers and attorneys, and shall be enforceable by, the Collateral Trustee, as if fully set forth in this Section 11.07 with respect to the Collateral Trustee, except that the Collateral Trustee shall only be liable for (and shall be indemnified and held harmless to the extent such losses do not constitute) its gross negligence or willful misconduct (as determined by a final order of a court of competent jurisdiction that is not subject to appeal). In acting under any Notes Security Document, the Collateral Trustee shall enjoy the rights, privileges, protections, immunities and benefits that are extended to the Collateral Trustee hereunder. The Collateral Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent appointed with due care.

 

(C) Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Collateral Trustee will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. For the avoidance of doubt, nothing herein shall require the Collateral Trustee to be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. If, at the direction of the Holders of twenty five percent (25%) or more in aggregate principal amount of Notes outstanding provided in accordance with this Indenture (subject to the Collateral Trustee being indemnified and/or secured and/or pre-funded to its satisfaction), the Trustee or Collateral Trustee agrees to (but shall be under no obligation to do so) file or record any Notes Security Documents or any related financing statement or other similar documents, such filing or recording by the Trustee or Collateral Trustee at the direction of the Holders shall be deemed done by Trustee or Collateral Trustee without representation or warranty by the Trustee or the Collateral Trustee (and the Trustee and the Collateral Trustee disclaim any representation or warranty as to the validity, effectiveness, priority, perfection or otherwise). The Collateral Trustee will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords property held by it as a collateral agent or any similar arrangement, and the Collateral Trustee will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Trustee in good faith.

 

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(D) The Collateral Trustee shall not have any duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or any Indenture Document by the Company or any Company Indenture Party or any other Person that is a party thereto or bound thereby.

 

(E) The Collateral Trustee shall not be required to acquire title to an asset for any reason and shall not be required to carry out any fiduciary or trust obligation for the benefit of another. The Collateral Trustee is not a fiduciary and shall not be deemed to have assumed any fiduciary obligation. If the Collateral Trustee in its sole discretion believes that any obligation to take or omit to take any action may cause the Collateral Trustee to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Trustee to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Trustee reserves the right, instead of taking such action, either to resign as Collateral Trustee or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Trustee will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.

 

(F) The Collateral Trustee may resign or be replaced in accordance with the procedures set forth in Section 10.07 hereof, except that references to the Trustee in such section shall be deemed to be references to the Collateral Trustee for this purpose. If the Collateral Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act will be the successor Collateral Trustee.

 

Section 11.08. Appointment of the Collateral Trustee for German Security Documents.

 

Without prejudice to, and in addition to, the other provisions of Section 10 and this Section 11, and without limiting any other rights of the Collateral Trustee under this Indenture or any other Indenture Document, in relation to the German Security Documents the following shall apply:

 

(A) Each other Secured Party hereby appoints and authorizes the Collateral Trustee to:

 

(i) hold and administer:

 

(1) and, as the case may be, release and (subject to it having become enforceable) realize any security interest granted under any German Security Document (each, a “German Security Interest”) that is constituted by way of a transfer of title or assignment by way of security (Sicherungseigentum/Sicherungsabtretung) or by way of any other non-accessory security right (nicht akzessorische Sicherheit);

 

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(2) the benefit of this paragraph (i); and

 

(3) any proceeds of such German Security Interest,

 

as trustee in its own name but for the benefit of all relevant Secured Parties (other than the Collateral Trustee) (each, a “German Secured Party”) that have the benefit of such German Security Interest in accordance with this Indenture or any other Indenture Document and the respective German Security Document;

 

(ii) administer and, as the case may be, release and (subject to it having become enforceable) realize any German Security Interest that is created in favor of the Collateral Trustee or the German Secured Parties (or any of them) by way of a pledge (Verpfändung) or any other German law accessory security right (akzessorische Sicherheit); and

 

(iii) if and when acting in its capacity as creditor of the Collateral Trustee Claim, hold and administer and, as the case may be, release and (subject to it having become enforceable) realize:

 

(1) any German Security Interest that is created in favor of the Collateral Trustee as creditor of the Collateral Trustee Claim by way of a pledge (Verpfändung) or any other German law accessory security right (akzessorische Sicherheit);

 

(2) any proceeds of such German Security Interest; and

 

(3) the benefit of this paragraph (iii) and of the Collateral Trustee Claim,

 

as creditor in its own right but for the benefit of the German Secured Parties in accordance with this Indenture.

 

(B) Each German Secured Party hereby ratifies and approves all acts done by the Collateral Trustee on such German Secured Party’s behalf before execution of this Indenture, or the relevant German Secured Party’s accession to this Indenture, as the case may be, including, for the avoidance of doubt, the declarations made by the Collateral Trustee as representative without power of attorney (Vertreter ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of any German Secured Party in respect of any German Security Document.

 

(C) The Collateral Trustee shall, and is hereby authorized by each of the German Secured Parties to, execute on behalf of itself and each other German Secured Party, without the need for any further referral to, or authority from, any other person, all necessary releases or confirmations of any security created under the German Security Documents. The Collateral Trustee and each of the German Secured Parties hereby agree that, in relation to the German Security Documents, no German Secured Party shall exercise any independent power to enforce any German Security Interest or take any other action in relation to the enforcement of the German Security Interests, or make or receive any declarations in relation thereto.

 

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(D) Each German Secured Party hereby irrevocably instructs and authorizes the Collateral Trustee (with the right of sub-delegation) to act on its behalf and, if required under requirements of law or if otherwise appropriate, in its name and on its behalf in connection with the preparation, execution and delivery of the German Security Documents, the perfection and monitoring of the German Security Documents and the rescission, release or amendment of the German Security Documents, and to enter into any documents evidencing German Security Interests and to make and accept all declarations and take all actions it considers necessary or useful in connection with any German Security Interest on behalf of such German Secured Party. The Collateral Trustee is hereby authorized by each German Secured Party to make all statements necessary or appropriate in connection with the foregoing. The Collateral Trustee shall further be entitled to rescind, release, amend or execute, on behalf of each German Secured Party, any additional documents securing the German Security Interest.

 

(E) At the request of the Collateral Trustee, each German Secured Party shall provide the Collateral Trustee with a separate written power of attorney (Spezialvollmacht) for the purposes of executing any relevant agreements and documents on its behalf.

 

Section 11.09. Appointment of the Collateral Trustee for French Security Documents.

 

Without prejudice to, and in addition to, the other provisions of Section 10 and this Section 11, each other Notes Secured Party:

 

(A) appoints the Collateral Trustee to act as security agent (agent des sûretés) pursuant to articles 2488-6 et seq. of the French Civil Code acting in such a capacity in respect of the French Security Documents (including any lower ranking French Security Documents to be entered into after the date hereof in order to create security in favor of the Notes Secured Parties); and

 

(B) irrevocably authorizes (and as the case may be directs) the Collateral Trustee acting as security agent (agent des sûretés) within the meaning of article 2488-6 of the French Civil Code without limitation and notwithstanding any other rights conferred upon the Collateral under this Indenture:

 

(i) to negotiate, accept and execute in its name and for the benefit of each other Notes Secured Party the French Security Documents;

 

(ii) to take, register, administer and enforce any security interest created or expressed to be created pursuant to a French Security Document and proceed to all relevant filings and notifications in order to ensure the enforceability of the security interests created pursuant to the French Security Documents;

 

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(iii) to perform the duties and to exercise the rights, powers and discretions that are specifically delegated to it under or in connection with the French Security Documents and in particular to:

 

(1) enforce the French Security Documents, and, in connection with any enforcement or any step to be taken in connection with any enforcement, to appoint any expert, to collect any sums, to give good discharge for any amount payable and to make any payment (including any Soulte); 

 

(2) take any action in the interest of the Notes Secured Parties in any proceedings including filing a claim for any debt (déclarer) owed to a Notes Secured Party; 

 

(3) exercise any of the rights, powers, authorities and discretions which the Notes Secured Parties would have had, if they had been parties as beneficiaries under the French Security Documents including (1) giving any instruction to any third party in connection with any security interest created under a French Security Documents, (2) receiving any payment in respect of any security interest created under a French Security Documents, (3) completing any applicable registration requirements in connection with the French Security Documents and (4) receiving any information which a secured creditor is entitled to receive with respect to any Notes Security Property subject to security interest created under a French Security Documents; and

 

(4) and more generally to take any action and exercise any right, power, prerogative and discretion upon the Indenture Documents set out in this Indenture or under or in connection with the Notes Security Documents and to protect the rights of the Notes Secured Parties under or in connection with any security interest created thereunder, in each case together with any other right, power, prerogative and discretion which is incidental thereto;

 

(5) to release the security interest granted under the French Security Documents in accordance with the provisions of Section 11.04; and

 

(6) to take any action and exercise any right, power, authorities and discretion in accordance with the Indenture Documents,

 

in each case, in accordance with the Intercreditor Agreement.

 

(C) Unless expressly provided to the contrary in any French Security Documents, in accordance with the provisions of article 2488-6 of the French Civil Code, the Collateral Trustee shall hold:

 

(i) any security interest created under a French Security Document;

 

(ii) the proceeds of any security interest created under a French Security Document; and

 

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(iii) any other rights or assets acquired by the Collateral Trustee in connection with the French Security Documents,

 

(iv) in its own name (en son nom propre) for the benefit of (au profit de) the Notes Secured Parties (together with any of their successors in title and transferees) on the terms contained in this Indenture. The Collateral Trustee shall hold those rights and assets set out in paragraphs (i) to (iii) above in its capacity as agent des sûretés and those rights and assets shall constitute, in accordance with article 2488-6 of the French Civil Code, an estate (patrimoine affecté) separate from all the Collateral Trustee’s own assets.

 

(D) In connection with any French Security Documents or any security interest created under a French Security Documents only, it is intended that the Collateral Trustee shall act as agent des sûretés under French law in its relations with any third party, despite the choice of laws of the State of New York as the governing law of this Indenture.

 

(E) The Collateral Trustee accepts its appointment as “agent des sûretés” pursuant to this Section 11.09 and declares that it holds in its own name the security interest created or expressed to be created pursuant to the French Security Documents in its capacity as Collateral Trustee (agent des sûretés) pursuant to articles 2488-6 et seq. of the French Civil Code for the benefit of the Notes Secured Parties on the terms contained in this Indenture and accordingly any action taken by the Collateral Trustee in connection with or for the purposes of the French Security Documents and the security interest created thereunder in accordance with this Indenture and the French Security Documents shall be deemed to be taken by the Collateral Trustee acting as “agent des sûretés” in its own name and for the benefit of the Notes Secured Parties.

 

(F) The Collateral Trustee is under no obligation to file (déclarer) a claim for any debt owed by the Company or any Guarantor to a Notes Secured Party in any insolvency proceedings unless:

 

(i) each relevant Notes Secured Party instructs the Collateral Trustee to file (déclarer) such a claim;

 

(ii) the Collateral Trustee has received all information it deems necessary to file that claim (déclaration); 

 

(iii) the Collateral Trustee expressly agrees with each relevant Notes Secured Party to file that claim on that Notes Secured Party’s behalf; and

 

(iv) the filing of such claim is in accordance with the terms of the Intercreditor Agreement.

 

(G) If, the Collateral Trustee enforces a French Security Document by way of Appropriation, the Collateral Trustee shall become, in accordance with the relevant French Security Document and French law, the owner of the Charged Property subject to the appropriation for the benefit of (au profit de) the Notes Secured Parties.

 

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(H) If a Soulte is payable as a result of the enforcement of any security interest created under any French Security Document, the Collateral Trustee shall:

 

(i) determine, for each Notes Secured Party whose Obligations are discharged by that enforcement, the portion of the Soulte which is attributable to the Notes Secured Party, such amount being in proportion with the amount of that Notes Secured Party’s Secured Liabilities (as such term is defined in the French Security Documents) (its Soulte Portion); and

 

(ii) promptly notify each relevant Notes Secured Party of its Soulte Portion and the name of each Notes Secured Party which is entitled to receive the Soulte.

 

(I) In consideration of the Collateral Trustee acting as agent des sûretés in connection with any French Security Documents, the Collateral Trustee, the Company, each Guarantor, each security provider under the Indenture Document and each Notes Secured Party agree that each relevant Notes Secured Party is liable to pay in accordance with the provisions of article 2348 of the French Civil Code and the provisions of the relevant French Security Document, its Soulte Portion to the Company, the Guarantor or the relevant security provider, as applicable, which, before the enforcement by way of transfer of ownership of any Charged Property, was the owner of that Charged Property.

 

(J) Each relevant Notes Secured Party shall pay to the Collateral Trustee its Soulte Portion for payment to the Company, the Guarantor or the relevant security provider under the Indenture Document, as applicable, promptly following any request by the Collateral Trustee. In no circumstances shall the Collateral Trustee in its capacity as security agent or agent (as the case may be) be liable for the payment of any Soulte out of its own assets.

 

(K) The obligations of each Notes Secured Party in respect of the payment of any Soulte are several. Failure by a Notes Secured Party to pay its Soulte Portion under this Section 11.09 does not affect the obligations of any other Notes Secured Party to pay its Soulte Portion under this Section 11.09 and no Notes Secured Party is responsible for the obligations of any other Notes Secured Party under this Section 11.09(K).

 

(L) The Collateral Trustee may resign, or be required to resign as agent des sûretés, only if the Collateral Trustee resigns or is required to resign as Collateral Trustee under Section 11.07(F) at the same time.

 

(M) If the Collateral Trustee resigns, or the Majority Holders require the Collateral Trustee to resign under Section 11.07(F):

 

(i) the Collateral Trustee will be deemed to have resigned from its role as agent des sûretés under this Section 11.09(L); and

 

(ii) the successor Collateral Trustee shall accept its appointment as agent des sûretés immediately on the successor Collateral Trustee’s appointment under Section 11.07(F).

 

immediately on its acceptance of its appointment as agent des sûretés under paragraph (ii) above, all rights and assets held by the Collateral Trustee as agent des sûretés will be transferred to the successor Collateral Trustee automatically (de plein droit) in accordance with article 2488-11 of the French Civil Code.

 

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Section 11.10. Appointment of Supplemental Collateral Trustee.

 

(A) Without limiting paragraphs of this Article 11 hereof, the Company is hereby authorized to appoint an additional individual or institution selected by the Company in its sole discretion as a separate trustee, co-trustee, administrative agent, collateral trustee, sub-trustee, administrative sub-agent or administrative co-agent (any such additional individual or institution being referred to herein individually as a “Supplemental Collateral Trustee” and collectively as “Supplemental Collateral Trustees”) by executing one or more supplemental indentures hereto.

 

(B) In the event that the Company appoints a Supplemental Collateral Trustee with respect to any Collateral, (i) subject to the terms of the Intercreditor Agreement, each and every right, power, privilege or duty expressed or intended by this Indenture or any of the other Notes Security Documents (other than the rights arising in respect of the Collateral Trustee Claims under Section 11.04) to be exercised by or vested in or conveyed to such Supplemental Collateral Trustee with respect to such Collateral shall be exercisable by and vest in such Supplemental Collateral Trustee to the extent, and only to the extent, necessary to enable such Supplemental Collateral Trustee to exercise such rights, powers and privileges with respect to such Collateral and to perform such duties with respect to such Collateral, and every covenant and obligation contained in the Notes Security Documents and necessary to the exercise or performance thereof by such Supplemental Collateral Trustee (other than covenants and obligations relating to the Collateral Trustee Claims) shall run to and be enforceable by such Supplemental Collateral Trustee, and (ii) the provisions of this Indenture (and, in particular, this Article 11) that refer to the Collateral Trustee shall inure to the benefit of such Supplemental Collateral Trustee and all references therein to the Collateral Trustee shall be deemed to be references to a Collateral Trustee and/or such Supplemental Collateral Trustee, as the context may require.

 

(C) The Company hereby appoints the Philippine Supplemental Collateral Trustee as the collateral trustee in respect of the Philippine Collateral.

 

(D) The Philippine Supplemental Collateral Trustee agrees, with respect to the Philippine Collateral, (i) subject to the terms of the Intercreditor Agreement, each and every right, power, privilege or duty expressed or intended by this Indenture or the Philippine Security Document (other than the rights arising in respect of the Collateral Trustee Claims under Section 11.04) to be exercised by or vested in or conveyed to the Philippine Supplemental Collateral Trustee with respect to the Philippine Collateral shall be exercisable by and vest in the Philippine Supplemental Collateral Trustee to the extent, and only to the extent, necessary to enable the Philippine Supplemental Collateral Trustee to exercise such rights, powers and privileges with respect to the Philippine Collateral and to perform such duties with respect to Philippine Collateral, and every covenant and obligation contained in the Philippine Security Document and necessary to the exercise or performance thereof by the Philippine Supplemental Collateral Trustee (other than covenants and obligations relating to the Collateral Trustee Claims) shall run to and be enforceable by the Philippine Supplemental Collateral Trustee, and (ii) the provisions of this Indenture (and, in particular, this Article 11) that refer to the Collateral Trustee shall inure to the benefit of the Philippine Supplemental Collateral Trustee and all references therein to the Collateral Trustee shall be deemed to be references to a Collateral Trustee and/or the Philippine Supplemental Collateral Trustee, as the context may require.

 

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Article 12. GUARANTEES

 

Section 12.01. Subsidiary Guarantees

 

(A) Subject to this Article 12, each of the Guarantors hereby, jointly and severally, unconditionally guarantees, on a senior secured basis, as primary obligors and not as a surety, to each Holder (and its successors and assigns) of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Indenture Documents and/or the Obligations of the Company:

 

(i) that the principal of, interest on, or any other amount payable to the Holders, under the Notes shall be promptly paid in full or performed when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest (including but not limited to any interest, fees, costs or charges that would accrue but for the provisions of applicable Bankruptcy Law after any insolvency proceeding), on the Notes, if any, if lawful; and

 

(ii) that in the case of any extension of time of payment or renewal of any Notes or the payment of any other amount payable to the Holders, the same shall be promptly paid in full when due (such obligations in clauses (i) and (ii) being herein collectively called the “Guaranteed Obligations”)

 

(B) Failing payment when so due of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the obligations of the Company.

 

(C) The Guarantors hereby agree that their obligations hereunder shall be absolute, irrevocable and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Notes, this Indenture, the Indenture Documents or any other agreement or instrument referred to herein or therein, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a surety of Guarantor, all to the fullest extent permitted by law. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which remain absolute, irrevocable and unconditional under any and all circumstances as described above, to the fullest extent permitted by law:

 

(i) at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

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(ii) any of the acts mentioned in any of the provisions of this Indenture or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

 

(iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Indenture, Notes, or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

 

(iv) any Lien or security interest granted to, or in favor of any Holder, the Collateral Trustee or the Trustee as security for any of the Guaranteed Obligations shall fail to be perfected; or

 

(v) the release of any other Guarantor.

 

(D) Each Guarantor further, to the fullest extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.

 

(E) Until terminated in accordance with Section 12.05, each Subsidiary Guarantee shall, to the fullest extent permitted by law, remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee or other similar officer be appointed for all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

 

(F) Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (a) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 7.02 hereof (and shall be deemed to have become automatically due and payable in the circumstances in said Section 7.02) for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed thereby, and (b) in the event of any declaration of acceleration of such obligations as provided in Section 7.02 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees.

 

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(G) Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Collateral Trustee in enforcing any rights under the Indenture Documents.

 

(H) Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of this Section 12.01; provided that, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture, the Notes or the Indenture Documents shall have been paid in full in cash.

 

(I) Each payment to be made by a Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.

 

(H) Each Subsidiary Guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held in connection with the Indenture Documents or any of them.

 

Section 12.02. Execution and Delivery

 

(A) To evidence its Subsidiary Guarantee set forth in Section 12.01 hereof, each Guarantor hereby agrees that this Indenture (or a supplemental indenture) shall be executed on behalf of such Guarantor by one of its authorized officers.

 

(B) Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 12.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes. If an officer whose signature is on this Indenture (or a supplemental indenture) no longer holds that office at the time the Trustee authenticates a Note, the Subsidiary Guarantee of such Guarantor shall be valid nevertheless.

 

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

 

Section 12.03. [Reserved].

 

Section 12.04. Releases of Subsidiary Guarantees.

 

(A) The Subsidiary Guarantee of a Guarantor shall be automatically and unconditionally released: (1) in connection with (x) any disposition (including by way of merger or consolidation) of the Capital Stock of such Guarantor (or the Capital Stock of the direct parent of such Guarantor) to a Person that is not (either before or after giving effect to such transaction) a Company Indenture Party, to the extent such sale is permitted under any Priority Lien Debt Documents or (y) any sale or other disposition of all or substantially all of the properties or assets of that Guarantor, by way of merger, consolidation or otherwise solely to the extent that such sale or other disposition is permitted pursuant to Section 6.01, in each case, only provided that the applicable guarantee of such Guarantor under any Priority Lien Debt Documents is also released under any Priority Lien Debt Documents substantially at the same time; (2) the liquidation or dissolution of such Guarantor; provided that no Event of Default occurs as a result thereof or has occurred or is continuing; (3) upon satisfaction and discharge of this Indenture and the other Indenture Documents in accordance with Article 9; or (4) upon payment of the Obligations in full in immediately available funds.

 

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(B) Upon delivery by the Company to the Trustee of an Officer’s Certificate or an Opinion of Counsel to the effect that any of the conditions described in the foregoing clauses (1), (2), or (3) of Section 12.04(A) has occurred and the conditions precedent to such transactions provided for in this Indenture have been complied with, the Trustee shall promptly execute any documents reasonably requested by the Company in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of and interest, premium, if any, on, the Notes and for the other obligations of such Guarantor under this Indenture as provided in this Article 12.

 

(C) Further, the Subsidiary Guarantees are not convertible and will automatically terminate when the Notes are all converted in full in accordance with Article 5.

 

Section 12.05. Instrument for the Payment of Money.

 

(A) Each Guarantor hereby acknowledges that the guarantee in this Article 12 constitutes an instrument for the payment of money, and consents and agrees that any Holder (to the extent that the Holder is otherwise entitled to exercise rights and remedies hereunder) or the Trustee, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213 to the extent permitted thereunder.

 

Section 12.06. Limitation on Guarantor Liability

 

(A) Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of any bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or any comparable laws in any other jurisdiction to the extent applicable to any Subsidiary Guarantee. The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law or any comparable laws in any other jurisdiction and not otherwise being void or voidable under any similar laws affecting the rights of creditors generally.

 

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(B) Limitation with respect to Swiss Guarantors

 

(i) If and to the extent a Guarantor incorporated in Switzerland (a “Swiss Guarantor”) becomes directly or indirectly liable under this Indenture or any other Indenture Documents for obligations of any other Company Indenture Party (other than the wholly owned direct or indirect subsidiaries of such Swiss Guarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss Guarantor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Freely Disposable Amount”).

 

(ii) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform Restricted Obligations under any Indenture Document. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity.

 

(iii) If the enforcement of the obligations of the Swiss Guarantor under any Indenture Documents would be limited due to the effects referred to in this Indenture, the Swiss Guarantor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Collateral Trustee, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Indenture Documents.

 

(iv) The Swiss Guarantor and any holding company of the Swiss Guarantor which is a party to an Indenture Document shall procure that the Swiss Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Collateral Trustee, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or any other Indenture Document, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Guarantor that a payment of the Swiss Guarantor under the Indenture or any other Indenture Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Guarantor is required to make a payment or perform other obligations under this Indenture or any other Indenture Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations.

 

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(v) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Indenture and any Indenture Document, the Swiss Guarantor:

 

(1) shall use its best efforts to ensure that such payments can be made without deduction of Swiss Withholding Tax, or with deduction of Swiss Withholding Tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax;

 

(2) shall deduct the Swiss Withholding Tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to sub-paragraph (a) above does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub-paragraph (a) applies for a part of the Swiss Withholding Tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and

 

(3) shall promptly notify the Collateral Trustee that such notification or, as the case may be, deduction has been made, and provide the Collateral Trustee with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration.

 

(vi) In the case of a deduction of Swiss Withholding Tax, the Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment under this Indenture or any Indenture Documents, will, as soon as possible after such deduction:

 

(1) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and

 

(2) pay to the Collateral Trustee upon receipt any amount so refunded.

 

The Collateral Trustee shall co-operate with the Swiss Guarantor to secure such refund.

 

(vii) To the extent the Swiss Guarantor is required to deduct Swiss Withholding Tax pursuant to this Indenture or any other Indenture Documents, and if the Freely Disposable Amount is not fully utilised, the Swiss Guarantor will be required to pay an additional amount so that after making any required deduction of Swiss Withholding Tax the aggregate net amount paid to the Collateral Trustee is equal to the amount which would have been paid if no deduction of Swiss Withholding Tax had been required, provided that the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount. If a refund is made to a Notes Secured Party, such Notes Secured Party shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Notes Secured Party pursuant to the Indenture Documents.

 

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Section 12.07. “Trustee” to Include Paying Agent

 

(A) In case at any time any Paying Agent other than the Trustee shall have been appointed and be then acting hereunder, the term “Trustee” as used in this Article 12 shall in each case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent were named in this Article 12 in place of the Trustee.

 

Article 13. MISCELLANEOUS

 

Section 13.01. Notices.

 

Any notice or communication by any Company Indenture Party or the Trustee, Collateral Trustee and Note Agent to the other must be provided in writing and will be deemed to have been duly given in writing if delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission or other similar means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address, which initially is as follows:

 

If to any Company Indenture Party:

 

Maxeon Solar Technologies, Ltd.

8 Marina Boulevard, #05-02

Marina Bay Financial Centre

018981, Singapore

Attention: Chief Legal Officer

Telephone: (480) 734 - 1234

Email address: lindsey.wiedmann@maxeon.com

 

with a copy (which will not constitute notice) to:

 

White & Case

16th floor, York House, The Landmark

15 Queen’s Road Central

Hong Kong

Attention: Jessica Zhou; Kaya Proudian

Email: jessica.zhou@whitecase.com; kproudian@whitecase.com

 

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If to the Trustee:

 

Deutsche Bank Trust Company Americas

1 Columbus Circle, 17th Floor

Mail Stop:NYC01-1710

New York, NY 10019

Facsimile: (732) 578-4635

Attention: Corporates Team, Maxeon Solar Technologies Ltd. – AA6573

 

If to the Collateral Trustee:

 

DB Trustees (Hong Kong) Limited

Level 60, International Commerce Centre

1 Austin Road West

Kowloon, Hong Kong

 

Facsimile No.: +852 2203 7320

Attention: The Directors

E-mail: debtagency.hkcsg@list.db.com

 

If to the Philippine Supplemental Collateral Trustee:

 

RCBC Trust Corporation

9th Floor, Yuchengco Tower

RCBC Plaza, 6819 Ayala Avenue

Makati City, Philippines 0727

 

Attention: Mr. Ryan Roy W. Sinaon

Telephone: 63 (02) 8894-9000 local 1278

E-mail: rwsinaon@rcbc.com

 

Any Company Indenture Party, the Trustee, the Collateral Trustee or the Philippine Supplemental Collateral Trustee, by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses) for subsequent notices or communications.

 

All notices and communications (other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered; (B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

 

All notices or communications required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or communication, will not affect its sufficiency with respect to any other Holder.