UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report (date of earliest event reported): January 13, 2016 (January 11, 2016)

 

 

SunEdison, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-13828   56-1505767

(State or Other Jurisdiction

Of Incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

13736 Riverport Drive, Suite 180

Maryland Heights, Missouri

  63043
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (314) 770-7300

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

Indenture

On January 11, 2016, in connection with the Exchange Transactions (as defined below), SunEdison, Inc. (the “Company,” “we” or “our”) issued $225,000,000 aggregate principal amount of new 5% senior secured convertible notes due 2018 (the “New Notes”) under an indenture, dated as of January 11, 2016 (the “Indenture”), among the Company, the Guarantors (as defined below) and Wilmington Trust, National Association, as trustee (the “Trustee”). The Company offered and sold the New Notes in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). The New Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.

The New Notes will bear interest at a rate of 5.000% per year, payable semiannually in arrears in cash on July 2 and January 2 of each year or, if any such day is not a business day, the immediately following business day, beginning on July 2, 2016. The New Notes are our and the Guarantors’ senior secured obligations and:

 

    rank senior in right of payment to our and the Guarantors’ existing and future debt and other obligations that are, by their terms, expressly subordinated in right of payment to the New Notes;

 

    rank equally in right of payment with all of our and the Guarantors’ existing and future senior debt;

 

    are effectively senior to all of our and the Guarantors’ existing and future debt secured by a junior priority lien, to the extent of the value of the assets securing the New Notes; and

 

    are effectively equal to all of our and the Guarantors’ existing and future debt secured by a lien of equal priority to the New Notes, including the loans under the Second Lien Credit Facility (as defined below).

Holders may surrender all or any portion of their New Notes for conversion at any time until the close of business on the business day immediately preceding April 2, 2018 only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending March 31, 2016 if the closing sale price of our common stock, for at least 20 trading days (whether or not consecutive) in the period of 30 consecutive trading days ending on the last trading day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 120% of the conversion price of the New Notes in effect on each applicable trading day; (2) during the five consecutive business day period following any 10 consecutive trading-day period in which the trading price for New Notes for each such trading day is less than 98% of the closing sale price of our common stock on such trading day multiplied by the applicable conversion rate on such trading day; or (3) upon the occurrence of specified corporate events described in the Indenture. On and after April 2, 2018, until the close of business on the second scheduled trading day immediately prior to the applicable stated maturity date, holders may surrender all or any portion of their New Notes for conversion regardless of the foregoing conditions.

Upon conversion we will pay cash, and if applicable, deliver shares of our common stock, based on a “Daily Conversion Value” calculated on a proportionate basis for each “VWAP Trading Day” (each as defined in the Indenture) of the relevant 25 VWAP Trading Day observation period. The initial conversion rate for the New Notes will be 133.3333 shares of common stock per $1,000 in principal amount of New Notes, equivalent to an initial conversion price of approximately $7.50 per share of common stock. The conversion rate will be subject to adjustment in certain circumstances.

Subject to certain exceptions, holders may require the Company to repurchase, for cash, all or part of their notes upon a “Fundamental Change” (as defined in the Indentures) at a price equal to 100% of the principal amount of the New Notes being repurchased plus any accrued and unpaid interest up to, but excluding, the “Fundamental Change Purchase Date” (as defined in the Indenture). In addition, upon a “Make-Whole Fundamental Change” (as defined in the Indenture) prior to the maturity date of the New Notes, we will, in some cases, increase the conversion rate for a holder that elects to convert its New Notes in connection with such Make-Whole Fundamental Change. The Company may not redeem the New Notes prior to maturity.


The Indenture also provides that, subject to certain exceptions, to the extent that the Company is required to make a mandatory prepayment under the Second Lien Credit Facility, holders may require the Company to repurchase, for cash, their New Notes in an amount equal to the pro rata portion of the aggregate amount of such mandatory prepayment amount, at a price equal to 100% of the principal amount of the New Notes being repurchased plus (i) any premium payable under the Second Lien Credit Facility in connection with the applicable mandatory prepayment and (ii) any accrued and unpaid interest up to, but excluding, the repurchase date.

The Indenture contains certain covenants with respect to additional guarantees, additional collateral and limitations on the ability of the Company to incur or refinance first lien indebtedness, and other customary covenants. The Indenture also contains customary events of default after which the New Notes may be due and payable immediately. Such events of default include, without limitation, the following: failure to pay interest on any note when due and such failure continues for 30 days; failure to pay any principal of any New Note when due and payable at maturity, upon required repurchase, upon acceleration or otherwise; failure to comply with our obligation to convert the New Notes into cash, our common stock or a combination of cash and our common stock, as applicable, upon exercise of a holder’s conversion right and such failure continues for 5 business days; failure by us to provide timely notice of a fundamental change, make-whole fundamental change or certain distributions; failure by us or the Guarantors to comply with our obligations to provide additional guarantees, additional collateral and failure in performance or breach of any covenant or agreement otherwise agreed by us under the Indenture (other than those described above in this paragraph); failure to pay any indebtedness borrowed by us, the Guarantors or our subsidiaries (other than immaterial or non-recourse subsidiaries) in an outstanding principal amount in excess of $50 million; failure by us, the Guarantors or our subsidiaries (other than immaterial or non-recourse subsidiaries) to pay, bond or otherwise discharge any judgments or orders in excess of $50 million within 30 days of the entry of such judgment; any event of default under the Second Lien Credit Facility; and certain events in bankruptcy, insolvency or reorganization of the Company, the Guarantors or our subsidiaries (other than immaterial or non-recourse subsidiaries).

Second Lien Credit Facility

On January 11, 2016, the Company entered into the Second Lien Credit Agreement (the “Second Lien Credit Facility”) among the Company, as borrower, the Guarantors, each lender from time to time party thereto, Deutsche Bank AG New York Branch, as administrative agent, Deutsche Bank Securities Inc., Barclays Bank PLC, Macquarie Capital (USA) Inc. and KeyBanc Capital Markets Inc., as joint lead arrangers and joint bookrunners and Deutsche Bank Securities Inc., as sole syndication agent and as sole documentation agent, in a principal amount of up to $725,000,000 of term loans, consisting of $500,000,000 aggregate principal amount of Tranche A-1 Term Loans and $225,000,000 aggregate principal amount of Tranche A-2 Term Loans. Loans under the Second Lien Credit Facility will bear interest at a rate of LIBOR + 10.0% per annum or a specified base rate + 9.0% per annum and will mature on July 2, 2018. Loans under the Second Lien Credit Facility are non-callable for one year, and certain prepayments during the second year of the facility will be subject to a prepayment price of 105% of the principal amount of loans so paid. The net proceeds from the Second Lien Credit Facility have been or will be used to repay all of the approximately $170 million of outstanding indebtedness under the Company’s existing second lien credit facility, interest, transaction costs, and for general corporate purposes.

The Second Lien Credit Facility contain customary affirmative and negative covenants, representations and warranties and events of default, including covenants relating to the incurrence of indebtedness and liens, the making of restricted payments and investments, fundamental changes, asset dispositions, transactions with affiliates and the prepayment or amendment of indebtedness.

Each of the Company’s existing and future domestic subsidiaries that guarantees its obligations under the Company’s existing first lien letter of credit facility (the “Guarantors”) will guarantee the loans under the Second Lien Credit Facility and the New Notes, subject to certain exceptions. Loans under the Second Lien Credit Facility and the New Notes will also be secured on a second lien basis by substantially the same collateral that secures the Company’s existing first lien letter of credit facility.


Concurrently with the Company’s entry into the Second Lien Credit Facility and the Indenture, and in connection with the granting of security interests in the collateral, the Company entered into (i) an Intercreditor Agreement, dated as of January 11, 2016 (the “Intercreditor Agreement”), among the Company, Wilmington Trust, National Association, as collateral trustee for the second lien obligations, and Wells Fargo Bank, National Association, as first lien administrative agent in respect of the Company’s first lien letter of credit facility, (ii) the Collateral Trust Agreement, dated as of January 11, 2016 (the “Collateral Trust Agreement”), among the Company, the Guarantors, Deutsche Bank AG (New York Branch), as administrative agent under the Second Lien Credit Facility, and Wilmington Trust, National Association in its capacities as trustee under the Indenture and collateral trustee in respect of the second lien obligations and (iii) the Second Lien Security and Pledge Agreement, dated as of January 11, 2016 (the “Security Agreement”), among the Company, the Guarantors and Wilmington Trust, National Association, in its capacity as collateral trustee.

The Intercreditor Agreement governs the relative rights and priorities of the secured parties in respect of liens on the Company’s and the Guarantors’ assets securing the Company’s first lien letter of credit facility, the Second Lien Credit Facility and the New Notes, and certain other matters relating to the administration of such liens. The Collateral Trust Agreement and the Security Agreement provide for, among other things, the pledging of the assets of the Company and the Guarantors to secure the New Notes and the Second Lien Credit Facility and govern certain obligations of the Company, the Guarantors and the collateral trustee in connection therewith.

Amendment to First Lien Credit Agreement

In connection with the Company’s entry into the Second Lien Credit Facility and the Indenture, it also entered into Amendment No. 9 to its existing first lien credit agreement (the “Amendment”), among the Company, the Guarantors and the lenders party thereto. The Amendment permitted the Company and the Guarantors to enter into the Second Lien Credit Facility and the Indenture and to effect the related transactions, and also included certain ancillary amendments agreed to by the parties, including relating to the utilization of letters of credit.

The foregoing descriptions of the Indenture, the Second Lien Credit Facility, the Intercreditor Agreement, the Collateral Trust Agreement, the Security Agreement and the Amendment do not purport to be complete and are qualified in their entirety by reference to the actual agreements attached hereto as Exhibits 4.1, 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and incorporated herein by reference.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 under the heading “Indenture” and “Second Lien Credit Facility” is incorporated herein by reference into this Item 2.03

 

Item 3.02 Unregistered Sales of Equity Securities.

Shares Issued in Exchange Transactions and in connection with Warrant Exercise

As previously disclosed in our Current Report on Form 8-K filed with the Securities and Exchange Commission on January 7, 2016, the Company entered into a series of exchange agreements with certain holders of its (i) 2.0% Convertible Senior Notes due 2018, (ii) 0.25% Convertible Senior Notes due 2020, (iii) 2.75% Convertible Senior Notes due 2021, (iv) 2.375% Convertible Senior Notes due 2022, (v) 2.625% Convertible Senior Notes due 2023, (vi) 3.375% Convertible Senior Notes due 2025 (collectively, the “Existing Convertible Notes”) and (vii) 6.75% Series A Perpetual Convertible Preferred Stock (the “Preferred Stock”) pursuant to which the Company agreed to issue in exchange for Existing Convertible Notes and Preferred Stock, New Notes and common stock as set forth below (the “Exchange Transactions”). In addition, as previously disclosed, in connection with its entry into the Second Lien Credit Facility, the Company issued the lenders thereunder approximately 28.7 million warrants (the “Warrants”) exercisable for shares on a 1:1 basis at an exercise price of $0.01 per warrant. The Exchange Transactions closed on January 11, 2016, other than in respect of approximately 3.7 million shares which closed on the date hereof.

As of the date hereof:

 

    the Company has issued a total of approximately 51.9 million shares of common stock in exchange for approximately $244.3 million aggregate principal amount of the Existing Convertible Notes and approximately $158.3 million of the Preferred Stock, representing all of the shares issuable in the Exchange Transactions; and


    of the approximately 28.7 million Warrants, approximately 26.5 million Warrants have been exercised by the holders thereof and such holders were issued shares on a 1:1 basis, with substantially all of such holders electing to use deliverable shares to pay the exercise price of the Warrants (based on the average of the volume-weighted average prices of the shares over a trailing period of five trading days).

In addition, the Company has issued $225 million aggregate principal amount of the New Notes (as described above) in exchange for approximately $335.9 million aggregate principal amount of the Existing Convertible Notes, representing all of the New Notes issuable in the Exchange Transactions. The resale of all of the shares (i) issued in the Exchange Transactions, (ii) issued upon exercise of the Warrants and (iii) issuable upon conversion of the New Notes has been registered by the Company under the Securities Act pursuant to the Company’s previously disclosed obligations under a registration rights agreement entered into in connection with the Exchange Transactions.

Shares Issuable upon Conversion of the New Notes

As described in Item 1.01 of this Report, which is incorporated herein by reference, the Company sold $225 million aggregate principal amount of New Notes in a private placement in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act. The New Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. As described above, substantially all of the shares of common stock issuable upon conversion of the Convertible Notes have been registered for resale under the Securities Act. The New Notes are convertible into cash, shares of the Company’s common stock, or a combination thereof, as described in this Report. The maximum number of shares issuable upon conversion of the New Notes is 39,752,640, subject to customary anti-dilution adjustments.

 

Item 7.01 Regulation FD Disclosure.

In connection with the transactions described above, the Company has posted on its website at www.sunedison.com certain information in respect of the dilutive impact of such transactions. In accordance with General Instruction B.2 of Form 8-K, the information contained herein is deemed to be “furnished” and shall not be deemed “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

4.1    Indenture, dated as of January 11, 2016, governing the 5% Guaranteed Convertible Senior Secured Notes, among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.
4.2    Form of 5% Guaranteed Convertible Senior Secured Notes due 2018 (included in Exhibit 4.1).
10.1    Second Lien Credit Agreement, dated as of January 11, 2016, among the Company, the Guarantors, Deutsche Bank AG New York Branch and the other parties named therein.
10.2    Intercreditor Agreement, dated as of January 11, 2016, among the Company, Wilmington Trust, National Association, as collateral trustee, and Wells Fargo Bank, National Association, as first lien administrative agent.
10.3    Collateral Trust Agreement, dated as of January 11, 2016, among the Company, the Guarantors, Deutsche Bank AG (New York Branch), as administrative agent, and Wilmington Trust, National Association, as trustee and collateral trustee.
10.4    Second Lien Security and Pledge Agreement, dated as of January 11, 2016, among the Company, the Guarantors and Wilmington Trust, National Association, as collateral trustee.
10.5    Amendment No. 9 to Credit Agreement, dated as of January 11, 2016, among the Company, the Guarantors and the lenders party thereto.

 


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 hereunto duly authorized.

 

 

    SUNEDISON INC.
Date: January 13, 2016     By:   /s/ Martin H. Truong
      Martin H. Truong
     

Senior Vice President, General Counsel and

Corporate Secretary


EXHIBIT INDEX

 

4.1    Indenture, dated as of January 11, 2016, governing the 5% Guaranteed Convertible Senior Secured Notes, among the Company, the guarantors named therein and Wilmington Trust, National Association, as trustee.
4.2    Form of 5% Guaranteed Convertible Senior Secured Notes due 2018 (included in Exhibit 4.1).
10.1    Second Lien Credit Agreement, dated as of January 11, 2016, among the Company, the Guarantors, Deutsche Bank AG New York Branch and the other parties named therein.
10.2    Intercreditor Agreement, dated as of January 11, 2016, among the Company, Wilmington Trust, National Association, as collateral trustee, and Wells Fargo Bank, National Association, as first lien administrative agent.
10.3    Collateral Trust Agreement, dated as of January 11, 2016, among the Company, the Guarantors, Deutsche Bank AG (New York Branch), as administrative agent, and Wilmington Trust, National Association, as trustee and collateral trustee.
10.4    Second Lien Security and Pledge Agreement, dated as of January 11, 2016, among the Company, the Guarantors and Wilmington Trust, National Association, as collateral trustee.
10.5    Amendment No. 9 to Credit Agreement, dated as of January 11, 2016, among the Company, the Guarantors and the lenders party thereto.

EX-4.1

Exhibit 4.1

 

 

 

 

SunEdison, Inc.

(Company)

The Guarantors Named Herein

(Guarantors) and

Wilmington Trust, National Association

(Trustee)

5% Guaranteed Convertible Senior Secured Notes due 2018

INDENTURE

Dated as of January 11, 2016

 

 

 

 


ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

     1   

Section 1.01

 

Definitions

     1   

Section 1.02

 

References to Interest

     17   

Section 1.03

 

Acts of Holders

     17   

ARTICLE 2. THE NOTES

     19   

Section 2.01

 

Title and Terms; Payments

     19   

Section 2.02

 

Ranking

     19   

Section 2.03

 

Denominations

     20   

Section 2.04

 

Execution, Authentication, Delivery and Dating

     20   

Section 2.05

 

Temporary Notes

     20   

Section 2.06

 

Registration; Registration of Transfer and Exchange

     21   

Section 2.07

 

Transfer Restrictions

     22   

Section 2.08

 

Expiration of Restrictions

     24   

Section 2.09

 

Mutilated, Destroyed, Lost and Stolen Notes

     25   

Section 2.10

 

Persons Deemed Owners

     26   

Section 2.11

 

Transfer and Exchange

     26   

Section 2.12

 

Purchase of Notes; Cancellation

     30   

Section 2.13

 

CUSIP Numbers

     30   

Section 2.14

 

Payment and Computation of Interest

     30   

ARTICLE 3. REPURCHASE AT THE OPTION OF THE HOLDERS

     31   

Section 3.01

 

Purchase at Option of Holders upon a Fundamental Change

     31   

Section 3.02

 

Fundamental Change Company Notice

     31   

Section 3.03

 

Repurchase Procedures

     33   

Section 3.04

 

Effect of Fundamental Change Purchase Notice

     34   

Section 3.05

 

Withdrawal of Fundamental Change Purchase Notice

     34   

Section 3.06

 

Deposit of Fundamental Change Purchase Price

     34   

Section 3.07

 

Notes Purchased in Whole or in Part

     35   

Section 3.08

 

Covenant To Comply with Applicable Laws upon Purchase of Notes

     35   

Section 3.09

 

Repayment to the Company

     35   

Section 3.10

 

Purchase at the Option of Holders upon a Credit Agreement Mandatory Prepayment.

     35   

ARTICLE 4. CONVERSION

     36   

Section 4.01

 

Right To Convert.

     36   

Section 4.02

 

Conversion Procedures

     40   

Section 4.03

 

Settlement Upon Conversion.

     41   

Section 4.04

 

Adjustment of Conversion Rate

     46   

Section 4.05

 

Discretionary and Voluntary Adjustments

     56   

 

i


Section 4.06

 

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

     57   

Section 4.07

 

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

     59   

Section 4.08

 

Certain Covenants

     61   

Section 4.09

 

Responsibility of Trustee.

     61   

Section 4.10

 

Notice of Adjustment to the Trustee.

     62   

Section 4.11

 

Notice to Holders.

     62   

ARTICLE 5. COVENANTS

     63   

Section 5.01

 

Payment of Principal and Interest and the Fundamental Change Purchase Price.

     63   

Section 5.02

 

Maintenance of Office or Agency

     63   

Section 5.03

 

Provisions as to Paying Agent

     64   

Section 5.04

 

Reports

     65   

Section 5.05

 

Statements as to Defaults

     66   

Section 5.06

 

Additional Interest Notice

     66   

Section 5.07

 

Compliance Certificate and Opinions of Counsel

     67   

Section 5.08

 

Additional Interest

     67   

Section 5.09

 

Corporate Existence

     68   

Section 5.10

 

Restriction on Resales

     69   

Section 5.11

 

Further Instruments and Acts

     69   

Section 5.12

 

Par Value Limitation

     69   

Section 5.13

 

Maintenance of Collateral

     69   

Section 5.14

 

Further Assurances

     69   

Section 5.15

 

Company to Furnish Trustee Names and Addresses of Holders

     69   

Section 5.16

 

Additional Guarantors

     70   

Section 5.17

 

Additional Collateral

     70   

Section 5.18

 

First Lien Refinancing Debt.

     72   

ARTICLE 6. REMEDIES

     73   

Section 6.01

 

Events of Default

     73   

Section 6.02

 

Acceleration; Rescission and Annulment

     75   

Section 6.03

 

Additional Interest

     77   

Section 6.04

 

Waiver of Past Defaults

     77   

Section 6.05

 

Control by Majority

     78   

Section 6.06

 

Limitation on Suits

     78   

Section 6.07

 

Rights of Holders to Receive Payment and to Convert

     78   

Section 6.08

 

Collection of Indebtedness; Suit for Enforcement by Trustee

     79   

Section 6.09

 

Trustee May Enforce Claims Without Possession of Notes

     79   

Section 6.10

 

Trustee May File Proofs of Claim

     79   

Section 6.11

 

Restoration of Rights and Remedies

     79   

Section 6.12

 

Rights and Remedies Cumulative

     80   

Section 6.13

 

Delay or Omission Not a Waiver

     80   

Section 6.14

 

Priorities

     80   

 

ii


Section 6.15

 

Undertaking for Costs

     80   

Section 6.16

 

Waiver of Stay, Extension and Usury Laws

     81   

Section 6.17

 

Notices from the Trustee

     81   

ARTICLE 7. SATISFACTION AND DISCHARGE

     81   

Section 7.01

 

Discharge of Liability on Notes

     81   

Section 7.02

 

Deposited Monies to Be Held in Trust by Trustee

     82   

Section 7.03

 

Paying Agent to Repay Monies Held

     82   

Section 7.04

 

Return of Unclaimed Monies

     82   

Section 7.05

 

Reinstatement

     82   

ARTICLE 8. SUPPLEMENTAL INDENTURES

     83   

Section 8.01

 

Supplemental Indentures Without Consent of Holders

     83   

Section 8.02

 

Supplemental Indentures With Consent of Holders

     84   

Section 8.03

 

Notice of Amendment or Supplement

     85   

Section 8.04

 

Trustee to Sign Amendments, Etc.

     85   

ARTICLE 9. SUCCESSOR COMPANY

     85   

Section 9.01

 

Company and Guarantors May Consolidate, Etc. on Certain Terms

     85   

Section 9.02

 

Successor Company to Be Substituted

     86   

Section 9.03

 

Officer’s Certificate and Opinion of Counsel to Be Given to Trustee

     87   

ARTICLE 10. NO REDEMPTION

     87   

Section 10.01

 

No Redemption

     87   

ARTICLE 11. THE TRUSTEE

     87   

Section 11.01

 

Duties and Responsibilities of Trustee

     87   

Section 11.02

 

[Reserved]

     89   

Section 11.03

 

Rights of the Trustee.

     89   

Section 11.04

 

Trustee’s Disclaimer.

     90   

Section 11.05

 

Trustee or Agents May Own Notes

     90   

Section 11.06

 

Monies to be Held in Trust

     90   

Section 11.07

 

Compensation and Expenses of Trustee

     91   

Section 11.08

 

Officer’s Certificate as Evidence

     92   

Section 11.09

 

Conflicting Interests of Trustee

     92   

Section 11.10

 

Eligibility of Trustee

     92   

Section 11.11

 

Resignation or Removal of Trustee

     92   

Section 11.12

 

Acceptance by Successor Trustee

     93   

Section 11.13

 

Succession by Merger, Etc.

     94   

Section 11.14

 

Preferential Collection of Claims

     94   

Section 11.15

 

Trustee’s Application for Instructions from the Company

     95   

 

iii


ARTICLE 12. MISCELLANEOUS

     95   

Section 12.01

 

Effect on Successors and Assigns

     95   

Section 12.02

 

Governing Law

     95   

Section 12.03

 

[Reserved].

     95   

Section 12.04

 

Trust Indenture Act

     95   

Section 12.05

 

Benefits of Indenture

     95   

Section 12.06

 

Calculations

     95   

Section 12.07

 

Execution in Counterparts

     96   

Section 12.08

 

Notices

     96   

Section 12.09

 

No Recourse Against Others

     97   

Section 12.10

 

Tax Withholding

     97   

Section 12.11

 

Waiver of Jury Trial

     97   

Section 12.12

 

U.S.A. Patriot Act

     98   

Section 12.13

 

Force Majeure

     98   

Section 12.14

 

Submission to Jurisdiction.

     98   

ARTICLE 13. GUARANTEE

     99   

Section 13.01

 

Guarantee.

     99   

Section 13.02

 

Execution and Delivery of Guarantees.

     100   

Section 13.03

 

Release of Guarantors.

     100   

ARTICLE 14. COLLATERAL AND SECURITY

     101   

Section 14.01

 

Security Interest.

     101   

Section 14.02

 

Trustee Duties.

     102   

Section 14.03

 

Authorization of Actions to be Taken.

     103   

Section 14.04

 

Release of Collateral.

     104   

 

iv


INDENTURE, dated as of January 11, 2016, among SunEdison, Inc., a Delaware corporation, as issuer (the “Company”), the Guarantors (as defined herein) party hereto, and Wilmington Trust, National Association, as trustee, conversion agent, registrar, bid solicitation agent and paying agent (in such capacities, the “Trustee”, “Conversion Agent”, “Registrar”, “Bid Solicitation Agent” and “Paying Agent”, respectively).

RECITALS OF THE COMPANY

WHEREAS, each of the Company and the Guarantors has duly authorized the creation of an issue of the Company’s 5% Guaranteed Convertible Senior Secured Notes due 2018 (the “Notes”), having the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, has duly authorized the execution and delivery of this Indenture;

WHEREAS, all things necessary to make the Notes, when duly executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the legal, valid and binding obligations of the Company, in accordance with the terms of the Notes and this Indenture, have been done and performed, and the execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized by each of the Company and the Guarantors, as the case may be;

WHEREAS, the Company has agreed to secure all of its Obligations by granting the Collateral Trustee, for the benefit of the Holders (as hereinafter defined), a second priority lien on substantially all of its assets, including, to the extent required by the Collateral Documents, a pledge of all the Equity Interests of each of its Domestic Subsidiaries and sixty-five percent (65%) of the Equity Interests of each of its First-Tier Foreign Subsidiaries; and

WHEREAS, the Notes and the Guarantee of each Guarantor will be secured by each Guarantor granting to the Collateral Trustee, for the benefit of the Holders, a second priority lien on substantially all of such Guarantor’s respective assets, including, to the extent required by this Indenture and the Collateral Documents, a pledge of all the Equity Interests on each of such Guarantor’s respective Domestic Subsidiaries and sixty-five percent (65%) of the Equity Interests of each of such Guarantor’s respective First-Tier Foreign Subsidiaries.

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

ARTICLE 1.

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01 Definitions and References. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein”, “hereof”, “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other Subdivision. The word “or” is not exclusive and the word “including” means including without limitation. The terms defined in this Article include the plural as well as the singular. References to any Article, Section, Schedule or Exhibit are to this Indenture except as herein otherwise expressly provided.

 

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Act” has the meaning specified in Section 1.03.

Act of Required Pari Passu Lien Secured Parties” has the meaning specified in the Collateral Trust Agreement.

Additional Interest” means all amounts, if any, payable by the Company pursuant to Section 5.08 or Section 6.03, as applicable.

Additional Shares” has the meaning specified in Section 4.06(a).

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

Agent Members” has the meaning specified in Section 2.06(b).

Agent” means any Paying Agent, Registrar, Conversion Agent or any other agent appointed pursuant to this Indenture.

Aggregate Mandatory Prepayment Amount” has the meaning set forth in Section 3.10.

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

Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Notes.

Bid Solicitation Agent” means, initially, the Trustee, or any agent the Company may appoint in the future (which may be the Company) to solicit market bid quotations for the Notes as may be required pursuant to Section 4.01(b)(ii).

Board of Directors” means, with respect to a Person, either the board of directors of the Person or any duly authorized committee of that board. Unless otherwise indicated, “Board of Directors” means the Board of Directors of the Company.

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

 

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Business Day” means any day other than a Saturday, a Sunday or a day on which state or federally chartered banking institutions in New York, New York are not required to be open.

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

Change in Control” means an event that will be deemed to have occurred at the time, after the first date of original issuance for the Notes, any of the following occurs:

(1) any “person” or “group” (within the meaning of Section 13(d) of the Exchange Act), other than the Company or its Subsidiaries, or the Company’s or its Subsidiaries’ employee benefit plans, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing 50% or more of the total voting power of the Company’s Common Equity, or has the power, directly or indirectly, to elect a majority of the members of the Company’s board of directors;

(2) the Company consolidates with, enters into a binding share exchange, merger or similar transaction with or into another person other than one or more of its subsidiaries or Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the consolidated assets of the Company, or any Person consolidates with, or merges with or into, the Company; provided, that any merger, binding share exchange, consolidation or similar transaction pursuant to which the Persons that “beneficially owned,” (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, the Company’s Common Equity immediately prior to such transaction “beneficially own,” (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, the Common Equity representing at least a majority of the total voting power of all outstanding classes of the Common Equity of the surviving or transferee Person and such holders’ proportional voting power immediately after such transaction vis-à-vis each other with respect to the securities they receive in such transaction will be in substantially the same proportions as their respective voting power vis-à-vis each other immediately prior to such transaction will not constitute a “Change in Control”;

(3) the holders of the Company’s Capital Stock approve any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with this Indenture); or

(4) the occurrence of any “Change of Control” as defined in the Credit Agreement as in effect on the Issue Date.

If any transaction in which the Common Stock is replaced by the Reference Property comprised of securities of another entity occurs, following completion of any related Make-Whole Fundamental Change Period and any related Fundamental Change Purchase Date, references to the Company in this definition of “Change in Control” will apply to such other entity instead.

 

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Clause A Distribution” has the meaning specified in Section 4.04(c).

Clause B Distribution” has the meaning specified in Section 4.04(c).

Clause C Distribution” has the meaning specified in Section 4.04(c).

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

Closing Sale Price” of the Common Stock for any day means the closing sale price per share (or, if no closing sale price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) at 4:00 p.m. New York City time on that day as reported in composite transactions for the Exchange, or if the Common Stock is not listed on the Exchange, the principal U.S. national or regional securities exchange on which the Common Stock is listed for trading or, if the Common Stock is not listed on a U.S. national or regional securities exchange, as reported by OTC Markets Group Inc. at 4:00 p.m. New York City time on such date (or, in either case, the then-standard closing time for regular trading on the relevant exchange or trading system). If the closing sale price of the Common Stock is not so reported, the “Closing Sale Price” will be the average of the mid-point of the last bid and last ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

Collateral” means, collectively, all property of the Company, any Subsidiary or any other Person in which the Collateral Trustee or any Holder is granted a Lien under any Collateral Document as security for all or any portion of the Obligations or any other obligation arising under any Note Document.

Collateral Documents” means, collectively, the Pledge and Security Agreement, the Mortgages, the Intercreditor Agreement, the Collateral Trust Agreement, any other intercreditor agreement entered into by the Trustee or Collateral Trustee, as applicable, under and in accordance with this Indenture, and all other agreements (including control agreements), instruments and other documents, whether now existing or hereafter in effect, pursuant to which the Company, any Subsidiary or other Person shall grant or convey to the Trustee or Collateral Trustee, as applicable, a Lien in (or perfect such Lien in), or any other Person shall acknowledge any such Lien in, property as security for all or any portion of the Obligations or any other obligation under any Note Document.

Collateral Trust Agreement” means that certain Collateral Trust Agreement, dated as of January 11, 2016, by and among the First Lien Agent (as defined in the Credit Agreement), the Trustee in its capacity as representative of the Holders, the Company, the Guarantors party thereto from time to time and the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

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Collateral Trustee” means Wilmington Trust, National Association, acting solely in its capacity as collateral trustee pursuant to the Collateral Documents, or any successor thereto.

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

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

Common Stock” means the shares of common stock, par value $0.01 per share, of the Company authorized at the date of this instrument as originally executed or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be more than one such resulting class, the shares so issuable on conversion of Notes shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications.

common stock” includes any stock of any class of Capital Stock which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the issuer thereof and which is not subject to redemption by the issuer thereof.

Company” has the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 9, shall include its successors and assigns.

Company Order” means a written request or order signed in the name of the Company by one of its Officers, and delivered to the Trustee.

Conversion Agent” has the meaning specified in Section 5.02.

Conversion Date” has the meaning specified in Section 4.02(b).

Conversion Notice” has the meaning specified in Section 4.02(b).

Conversion Period” means, with respect to any Note surrendered for conversion, (i) if the relevant Conversion Date occurs prior to the 30th Scheduled Trading Day immediately preceding the Maturity Date, the 25 consecutive VWAP Trading Day period beginning on, and including, the third VWAP Trading Day immediately following such Conversion Date; and (ii) if the relevant Conversion Date occurs on or after the 30th Scheduled Trading Day immediately preceding the Maturity Date, the 25 consecutive VWAP Trading Day period beginning on, and including, the 27th Scheduled Trading Day immediately preceding the Maturity Date.

 

5


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

Conversion Rate” means initially 133.3333 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.

Corporate Trust Office” means, with respect to the office of the Trustee, the designated corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 1100 North Market Street, Wilmington, Delaware 19890, Attn: SunEdison, Inc. 5% Guaranteed Convertible Senior Secured Notes Administrator, or such other address in the continental United States as the Trustee may designate from time to time by notice to the Holders and the Company, or the corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

corporation” means a corporation, association, joint stock company, limited liability company or business trust.

Credit Agreement” means the Second Lien Credit Agreement dated as of January 11, 2016, among the Company, as borrower, each lender from time to time party thereto, Deutsche Bank AG New York Branch, as administrative agent, Deutsche Bank Securities Inc., Barclays Bank PLC, Macquarie Capital (USA) Inc. and KeyBanc Capital Markets Inc., as joint lead arrangers and joint bookrunners and Deutsche Bank Securities Inc., as sole syndication agent and as sole documentation agent (as the same may be amended, restated, supplemented, renewed, refunded, restructured, replaced, refinanced in whole or in part, or otherwise modified from time to time).

Credit Agreement Mandatory Prepayment” means the mandatory prepayments required to be made pursuant to the Credit Agreement.

Credit Agreement Mandatory Prepayment Notice” has the meaning set forth in Section 3.10.

Credit Agreement Mandatory Prepayment Purchase Date” has the meaning set forth in Section 3.10.

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

Daily Conversion Value” means, for each VWAP Trading Day during any Conversion Period, one-twenty-fifth (1/25th) of the product of (i) the Conversion Rate in effect on such VWAP Trading Day and (ii) the Daily VWAP on such VWAP Trading Day.

Daily Measurement Value” means, for any conversion of Notes, the applicable Specified Dollar Amount divided by 25.

 

6


Daily Net Share Settlement Number” means, for each $1,000 principal amount of Notes surrendered for conversion, for each of the 25 consecutive VWAP Trading Days during the Conversion Period, a number of shares of Common Stock equal to (A) the difference between the Daily Conversion Value for such VWAP Trading Day and the Daily Measurement Value, divided by (B) the Daily VWAP for such VWAP Trading Day

Daily Settlement Amount” for each $1,000 principal amount of Notes surrendered for conversion, for each of the 25 consecutive VWAP Trading Days during the Conversion Period, will consist of: (i) if the Daily Conversion Value for such VWAP Trading Day exceeds the Daily Measurement Value, (x) a cash payment equal to the Daily Measurement Value; and (y) a number of shares of Common Stock equal to the Daily Net Share Settlement Number for such VWAP Trading Day; or (ii) if the Daily Conversion Value for such VWAP Trading Day is less than or equal to the Daily Measurement Value, a cash payment equal to the Daily Conversion Value.

Daily VWAP” for the Common Stock (or any security that is part of the Reference Property), in respect of any VWAP Trading Day, means the per share volume-weighted average price of the Common Stock (or other security) as displayed under the heading “Bloomberg VWAP” on Bloomberg Page SUNE.N Equity AQR (or its equivalent successor if such page is not available, or the Bloomberg Page for any security that is part of the Reference Property, if applicable) 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 (or the Reference Property is not a security), the market value of one share of the Common Stock (or other Reference Property) on such VWAP Trading Day as determined in good faith by the Board of Directors or a duly authorized committee thereof in a commercially reasonable manner, using a volume-weighted average price method (unless the Reference Property is not a security). The “Daily VWAP” will be determined without regard to after-hours trading or any other trading outside the regular trading session.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

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

Depositary” means, with respect to the Notes issuable or issued in the form of a Global Note, the Person designated as Depositary by the Company until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder. The Company has appointed The Depository Trust Company as the initial Depositary for the Notes.

Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the U.S. that is legal tender for the payment of public and private debts at the time of payment.

 

7


Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

Effective Date” means, with respect to a Fundamental Change or a Make-Whole Fundamental Change, as applicable, the date such Fundamental Change or Make-Whole Fundamental Change occurs or becomes effective.

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

Equity Interests” means with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination; provided that none of the 2018 Convertible Senior Notes (as defined in the Credit Agreement), the 2021 Convertible Senior Notes (as defined in the Credit Agreement), the 2020 Convertible Senior Notes (as defined in the Credit Agreement), the 2022 Convertible Senior Notes (as defined in the Credit Agreement), the 2023 Convertible Senior Notes (as defined in the Credit Agreement), the 2025 Convertible Senior Notes (as defined in the Credit Agreement), the Apollo Permitted Seller Notes (as defined in the Credit Agreement), the Second Lien Convertible Notes (as defined in the Credit Agreement), any Permitted Refinancing Convertible Bond Indebtedness (as defined in the Credit Agreement) or any Second Lien Convertible Refinancing Debt (as defined in the Credit Agreement) of the Company shall constitute an Equity Interest by virtue of being convertible into capital stock of the Company. For the avoidance of doubt, incentive distribution rights are Equity Interests.

Ex-Dividend Date” means, except to the extent otherwise provided under Section 4.04(c), the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.

Exchange” means The New York Stock Exchange or its successor.

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

First Lien Agent” shall mean the “Administrative Agent” as defined in the First Lien Credit Agreement.

First Lien Credit Agreement” has the meaning set forth in the Credit Agreement as in effect on the Issue Date.

 

8


First Lien Refinanced Debt” has the meaning set forth in Section 5.18.

First Lien Refinancing Debt” has the meaning set forth in Section 5.18.

First-Tier Foreign Subsidiary” means a Foreign Subsidiary whose Equity Interests are owned directly, in whole or in part, by the Company or a Domestic Subsidiary.

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

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

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

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

Free Trade Date” means the date that is one year after the Last Original Issuance Date.

Free Transferability Certificate” means a certificate substantially in the form attached hereto as Exhibit B.

Freely Tradable” means, with respect to any Notes, that such Notes are eligible to be sold by a Person who is not an affiliate of the Company (within the meaning of Rule 144) and has not been an affiliate of the Company (within the meaning of Rule 144) during the immediately preceding 90 days without any volume or manner of sale restrictions under the Securities Act.

Fundamental Change” means the occurrence of a Change in Control or a Termination of Trading.

Fundamental Change Company Notice” has the meaning specified in Section 3.02(a).

Fundamental Change Expiration Time” has the meaning specified in Section 3.03(a)(i).

Fundamental Change Purchase Date” has the meaning specified in Section 3.01.

Fundamental Change Purchase Notice” has the meaning specified in Section 3.03(a)(i).

Fundamental Change Purchase Price” has the meaning specified in Section 3.01.

 

9


Global Note” means a Note evidencing all or part of a series of Notes, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee.

Guarantee” means the guarantee of each Guarantor set forth in Article 13.

Guarantors” means, (i) as of the date hereof, each Subsidiary that is named on the signature pages hereto (including SUNE ML 1, LLC) or (ii) in the future, any subsequently acquired or organized domestic direct and indirect Subsidiary that is required to become a Guarantor in accordance with Section 5.16 hereof, in each case unless and until such Subsidiary ceases to be a Guarantor in accordance with Section 13.03 hereof. Notwithstanding the foregoing, all Subsidiaries of the Company that now or in the future guarantee the Credit Agreement shall be Guarantors.

Holder” means the Person in whose name a Note is registered in the Register.

“Immaterial Subsidiary” means, as of any date, any Subsidiary (i) whose total assets, together with the assets of all other Subsidiaries that are Immaterial Subsidiaries, as of that date, are less than $75,000,000, and (ii) whose total revenues, together with the revenues of all other Subsidiaries that are Immaterial Subsidiaries, for the most recently ended 12-month period, are less than $75,000,000.

Indebtedness” has the meaning set forth in the Credit Agreement as in effect on the Issue Date.

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

Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of January 11, 2016, by and among the First Lien Agent (as defined in the Credit Agreement) and the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

Interest Payment Date” means, with respect to the payment of interest on the Notes, each January 2 and July 2 of each year, beginning on July 2, 2016.

Issue Date” means, with respect to any Notes, the date the Notes are originally issued as set forth on the face of the Notes under this Indenture.

Last Original Issuance Date” means the last date of original issuance of the Notes.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

10


Make-Whole Fundamental Change” means any Change in Control (determined after giving effect to any exceptions or exclusions from the definition of “Change in Control” but without giving effect to the proviso in clause (2) of the definition thereof).

Make-Whole Fundamental Change Period” has the meaning specified in Section 4.06(a).

Market Disruption Event” means, if the Common Stock is listed for trading on the Exchange or listed on another U.S. national or regional securities exchange, the occurrence or existence during the one-half hour period ending on the scheduled close of trading on any Scheduled Trading Day of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any options, contracts or futures contracts relating to the Common Stock.

Material Subsidiary” means, as of any date, any Subsidiary that is not an Immaterial Subsidiary. For the avoidance of doubt, all Guarantors are Material Subsidiaries.

Maturity Date” means July 2, 2018.

Merger Event” has the meaning specified in Section 4.07(a).

Mortgage” means any mortgage, charge, hypothec, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Collateral Trustee, for the benefit of the Secured Parties, on real property (or any interest in real property) of the Company or any Guarantor, including any amendment, modification, restatement, replacement and/or supplement thereto or thereof.

Non-Affiliate Legend” has the meaning specified in the Form of Note attached hereto as Exhibit A.

Non-Recourse Subsidiary” has the meaning set forth in the Credit Agreement as in effect on the Issue Date.

Notation of Guarantee” has the meaning specified in Section 13.02.

Note” or “Notes” has the meaning specified in the first paragraph of the Recitals of this Indenture.

Note Documents” means this Indenture, the Notes, the Guarantee, the Collateral Documents and any other document, instrument or agreement executed and delivered pursuant to any of the foregoing.

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, the Company and the Guarantors arising under any Note Document or otherwise with respect to any Note, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any Guarantor or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

11


Offer Expiration Date” has the meaning specified in Section 4.04(e).

Officer” or “officer” shall mean, the Chairman of the Board of Directors, the Chief Executive Officer, the President, a Vice President (whether or not designated by a number or word or words added before or after the title “Vice President”) or any Director of the Company.

Officer’s Certificate” means a certificate signed by an Officer of the Company and delivered to the Trustee.

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

Opinion of Counsel” means a written opinion of counsel, who may be an employee of, or counsel for, the Company or a Guarantor or an Affiliate of the Company or a Guarantor, who is reasonably satisfactory to the Trustee.

Other Pari Passu Lien Debt” has the meaning set forth in the Collateral Trust Agreement as in effect on the Issue Date.

Outstanding” means, with respect to the Notes, any Notes authenticated by the Trustee except (i) Notes cancelled by it, (ii) Notes delivered to it for cancellation and (iii)(A) Notes replaced pursuant to Section 2.09 hereof, on and after the time such Note is replaced (unless the Trustee and the Company receive proof satisfactory to them that such Note is held by a protected purchaser), (B) Notes converted pursuant to Article 4 hereof, on and after their Conversion Date, (C) any and all Notes, the principal of which has become due and payable as of the Maturity Date, on a Fundamental Change Purchase Date or otherwise and in respect of which the Paying Agent is holding, in accordance with this Indenture, money sufficient to pay all of the Notes then payable, and (D) any and all Notes owned by the Company, a Guarantor or any other obligor upon the Notes or any Affiliate of the Company, a Guarantor or of such other obligor. In determining whether the Holders of the required principal amount of Notes have concurred in any request, demand, authorization, direction, notice, consent or waiver, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company will be considered as though not Outstanding, except that in determining whether the Trustee shall be protected in relying upon any request, demand, authorization, direction, notice, consent or waiver, only such Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be disregarded.

Pari Passu Lien Documents” has the meaning specified in the Collateral Trust Agreement.

Pari Passu Lien Obligations” has the meaning specified in the Collateral Trust Agreement.

 

12


Pari Passu Lien Representative” has the meaning specified in the Collateral Trust Agreement.

Paying Agent” means, initially, the Trustee or any Person authorized by the Company in the future to pay the principal amount of, any premium on, interest on, or the Fundamental Change Purchase Price of any Notes on behalf of the Company.

Permitted Exchange” has the meaning specified in the definition of “Termination of Trading” under this Section 1.01.

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

Physical Notes” means permanent, non-global certificated Notes in definitive, fully registered form issued in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof.

Pledge and Security Agreement” means the Second Lien Pledge and Security Agreement, dated as of January 11, 2016, between the Company and each of the subsidiaries of the Company party thereto from time to time, and the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

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

Reference Property” has the meaning specified in Section 4.07(a).

Register” and “Registrar” have the respective meanings specified in Section 2.06.

Regular Record Date” means, with respect to any Interest Payment Date, December 17 and June 17 (each, whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date.

Relevant Distribution” has the meaning specified in Section 4.04(c).

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

Resale Restriction Termination Date” has the meaning specified in Section 2.08(b)(ii).

 

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Responsible Officer,” when used (x) with respect to the Trustee, means any officer within the corporate trust department (or any other successor group of the Trustee) customarily performing functions similar to those performed by any of the above designated officers who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who in each case shall have direct responsibility for the administration of this Indenture and (y) with respect to the Company or a Guarantor, the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of the Company or such Guarantor, as applicable.

Restricted Global Note” has the meaning specified in Section 2.08(b)(i).

Restricted Note” has the meaning specified in Section 2.07(a)(i).

Restricted Notes Legend” has the meaning specified in the Form of Note attached hereto as Exhibit A.

Restricted Stock” has the meaning specified in Section 2.07(b)(i).

Restricted Stock Legend” means a legend substantially in the form set forth in Exhibit C hereto.

Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended 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 or market on which the Common Stock is listed for trading. If the Common Stock is not so listed, “Scheduled Trading Day” means a “Business Day.”

Secured Parties” means the Holders, the Trustee and the Collateral Trustee.

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

Settlement Amount” has the meaning specified in Section 4.03(a)(ii).

Settlement Election” has the meaning specified in Section 4.03(a)(i).

Settlement Election Notice” has the meaning specified in Section 4.03(a)(i).

Settlement Method” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to be elected) by the Company in accordance with Section 4.03(a)(i).

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

 

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Specified Dollar Amount” means, for any conversion of Notes, the maximum cash amount per $1,000 principal amount of Notes to be received by the Holder upon conversion as specified in the Company’s Specified Dollar Amount Election Notice (which may be part of the Settlement Election Notice) or otherwise deemed to be elected by the Company in respect of such conversion as provided herein.

Specified Dollar Amount Election” has the meaning specified in Section 4.03(a)(i).

Specified Dollar Amount Election Notice” has the meaning specified in Section 4.03(a)(i).

Spin-Off” has the meaning specified in Section 4.04(c).

Stock Price” has the meaning specified in Section 4.06(c).

Subsidiary” of any Person means (a) any corporation, association or other business entity of which more than 50% of the outstanding total voting power ordinarily entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or other voting members of the governing body thereof is at the time owned or controlled, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries or (b) any partnership the sole general partner or the managing general partner of which is the Company or a Subsidiary of the Company or the only general partners of which are the Company or of one or more Subsidiaries of the Company (or any combination thereof).

Successor Company” has the meaning specified in Section 9.01(a).

Termination of Trading” means that the Common Stock (or other Reference Property into which the Notes are then convertible) are not approved for listing on any of the Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) (such exchanges or any of their respective successors, a “Permitted Exchange”).

TerraForm Power” means TerraForm Power, Inc., a Delaware corporation.

Trading Day” means a day on which (i) the Exchange or, if the Common Stock is not listed on the Exchange, the principal other U.S. national or regional securities exchange on which the Common Stock is then listed is open for trading or, if the Common Stock is not so listed, any Business Day and (ii) a Closing Sale Price for the Common Stock is available on such securities exchange or market. A “Trading Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the relevant exchange or trading system.

 

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Trading Price” means, on any date of determination, the average of the secondary market bid quotations per $1,000 principal amount of Notes obtained by the Bid Solicitation Agent (or, if the Company is acting as the Bid Solicitation Agent, the Company) for $1,000,000 principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers selected by the Company; provided that, if three such bids cannot reasonably be obtained by the Company or the Bid Solicitation Agent, as applicable, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Company or the Bid Solicitation Agent, as applicable, that one bid shall be used. If on any date of determination, (i) the Company or the Bid Solicitation Agent, as applicable, cannot reasonably obtain at least one bid for $1,000,000 principal amount of the Notes from an independent nationally recognized securities dealer, (ii) the Company fails to request the Bid Solicitation Agent to obtain bids when required or (iii) the Company requests that the Bid Solicitation Agent obtain bids and the Bid Solicitation Agent fails to make such determination (or, if the Company is the Bid Solicitation Agent, the Company fails to make such determination), then, in each case, the Trading Price per $1,000 principal amount of Notes on such date of determination or on each Trading Day of such failure (as the case may be) will be deemed to be less than 98% of the product of (i) the Closing Sale Price of the Common Stock on such date and (ii) the then-current Conversion Rate.

Trigger Event” has the meaning specified in Section 4.04(c).

Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to Section 11.12, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.

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

Unit of Reference Property” has the meaning specified in Section 4.07(a).

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

Valuation Period” has the meaning specified in Section 4.04(c).

Vice President,” when used with respect to the Company, a Guarantor or the Trustee, as applicable, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

VWAP Market Disruption Event” means (i) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading during its regular trading session or (ii) the occurrence or existence for more than one half-hour period in the aggregate on any Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such day.

 

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VWAP Trading Day” means a day on which (i) there is no VWAP Market Disruption Event and (ii) the Exchange or, if the Common Stock is not listed on the Exchange, the principal other U.S. national or regional securities exchange on which the Common Stock is then listed is open for trading or, if the Common Stock is not so listed, any Business Day. For these purposes, a “VWAP Trading Day” includes only those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the relevant exchange or trading system.

Yieldco Subsidiaries” means a dividend growth-oriented public company, created by a parent company that bundles renewable and/or conventional long-term contracted operating assets in order to generate predictable cash flows and that allocates cash available for distribution each year or quarter to shareholders in the form of dividends.

The following terms shall have the meaning specified in the Credit Agreement as in effect on the Issue Date: “Apollo Holdings”, “Existing Margin Loan Agreement”, “First Lien Agent”, “First Lien Loan Obligations”, “First Lien Lenders”, “First Wind Holdings”, “Foreign IP Rights”, “Fronting Fee Compensation Account”, “IP Rights”, “Loan Party Service Provider”, “Non-Recourse Project Indebtedness”, “Permitted Seller Notes”, “Second Priority”, “Solar Energy System”, “YieldCo”, “YieldCo Intermediate”, “YieldCo II”, “YieldCo II Intermediate”, “Unrestricted Subsidiary” and “Warehouse Entity”.

Section 1.02 References to Interest. Any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional Interest, if, in such context, Additional Interest, is, was or would be payable pursuant hereto. Any express mention of the payment of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.

Section 1.03 Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of Notes, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.03.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

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(c) The amount of Notes held by any Person executing any such instrument or writings as the Holder thereof, the numbers of such Notes and the date of his holding the same may be proved by the production of such Notes or by a certificate executed, as depositary, by any trust company, bank, banker or member of a national securities exchange (wherever situated), if such certificate is in form satisfactory to the Trustee, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Notes therein described; or such facts may be proved by the certificate or affidavit of the Person executing such instrument or writing as the Holder thereof, if such certificate or affidavit is in form satisfactory to the Trustee. The Trustee and the Company may assume that such ownership of any Notes continues until (1) another certificate bearing a later date issued in respect of the same Notes is produced or (2) such Notes are produced by some other Person or (3) such Notes are no longer Outstanding.

(d) The fact and date of execution of any such instrument or writing and the amount and number of Notes held by the Person so executing such instrument or writing may also be proved in any other manner that the Trustee deems sufficient. The Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 1.03.

(e) The principal amount (except as otherwise contemplated in clause (ii) of the definition of “Outstanding”), serial numbers of Notes held by any Person and the date of holding the same shall be proved by the Register.

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

(g) The Company may but shall not be obligated to set a record date for purposes of determining the identity of Holders of any Outstanding Notes entitled to vote or consent to any action by vote or consent authorized or permitted by Sections 2.11, 6.02, 6.04, 6.05, 6.06, 8.02 or 11.11. Such record date shall be not less than 10 nor more than 60 days prior to the first solicitation of such consent or the date of the most recent list of Holders of such Notes furnished to the Trustee pursuant to Section 5.15 prior to such solicitation.

(h) If the Company solicits from Holders any request, demand, authorization, direction, notice, consent, election, waiver or other Act, the Company may, at its option, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, election, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request,

 

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demand, authorization, direction, notice, consent, election, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of the Outstanding Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, election, waiver or other Act, and for that purpose the Outstanding Notes shall be computed as of the record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

ARTICLE 2.

THE NOTES

Section 2.01 Title and Terms; Payments. The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to $225,000,000, except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, or 3.07.

The Notes shall be known and designated as the “5% Guaranteed Convertible Senior Secured Notes due 2018” of the Company. The principal amount shall be payable on the Maturity Date unless no longer Outstanding because earlier purchased or converted in accordance with this Indenture.

The principal amount of Physical Notes shall be payable in U.S. dollars at the Corporate Trust Office and at any other office or agency maintained by the Company for such purpose. Interest on Physical Notes will be payable (i) to Holders holding Physical Notes having an aggregate principal amount of $1,000,000 or less of Notes, by check mailed to such Holders at the address set forth in the Register and (ii) to Holders holding Physical Notes having an aggregate principal amount of more than $1,000,000 of Notes, either by check mailed to such Holders or, upon written application by a Holder to the Company and Registrar at least three Business Days prior to the relevant Interest Payment Date, by wire transfer in immediately available funds to such Holder’s account within the U.S., which application shall remain in effect until the Holder notifies the Registrar to the contrary in writing. The Company will pay or cause the Trustee or Paying Agent to pay principal of, and interest on, Global Notes in U.S. dollars and in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder of such Global Note, on each Interest Payment Date, Fundamental Change Purchase Date, the Maturity Date or other payment date, as the case may be.

Section 2.02 Ranking. The Notes constitute direct secured senior obligations of the Company and the Guarantors. For the avoidance of doubt, the Notes rank pari passu with the existing and future indebtedness outstanding under the Credit Agreement and Other Pari Passu Lien Debt. The obligations in connection with the Notes and the obligations under the Credit Agreement and Other Pari Passu Lien Debt are secured equally and ratably by shared Liens on all Collateral under and in accordance with the Collateral Documents and Article 14 hereof.

 

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Section 2.03 Denominations. The Notes shall be issuable only in registered form without coupons and in minimum denominations of $1,000 and any integral multiple of $1,000.

Section 2.04 Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Company by one of its Officers.

Notes bearing the manual or facsimile signatures of individuals who were at any time Officers of the Company shall bind the Company, notwithstanding that such individual has ceased to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes. The Company Order shall specify the amount of Notes to be authenticated, and shall further specify the amount of such Notes to be issued as one or more Global Notes or as one or more Physical Notes. The Trustee in accordance with such Company Order shall authenticate and deliver such Notes as provided in this Indenture and not otherwise.

Each Note shall be dated the date of its authentication.

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

Section 2.05 Temporary Notes. Pending the preparation of Physical Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Physical Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officer executing such Notes may determine, as evidenced by such Officer’s execution of such Notes; provided that any such temporary Notes shall bear legends on the face of such Notes as set forth in the Form of Note attached hereto as Exhibit A and/or Sections 2.07 and 2.11.

After the preparation of Physical Notes, the temporary Notes shall be exchangeable for Physical Notes upon surrender of the temporary Notes at any office or agency of the Company designated pursuant to Section 5.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, in exchange therefor a like principal amount of Physical Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Physical Notes.

 

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Section 2.06 Registration; Registration of Transfer and Exchange.

(a) The Company shall cause to be kept at the applicable Corporate Trust Office of the Trustee in the continental United States a register (the register maintained in such office and in any other office or agency designated pursuant to Section 5.02 being herein sometimes collectively referred to as the “Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration and transfer of Notes. The Trustee is hereby appointed registrar (the “Registrar”) for the purpose of registering the transfer and exchange of the Notes as herein provided.

Upon surrender for registration of transfer of any Note at an office or agency of the Company designated pursuant to Section 5.02 for such purpose, the Company shall execute, and upon receipt of a Company Order the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination and of a like aggregate principal amount and tenor, each such Note bearing such restrictive legends as may be required by this Indenture (including the Form of Note attached hereto as Exhibit A and Sections 2.07 and 2.11).

At the option of the Holder and subject to the other provisions of Sections 2.07 and 2.11, Notes may be exchanged for other Notes of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, the Notes which the Holder making the exchange is entitled to receive.

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

Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. As a condition to the registration of transfer of any Restricted Notes, the Company or the Trustee may require evidence satisfactory to them as to the compliance with the restrictions set forth in the legend on such Notes.

No service charge shall be made for any registration of transfer or exchange of Notes, but the Company and the Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.11 not involving any transfer.

Neither the Company nor the Registrar shall be required to exchange or register a transfer of any Note in the circumstances set forth in Section 2.11(a)(iv).

(b) Neither any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on whose behalf any Agent Member may act shall have any rights under this Indenture with respect to any Global Note registered

 

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in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such nominee, as the case may be, may be treated by the Company, the Trustee, the Agents and any of their respective agents as the absolute owner and Holder of such Global Note for all purposes whatsoever. Neither the Trustee nor any Agent shall have any liability, responsibility or obligation to any Agent Members or any other Person on whose behalf Agent Members may act with respect to (i) any ownership interests in the Global Note, (ii) the accuracy of the records of the Depositary or its nominee, (iii) any notice required hereunder, (iv) any payments under or with respect to the Global Note or (v) actions taken or not taken by any Agent Members.

(c) Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, any Agent or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.

Section 2.07 Transfer Restrictions.

(a) Restricted Notes.

(i) Every Note (and any security issued in exchange therefor or substitution thereof) that bears, or that is required under this Section 2.07 to bear, the Restricted Notes Legend will be deemed to be a “Restricted Note.” Each Restricted Note will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Notes Legend) and will bear the restricted CUSIP number for the Notes unless the Company notifies the Trustee in writing that such restrictions on transfer are eliminated or otherwise waived by written consent of the Company (including, without limitation, by the Company’s delivery of the Free Transferability Certificate as provided herein), and each Holder of a Restricted Note, by such Holder’s acceptance of such Restricted Note, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Note.

(ii) Until the Resale Restriction Termination Date, any Note will bear the Restricted Notes Legend unless:

(A) (1) such Note, since last held by the Company or an affiliate of the Company (within the meaning of Rule 144), if ever, was transferred (I) to a Person other than (x) the Company, (y) an affiliate of the Company (within the meaning of Rule 144) or (z) a Person that was an affiliate of the Company (within the meaning of Rule 144) within the 90 days immediately preceding such transfer and (II) pursuant to a registration statement that was effective under the Securities Act at the time of such transfer; or

 

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(2) such Note was transferred (I) to a Person other than (x) the Company or (y) an affiliate of the Company (within the meaning of Rule 144) or a Person that was an affiliate of the Company (within the meaning of Rule 144) within the 90 days immediately preceding such transfer and (II) pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act; and

(B) the Company delivers written notice to the Trustee and the Registrar (including, without limitation, by the Company’s delivery of the Free Transferability Certificate as provided herein) stating that the Restricted Notes Legend may be removed from such Note and all Applicable Procedures have been complied with.

(iii) In addition, until the Resale Restriction Termination Date, no transfer of any Restricted Note will be registered by the Registrar unless the transferring Holder delivers to the Trustee a completed notice substantially in the form of the Form of Assignment and Transfer, which contains a certification that the transferee is SunEdison, Inc. or a subsidiary thereof or that the transferee is not an affiliate of the Company (within the meaning of Rule 144) and has not been an affiliate of the Company (within the meaning of Rule 144) within the 90 days immediately preceding the date of such proposed transfer.

(iv) On and after the Resale Restriction Termination Date, any Note will bear the Restricted Note Legend if at any time the Company determines that, to comply with law, such Note must bear the Restricted Notes Legend and the Company notifies the Trustee in writing.

(b) Restricted Stock.

(i) Every share of Common Stock that bears, or that is required under this Section 2.07 to bear, the Restricted Stock Legend will be deemed to be “Restricted Stock”. Each share of Restricted Stock will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Stock Legend) and will bear a restricted CUSIP number unless such restrictions on transfer are eliminated or otherwise waived by written consent (including, without limitation, by the Company’s delivery of the Free Transferability Certificate in connection with the Notes as provided herein) of the Company, and each Holder of Restricted Stock, by such Holder’s acceptance of Restricted Stock, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Stock.

(ii) Until the Resale Restriction Termination Date, any shares of Common Stock issued upon the conversion of a Note, and any shares of

 

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Common Stock issued upon conversion of a Restricted Note, will be issued in book-entry form by or on behalf of the Company and will bear the Restricted Stock Legend unless the Company delivers written notice to the transfer agent for the Common Stock stating that such shares of Common Stock need not bear the Restricted Stock Legend.

(iii) On and after the Resale Restriction Termination Date, shares of Common Stock will be issued in book-entry form and will bear the Restricted Stock Legend at any time the Company reasonably determines that, to comply with law, such shares of Common Stock must bear the Restricted Stock Legend.

(c) As used in this Section 2.07, the term “transfer” means any sale, pledge, transfer, loan, hypothecation or other disposition whatsoever of any Restricted Note, any interest therein or any Restricted Stock.

(d) All Notes, whether Global Notes or Physical Notes, are required to bear the Non-Affiliate Legend at all times, whether before or after the Resale Restriction Termination Date.

Section 2.08 Expiration of Restrictions.

(a) Physical Notes. Any Physical Note (or any security issued in exchange or substitution therefor) that does not constitute a Restricted Note may be exchanged for a new Note or Notes of like tenor and aggregate principal amount that do not bear the Restricted Notes Legend required by Section 2.07. To exercise such right of exchange, the Holder of such Note must surrender such Note in accordance with the provisions of Section 2.11 and deliver any additional documentation required by this Indenture in connection with such exchange.

(b) Global Notes; Resale Restriction Termination Date.

(i) If, on the Free Trade Date, or the next succeeding Business Day if the Free Trade Date is not a Business Day, any Notes are represented by a Global Note that is a Restricted Note (any such Global Note, a “Restricted Global Note”), as promptly as practicable, the Company will automatically exchange every beneficial interest in each Restricted Global Note for beneficial interests in Global Notes that do not bear the Restricted Notes Legend are not subject to the restrictions set forth in the Restricted Notes Legend and in Section 2.07.

(ii) To effect such automatic exchange, the Company will (A) deliver to the Depositary an instruction letter for the Depositary’s mandatory exchange process at least 15 days immediately prior to the Free Trade Date (with a copy to the Trustee) and (B) deliver to each of the Trustee and the Registrar a duly completed Free Transferability Certificate promptly after the Free Trade Date. The date of the Free Transferability Certificate will be known as the “Resale Restriction Termination Date”. The Trustee shall assume that the Free Trade Date has not occurred unless and until it receives a Free Transferability Certificate.

 

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(iii) Immediately upon receipt of the Free Transferability Certificate by each of the Trustee and the Registrar:

(A) the Restricted Notes Legend will be deemed removed from each of the Global Notes specified in such Free Transferability Certificate and the restricted CUSIP number will be deemed removed from each of such Global Notes and deemed replaced with the unrestricted CUSIP number;

(B) the Restricted Stock Legend will be deemed removed from any shares of Common Stock previously issued upon conversion of the Notes; and

(C) thereafter, shares of Common Stock issued upon conversion of the Notes will be assigned an unrestricted CUSIP number and will not bear the Restricted Stock Legend (except as provided in Section 2.07(b)(iii)) or any similar legend.

(iv) Promptly after the Resale Restriction Termination Date, the Company will provide Bloomberg LLP with a copy of the Free Transferability Certificate and will use reasonable efforts to cause Bloomberg LLP to adjust its screen page for the Notes to indicate that the Notes are no longer Restricted Notes and are then identified by an unrestricted CUSIP number.

(v) Prior to the Company’s delivery of the Free Transferability Certificate and afterwards, the Company and the Trustee will comply with the Applicable Procedures and the Company shall otherwise use reasonable efforts to cause each Global Note that is not required to bear the Restricted Notes Legend to be identified by an unrestricted CUSIP number in the facilities of the Depositary by the date the Free Transferability Certificate is delivered to the Trustee and the Registrar or as promptly as possible thereafter.

(vi) Notwithstanding anything to the contrary in Sections 2.08(b)(i), (ii) or (iii), the Company will not be required to deliver the Free Transferability Certificate if it reasonably believes that removal of the Restricted Notes Legend or the changes to the CUSIP numbers for the Notes could result in or facilitate transfers of the Notes in violation of applicable law.

Section 2.09 Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated Note is surrendered to the Trustee, the Company shall execute, and the Trustee shall, upon Company Order, authenticate and deliver, in exchange therefor a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of written notice to the Company or the Trustee that such Note has been acquired by a protected purchaser, the

 

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Company shall execute, and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding.

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

Upon the issuance of any new Note under this Section 2.09, the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Note issued pursuant to this Section 2.09 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.

The provisions of this Section 2.09 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

Section 2.10 Persons Deemed Owners. Subject to the rights of Holders as of the Regular Record Date to receive payments of interest on the related Interest Payment Date, prior to due presentment of a Note for registration of transfer, the Company, the Trustee, each Agent, and any of their respective agents may treat the Person in whose name such Note is registered in the Register as the owner of such Note for the purpose of receiving payment of the principal of such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee, the Agents nor any of their respective agents shall be affected by notice to the contrary.

Section 2.11 Transfer and Exchange.

(a) Provisions Applicable to All Transfers and Exchanges.

(i) Subject to the restrictions set forth in this Section 2.11, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time to time as desired, and each such transfer or exchange will be noted by the Registrar in the Register.

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

(iii) No service charge will be imposed on any Holder of a Physical Note or any owner of a beneficial interest in a Global Note for any exchange or

 

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registration of transfer, but each of the Company, the Trustee or the Registrar may require such Holder or owner of a beneficial interest to pay a sum sufficient to cover any transfer tax, assessment or other governmental charge imposed in connection with such registration of transfer or exchange.

(iv) Unless the Company specifies otherwise, none of the Company, the Trustee, the Registrar or any co-Registrar will be required to exchange or register a transfer of any Note (i) that has been surrendered for conversion or (ii) as to which a Fundamental Change Purchase Notice has been delivered and not withdrawn, except to the extent any portion of such Note is not subject to the foregoing.

(v) Neither the Trustee nor any Agent 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 or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(b) In General; Transfer and Exchange of Beneficial Interests in Global Notes. So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law or by Section 2.11(c):

(i) all Notes will be represented by one or more Global Notes;

(ii) every transfer and exchange of a beneficial interest in a Global Note will be effected through the Depositary in accordance with the Applicable Procedures and the provisions of this Indenture (including the restrictions on transfer set forth in Section 2.07); and

(iii) each Global Note may be transferred only as a whole and only (A) by the Depositary to a nominee of the Depositary, (B) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary or (C) by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

(c) Transfer and Exchange of Global Notes for Physical Notes.

(i) Notwithstanding any other provision of this Indenture, each Global Note will be exchanged for Physical Notes if the Depositary delivers notice to the Company that:

(A) the Depositary is unwilling or unable to continue to act as Depositary; or

 

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(B) the Depositary is no longer registered as a clearing agency under the Exchange Act or is otherwise no longer permitted under applicable law to continue as Depositary for such Global Note;

and, in each case, the Company promptly delivers a copy of such notice to the Trustee and the Company fails to appoint a successor Depositary within 90 days after receiving notice from the Depositary.

In each such case, the Company will, in accordance with Section 2.04, promptly execute, and, upon receipt of a Company Order, the Trustee will, in accordance with Section 2.04, promptly authenticate and deliver, for each beneficial interest in each Global Note so exchanged, an aggregate principal amount of Physical Notes equal to the aggregate principal amount of such beneficial interest, registered in such names and in such authorized denominations as the Depositary specifies, and bearing any legends that such Physical Notes are required to bear under Section 2.07.

(ii) In addition, if an Event of Default has occurred with regard to the Notes represented by the relevant Global Note and such Event of Default has not been cured or waived, any owner of a beneficial interest in a Global Note may deliver a written request through the Depositary to exchange such beneficial interest for Physical Notes.

In such case, (A) the Registrar will deliver notice of such request to the Company and the Trustee, which notice will identify the aggregate principal amount of such beneficial interest and the CUSIP of the relevant Global Note; (B) the Company will, in accordance with Section 2.04, promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 2.04, will promptly authenticate and deliver, to such owner, for the beneficial interest so exchanged by such owner, Physical Notes registered in such owner’s name having an aggregate principal amount equal to the aggregate principal amount of such beneficial interest as the Depositary specifies, and bearing any legends that such Physical Notes are required to bear under Section 2.07; and (C) the Trustee, in accordance with the Applicable Procedures, will cause the principal amount of such Global Note to be decreased by the aggregate principal amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Note are so exchanged, such Global Note will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global Note to be cancelled in accordance with the Trustee’s customary procedures and the Applicable Procedures.

(d) Transfer and Exchange of Physical Notes.

(i) If Physical Notes are issued, a Holder may transfer a Physical Note by: (A) surrendering such Physical Note for registration of transfer to the Registrar, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar; (B) if such Physical Note is a Restricted Note, delivering any documentation required by Section 2.07; and (C) satisfying all other requirements for such transfer set forth in this Section 2.11 and Section 2.07. Upon the satisfaction of conditions (A), (B) and

 

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(C) of the immediately preceding sentence, the Company, in accordance with Section 2.04, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.04, promptly authenticate and deliver, in the name of the designated transferee or transferees, one or more new Physical Notes, of any authorized denomination, having like aggregate principal amount and bearing any restrictive legends that such Physical Notes are required to bear under Section 2.07.

(ii) If Physical Notes are issued, a Holder may exchange a Physical Note for other Physical Notes of any authorized denominations and aggregate principal amount equal to the aggregate principal amount of the Notes to be exchanged by surrendering such Notes, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 5.02. Whenever a Holder surrenders Notes for exchange, the Company, in accordance with Section 2.04, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order and in accordance with Section 2.04, will promptly authenticate and deliver the Notes that such Holder is entitled to receive, bearing registration numbers not contemporaneously outstanding and any legends that such Physical Notes are required to bear under Section 2.07.

(iii) If Physical Notes are issued, a Holder may transfer or exchange a Physical Note for a beneficial interest in a Global Security by (A) surrendering such Physical Note for registration of transfer or exchange, together with any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for such purposes pursuant to Section 5.02; (B) if such Physical Note is a Restricted Note, delivering any documentation required by Section 2.07; (C) satisfying all other requirements for such transfer set forth in this Section 2.11 and Section 2.07; and (D) providing written instructions to the Trustee to make, or to direct the Registrar to make, an adjustment in its books and records with respect to the applicable Global Note to reflect an increase in the aggregate principal amount of the Notes represented by such Global Note, which instructions will contain information regarding the Depositary account to be credited with such increase. Upon the satisfaction of conditions (A), (B), (C) and (D), the Trustee will cancel such Physical Note and cause, in accordance with the Applicable Procedures, the aggregate principal amount of Notes represented by such Global Note to be increased by the aggregate principal amount of such Physical Note, and will credit or cause to be credited the account of the Person specified in the instructions provided by the exchanging Holder in an amount equal to the aggregate principal amount of such Physical Note. If no Global Notes are then Outstanding, the Company, in accordance with Section 2.04, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order and in accordance with Section 2.04, will authenticate, a new Global Note in the appropriate aggregate principal amount.

 

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Section 2.12 Purchase of Notes; Cancellation. The Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), purchase Notes in the open market or by tender offer at any price or by private agreement. The Company will cause any Notes so purchased (other than Notes purchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation. For the avoidance of doubt, any such Notes purchased by the Company will be retired and no longer Outstanding hereunder.

The Company shall deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold. The Trustee shall promptly cancel all Notes surrendered for registration of transfer, exchange, payment, purchase, repurchase, conversion or cancellation in accordance with its standard procedures. If the Company shall acquire any of the Notes in any manner whatsoever, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation. The Notes so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert the Notes. The Company may not issue new Notes to replace Notes it has paid in full or delivered to the Trustee for cancellation.

The Registrar shall retain, in accordance with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section 2.12. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.

Section 2.13 CUSIP Numbers. In issuing the Notes, the Company may use “CUSIP” numbers (if then generally in use); provided that the Trustee shall have no liability for any defect in the CUSIP numbers as they appear on any Notes, notice, or elsewhere. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

Section 2.14 Payment and Computation of Interest. The Notes will bear cash interest at a rate of 5% per year until the Maturity Date, unless earlier purchased, converted or redeemed in accordance with the provisions herein. Interest on the Notes will accrue from the most recent date on which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, January 11, 2016. Interest will be paid to the Person in whose name a Note is registered at the Close of Business on the Regular Record Date immediately preceding the relevant Interest Payment Date semiannually in arrears on each Interest Payment Date; provided that, if any Interest Payment Date, Maturity Date or Fundamental Change Purchase Date of a Note falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day and no interest on such payment will accrue in respect of the delay. Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months; provided, however, that for any period in which a particular interest rate

 

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is applicable for less than a full semiannual period, interest on the Notes will be computed on the basis of a 30-day month and, for periods of less than a month, the actual number of days elapsed over a 30-day month.

Unless the context otherwise requires, payments of the Fundamental Change Purchase Price, principal and interest on any Note, in each case, that are not made when due will accrue interest per annum at the then-applicable interest rate from the required payment date.

The Company will pay Additional Interest under certain circumstances as provided in Section 5.08 and 6.03.

ARTICLE 3.

REPURCHASE AT THE OPTION OF THE HOLDERS

Section 3.01 Purchase at Option of Holders upon a Fundamental Change. If a Fundamental Change occurs, then each Holder shall have the right, at such Holder’s option, to require the Company to purchase for cash all of such Holder’s Notes, or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on a date (the “Fundamental Change Purchase Date”) specified by the Company that is not less than 20 or more than 35 Business Days after the Company provides the Fundamental Change Company Notice, at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to but excluding the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”); provided, however, that if the Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the Company shall instead pay interest accrued to the Interest Payment Date to the Holder of record of the Note as of the close of business on Regular Record Date and the Fundamental Change Purchase Price shall then be equal to 100% of the principal amount of the Note subject to purchase and will not include any accrued and unpaid interest. Notwithstanding the foregoing, there shall be no purchase of any Notes pursuant to this Section 3.01 if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes). In the event the principal amount of the Notes is accelerated following delivery of a Fundamental Change Company Notice (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price with respect to such Notes), the Trustee will promptly (i) return to the respective Holders thereof any Physical Notes tendered to it or (ii) effect appropriate book-entry transfers to the respective beneficial holders thereof any beneficial interests in a Global Note tendered to it in compliance with the Applicable Procedures, in which case, upon such return or transfer, as the case may be, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

Section 3.02 Fundamental Change Company Notice.

(a) General. On or before the 10th Business Day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of the Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a written

 

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notice (the “Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof. Such notice shall be sent to the Holders in accordance with Section 12.08(c) (with a copy to the Trustee). Simultaneously with providing such Fundamental Change Company Notice, the Company shall issue a press release announcing the occurrence of such Fundamental Change and make the press release available on the Company’s website. Each Fundamental Change Company Notice shall specify:

(i) the events causing the Fundamental Change;

(ii) the Effective Date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case the notice shall state the Effective Date of the Make-Whole Fundamental Change;

(iii) information about the Holder’s right to convert the Notes;

(iv) information about the Holder’s right to require the Company to purchase the Notes;

(v) the last date on which a Holder of Notes may exercise the purchase right pursuant to Section 3.01;

(vi) the Fundamental Change Purchase Price;

(vii) the Fundamental Change Purchase Date;

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

(ix) the applicable Conversion Rate and any adjustments to the applicable Conversion Rate resulting from the Fundamental Change;

(x) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with Section 3.05;

(xi) the procedures required for exercise of the purchase option upon the Fundamental Change, including that the Holder must exercise the purchase option prior to the Fundamental Change Expiration Time; and

(xii) that the Holder shall have the right to withdraw any Notes surrendered for purchase prior to the Fundamental Change Expiration Time and the procedures required for withdrawal of any such exercise as described in 3.05;

 

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(b) No failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to Section 3.01.

(c) At the Company’s written request, the Trustee shall give the Fundamental Change Company Notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the Fundamental Change Company Notice shall be prepared by the Company; provided, further that the Company shall have delivered to the Trustee, at least five Business Days before the Fundamental Change Company Notice is required to be given to the Holders (or such shorter period agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and attaching the form of Fundamental Change Company Notice and including the information required by Section 3.02(a). Neither the Trustee nor the Paying Agent shall be responsible for determining if a Fundamental Change has occurred or for delivering a Fundamental Change Company Notice to Holders or for the content of any Fundamental Change Company Notice.

Section 3.03 Repurchase Procedures.

(a) Purchases of Notes under Section 3.01 shall be made, at the option of the Holder thereof, upon:

(i) if the Notes to be purchased are Physical Notes, delivery to the Trustee by the Holder of a duly completed notice in the Form of Fundamental Change Purchase Notice (the “Fundamental Change Purchase Notice”) together with the Physical Notes duly endorsed for transfer, at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Purchase Date, (the “Fundamental Change Expiration Time”); and

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

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

(i) if certificated, the certificate numbers of such Holder’s Notes;

(ii) the portion of the principal amount of such Notes to be purchased, which must be such that the principal amount not purchased equals $1,000 or an integral multiple of $1,000; and

(iii) that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Indenture.

 

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(b) Notice to Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of withdrawal thereof.

Section 3.04 Effect of Fundamental Change Purchase Notice. Upon receipt by the Paying Agent of Physical Notes and a Fundamental Change Purchase Notice or beneficial interests in a Global Note by book-entry transfer as specified in Section 3.03, the Holder of the tendered Note shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 3.05) thereafter be entitled to receive solely the Fundamental Change Purchase Price, in cash with respect to such Note (and any previously accrued and unpaid interest on such Note, if applicable). Such Fundamental Change Purchase Price shall be paid to such Holder, provided that the conditions in this Article 3 have been satisfied (including, without limitation, the proper delivery or book-entry transfer of such Note as required under Section 3.03(a)) and subject to the Paying Agent holding money sufficient to pay the Fundamental Change Purchase Price, promptly following the later of the applicable Fundamental Change Purchase Date and the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder thereof in the manner required by Section 3.01.

Section 3.05 Withdrawal of Fundamental Change Purchase Notice. A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental Change Company Notice, as applicable, at any time prior to the Fundamental Change Expiration Time, as applicable, specifying:

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

(b) if certificated, the certificate numbers of the withdrawn Notes; and

(c) the principal amount, if any, of each Note that remains subject to the Fundamental Change Purchase Notice, which must be such that the principal amount of such Holder’s Notes not purchased equals $1,000 or an integral multiple of $1,000;

provided, however, that if the Notes are Global Notes, the notice must comply with the Applicable Procedures.

The Paying Agent will promptly return to the respective Holders thereof any Physical Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 3.05.

Section 3.06 Deposit of Fundamental Change Purchase Price. Prior to 11:00 a.m., New York City time, on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of money (in immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental Change Purchase Price of all the Notes or portions thereof that are to be purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds money

 

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sufficient to pay the Fundamental Change Purchase Price of the tendered Notes on the Fundamental Change Purchase Date, then (a) such tendered Notes will cease to be Outstanding and (except as provided below in clause (b)) interest will cease to accrue thereon (whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent) and (b) all other rights of the Holders of such tendered Notes will terminate (other than (x) the right to receive the Fundamental Change Purchase Price and (y) the right of the Holder of record on such Regular Record Date to receive any interest payment pursuant to Section 3.01, if applicable).

Section 3.07 Notes Purchased in Whole or in Part. Any Note that is to be purchased pursuant to this Article 3, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing) and, to the extent that only a part of the Note so surrendered is to be purchased, the Company shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is not purchased.

Section 3.08 Covenant To Comply with Applicable Laws upon Purchase of Notes. In connection with any purchase of Notes under Section 3.01, the Company shall, in each case if required by law, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable, (ii) file a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and (iii) otherwise comply with all U.S. federal or state securities laws applicable to the Company in connection with offer by the Company to purchase Notes under Section 3.01, in each case, so as to permit the rights and obligations under this Article 3 to be exercised in the time and in the manner specified under this Article 3.

Section 3.09 Repayment to the Company. To the extent that the aggregate amount of money deposited by the Company pursuant to Section 3.06 exceeds the aggregate Fundamental Change Purchase Price of the Notes or portions thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then, following the Fundamental Change Purchase Date, the Paying Agent shall, upon demand of the Company, promptly return any such excess to the Company.

Section 3.10 Purchase at the Option of Holders upon a Credit Agreement Mandatory Prepayment.

If an event or circumstance occurs that causes the Company to become obligated to make a Credit Agreement Mandatory Prepayment, then each Holder shall have the right, at such Holder’s option, to require the Company to purchase for cash such Holder’s Notes, or any portion of such Holder’s Notes in a minimum amount of $1,000, or an integral multiple of $1,000 in excess thereof, on a date (the “Credit Agreement Mandatory Prepayment Purchase Date”) specified by the Company pursuant to a notice (the “Credit Agreement Mandatory Prepayment Notice”) provided to all Holders, the Trustee and the Paying Agent that is not less

 

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than 20 nor more than 35 Business Days after the date of the Credit Agreement Mandatory Prepayment Notice and prior to the date of any such Credit Agreement Mandatory Prepayment being made under the Credit Agreement, in an amount equal to the pro rata portion of the aggregate amount (the “Aggregate Mandatory Prepayment Amount”) of such Credit Agreement Mandatory Prepayment (such pro rata portion to be determined on the basis of the aggregate outstanding principal amount of the Notes, indebtedness under the Credit Agreement, and any Other Pari Passu Lien Debt, but the portion of such Aggregate Mandatory Prepayment Amount allocated to indebtedness under the Credit Agreement and to any Other Pari Passu Lien Debt shall not exceed the amount required to be allocated to a mandatory prepayment of the indebtedness under the Credit Agreement and to such Other Pari Passu Lien Debt pursuant to the respective terms thereof, and the remaining amount, if any, of such Aggregate Mandatory Prepayment Amount shall be allocated to the Notes in accordance with the terms hereof). Such purchase shall be at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus a premium (expressed as a percentage of principal amount) on such principal amount of the Notes in the same percentage as the premium (expressed as a percentage of principal amount) applicable to the prepayment of loans under the Credit Agreement in connection with such Credit Agreement Mandatory Prepayment, plus any accrued and unpaid interest to but excluding the Credit Agreement Mandatory Prepayment Purchase Date. In connection with the Credit Agreement Mandatory Prepayment, the Company shall use the same procedures set forth in Article 3 applicable to the purchase at the option of Holders upon a Fundamental Change, to the extent applicable, with such modifications as are appropriate to provide that the purchase of the Notes shall be made concurrently (or as nearly concurrently as possible) with the prepayment of loans under the Credit Agreement in connection with such Credit Agreement Mandatory Prepayment.

ARTICLE 4.

CONVERSION

Section 4.01 Right To Convert.

(a) Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert all or any portion of its Notes at an initial Conversion Rate of 133.3333 shares of Common Stock per $1,000 aggregate principal amount of Notes (equivalent to an initial Conversion Price of approximately $7.50 per share of Common Stock) into the Settlement Amount determined in accordance with Section 4.03(a)(ii), prior to the Close of Business on the Business Day immediately preceding April 2, 2018, (x) only upon satisfaction of one or more of the conditions described in Section 4.01(b), and (y) on or after April 2, 2018, at any time until the Close of Business on the second Scheduled Trading Day immediately preceding the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.

(b) (i) A Holder may surrender all or any portion of its Notes for conversion if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar quarter in which the conversion occurs, is more than 120% of the applicable Conversion Price in effect on

 

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each applicable Trading Day. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether the market price condition described in this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such market price condition.

(ii) If, prior to the Close of Business on the Business Day immediately preceding April 2, 2018 the Trading Price per $1,000 principal amount of Notes on each Trading Day during any ten consecutive Trading-Day period (the “Measurement Period”) is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the five consecutive Trading Days following such Measurement Period. Whenever the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Company shall so notify the Holders, the Trustee and the Bid Solicitation Agent and the Conversion Agent (in each case, if other than the Trustee) in writing. The Trading Price shall be determined by the Company pursuant to this Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information for each. However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine) the Trading Price per $1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If, on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company will so notify the Holders, the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.

 

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(iii) If the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock to (x) any rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 60 calendar days after the declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee nor the Conversion Agent shall have any obligation (I) to determine whether a distribution described in this Section 4.01(b)(iii) has occurred or (II) to verify the Company’s determination regarding such a distribution.

(iv) If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the Close of Business on the Business Day immediately preceding April 2, 2018, a holder may surrender Notes for conversion at any time from and after the date that is 30 Scheduled Trading Days prior to the anticipated effective date of the transaction or event (or, if later, the date on which the Company gives notice of such transaction) until the Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective date for such transaction or event. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction or event not less than 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or event or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction or event at least 30 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware of, such transaction or event, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction or event (but in no event later than the actual effective date of such transaction or event). Notwithstanding the foregoing, in no event will the Company be required to

 

38


provide such notice to the Holders before the earlier of (i) the actual effective date of such transaction or event and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or event or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such anticipated transaction or event. Neither the Trustee nor the Conversion Agent shall have any obligation to (x) determine whether a Fundamental Change or Make-Whole Fundamental Change has occurred or (y) verify the Company’s determination regarding such occurrence or non-occurrence.

(v) Holders will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time from and including the 30th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including, the 40th Scheduled Trading Day following the effective date of such transaction. To the extent commercially reasonably practicable, the Company will give notice to Holders of the anticipated effective date for such transaction not less than 30 Scheduled Trading Days prior to the anticipated effective date or, if the Company does not have knowledge of such transaction or it determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated effective date of such transaction at least 30 Scheduled Trading Days prior to the anticipated effective date, within one Business Day of the date upon which the Company receives notice, or otherwise becomes aware, of such transaction, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated effective date of such transaction (but in no event later than the actual effective date of such transaction). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual effective date of such transaction and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated transaction or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which our equity is then listed the circumstances giving rise to such anticipated transaction. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether a corporate event described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s determination regarding such a corporate event.

 

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Section 4.02 Conversion Procedures.

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

(b) To exercise the conversion privilege with respect to a beneficial interest in a Global Note, the Holder must comply with the Applicable Procedures for converting, and effecting a book-entry transfer to the Conversion Agent of, a beneficial interest on a Global Note and pay the funds, if any, required by Section 4.02(f) and any taxes or duties if required pursuant to Section 4.02(g), and the Conversion Agent must be informed of the conversion in accordance with the customary practice of the Depositary.

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

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

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

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

(iv) if required, pay all transfer or similar taxes as set forth in Section 4.02(g); and

(v) if required, make any payment required under Section 4.02(f).

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

If a Note has been submitted for repurchase pursuant to a Fundamental Change Purchase Notice, such Note may not be converted except to the extent such Note has been withdrawn by the Holder and is no longer submitted for repurchase pursuant to a Fundamental Change Purchase Notice or unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 3.07 prior to the relevant Fundamental Change Expiration Time.

For any Note, the date on which the Holder of such Note satisfies all of the applicable requirements set forth above with respect to such Note shall be the “Conversion Date” with respect to such Note.

Each conversion shall be deemed to have been effected as to any such Notes (or portion thereof) surrendered for conversion immediately prior to the Close of Business on the applicable Conversion Date; provided, however, that except to the extent required by Section 4.04, the person in whose name any shares of Common Stock shall be issuable upon conversion, if any, shall be treated as a stockholder of record (i) as of the Close of Business on the last VWAP Trading Day of the applicable Conversion Period in a Combination Settlement and (ii) as of the Close of Business on the Conversion Date in a Physical Settlement. At the Close of Business on the Conversion Date for a Note, the converting Holder shall no longer be the Holder of such Note.

 

40


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

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

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

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

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

Section 4.03 Settlement Upon Conversion.

(a) Settlement. Subject to this Section 4.03 and Sections 4.06 and 4.07, upon conversion of any Note, the Company shall pay or deliver, as the case may be, to Holders, in full satisfaction of its conversion obligation under Section 4.01, in respect of each $1,000 principal amount of Notes being converted, a Settlement Amount consisting of, at the election of the Company, solely cash (“Cash Settlement”), solely shares of Common Stock (together with cash in lieu of any fractional share of Common Stock pursuant to Section 4.03(b)) (“Physical Settlement”) or a combination of cash and shares of Common Stock (“Combination Settlement”).

 

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(i) Settlement Election. All conversions occurring on or after April 2, 2018 shall be settled using the same Settlement Method. Prior to April 2, 2018, the Company will use the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. If the Company elects a Settlement Method (a “Settlement Election”) and a Specified Dollar Amount, if applicable (a “Specified Dollar Amount Election”), the Company shall provide to the Holders so converting through the Trustee a notice of such Settlement Method (each such notice, a “Settlement Election Notice”) or such Specified Dollar Amount (each such notice, a “Specified Dollar Amount Election Notice”), no later than the Close of Business on the second Trading Day immediately following the related Conversion Date (or, in the case of any conversions occurring on or after April 2, 2018, no later than April 2, 2018). If the Company does not timely elect a Settlement Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement, and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. If the Company elects Combination Settlement but does not timely notify converting Holders of the Specified Dollar Amount per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000.

In addition, the Company may, prior to April 2, 2018, at its option, irrevocably elect Combination Settlement with a particular Specified Dollar Amount for all conversions subsequent to its notice to Holders thereof by notice of such election to Holders, the Trustee and the Conversion Agent.

(ii) Settlement Amount. The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows:

(A) if the Company elects Physical Settlement, the Company shall deliver to the converting Holder, in respect of each $1,000 principal amount of its Notes being converted, a number of shares of Common Stock equal to the applicable Conversion Rate, together with cash in lieu of any fractional shares of Common Stock pursuant to Section 4.03(b);

(B) if the Company elects (or is deemed to have elected) Cash Settlement, the Company shall pay to the converting Holder, in respect of each $1,000 principal amount of its Notes being converted, cash in an amount equal to the sum of the Daily Conversion Values for each of the 25 consecutive VWAP Trading Days during the related Conversion Period; and

 

42


(C) if the Company elects (or is deemed to have elected) Combination Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of its Notes being converted, an amount of cash and number of shares of Common Stock, if any, equal to the sum of the Daily Settlement Amounts for each of the 25 consecutive VWAP Trading Days during the related Conversion Period.

(iii) Delivery Obligation. The Settlement Amounts upon conversion of the Notes will be paid or delivered, as the case may be, by the Company through the Conversion Agent. The Company shall pay or deliver, as the case may be, the Settlement Amount due in respect of its conversion obligation under this Section 4.03, (i) on the third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, unless such Conversion Date occurs following the regular record date immediately preceding the Maturity Date, in which case the Company will make such delivery (and payment, if applicable) on the Maturity Date and (ii) on the third Business Day immediately following the last VWAP Trading Day of the related Conversion Period, in any other case; provided, however, that if prior to the Conversion Date for any converted Notes, the Common Stock has been replaced by Reference Property consisting solely of cash, the Company will pay the conversion consideration due in respect of such conversion on the tenth Trading Day immediately following the related Conversion Date, and, notwithstanding the foregoing in this Section 4.03, no Conversion Period will apply to those conversions. For the avoidance of doubt, in the case of Cash Settlement or Combination Settlement, if a VWAP Market Disruption Event occurs on a Scheduled Trading Day during the Conversion Period, or if such Scheduled Trading day is not a Trading Day for any other reason, then the Daily Conversion Value or Daily Settlement Amount, as applicable, will be determined on the next following Trading Day, and delivery of the Settlement Amount will be delayed accordingly. No interest will accrue on account of such delay.

(iv) Exchange-Related Limitations. Notwithstanding anything to the contrary in the Notes or in this Indenture, in connection with limitations imposed by the continued listing standards of the Exchange, the Company shall not enter into any transaction, or take any other action, that would result in the Notes, in the aggregate, becoming convertible into shares of Common Stock in excess of 20% of Common Stock outstanding as of the Last Original Issuance Date, unless the Company, at its election, either (i) obtains shareholder approval of such issuances, in accordance with the shareholder approval rules contained in such listing standards, or (ii) pays cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversion in excess of such limitations based on (x) the Daily VWAP on each VWAP Trading Day of the relevant Conversion Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant to this Section 4.03(a)(iv), in the case of Cash Settlement or Combination Settlement or (y) the Closing Sale

 

43


Price of the Common Stock on the Conversion Date, in the case of Physical Settlement. If the Company pays cash in lieu of delivering shares of Common Stock pursuant to this Section 4.03(a)(iv), it will notify the Trustee, the Conversion Agent and the Holders of the maximum number of shares it will deliver per $1,000 principal amount of converted Notes (x) in respect of each VWAP Trading Day in the relevant Conversion Period, in the case of Cash Settlement or Combination Settlement or (y) in respect of the relevant conversion, in the case of Physical Settlement.

(b) Fractional Shares. Notwithstanding the foregoing, the Company will not issue fractional shares of Common Stock as part of the Settlement Amount due with respect to any converted Note. Instead, if any Settlement Amount includes a fraction of a share of the Common Stock, the Company will, in lieu of delivering such fraction of a share of Common Stock, pay an amount of cash equal to the product of such fraction of a share and (i) in a Physical Settlement, the Daily VWAP on the relevant Conversion Date, or if such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day or (ii) in the case of any other Settlement Method, the Daily VWAP on the last VWAP Trading Day of the relevant Conversion Period (subject to Section 4.03(c) immediately below).

(c) Conversion of Multiple Notes by a Single Holder. If a Holder surrenders more than one Note for conversion on a single Conversion Date, the Company will calculate the amount of cash and the number of shares of Common Stock due with respect to such Notes as if such Holder had surrendered for conversion one Note having an aggregate principal amount equal to the sum of the principal amounts of each of the Notes surrendered for conversion by such Holder on such Conversion Date or, if the Notes surrendered for conversion are beneficial interests in a Global Note, based on such other aggregate number of Notes, or beneficial interests therein, being surrendered by the Holder for conversion on the same date as the Depositary may otherwise request.

(d) Settlement of Accrued Interest and Deemed Payment of Principal. If a Holder converts a Note, the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Note, and the Company’s delivery or payment, as the case may be, of cash, shares of Common Stock or a combination of cash and shares of Common Stock into which a Note is convertible will be deemed to satisfy and discharge in full the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding, the Conversion Date; provided, however, that subject to Section 4.02(f), if a Holder converts a Note after the Close of Business on a Regular Record Date and prior to the Open of Business on the corresponding Interest Payment Date, the Company will still be obligated to pay the interest due on such Interest Payment Date to the Holder of such Note on such Regular Record Date.

As a result, except as otherwise provided in the proviso to the immediately preceding sentence, any accrued and unpaid interest with respect to a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, if the Settlement Amount for any Note includes both cash and shares of Common Stock, accrued and unpaid interest will be deemed to be paid first out of the amount of cash delivered upon such conversion.

 

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

On the first Business Day immediately following the last VWAP Trading Day of the Conversion Period applicable to any Note surrendered for conversion in a Cash Settlement or a Combination Settlement, the Company will deliver a written notice to the Conversion Agent and the Trustee (if not also the Conversion Agent) stating the amount of cash and the number of shares of Common Stock, if any, that the Company is obligated to pay or deliver, as the case may be, to satisfy its conversion obligation with respect to each Note converted on such Conversion Date.

(f) Exchange in Lieu of Conversion. When a Holder surrenders Notes for conversion, the Company may, at its election, direct the Conversion Agent to surrender, on or prior to the first Business Day immediately following the Conversion Date, such Notes to a financial institution designated by the Company for exchange in lieu of conversion. In order to accept any Notes surrendered for conversion, the designated financial institution must agree to pay and/or deliver, as the case may be, in exchange for such Notes, the Settlement Amount that the Company would be obligated to deliver upon the conversion of such Notes at the time the Company would otherwise be required to deliver such consideration. By the Close of Business on the Business Day immediately following the Conversion Date, the Company will notify the Holder surrendering Notes for conversion, the Trustee and the Conversion Agent that it has directed the designated financial institution to make an exchange in lieu of conversion and that the designated financial institution has agreed to make such exchange in lieu of conversion. A copy of such notice shall include wire instructions and delivery instructions and shall be delivered to the conversion agent and to the designated institution.

(i) If the designated institution accepts any such Notes, it will deliver the amount of cash, if any, and the number of shares of Common Stock, if any, due upon conversion of such Notes directly to the Holder of such Notes no later than 11:00 a.m., New York City time, on the date the Company would have otherwise been required to deliver such consideration. In the case of Notes held through the Depositary, (x) the designated institution shall send an e-mail confirmation to the Conversion Agent once it has (a) wired such cash, if any, to the Holder, providing a Federal Reference Number, (b) processed a transfer to such Holder of such number of shares of Common Stock, if any, and (y) the Conversion Agent shall then contact the Holder’s custodian with the Depositary to confirm their receipt of such cash and number of shares of Common Stock, if any. Notes exchanged by the designated institution will remain outstanding. If

 

45


the designated institution agrees to accept any Notes for exchange in lieu of conversion but does not timely deliver the related consideration, or if such designated institution does not accept the Notes for exchange, the Company will deliver the relevant consideration to the Holder on the applicable settlement date therefor as if the Company had not made an exchange in lieu of conversion election.

(ii) The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require the financial institution to accept any Notes. The Company will not pay any consideration to, and the Company may, but will not be obligated to, otherwise enter into any agreement with, the designated institution for or with respect to such designation.

Section 4.04 Adjustment of Conversion Rate. The Conversion Rate will be adjusted as described in this Section 4.04, except that no adjustment to the Conversion Rate will be made for a given transaction if Holders of the Notes will participate in that transaction, without conversion of the Notes, on the same terms and at the same time as a holder of a number of shares of Common Stock equal to the principal amount of a Holder’s Notes (expressed in thousands) multiplied by the Conversion Rate would participate.

(a) If the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common Stock, or if the Company subdivides or combines the Common Stock, the Conversion Rate will be adjusted based on the following formula:

 

   CR1 = CR0 ×   

OS1

  
      OS0   

where,

 

CR0 =

   the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or combination, as applicable;

CR1 =

   the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date of such dividend or distribution, or immediately after the Open of Business on the effective date of such share split or combination, as applicable;

OS0 =

   the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the effective date of such share split or combination, as applicable; and

 

46


OS1 =

   the number of shares of Common Stock outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of common stock, as the case may be.

Any adjustment made under this clause (a) will become effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution (regardless of whether the dividend or distribution is scheduled to occur after the Maturity Date), or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be. If such dividend, distribution, subdivision or combination described in this clause (a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors or a duly authorized committee thereof determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or subdivision or combination had not been announced.

(b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period of not more than 60 calendar days from the announcement date for such distribution, to subscribe for or purchase shares of the Common Stock, at a price per share less than the average of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate will be increased based on the following formula

 

   CR1 = CR0 ×   

OS0 + X

  
      OS0 + Y   

 

CR0 =

   the Conversion Rate in effect immediately prior to 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 for such distribution;

OS0 =

   the number of shares of Common Stock outstanding immediately prior to the Open of Business on such Ex-Dividend Date for such distribution;

X =

   the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and

Y =

   the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution.

 

47


Any increase made under this clause (b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution, regardless of whether the distribution date is scheduled to occur after the Maturity Date. To the extent that such rights, options or warrants expire prior to the Maturity Date and shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants were scheduled to be distributed prior to the Maturity Date and are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred.

For purposes of this Section 4.04(b) and Section 4.01(b)(iii)(x), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock for each Trading Day in the applicable 10 consecutive Trading-Day period, there shall 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 other than cash, to be determined in good faith by the Board of Directors or a duly authorized committee thereof.

(c) If an Ex-Dividend Date occurs for a distribution (the “Relevant Distribution”) of shares of the Company’s Capital Stock, evidences of the Company’s indebtedness or other assets or property of the Company’s or rights, options or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of Common Stock (excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected under clause (a) or (b) above; (ii) dividends or distributions paid exclusively in cash; and (iii) Spin-Offs), then the Conversion Rate will be increased based on the following formula:

 

  CR1 = CR0 ×   

SP0

  
     SP0 - FMV   

where,

 

CR0 =    the Conversion Rate in effect immediately prior to 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 for such distribution;
SP0 =    the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day-period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and

 

48


FMV =    the fair market value (as determined in good faith by the Board of Directors or a duly authorized committee thereof) of the shares of Capital Stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution.

Any increase made under the above portion of this clause (c) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if such distribution is scheduled to be paid or made prior to the Maturity Date and is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Notes, the amount and kind of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. In the case of rights, options or warrants, if such rights, options or warrants are not so issued, or if no such rights, options or warrants are exercised prior to their expiration, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if the Ex-Dividend Date for the distribution of such rights, options or warrants had not occurred.

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

 

  CR1 = CR0 ×   

FMV0 + MP0

  
     MP0   

where,

 

CR0 =    the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off;
CR1 =    the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such Spin-Off;
FMV0 =    the average of the Closing Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the first 10 consecutive Trading-Day period commencing on, and including, the Ex-Dividend Date for the Spin-Off (such period, the “Valuation Period”); and

 

49


MP0 =    the average of the Closing Sale Prices of Common Stock over the Valuation Period.

The adjustment to the applicable conversion rate under the preceding paragraph of this clause (c) will be determined on the last day of the Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than 10 Trading Days prior to, and including, the end of the Conversion Period in respect of any conversion, references within this clause (c) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading Day of such Conversion Period. In respect of any conversion during the Valuation Period for any Spin-Off, references within this clause (c) related to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the relevant Conversion Date.

For purposes of the second adjustment formula set forth in this Section 4.04(c), (i) the Closing Sale Price of any Capital Stock or similar equity interest shall be calculated in a manner analogous to that used to calculate the Closing Sale Price of the Common Stock in the definition of “Closing Sale Price” set forth in Section 1.01, (ii) whether a day is a Trading Day (and whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for such Capital Stock or similar equity interest shall be determined in a manner analogous to that used to determine whether a day is a Trading Day (or whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for the Common Stock, and (iii) whether a day is a Trading Day to be included in a Valuation Period will be determined based on whether a day is a Trading Day for both the Common Stock and such Capital Stock or similar equity interest.

Subject to Section 4.04(g), for the purposes of this Section 4.04(c), rights, options or warrants distributed to all or substantially all holders of the Common Stock entitling them to acquire the Company’s Capital Stock or other securities, (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are deemed to be transferred with such shares of Common Stock; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.04(c) (and no adjustment to the Conversion Rate under this Section 4.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 4.04(c). If any such rights, options or warrants, distributed prior to the Issue Date are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be

 

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the date of distribution and Ex-Dividend Date of such deemed distribution (in which case the original rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders). In addition, in the event of any distribution or deemed distribution of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 4.04(c) was made, (1) in the case of any such rights, options or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by holders of Common Stock with respect to such rights, options or warrants (assuming each such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.

For purposes of Sections 4.04(a) through (c), if any dividend or distribution to which this Section 4.04(c) applies includes one or both of:

(A) a dividend or distribution of shares of Common Stock to which Section 4.04(a) also applies (the “Clause A Distribution”); or

(B) an issuance of rights, options or warrants entitling holders of the Common Stock to subscribe for or purchase shares of the Common Stock to which Section 4.04(b) also applies (the “Clause B Distribution”),

then (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a distribution to which this Section 4.04(c) applies (the “Clause C Distribution”) and any Conversion Rate adjustment required to be made under this Section 4.04(c) with respect to such Clause C Distribution shall be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 4.04(b) with respect thereto shall then be made, except that, if determined by the Company, (A) the “Ex-Dividend Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 4.04(b), and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Company, (A) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution, and (B) any shares of Common Stock included in the Clause A Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or such effective date” within the meaning of Section 4.04(a).

 

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(d) If an Ex-Dividend Date occurs for a cash dividend or distribution to all, or substantially all, holders of the outstanding Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be increased based on the following formula:

 

  CR1 = CR0 ×   

SP0

  
     SP0 - C   

where,

 

CR0 =    the Conversion Rate in effect immediately prior to 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 the Ex-Dividend Date for such dividend or distribution;
SP0 =    the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C =    the amount in cash per share that the Company pays or distributes to substantially all holders of the Common Stock.

Any increase made under this clause (d) shall become effective immediately after the Open of Business on the Ex-Dividend date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this clause (d) is scheduled to be paid or made prior to the Maturity Date but is not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, without having to convert its Notes, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the applicable Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.

(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock, and if the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading-Day

 

52


period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Offer Expiration Date”), the Conversion Rate will be increased based on the following formula:

 

  CR1 = CR0 ×   

AC + (SP1 × OS1)

  
     OS0 × SP1   

where,

 

CR0 =    the Conversion Rate in effect immediately prior to the Open of Business on the Trading Day next succeeding the Offer Expiration Date;
CR1 =    the Conversion Rate in effect immediately after the Open of Business on the Trading Day next succeeding the Offer Expiration Date;
AC =    the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors or a duly authorized committee thereof) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
OS0 =    the number of shares of Common Stock outstanding immediately prior to the time (the “Offer Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer);
OS1 =    the number of shares of Common Stock outstanding immediately after the Offer Expiration Time (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and
SP1 =    the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading-Day period commencing on, and including, the Trading Day next succeeding the Offer Expiration Date.

The adjustment to the Conversion Rate under the preceding paragraph of this clause (e) will be determined at the Close of Business on the tenth Trading Day immediately following, but excluding, the Offer Expiration Date but will be given effect at the Open of Business on the Trading Day next succeeding the Offer Expiration Date. If the Trading Day next succeeding the Offer Expiration Date is less than 10 Trading Days prior to, and including, the end of the Conversion Period in respect of any conversion, references within this clause (e) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Offer Expiration Date to, and including, the last VWAP Trading Day of such conversion period. In respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Offer Expiration Date, references within this clause (e) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Offer Expiration Date to, but excluding, the relevant Conversion Date. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate.

 

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(f) Special Settlement Provisions. Notwithstanding anything to the contrary herein, if a Holder converts a Note in a Combination Settlement, and the Daily Settlement Amount for any VWAP Trading Day during the Conversion Period applicable to such Note:

(i) is calculated based on a Conversion Rate adjusted on account of any event described in Sections 4.04(a) through (e); and

(ii) includes any shares of Common Stock that, but for this provision, would entitle their holder to participate in such event;

then, although the Company will otherwise treat such Holder as the holder of record of such shares of Common Stock on the last VWAP Trading Day of such Conversion Period, the Company will not permit such Holder to participate in such event on account of such shares of Common Stock.

In addition, notwithstanding anything to the contrary herein, if a Holder converts a Note and:

(i) Combination Settlement is applicable to such Note and shares of Common Stock are deliverable to settle the Daily Net Share Settlement Number for a given Trading Day within the Conversion Period applicable to such Note;

(ii) any distribution, transaction or event described in Sections 4.04(a)-(e) has not yet resulted in an adjustment to the applicable Conversion Rate on such Trading Day; and

(iii) the shares of Common Stock deliverable in respect of such Trading Day are not entitled to participate in the relevant distribution or transaction (because such shares of Common Stock were not held on a related Record Date or otherwise),

then the Company will adjust the number of shares of Common Stock delivered in respect of the relevant Trading Day to reflect the relevant distribution or transaction.

If a Holder converts a Note and:

(i) Physical Settlement is applicable to such Note;

(ii) any distribution or transaction described in Sections 4.04(a)-(e) has not yet resulted in an adjustment to the applicable Conversion Rate on a given Conversion Date; and

 

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(iii) the shares of Common Stock deliverable on settlement of the related conversion are not entitled to participate in the relevant distribution or transaction (because such shares of Common Stock were not held on a related Record Date or otherwise),

then the Company will adjust the number of shares of Common Stock delivered in respect of the relevant Trading Day to reflect the relevant distribution or transaction. Notwithstanding the foregoing, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date as described above, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of shares of Common Stock as of the related Conversion Date pursuant to Section 4.03 based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the foregoing Conversion Rate adjustment provisions, the Conversion Rate adjustment relating to such Ex-Dividend Date will not be made for such converting Holder. Instead, such Holder will be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

(g) Poison Pill. If a Holder converts a Note, to the extent that the Company has a rights plan in effect, if Physical Settlement applies to such Note, on the Conversion Date applicable to such Note, and if Combination Settlement applies to such Note on any VWAP Trading Day in the Conversion Period applicable to such Note, the Holder converting such Note will receive, in addition to any shares of Common Stock otherwise received in connection with such conversion on such Conversion Date or such VWAP Trading Day, as the case may be, the rights under the rights plan, unless prior to such Conversion Date or such VWAP Trading Day, as the case may be, the rights have separated from the Common Stock, in which case, and only in such case, the Conversion Rate will be adjusted at the time of separation as if the Company distributed to all holders of the Common Stock, Distributed Property as described in Section 4.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

(h) Deferral of Adjustments. Notwithstanding anything to the contrary herein, the Company will not be required to adjust the Conversion Rate unless such adjustment would require an increase or decrease of at least one percent; provided, however, that any such minor adjustments that are not required to be made will be carried forward and taken into account in any subsequent adjustment, and provided, further, that any such adjustment of less than one percent that has not been made shall be made upon the occurrence of (i) the Effective Date for any Fundamental Change or Make-Whole Fundamental Change (ii) in the case of any Note to which Physical Settlement applies, the Conversion Date, and, in the case of any Note to which Cash Settlement or Combination Settlement applies, each VWAP Trading Day of the applicable Conversion Period and (iii) every one year anniversary of the date hereof. In addition, the Company shall not account for such deferrals when determining whether any of the conditions to conversion have been satisfied or what number of shares of Common Stock a Holder would have held on a given day had it converted its Notes.

 

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(i) Limitation on Adjustments. Except as stated in this Section 4.04, the Company will not adjust the Conversion Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities. If, however, the application of the formulas in Sections 4.04(a) through (e) would result in a decrease in the Conversion Rate, then, except to the extent of any readjustment to the Conversion Rate, no adjustment to the Conversion Rate will be made (other than as a result of a reverse share split or share combination).

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

(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any present or future employee, director or consultant benefit plan or program of or assumed by us or any of our subsidiaries;

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

(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in Section 4.04(i)(ii) immediately above and outstanding as of the date the Notes were first issued;

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

(v) for accrued and unpaid interest on the Notes, if any.

For purposes of this Section 4.04, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.

Section 4.05 Discretionary and Voluntary Adjustments.

(a) Discretionary Adjustments. Whenever any provision of this Indenture requires the Company to calculate the Closing Sale Prices, the Daily VWAPs or any function thereof over a span of multiple days (including during an Conversion Period), the Company will make appropriate adjustments to each, if any, to account for any

 

56


adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the effective date, Ex-Dividend Date or Offer Expiration Date of the event occurs, at any time during the period when such Closing Sale Prices, the Daily VWAPs or function thereof is to be calculated.

(b) Voluntary Adjustments. To the extent permitted by applicable law and applicable requirements of the Exchange, the Company is permitted to increase the Conversion Rate of the Notes by any amount for a period of at least 20 Business Days if such increase is irrevocable for such period and the Board of Directors determines that such increase would be in the Company’s best interest; provided that the Company must give at least 15 days’ prior notice of any such increase in the Conversion Rate. To the extent permitted by applicable law and applicable requirements of the Exchange, the Company may also (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or similar event.

Section 4.06 Adjustment to Conversion Rate Upon Conversion in Connection with a Make-Whole Fundamental Change.

(a) Increase in the Conversion Rate. If a Make-Whole Fundamental Change occurs and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change, then the Company shall, to the extent provided herein, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described in this Section 4.06. A conversion of Notes shall be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change if the relevant Conversion Notice is received by the Conversion Agent during the period from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Close of Business on the Business Day immediately prior to the related Fundamental Change Purchase Date or, if such Make-Whole Fundamental Change is not also a Fundamental Change, the 35th Business Day immediately following the Effective Date for such Make-Whole Fundamental Change (such period, the “Make-Whole Fundamental Change Period”).

(b) Cash Mergers. Notwithstanding anything to the contrary herein, if the consideration paid to holders of the Common Stock in any Make-Whole Fundamental Change described in clause (2) of the definition of “Fundamental Change” is comprised entirely of cash, then, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the payment and delivery obligations upon the conversion of a Note shall be calculated based solely on the Stock Price for such Make-Whole Fundamental Change and shall be deemed to be an amount equal to the applicable Conversion Rate (including any adjustment as described in this Section 4.06) multiplied by such Stock Price. In such event, the Company’s conversion obligation will be determined and paid to Holders in cash on the third Business Day following the applicable Conversion Date. Otherwise, the Company will settle any conversion of the Notes following the Effective Date for a Make-Whole Fundamental Change in accordance with Section 4.03 (but subject to Section 4.04).

 

57


(c) Determining the Number of Additional Shares. The number of Additional Shares, if any, by which the Conversion Rate will be increased for a Holder that converts its Notes in connection with a Make-Whole Fundamental Change shall be determined by reference to the table attached as Schedule A, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”), and the price (the “Stock Price”) paid (or deemed paid) per share of the Common Stock in the Make-Whole Fundamental Change, as determined under the two immediately following sentences. If the holders of the Common Stock receive only cash in a Make-Whole Fundamental Change described in clause (2) of the definition of “Fundamental Change,” the Stock Price shall be the cash amount paid per share of Common Stock. Otherwise, the Stock Price shall be the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.

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

(i) If the Stock Price is between two Stock Prices in the table or the Effective Date is between two dates in the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Prices and the earlier and later dates, as applicable, based on a 365-or 366-day year, as applicable.

(ii) If the Stock Price is greater than $65 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table in Schedule A), no Additional Shares will be added to the Conversion Rate.

(iii) If the Stock Price is less than $5.66 per share (subject to adjustments in the same manner as the Stock Prices set forth in the column headings of the table in Schedule A), no Additional Shares will be added to the Conversion Rate.

Notwithstanding the foregoing, in no event will the Conversion Rate be increased on account of a Make-Whole Fundamental Change to exceed 176.6784 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate is required to be adjusted as set forth in Section 4.04.

(iv) The Stock Prices set forth in the column headings of the table in Schedule A shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise required to be adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment giving rise to the Stock Price adjustment and the denominator of

 

58


which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in such table shall be adjusted in the same manner and at the same time as the Conversion Rate is required to be adjusted as set forth in Section 4.04.

(e) Notices. The Company will notify Holders, the Trustee and the Conversion Agent of the anticipated Effective Date of any Make-Whole Fundamental Change and issue a press release as soon as practicable after the Company first determines the anticipated Effective Date of such Make-Whole Fundamental Change (and make the press release available on the Company’s website). The Company will use its commercially reasonable efforts to give notice to Holders of the anticipated Effective Date of such Make-Whole Fundamental Change not more than 70 Scheduled Trading Days nor less than 30 Scheduled Trading Days prior to the anticipated Effective Date or, if the Company does not have knowledge of such Make-Whole Fundamental Change or the Company determines, in its commercially reasonable discretion, that it is impractical or inadvisable to disclose the anticipated Effective Date of such Make-Whole Fundamental Change at least 30 Scheduled Trading Days prior to the anticipated Effective Date, within one business day of the date upon which the Company receives notice, or otherwise becomes aware, of such Make-Whole Fundamental Change or receives notice, or otherwise becomes aware of, such Make-Whole Fundamental Change, unless the Company determines, in its commercially reasonable discretion, that it is no longer impractical or inadvisable to disclose the anticipated Effective Date of such Make-Whole-Fundamental Change (but in no event later than the actual Effective Date of such Make-Whole Fundamental Change). Notwithstanding the foregoing, in no event will the Company be required to provide such notice to Holders before the earlier of (i) the actual Effective Date of such Make-Whole Fundamental Change and (ii) the earlier of such time as the Company or its Affiliates (a) have publicly disclosed or acknowledged the circumstances giving rise to such anticipated Make-Whole Fundamental Change or (b) are required to publicly disclose under applicable law or the rules of any stock exchange on which the Company’s equity is then listed the circumstances giving rise to such Make-Whole Fundamental Change.

Section 4.07 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.

(a) Merger Events. In the case of:

(i) any recapitalization, reclassification or change of the Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a split, subdivision or combination for which an adjustment was made pursuant to Section 4.04(a));

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

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

(iv) any binding share exchange; or

(v) a liquidation or dissolution of the Company;

 

59


and, in each case, as a result of which the Common Stock would be converted into, or exchanged for, common stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event,” any such common stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property,” and (i) the amount and kind of Reference Property that a holder of one share of Common Stock is entitled to receive in the applicable Merger Event, or (ii) if as a result of the applicable Merger Event, each share of Common Stock is converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), the per share of Common Stock weighted average of the amounts and kinds of Reference Property received by the holders of Common Stock that affirmatively make such an election (disregarding, for these purposes, any arrangement to deliver cash in lieu of any fractional security or other unit of Reference Property), a “Unit of Reference Property”) then, at the effective time of such Merger Event, the consideration due upon conversion of any Notes will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 4 were instead a reference to the same number of Units of Reference Property (it being understood that no adjustment will be made pursuant to Sections 4.04(a)-(e) with respect to any portion of Reference Property that does not consist of Capital Stock), and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) providing for such change; provided, however, that at and after the effective time of the Merger Event, (x) the Company will continue to have the right to determine the Settlement Method upon conversion of the Notes pursuant to Section 4.03(a)(i) and (y) (i) any amount payable in cash upon conversion of the Notes in accordance with Section 4.03 and 4.06 shall continue to be payable in cash, (ii) the number of shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 4.03 and 4.06 shall instead be deliverable in Units of Reference Property and (iii) the Daily VWAP and the Closing Sale Price will, to the extent reasonably possible, be calculated based on the value of a Unit of Reference Property and the definitions of VWAP Trading Day and VWAP Market Disruption Event shall be determined by reference to the components of a Unit of Reference Property.

The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 4.07. Such supplemental indenture described in the immediately preceding paragraph shall provide for adjustments which shall be as nearly equivalent to the adjustments provided for in this Article 4 in the judgment of the Board of Directors or the board of directors of the successor person. If, in the case of any such Merger Event, the Reference Property receivable thereupon by a holder of Common Stock includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a person other than the successor or purchasing person, as the case may be, in such Merger Event, then such indenture shall also be executed by such other person.

(b) Notice of Supplemental Indentures. The Company shall cause written notice of the execution of such supplemental indenture to be mailed to each Holder, at the

 

60


address of such Holder as it appears on the register of the Notes maintained by the Registrar, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section 4.07 shall similarly apply to successive Merger Events.

(c) Prior Notice. In addition, at least 20 Scheduled Trading Days before any Merger Event, the Company shall give notice to Holders of such Merger Event, or, if the Company has not publicly announced such Merger Event at such time, as promptly as practicable after publicly announcing such Merger Event. In any such notice, the Company shall also specify the composition of the Unit of Reference Property for such Merger Event, or, if the Company has not determined the composition of such Unit of Reference Property at such time, the Company will provide an additional written notice to Holders that states the composition of such Unit of Reference Property as promptly as practicable after determining its composition.

Section 4.08 Certain Covenants.

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

(b) Certain other Covenants. The Company covenants that all shares of Common Stock that may be issued upon conversion of Notes shall be newly issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and non-assessable and shall be free from preemptive rights and free from any tax, lien or charge (other than those created by the Holder or due to a change in registered owner). The Company shall list or cause to have quoted any shares of Common Stock to be issued upon conversion of Notes on each national securities exchange or over-the-counter or other domestic market on which the Common Stock is then listed or quoted.

Section 4.09 Responsibility of Trustee.

The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility to any Holder of Notes to determine or calculate the Conversion Rate, to determine whether any facts exist which may require any adjustment of the Conversion Rate, or to confirm the accuracy of any such adjustment when made or the appropriateness of the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock or of any other securities or property that may at any time be issued or delivered upon the conversion of any Notes; and the Trustee and the Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Notes for the purpose of conversion or to comply

 

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with any of the duties, responsibilities or covenants of the Company contained in this Article 4. The rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation its right to be compensated, reimbursed and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, including its capacity as Conversion Agent and as Bid Solicitation Agent.

Section 4.10 Notice of Adjustment to the Trustee.

Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent (if other than the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date as of which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to the Holder of each Note at his or her last address appearing on the Register provided for in Section 2.06 of this Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality, effectiveness or validity of any such adjustment and shall not be an Event of Default under this Indenture.

Section 4.11 Notice to Holders.

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

(i) Voluntary Increases. If the Company increases the Conversion Rate pursuant to Section 4.05(b), the Company shall mail to the Holders a notice of the increased Conversion Rate and the period during which such increased Conversion Rate will be in effect at least 15 calendar days prior to the date the increased Conversion Rate takes effect, in accordance with the applicable law.

(ii) Dissolutions, Liquidations and Winding-Ups. If there is a voluntary or involuntary dissolution, liquidation or winding-up of the Company,

 

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

(b) Notices After Certain Actions and Events. Whenever an adjustment to the Conversion Rate becomes effective pursuant to Sections 4.04, 4.05 or 4.06, the Company will (i) file with the Trustee an Officer’s Certificate stating that such adjustment has become effective, the Conversion Rate, and the manner in which the adjustment was computed and (ii) deliver written notice to the Holders stating that such adjustment has become effective and the Conversion Rate or conversion privilege as adjusted. Failure to give any such notice, or any defect therein, shall not affect the validity of any such adjustment.

ARTICLE 5.

COVENANTS

Section 5.01 Payment of Principal and Interest and the Fundamental Change Purchase Price.

The Company covenants and agrees that it will cause to be paid the principal of (including the Fundamental Change Purchase Price), premium, if any, on and accrued and unpaid interest, if any, on each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.

Section 5.02 Maintenance of Office or Agency.

The Company will maintain in the continental United States an office of the Paying Agent, an office of the Registrar and an office or agency where Notes may be surrendered for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture (other than the type contemplated by Section 12.14) may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee.

 

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

The Company hereby initially designates the Trustee as the Paying Agent, Registrar, Conversion Agent, and its Corporate Trust Office shall be considered as one such office or agency of the Company for each of the aforesaid purposes. The Company or its Affiliates may act as Paying Agent or Registrar.

With respect to any Global Note, the Corporate Trust Office of the Trustee or any Paying Agent shall be the place of payment where such Global Note may be presented or surrendered for payment or conversion or for registration of transfer or exchange, or where successor Notes may be delivered in exchange therefor; provided, however, that any such payment, conversion, presentation, surrender or delivery effected pursuant to the Applicable Procedures for such Global Note shall be deemed to have been effected at the place of payment for such Global Note in accordance with the provisions of this Indenture; provided further that no service of legal process against the Company or any Guarantor may be made at any office of the Trustee or Collateral Trustee.

Section 5.03 Provisions as to Paying Agent.

(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree, subject to the provisions of this Section 5.03:

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

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

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

The Company shall, on or before each due date of the principal of, any premium on, accrued and unpaid interest, if any, on and Fundamental Change Purchase Price for the Notes, deposit with the Paying Agent a sum sufficient to pay such principal, premium, accrued and

 

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unpaid interest or Fundamental Change Purchase Price, as the case may be, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action, provided that, if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.

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

(c) Anything in this Section 5.03 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by any Paying Agent hereunder as required by this Section 5.03, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by the any Paying Agent to the Trustee, such Paying Agent (if other than the Company) shall be released from all further liability with respect to such sums.

(d) Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, any premium on, accrued and unpaid interest, if any, on or Fundamental Change Purchase Price for any Note and remaining unclaimed for two years after such principal, premium, accrued and unpaid interest or Fundamental Change Purchase Price has become due and payable shall be paid to the Company on written request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that before the Trustee or such Paying Agent are required to make any such repayment, the Company shall cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 calendar days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

Section 5.04 Reports.

The Company will furnish to the Trustee, within 15 calendar days after it is required to file the same with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. Any such report, information or document that the Company files with the Commission through the EDGAR system (or any successor thereto) will be deemed to be delivered to the Trustee for the purposes of this Section 5.04 at the time of such filing through the EDGAR system (or such successor thereto).

 

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

Delivery of any such reports, information and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt of such reports, information and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates) or any other agreement or document.

Section 5.05 Statements as to Defaults. The Company is required to deliver to the Trustee (i) within 120 days after the end of each fiscal year ending December 31, an Officer’s Certificate stating whether or not the signers thereof know of any default of the Company that occurred during the previous year and whether the Company, to the Officer’s knowledge, is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture and (ii) within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any events that would constitute Defaults or Events of Default, setting forth the details of such Defaults or Events of Default, their status and the action the Company is taking or proposes to take in respect thereof. Such Officer’s Certificate shall also comply with any additional requirements set forth in Section 5.07. The Trustee shall not be deemed to have notice of any Default or Event of Default except in accordance with Section 11.03(i).

Section 5.06 Additional Interest Notice. If Additional Interest is payable by the Company pursuant to Section 5.08 or Section 6.03, the Company shall deliver to the Trustee and the Paying Agent an Officer’s Certificate, prior to the Regular Record Date for each applicable Interest Payment Date, to that effect stating (a) the amount of such Additional Interest that is payable and (b) the date on which such interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall have no obligation to calculate or determine, or verify the Company’s calculations or determinations of, the amount of any Additional Interest payable by the Company under this Indenture. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

 

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Section 5.07 Compliance Certificate and Opinions of Counsel.

(a) Except as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee or Collateral Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee or Collateral Trustee, as applicable, an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished; provided that no Opinion of Counsel shall be required to be delivered in connection with the issuance of the Notes on the date hereof.

(b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(i) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(iii) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

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

(c) All applications, requests, certificates, statements or other instruments given under this Indenture shall be without personal recourse to any individual giving the same and may include an express statement to such effect.

Section 5.08 Additional Interest.

(a) If, at any time during the six-month period beginning on, and including, the date which is six months after the Last Original Issuance Date, the Company fails to timely file any periodic report that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to

 

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all applicable grace periods thereunder and other than current reports on Form 8-K), or the Notes are not otherwise Freely Tradable, including pursuant to Rule 144 under the Securities Act, by Holders other than affiliates (within the meaning of Rule 144) of the Company or Holders that were affiliates (within the meaning of Rule 144) of the Company during the 90 days immediately preceding the date of the proposed transfer (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes), (i) for the first three months of such six-month period, the Company shall pay Additional Interest that will accrue on the Notes at the rate of 0.25% per annum of the principal amount of Notes then Outstanding for each day during such first three-month period for which the Company’s failure to file has occurred and is continuing or for which the restrictions on transfer are applicable and (ii) for the final three months of such six-month period, the Company shall pay Additional Interest that will accrue on the Notes at the rate of 0.50% per annum of the principal amount of Notes then Outstanding for each day during such final three-month period for which the Company’s failure to file has occurred and is continuing or for which the restrictions on transfer are applicable; provided that such six-month period shall end on the date that is one year from the Last Original Issuance Date.

(b) Further, if, and for so long as, the Restricted Notes Legend has not been removed from the Notes, the Notes are assigned a restricted CUSIP number or the Notes are not otherwise Freely Tradable by Holders other than affiliates (within the meaning of Rule 144) of the Company or Holders that were affiliates (within the meaning of Rule 144) of the Company during the 90 days immediately preceding the date of the proposed transfer (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 375th day after the Last Original Issuance Date, the Company will pay Additional Interest on the Notes that will accrue on the Notes at the rate of 0.50% per annum of the principal amount of Notes then Outstanding until such Restricted Notes Legend is removed, the Notes are assigned an unrestricted CUSIP number and the Notes are Freely Tradable.

(c) Such Additional Interest that is payable under this Section 5.08 shall be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes and will be separate and distinct from, and in addition to, any Additional Interest that may accrue pursuant to Section 6.03, subject to the limitations on the maximum annual rate of Additional Interest set forth in Section 6.03(d).

(d) In no event shall Additional Interest accruing pursuant to this Section 5.08 accrue on any day under the terms of this Indenture (taking any such Additional Interest pursuant to this Section 5.08 together with any Additional Interest pursuant to Sections 6.03(a) and 6.03(c)) at an annual rate in excess of 0.50% for any violation or Default caused by the Company’s failure to be current in respect of its Exchange Act reporting obligations.

Section 5.09 Corporate Existence. Subject to Article 9, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if, in the judgment of the Company, the preservation thereof is no longer desirable in the conduct of the business of the Company.

 

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Section 5.10 Restriction on Resales. The Company shall not, and shall procure that no “affiliate” (as defined under Rule 144) of the Company shall, resell any of the Notes that have been reacquired by the Company or any such “affiliate” (as defined under Rule 144).

Section 5.11 Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

Section 5.12 Par Value Limitation. The Company shall not take any action that, after giving effect to any adjustment pursuant to Article 4, would result in the issuance of shares of Common Stock for less than the par value of such shares of Common Stock.

Section 5.13 Maintenance of Collateral. The Company shall maintain a valid and perfected Lien in the Collateral having priority specified in the Collateral Documents. The Company shall execute and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions as required for the purposes of implementing or effectuating the provisions of each of the Collateral Documents, or of renewing the rights of the Holders, in each case with respect to the Collateral as to which the Collateral Trustee, for the ratable benefit of itself, the Trustee and the Holders, has a perfected Lien pursuant thereto in favor of the Collateral Trustee for the benefit of the Secured Parties.

Section 5.14 Further Assurances. Subject to the limitations set forth in the Collateral Documents, the Company will execute any and all further documents, financing statements, agreements and instruments, and take all further action that may be required under applicable law, in order to grant, preserve, protect and perfect the validity and priority of the security interests and Liens created or intended to be created by the Collateral Documents in the Collateral.

Section 5.15 Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:

(a) semi-annually, not later than the 10th day after each Regular Record Date, a list, in such form as the Trustee may reasonably require, containing all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, of the names and addresses of the Holders, as of such preceding Regular Record Date, and

(b) at such other times as the Trustee may request in writing, within 15 days after the receipt by the Company of any such request, a list of similar form and content as of a date the Trustee may reasonably require.

 

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Section 5.16 Additional Guarantors. If any of the Company’s Subsidiaries that is not a Guarantor becomes a guarantor under the Credit Agreement or Other Pari Passu Lien Debt, that Subsidiary shall (i) execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee pursuant to which such Subsidiary shall unconditionally Guarantee, on a senior secured basis, all of the Obligations on the terms set forth in this Indenture, (ii) execute and deliver to the Collateral Trustee such Collateral Documents as may be necessary to grant to the Collateral Trustee a Lien granted by such Subsidiary to secure obligations under the Credit Agreement or Other Pari Passu Lien Debt to also secure, on an equal and ratable basis, the Obligations, or as the Collateral Trustee may reasonably request, and (iii) deliver to the Trustee and the Collateral Trustee an Opinion of Counsel that such supplemental indenture and such Collateral Documents have been duly authorized, executed and delivered by such Subsidiary and constitute the legal, valid, binding and enforceable obligations of such Subsidiary. Thereafter, such Subsidiary shall be a Guarantor for all purposes hereof until such Guarantee is released in accordance herewith.

Section 5.17 Additional Collateral.

(a) With respect to any property acquired after the Issue Date by the Company or any Guarantor (other than (1) any property described in paragraph (b) of this Section 5.17 and (2) any property excluded from the obligation to be made subject to a Lien pursuant to the Collateral Documents) as to which the Collateral Trustee, for the benefit of the Secured Parties, does not have a perfected Second Priority Lien, promptly (i) execute and deliver to the Collateral Trustee such amendments to the Pledge and Security Agreement or such other documents as may be necessary to grant to the Trustee or Collateral Trustee, for the benefit of the Secured Parties, a security interest in such property, or as the Collateral Trustee may reasonably request, and (ii) take all actions reasonably necessary or advisable to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected Second Priority security interest in such property (subject to Liens permitted under Section 7.01 of the Credit Agreement), including the filing of filings with respect to IP Rights (other than any filings in any jurisdiction other than the U.S. to perfect a Lien on any Foreign IP Rights to the extent the cost of obtaining such perfection exceeds the practical benefit to the Holders afforded thereby (as reasonably determined in good faith by the Board of Directors unless otherwise required by any other Pari Passu Lien Document)), UCC financing statements, and other filings and in such jurisdictions as may be required by the Pledge and Security Agreement, other Collateral Documents or by law or as may be requested by the Trustee or the Collateral Trustee.

(b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $5,000,000 acquired after the Issue Date by the Company or any Guarantor (or owned by any Person at the time it becomes a Guarantor), (a) if the Company or such Guarantor acquired such real property with the intention to construct a Solar Energy System thereon, but has not yet commenced such construction within six months of such acquisition (with such extensions as reasonably requested by the Company not to exceed sixty (60) days), on such six month anniversary (or such extended date) of such acquisition or (b) if the Company or such Guarantor did

 

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not acquire such real property with the intention to construct a Solar Energy System thereon or if such real property is owned by any Person at the time it becomes a Guarantor, within sixty (60) days after the date of acquisition of such real property or the date such Person becomes a Guarantor, unless, in the case of this clause (b), a longer period is reasonably requested by the Company not to exceed thirty (30) days), (i) execute and deliver a Second Priority Mortgage, in favor of the Collateral Trustee, for the benefit of the Secured Parties, covering such real property, (ii) with respect to such real property, deliver to the Trustee and the Collateral Trustee all information, documentation and certifications described in Schedule 6.14(b) of the Credit Agreement, and (iii) deliver to the Trustee and the Collateral Trustee a certificate of a Responsible Officer of Company, affirming the representations contained in Section 5.08 of the Credit Agreement with respect to such real property, except that all references to the “Closing Date” contained in Section 5.08 of the Credit Agreement shall instead be construed to refer to the date of delivery of such certificate.

(c) Notwithstanding anything to the contrary, the Company and each Guarantor shall be required to make a Second Priority pledge of its Equity Interests in (A) a Non-Recourse Subsidiary unless (and so long as) such pledge of such Equity Interests is prohibited by the terms of any Non-Recourse Project Indebtedness of such Non-Recourse Subsidiary, (B) YieldCo and YieldCo Intermediate (provided; that (1) with respect to the Equity Interests in YieldCo and YieldCo Intermediate that are released from Liens securing obligations under the Existing Margin Loan Agreement on the Issue Date, all actions required by the Company to perfect the Lien of the Collateral Trustee on such Equity Interests shall be taken within the earlier of (x) 30 calendar days (with such extensions as reasonably requested by the Company not to exceed fifteen (15) days) after the Issue Date and (y) the date on which such Lien is perfected by delivery of the certificates evidencing such Equity Interests to the First Lien Agent, and (2) with respect to the Equity Interests in YieldCo and YieldCo Intermediate that constitutes collateral securing the Permitted Seller Notes, such Equity Interests shall be pledged by each applicable Guarantor, and all actions required by the Company to perfect the Lien of the Collateral Trustee on such Equity Interests shall be taken, by the earlier of (x) 30 calendar days (with such extensions as reasonably requested by the Company not to exceed fifteen (15) days), in its sole discretion) after the release of the applicable Equity Interests from the Liens granted under the Permitted Seller Notes and (y) the date on which such Lien is perfected by delivery of the certificates evidencing such Equity Interests to the First Lien Agent), (C) each of the Loan Party Service Providers, (D) YieldCo II and YieldCo II Intermediate, (E) the Intermediate Holdings, (F) any Warehouse Entity (if any equity interest therein is directly held or owned by the Company or any Guarantor), (G) First Wind Holdings, and (H) Apollo Holdings and all Equity Interests held by Apollo Holdings. If the Equity Interests in any Non-Recourse Subsidiary have been pledged in accordance with this Section (in each case excluding, for the avoidance of doubt, any Equity Interests in any Guarantor or any Unrestricted Subsidiary, including YieldCo, YieldCo II, YieldCo Intermediate and YieldCo II Intermediate, to which this sentence shall not apply) and such Non-Recourse Subsidiary later enters into, or informs the Trustee that it intends to enter into, Non-Recourse Project Indebtedness, then the Trustee shall direct the Collateral Trustee to release its Lien on the Equity Interests in such Non-Recourse

 

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Subsidiary to the extent the pledge of such Equity Interests would not be permitted by the terms of such Non-Recourse Project Indebtedness, and the Trustee and the Collateral Trustee is expressly authorized by the Holders to take such actions as are necessary to effectuate each such release. Notwithstanding anything to the contrary, no amendment or waiver of any provision of this Indenture or any other Note Document, and no consent to any departure by the Company or any other Guarantor therefrom, shall be effective to release Liens on the Equity Interests in YieldCo, YieldCo II, YieldCo Intermediate or YieldCo II Intermediate that constitute Collateral in order for such Equity Interests to be provided as collateral securing any Indebtedness (other than Obligations, the Obligations under and as defined in the Credit Agreement and the First Lien Loan Obligations).

(d) Notwithstanding anything in this Section 5.17 to the contrary, any obligation to deliver certificates evidencing Equity Interests to be pledged or to deliver stock powers or other documents or to take any other action to establish possession or control over the Collateral by the Collateral Trustee shall be deemed satisfied to the extent that such certificates, documents, or Collateral has been delivered pursuant to Section 6.14 of the First Lien Credit Agreement to the First Lien Agent for the benefit of the First Lien Lenders in accordance with the Intercreditor Agreement.

(e) Notwithstanding anything in this Section 5.17 to the contrary and subject to Section 6.17 of the Credit Agreement, except for the Fronting Fee Compensation Account and the funds on deposit therein, the collateral securing the First Lien Loan Obligations, on the one hand, and the Collateral securing Pari Passu Lien Obligations, on the other hand, shall be identical and neither the Company nor any Guarantor shall grant or permit any additional Liens on any asset or property to secure any First Lien Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the Pari Passu Lien Obligations.

Section 5.18 First Lien Refinancing Debt.

The Company shall not, and the Company shall not permit any Material Subsidiary to, create, incur, assume or suffer to exist any Indebtedness under the First Lien Credit Agreement, other than (1) any Indebtedness in an aggregate principal amount not to exceed $800,000,000, (2) Indebtedness and other obligations under Related Credit Arrangements (as defined in the First Lien Credit Agreement as in effect on the Issue Date), and (3) any Indebtedness (the “First Lien Refinancing Debt”) substantially similar to the Indebtedness under the First Lien Credit Agreement incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or in part, the then existing Indebtedness under the First Lien Credit Agreement or the then existing First Lien Refinancing Debt (the “First Lien Refinanced Debt”), provided, however, that (x) Indebtedness permitted in this Section 5.18 shall not include any Indebtedness other than (A)(i) reimbursement obligations in respect of letters of credit or bankers’ acceptances issued for the same purposes as permitted under the First Lien Credit Agreement and loans extended under the First Lien Credit Agreement or First Lien Refinancing Debt, as the case may be, in respect of reimbursement obligations resulting from drawings under such letters of credit or bankers’ acceptances and (ii) bonds or term loans the proceeds of which are used to cash collateralize or

 

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otherwise pre-fund letters of credit or bankers’ acceptances issued for the same purposes as permitted under the First Lien Credit Agreement, and (B) Related Credit Arrangements (as defined in the Credit Agreement as in effect on the Issue Date) to the extent related to Indebtedness under clause (A)(i) of this proviso and (y)(a) the aggregate undrawn face amount of letters of credit and bankers’ acceptances outstanding at any time under the First Lien Credit Agreement or First Lien Refinancing Debt, as the case may be, that constitute Credit Agreement Non-Performance LC/BAs (as defined in the First Lien Credit Agreement) shall not (I) at any time from and including March 31, 2016 to and excluding June 30, 2016, exceed an amount equal to $200,000,000 and (II) at any time on and after June 30, 2016, exceed an amount equal to $120,000,000, in each case, unless the amounts in excess thereof are cash collateralized in full, and (b) except as provided in clause (y)(a) of this proviso, each such other letter of credit and bankers’ acceptance shall constitute a Credit Agreement Performance LC/BA (as defined in the First Lien Credit Agreement); and provided, further that the First Lien Refinancing Debt shall not have a greater principal amount than the then outstanding aggregate the principal amount of the First Lien Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing principal amount of the First Lien Refinanced Debt.

ARTICLE 6.

REMEDIES

Section 6.01 Events of Default. Each of the following events shall be an “Event of Default”:

(a) the Company’s failure to pay the principal of or any premium, if any, on any Note when due and payable on the Maturity Date, upon declaration of acceleration or otherwise;

(b) the Company’s failure to comply with its obligations under Article 4 to pay or deliver the Settlement Amount owing upon conversion of any Note (including any Additional Shares or cash in lieu thereof) which failure continues for five Business Days;

(c) the Company’s failure to pay any interest on any Note when due, and such failure continues for a period of 30 days;

(d) the Company’s failure to pay the Fundamental Change Purchase Price when due;

(e) the Company’s failure to issue a Fundamental Change Company Notice in accordance with the provisions of Section 3.02(a), notice of a Make-Whole Fundamental Change in accordance with the provisions of Section 4.06(e) or notice of a distribution in accordance with the provisions of Section 4.01(b)(iii);

(f) (1) the Company’s failure to comply with its obligations under Section 5.17 to provide for additional Collateral under this Indenture and such failure continuing for sixty (60) days after the earlier of (i) the date a Responsible Officer of the Company obtains knowledge thereof and (ii) receipt by the Company of written notice from the

 

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Trustee or the Holders of at least 25% in principal amount of the Notes then Outstanding (a copy of which notice, if given by Holders, must also to be given to the Trustee) with respect thereto; and (2) the Company’s failure to comply with its obligations under Section 5.16 and Section 5.18 under this Indenture;

(g) the Company’s or any such Guarantor’s failure to perform any other covenant required by the Company or such Guarantor in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is specifically addressed in Sections 6.01(a) through (f) above) and such failure continues for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then Outstanding (a copy of which notice, if given by Holders, must also to be given to the Trustee) has been received by the Company;

(h) any indebtedness for money borrowed by, or any other payment obligation of the Company, the Guarantors or any of their respective Subsidiaries (other than an Immaterial Subsidiary or a Non-Recourse Subsidiary), in an outstanding principal amount, individually or in the aggregate, in excess of $50.0 million (or its foreign currency equivalent at the time) is not paid at final maturity (or when otherwise due, after giving effect to any applicable grace period) or is accelerated;

(i) the Company, the Guarantors or any of their respective Subsidiaries (other than an Immaterial Subsidiary or a Non-Recourse Subsidiary) at such time fails to pay one or more final and non-appealable judgments entered by a court or courts of competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $50.0 million; provided that, no Event of Default will be deemed to occur under this clause (i) if such judgments are paid, discharged or stayed within 30 days after the entry of such judgment;

(j) the Company, the Guarantors or any of their respective Subsidiaries (other than an Immaterial Subsidiary or a Non-Recourse Subsidiary) (i) commences a voluntary case or other proceeding seeking the liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect; (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary of the Company or any substantial part of the Company’s or such Significant Subsidiary of the Company’s property, (iii) consents to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, (iv) makes a general assignment for the benefit of creditors, or (v) fails generally or admits in writing its inability to pay its debts as they become due;

(k) an involuntary case or other proceeding is commenced against the Company, any Guarantor or any of their respective Subsidiaries (other than an Immaterial Subsidiary or a Non-Recourse Subsidiary) (i) seeking liquidation, reorganization or other relief with respect to the Company, such Guarantor or such Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the

 

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Company, such Guarantor or such Subsidiary of the Company or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 consecutive days;

(l) (i) any security interest created by the Collateral Documents, at any time, ceases to be in full force and effect for any reason (except as permitted by the terms of this Indenture or the Collateral Documents); (ii) the repudiation by the Company or any Guarantor of any of its obligations under the Collateral Documents or the assertion by the Company or any of the Guarantors that any Lien or security interest purported to be created under any Collateral Document is not a valid and perfected lien and security interest on the Collateral with the priority set forth in the Collateral Documents; or (iii) any representation or warranty made by the Company in any Collateral Document proves to have been false or misleading in any material respect as of the time made, and the fact, event or circumstance that gave rise to the misrepresentation has resulted or is reasonably likely to result in a material adverse effect and such misrepresentation or material adverse effect continues uncured for 30 or more days from the date a Responsible Officer of the Company obtains knowledge thereof;

(m) a repudiation by any of the Guarantors of its obligations under Article 13 of this Indenture, or the determination that such obligations are unenforceable or invalid or shall for any reason cease to be in full force and effect;

(n) failure by the Company or any of the Guarantors to comply with its obligations in Section 9.01; or

(o) an Event of Default (for purposes of this Section 6.01(o), as defined in the Credit Agreement) has occurred under the Credit Agreement (without giving effect to any amendments, waivers or forbearance agreements (i) relating to and given after the occurrence of such Event of Default under the Credit Agreement or (ii) except to the extent governed in clause (i), with respect to the Credit Agreement after the Issue Date that in the case of this clause (ii) materially adversely affect the interests of the Holders in the Notes).

Section 6.02 Acceleration; Rescission and Annulment.

(a) If an Event of Default (other than an Event of Default specified in Section 6.01(j) or Section 6.01(k) with respect to the Company) occurs and is continuing, either the Trustee by written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding by written notice to the Company and the Trustee, may declare 100% of the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes then Outstanding to be due and payable immediately. If an Event of Default specified in Section 6.01(j) or Section 6.01(k) with respect to the Company occurs, 100% of the principal of, premium, if any, and accrued and unpaid interest, if any, on all Notes shall automatically become immediately due and payable.

 

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(b) Notwithstanding anything to the contrary in Section 6.02(a), Section 6.04 or any other provision of this Indenture, if, at any time after the principal of, and accrued and unpaid interest, if any, on, the Notes shall have been so declared due and payable in accordance with Section 6.02(a), and before any judgment or decree of a court of competent jurisdiction for the payment of the monies due shall have been obtained, and each of the conditions set forth in the immediately following clauses (i), (ii) and (iii) is satisfied:

(i) the Company delivers or deposits with the Trustee the amount of cash sufficient to pay all matured installments of principal and interest upon all the Notes, and the principal of and accrued and unpaid interest, if any, on all Notes which shall have become due otherwise than by acceleration (with interest on such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the rate or rates, if any, specified in the Notes to the date of such payment or deposit), and such amount as shall be sufficient to pay the Trustee and the Collateral Trustee its reasonable compensation and reimburse the Trustee and the Collateral Trustee for its reasonable expenses, disbursements and advances (including the fees and expenses of its agents and counsel);

(ii) rescission and annulment would not conflict with any judgment or decree of a court of competent jurisdiction; and

(iii) any and all Events of Default under this Indenture, other than the non-payment of the principal of the Notes that became due because of the acceleration, shall have been cured, waived or otherwise remedied as provided herein,

then, the Holders of a majority of the aggregate principal amount of Notes then Outstanding, by written notice to the Company and to the Trustee, may waive all Defaults and Events of Default with respect to the Notes (except for any Default or Event of Default arising from (a) the Company’s failure to pay principal (including the Fundamental Change Purchase Price) of, or any interest on, any Notes, (b) the Company’s failure to pay or deliver the Settlement Amounts due upon conversion of any Note within the applicable time period set forth under Section 4.03(a) or (c) the Company’s failure to comply with any provision of this Indenture the modification of which would require the consent of the Holder of each Outstanding Note affected), and may rescind and annul the declaration of acceleration resulting from such Defaults or Events of Default (except for any Default or Event of Default arising from (x) the Company’s failure to pay principal (including the Fundamental Change Purchase Price) of, or any interest on, any Notes, (y) the Company’s failure to pay or deliver the Settlement Amounts due upon conversion of any Note within the applicable time period set forth under Section 4.03(a) or (z) the Company’s failure to comply with any provision of this Indenture the modification of which would require the consent of the Holder of each Outstanding Note affected), and their consequences; provided, that no such rescission or annulment will extend to or will affect any subsequent Default or Event of Default or shall impair any right consequent on such Default or Event of Default.

 

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Section 6.03 Additional Interest.

(a) Notwithstanding Section 6.02, to the extent the Company elects, the sole remedy for an Event of Default under Section 6.01(f) relating to the Company’s failure to comply with Section 5.04 (which will be the 60th day after written notice is provided to the Company in accordance with such an event of default) (such Event of Default, a “Reporting Event of Default”), will, after the occurrence of such Reporting Event of Default, (i) consist exclusively of the right to receive Additional Interest at an annual rate equal to 0.25% of the aggregate principal amount of the Notes then Outstanding for each day during the 180-day period beginning on, and including, the day on which such a Reporting Event of Default occurs during which such Reporting Event of Default is continuing (or, if applicable, the earlier date on which such Reporting Event of Default is cured or waived) and (ii) consist exclusively of the right to receive Additional Interest on the Notes at an annual rate equal to 0.50% per annum of the principal amount of such tranche of notes outstanding for each day during the 185-day period immediately following such 180-day period, in each case payable in the same manner and on the same dates as the stated interest payable on the Notes.

(b) If the Reporting Event of Default is continuing on the 366th day after the date on which such Reporting Event of Default occurred, the Notes will be subject to acceleration as provided in Section 6.02(a).

(c) In order to elect to pay the Additional Interest as the sole remedy during the first 365 days after the occurrence of a Reporting Event of Default, the Company must notify all Holders of Notes, the Trustee and the Paying Agent in writing of such election on or before the Close of Business on the fifth Business Day after the date on which such Reporting Event of Default would otherwise occur. Upon the Company’s failure to timely give such notice of such election or to pay the Additional Interest when due, the Notes will be immediately subject to acceleration by declaration of the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes Outstanding as provided in Section 6.02. Nothing in this Section 6.03 shall affect the rights of Holders of Notes in the event of the occurrence of any other Event of Default.

(d) In no event shall Additional Interest accruing pursuant to Sections 6.03(a) and 6.03(c) accrue on any day under the terms of this Indenture (taking any such Additional Interest pursuant to Sections 6.03(a) and 6.03(c) together with any Additional Interest pursuant to Section 5.08) at an annual rate in excess of 0.50% for any violation or Default caused by the Company’s failure to be current in respect of its Exchange Act reporting obligations. Such Additional Interest will be payable in the same manner and on the same dates as the stated interest payable on the Notes.

Section 6.04 Waiver of Past Defaults. Subject to Section 6.02(b), the Holders of not less than a majority of the aggregate principal amount of Notes then Outstanding, by written notice to the Company and to the Trustee, may waive any Default or Event of Default (except for any Default or Event of Default arising from (a) the Company’s failure to pay principal of, or any interest on, any Notes, (b) the Company’s failure to pay or deliver the Settlement Amounts due upon conversion of any Note within the applicable time period set forth

 

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under Section 4.03(a), or (c) the Company’s failure to comply with any provision of this Indenture the modification of which would require the consent of the Holder of each Outstanding Note affected) and rescind any acceleration resulting from such Default or Event of Default and its consequences; provided, that no such waiver will extend to or will affect any subsequent Default or Event of Default or shall impair any right consequent on such Default or Event of Default.

Section 6.05 Control by Majority. The Trustee will not be obligated to exercise any of its rights or powers at the request of the Holders unless the Holders have offered to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense. Subject to this Indenture, applicable law and the Trustee’s indemnification, the Holders of a majority in aggregate principal amount of the Outstanding Notes may direct in writing the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines is unduly prejudicial to the rights of any Holder.

Section 6.06 Limitation on Suits. Subject to Section 6.07, no Holder will have any right to institute any proceeding under this Indenture, or for the appointment of a receiver or Trustee, or for any other remedy under this Indenture or with respect to the Notes unless:

(a) the Holder has previously delivered to the Trustee written notice of a continuing Event of Default;

(b) the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes deliver to the Trustee a written request that the Trustee pursue a remedy with respect to such Event of Default and have offered reasonable indemnity to the Trustee to institute such proceeding as Trustee;

(c) the Trustee has failed to institute a proceeding within 60 days after such notice, request and offer; and

(d) the Trustee has not received from the Holders of a majority in aggregate principal amount of the then Outstanding Notes a direction inconsistent with such written request within 60 days after such notice, request and offer.

Section 6.07 Rights of Holders to Receive Payment and to Convert. Notwithstanding anything to the contrary elsewhere in this Indenture, the above limitations set forth under Section 6.06 do not apply to a suit instituted by a Holder for the enforcement of a payment of the principal (including the Fundamental Change Purchase Price, if applicable) of, or any accrued and unpaid interest on, any Note, on or after the applicable due date or the right to convert the Note or to receive the Settlement Amounts due upon conversion in accordance with Article 4, and such right to receive any such payment or delivery, as the case may be, on or after the applicable due dates shall not be impaired or affected without the consent of such Holder.

 

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Section 6.08 Collection of Indebtedness; Suit for Enforcement by Trustee. If an Event of Default specified in Section 6.01(a), 6.01(b), 6.01(c) or 6.01(d) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium on, interest on, Fundamental Change Purchase Price for and the Settlement Amounts due upon the conversion of the Notes and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, as well as any other amounts that may be due under Section 11.07.

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

Section 6.10 Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Company, its creditors, the Collateral or any other property and, unless prohibited by law or applicable regulations, will be entitled to collect, receive and distribute any money or other property payable or deliverable on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and, in the event that the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 11.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 11.07 out of the estate in any such proceeding, will be denied for any reason, payment of the same will be secured by a lien on, and is paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding, whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained will be deemed to authorize the Trustee to authorize or consent to, or to accept or to adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

Section 6.11 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

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Section 6.12 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.09, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

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

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

FIRST: to the Trustee, the Collateral Trustee and their agents and attorneys for amounts due under Section 11.07 or under the Collateral Documents, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee or the Collateral Trustee and the costs and expenses of collection;

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

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

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

Section 6.15 Undertaking for Costs. All parties to this Indenture agree, and each Holder, by such Holder’s acceptance of a Note, shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as

 

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Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 6.15 shall not apply to (i) any suit instituted by the Trustee, (ii) any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Notes then Outstanding, (iii) any suit instituted by any Holder for the enforcement of the payment of the principal (including the Fundamental Change Purchase Price) of, or any interest on, any Note on or after the applicable due date expressed or provided for in this Indenture, (iv) any suit for the enforcement of the right to convert any Note or to receive the Settlement Amounts due upon conversion of any Note in accordance with the provisions of Article 4, or (v) any suit for the enforcement of the right of a beneficial owner to exchange its beneficial interest in a Global Note for a Physical Note if an Event of Default has occurred and is continuing in accordance with Section 2.11.

Section 6.16 Waiver of Stay, Extension and Usury Laws. The Company covenants that, to the extent that it may lawfully do so, it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect (i) the covenants or the performance of this Indenture, (ii) the foreclosure of the Collateral Documents, or (iii) the sale of any of the Collateral; and the Company, to the extent that it may lawfully do so, hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will instead suffer and permit the execution of every such power as though no such law has been enacted.

Section 6.17 Notices from the Trustee. If a Default occurs and is continuing and is known to the Trustee, the Trustee must send notice of such Default to each Holder within 90 days after such Event of Default has occurred. Except in the case of a Default in the payment of the principal of, premium, if any, or interest on any Note or of a Default in the payment or delivery of the Settlement Amounts due upon conversion of any Note, the Trustee may withhold notice if and so long as a committee of trust officers of the Trustee in good faith determines that withholding notice is in the interests of the Holders.

ARTICLE 7.

SATISFACTION AND DISCHARGE

Section 7.01 Discharge of Liability on Notes. When (a) the Company or a Guarantor shall deliver to the Registrar for cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable (whether on the Maturity Date, on any Fundamental Change Purchase Date, upon conversion or otherwise) and the Company or a Guarantor shall deposit with the Trustee, in trust, or deliver to the Holders, as applicable, an amount of cash (and, to the extent applicable, deliver to the Holders a number of shares of Common Stock to satisfy the Company’s obligations with respect to outstanding conversions), sufficient to pay all amounts due on all of

 

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such Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and interest due, accompanied, except in the event the Notes are due and payable solely in cash at the Maturity Date or upon an earlier Fundamental Change Purchase Date, by a verification report as to the sufficiency of the deposited amount from an independent certified accountant or other financial professional reasonably satisfactory to the Trustee, and the Company or the Guarantor shall have paid or caused to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i) rights hereunder of Holders to receive all amounts owing upon the Notes and the other rights, duties and obligations of Holders, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (ii) the rights, obligations, indemnities and immunities of the Trustee hereunder and the obligations of the Company in respect thereof), and the Trustee, on written demand of the Company accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture. Notwithstanding the foregoing, the Company hereby agrees to reimburse the Trustee for any costs or expenses thereafter incurred by the Trustee, including the reasonable fees and expenses of its counsel, and to compensate the Trustee for any services thereafter rendered by the Trustee in connection with this Indenture or the Notes.

Section 7.02 Deposited Monies to Be Held in Trust by Trustee. Subject to Section 7.04, all monies deposited with the Trustee pursuant to Section 7.01 shall be held in trust for the sole benefit of the Holders of the Notes, and such monies and shall be applied by the Trustee to the payment, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to the Holders of the particular Notes for the payment of all sums or amounts due and to become due thereon for principal and interest, if any.

Section 7.03 Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all excess monies then held by any Paying Agent (if other than the Trustee) shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such amounts.

Section 7.04 Return of Unclaimed Monies. Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of or interest, if any, on the Notes and not applied but remaining unclaimed by the Holders of the Notes for two (2) years after the date upon which the principal of or interest, if any, on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand, and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holders shall thereafter look only to the Company for any payment that such Holder may be entitled to collect unless an applicable abandoned property law designates another person.

Section 7.05 Reinstatement. If the Trustee or the Paying Agent is unable to apply any monies in accordance with Section 7.02 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Notes shall be revived and reinstated as

 

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though no deposit had occurred pursuant to Section 7.01 until such time as the Trustee or the Paying Agent is permitted to apply all such amounts in accordance with Section 7.02; provided, however, that if the Company makes any payment of interest on, principal of or delivery in respect of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the monies held by the Trustee or Paying Agent.

ARTICLE 8.

SUPPLEMENTAL INDENTURES

Section 8.01 Supplemental Indentures Without Consent of Holders.

Without the consent of any Holder, the Company (when authorized by a Board Resolution), the Guarantors, the Trustee and the Collateral Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto or amendments or supplements to the Collateral Documents, in form satisfactory to the Trustee or Collateral Trustee, as applicable, for any of the following purposes:

(a) to cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes;

(b) to evidence the succession by a Successor Company to the Company as obligor or to any Guarantor as a guarantor and to provide for the assumption by such Successor Company of the Company’s or a Guarantor’s obligations, as applicable under this Indenture;

(c) to add guarantees with respect to the Notes;

(d) to enter into additional or supplemental Collateral Documents;

(e) to release Collateral in accordance with the terms of this Indenture and the Collateral Documents;

(f) to add to the Company’s covenants such further covenants, restrictions or conditions for the benefit of the Holders or surrender any right or power conferred upon the Company by this Indenture;

(g) to make any change that does not adversely affect the rights of any Holder in any material respect; or

(h) upon the occurrence of an event described in Section 4.07(a), solely (i) to provide that such Notes are convertible into or by reference to Reference Property, subject to the provisions in Sections 4.03 and 4.07, and (ii) to effect the related changes to the terms of such Notes under Section 4.07.

 

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Section 8.02 Supplemental Indentures With Consent of Holders.

With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender or exchange offer for, Notes) and by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company, the Guarantors and the Trustee may amend the Notes or enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture, and the Holder of a majority in aggregate principal amount of the Outstanding Notes may waive the Company’s compliance with any provision herein without notice to the other Holders; provided, however, that no such amendment, supplement or waiver shall, without the consent of the Holder of each Outstanding Note affected thereby:

(a) change the stated Maturity Date of the principal of or any interest on the Notes;

(b) reduce the principal amount of or interest on the Notes;

(c) reduce the amount of principal payable upon acceleration of the Maturity Date of any Note;

(d) change the place or currency of payment of principal of or interest on any Note;

(e) impair the right of any Holder to receive payment of principal of and interest on its Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on, or with respect to, such Holder’s Notes;

(f) modify the provisions with respect to the purchase rights of Holders as described in Section 3.01 in a manner adverse to Holders;

(g) modify the ranking provisions of this Indenture or modify the priority of any Lien on Collateral;

(h) modify the Guarantees of any Guarantor in a manner adverse to the Holders (other than the release of any Guarantee pursuant to Section 13.03 hereof);

(i) make any change that impairs or adversely affects the right of Holders to convert their Notes; or

(j) make any change to the provisions of this Article 8 which require each Holder’s consent or in the waiver provisions in Section 6.04 of this Indenture except to increase the percentage required for modification, amendment or waiver or to provide for consent of each affected Holder of Outstanding Notes.

Without the consent of the Holders of at least 66 23% in aggregate principal amount of the Notes then outstanding, an amendment, supplement or waiver may not (1) modify any Collateral

 

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Document or the provisions in this Indenture dealing with Collateral Documents in any manner adverse to the Holders or (2) otherwise release any Collateral other than in accordance with the provisions of this Indenture and the Collateral Documents.

It shall not be necessary for any Act or consent of Holders under this Section 8.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act or consent shall approve the substance thereof.

Section 8.03 Notice of Amendment or Supplement. After an amendment or supplement under this Article 8 becomes effective, the Company shall provide to the Holders a written notice briefly describing such amendment or supplement. However, the failure to give such notice to all the Holders, or any defect in the notice, shall not impair or affect the validity of the amendment or supplement.

Section 8.04 Trustee to Sign Amendments, Etc. The Trustee and the Collateral Trustee, as applicable, shall sign any amendment or supplement authorized pursuant to this Article 8 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Collateral Trustee. If it does, the Trustee or the Collateral Trustee, as applicable, may, but need not, sign it. In signing or refusing to sign such amendment or supplement, the Trustee and the Collateral Trustee shall receive, and shall be fully protected in conclusively relying upon, an Officer’s Certificate and an Opinion of Counsel provided at the expense of the Company providing that such amendment or supplement is authorized or permitted by this Indenture and such amendment or supplement is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.

ARTICLE 9.

SUCCESSOR COMPANY

Section 9.01 Company and Guarantors May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 9.03, each of the Company and Guarantors shall not consolidate with, enter into a binding share exchange with, or merge with or into, another Person or sell, assign, convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to another Person, unless:

(a) the resulting, surviving transferee or successor Person (the “Successor Company”), if not the Company or a Guarantor, is a corporation organized and existing under the laws of the U.S., any state of the U.S. or the District of Columbia and the Successor Company expressly assumes, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company or the Guarantor, as applicable, under the Notes and this Indenture;

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

(c) all other conditions specified in this Article 9 are met.

 

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Upon any such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition to another Person, the Successor Company (if not the Company or a Guarantor, as applicable) shall succeed to, and may exercise every right and power of the Company under this Indenture.

Section 9.02 Successor Company to Be Substituted. In case of any such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition to another Person and upon the assumption by the Successor Company (if other than the Company or a Guarantor, as applicable), by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium (including any Fundamental Change Purchase Price), if any, and accrued and unpaid interest, if any, on all of the Notes, the due and punctual payment or delivery of any Settlement Amount due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company and the Guarantors, as applicable, under this Indenture, such Successor Company shall succeed to and be substituted for, and may exercise every right and power of, the Company under this Indenture, with the same effect as if it had been named herein as the party of the first part. In the event of such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer or other disposition to another Person (but not in the case of a lease), the Person named as the “Company” or “Guarantor” in the first paragraph of this Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 9 may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released, in the case of the Company, from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture, and in the case of a Guarantor, from its liabilities as obligor and from all of its obligations as a Guarantor under its Guarantee and from its obligations under this Indenture.

In the case of a sale, assignment, conveyance, transfer, lease or other disposition by the Company to one or more of its Subsidiaries of all or substantially all of the properties and assets of the Company, the Notes will remain convertible based on the Settlement Amount, in accordance with Section 4.03, but subject to adjustment (if any) in accordance with Section 4.06. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof.

In case of any such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition to another Person, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.

 

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Section 9.03 Officer’s Certificate and Opinion of Counsel to Be Given to Trustee. In the case of any such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition pursuant to Section 9.01, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel stating that any such consolidation, merger, binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition and any such assumption and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, complies with the provisions of this Indenture.

ARTICLE 10.

NO REDEMPTION

Section 10.01 No Redemption. The Company shall not be permitted to redeem the Notes, and no sinking fund is provided for the Notes.

ARTICLE 11.

THE TRUSTEE

Section 11.01 Duties and Responsibilities of Trustee.

(a) The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee. In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care in its exercise as a prudent person would use in the conduct of his or her own affairs.

(b) Prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred:

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

(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provisions hereof are specifically

 

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required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein).

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

(i) this subsection (c) does not limit the effect of this Section 11.01;

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

(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of the Holders of not less than a majority in principal amount of the Notes at the time Outstanding determined as provided in Section 1.03 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture;

(d) Whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section 11.01.

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

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

(g) None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

(h) Each of the Trustee and the Collateral Trustee is hereby authorized to execute this Indenture and any other Collateral Document to which it may be a party and perform its obligations in accordance with their terms, and the rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be compensated, reimbursed and indemnified, are extended to the Trustee’s execution and performance of each such agreement.

 

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Section 11.02 [Reserved]

Section 11.03 Rights of the Trustee.

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

(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a Board Resolution.

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

(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture (including upon the occurrence and during the continuance of an Event of Default), unless such Holders shall have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, expenses and liabilities which may be incurred therein or thereby.

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

(f) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed by it with due care hereunder.

 

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(g) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.

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

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

(j) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and other Person employed to act hereunder.

(k) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.

(l) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

Section 11.04 Trustee’s Disclaimer. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee under this Indenture and the Trustee shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes.

Section 11.05 Trustee or Agents May Own Notes. The Trustee or any Agent, in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not Trustee or Agent.

Section 11.06 Monies to be Held in Trust. Subject to the provisions of Section 7.02, all monies and properties received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on or the investment of any money received by it hereunder except as may be agreed in writing from time to time by the Company and the Trustee.

 

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Section 11.07 Compensation and Expenses of Trustee. The Company and the Guarantors jointly and severally, covenant and agree to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to from time to time in writing between the Company and the Trustee, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its own negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction.

The Company and each of the Guarantors also covenants to indemnify, jointly and severally, each of the Trustee, the Collateral Trustee and the Agents (and their respective officers, directors and employees), in any capacity under this Indenture and their respective agents for, and to hold each of them harmless from and against, any and all loss, liability, claim, damage, cost or expense incurred without negligence or willful misconduct on its own part and arising out of or in connection with the acceptance or administration of this trust and the performance of its duties and/or the exercise of its rights hereunder or in any other capacity hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Guarantor, a Holder or any other Person) of liability in the premises. The Trustee or the Collateral Trustee shall notify the Company and the Guarantors promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Collateral Trustee, as applicable, to so notify the Company and the Guarantors shall not relieve the Company and the Guarantors of their obligations hereunder. The Company and the Guarantors shall defend the claim and the Trustee or the Collateral Trustee, as applicable, shall cooperate in the defense. The Trustee and the Collateral Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need to pay for any settlement made without its consent.

The obligations of the Company under this Section 11.07 to compensate or indemnify the Trustee and the Collateral Trustee to pay or reimburse the Trustee and the Collateral Trustee for expenses, disbursements and advances shall be secured by a lien prior to that of the Notes upon all property and funds held or collected by the Trustee or the Collateral Trustee as such, except funds held in trust for the benefit of the Holders of particular Notes. The obligation of the Company under this Section 11.07 shall survive the payment of the Notes, the satisfaction and discharge of this Indenture and/or the resignation or removal of the Trustee or Collateral Trustee, as applicable.

When the Trustee, the Collateral Trustee, any Agent, and any of their respective agents incur expenses or render services after an Event of Default specified in Section 6.01(i) and 6.01(j) with respect to the Company occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.

 

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Section 11.08 Officer’s Certificate as Evidence. Subject to Section 11.01, whenever in the administration of the provisions of this Indenture the Trustee or the Collateral Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the Trustee or the Collateral Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee or the Collateral Trustee.

Section 11.09 Conflicting Interests of Trustee. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, this Indenture.

Section 11.10 Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank holding company system, its bank holding company shall have a combined capital and surplus of at least $50,000,000). If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 11.10 the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 11.10, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 11.11 Resignation or Removal of Trustee.

(a) The Trustee may at any time resign by giving written notice of such resignation to the Company and to the Holders of Notes. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment thirty (30) days after such notice of resignation is given to the Company and the Holders, the resigning Trustee may, upon ten (10) Business Days’ notice to the Company and the Holders, appoint a successor identified in such notice or may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee, or, if any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months may, subject to the provisions of Section 6.15, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.

 

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

(i) the Trustee shall fail to comply with Section 11.09 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months; or

(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 11.10 and shall fail to resign after written request therefor by the Company or by any such Holder; or

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

then, in any such case, the Company may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.15, any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee; provided, however, that if no successor Trustee shall have been appointed and have accepted appointment thirty (30) days after either the Company or the Holders has removed the Trustee, the Trustee so removed may petition at the Company’s expense any court of competent jurisdiction for an appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.

(c) The Holders of a majority in aggregate principal amount of the Notes at the time Outstanding may at any time remove the Trustee and nominate a successor trustee which shall be deemed appointed as successor trustee unless, within ten (10) days after notice to the Company of such nomination, the Company objects thereto, in which case the Trustee so removed or any Holder, or if such Trustee so removed or any Holder fails to act, the Company, upon the terms and conditions and otherwise as in Section 11.11(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.

(d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 11.11 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 11.12.

Section 11.12 Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 11.11 shall execute, acknowledge and deliver to the Company, the Guarantors and to such trustee’s predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder,

 

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with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company, a Guarantor or of the successor trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to the provisions of Section 11.07, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company and each of the Guarantors shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 11.07.

No successor trustee shall accept appointment as provided in this Section 11.12 unless, at the time of such acceptance, such successor trustee shall be qualified under the provisions of Section 11.09 and be eligible under the provisions of Section 11.10.

Upon acceptance of appointment by a successor trustee as provided in this Section 11.12, the Company (or the former trustee, at the written direction of the Company) shall give or cause to be given notice of the succession of such trustee hereunder to the Holders of Notes in accordance with Section 12.08(c). If the Company fails to give such notice within ten (10) days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be given at the expense of the Company.

Section 11.13 Succession by Merger, Etc. Any corporation into which the Trustee may be merged or exchanged or with which it may be consolidated, or any corporation resulting from any merger, exchange or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee (including any trust created by this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, such corporation shall be qualified under the provisions of Section 11.09 and eligible under the provisions of Section 11.10.

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

Section 11.14 Preferential Collection of Claims. 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 the claims against the Company (or any such other obligor).

 

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Section 11.15 Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three (3) Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.

ARTICLE 12.

MISCELLANEOUS

Section 12.01 Effect on Successors and Assigns. All agreements of the Company, each of the Guarantors, the Trustee, the Registrar, the Paying Agent and the Conversion Agent in this Indenture and the Notes will bind their respective successors.

Section 12.02 Governing Law. This Indenture and the Notes, and any claim, controversy or dispute arising under or related to this Indenture or the Notes, will be governed by, and construed in accordance with, the laws of the State of New York (without regard to the conflicts of laws provisions thereof other than Section 5-1401 of the General Obligations Law).

Section 12.03 [Reserved].

Section 12.04 Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter 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 latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

Section 12.05 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, will give to any Person, other than the parties hereto, any Agent or their successors hereunder or the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 12.06 Calculations. Neither the Trustee nor any Agent shall be responsible for making any calculation with respect to any matter under this Indenture or the Notes (including, for the avoidance of doubt, the trading price of the Notes). Except as

 

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otherwise expressly provided in this Indenture, the Company and its designated agents shall be responsible for making all calculations called for under this Indenture and the Notes. These calculations include, but are not limited to, determinations of any Fundamental Change Purchase Price, the Closing Sale Prices of the Common Stock, accrued interest payable on the Notes, the Conversion Rate, the Settlement Amount and the amount of Additional Interest that may be payable by Company from time to time. The Company shall make all these calculations in good faith and, absent manifest error, its calculations will be final and binding on Holders. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and the Conversion Agent and all other agents appointed by the Company herein are entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee shall forward the Company’s calculations to any Holders upon the written request of that Holder.

Whenever the Company is required to calculate or make adjustments to the Conversion Rate, the Company will do so to the 1/10,000th of a share of Common Stock, rounding any additional decimal places up or down in a commercially reasonable manner.

Section 12.07 Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 12.08 Notices.

(a) Except as otherwise provided herein, any request, demand, authorization, direction, notice, consent, election, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Company or the Trustee shall be in writing and delivered in person or mailed by first class mail, postage prepaid, overnight courier or transmitted by facsimile transmission or electronic transmission in PDF format as follows:

(i) if to the Trustee by any Holder, by the Company or by the Collateral Trustee, at its Corporate Trust Office; or

(ii) if to the Company or any of the Guarantors by the Trustee or by any Holder, at the address of its principal office at SunEdison, Inc., 13736 Riverport Drive, Suite 1000, Maryland Heights, MO 63043, Attention: General Counsel.

(b) The Company or the Trustee, by notice given to the other in the manner provided in this Section 12.08, may designate additional or different addresses for subsequent notices or communications.

 

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(c) Notices to Holders will be sent to the address of each Holder as it appears in the Register. Notices will be deemed to have been given on the date of mailing or electronic transmission to such Holder. Whenever a notice is required to be given by the Company, such notice may be given by the Trustee on the Company’s behalf. With respect to Global Notes, notice shall be sufficiently given if given to the Depositary for the Notes (or its designee), pursuant to customary procedures of such Depositary.

(d) Whenever the Company is required to deliver notice to the Holders, the Company will, by the date it is required to deliver such notice to the Holders, deliver a copy of such notice to the Trustee and the Agents. Notices to the Trustee shall be deemed given upon actual receipt thereof.

(e) In respect of this Indenture, neither the Trustee, in each of its capacities, including without limitation as the Trustee, Registrar, Paying Agent, Conversion Agent and Bid Solicitation Agent nor the Collateral Trustee, shall have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and neither the Trustee nor Collateral Trustee shall have any liability for losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee or Collateral Trustee, including, without limitation the risk of the Trustee or Collateral Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.

Section 12.09 No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company shall have any liability for any obligations of the Company under the Notes, the Indenture or any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

Section 12.10 Tax Withholding. Nothing herein shall preclude any tax withholding required by law or regulation. Each Holder agrees, and each beneficial owner of an interest in a Note by its acquisition of such interest is deemed to agree, that if the Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of the Holder or beneficial owner as a result of an adjustment to the Conversion Rate, the Company or other applicable withholding agent may, at its option, set off such payments against payments of cash and shares of Common Stock on the Note (or, in certain circumstances, against any payments on the Common Stock).

Section 12.11 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT

 

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PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 12.12 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.

Section 12.13 Force Majeure. In no event shall the Trustee or any Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, disasters, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

Section 12.14 Submission to Jurisdiction.

(a) The Company and the Guarantors hereby irrevocably consent to jurisdiction of the courts of the State of New York and the courts of the United States of America located in the City of New York and the County of New York, over any suit, action or proceeding with respect to this Indenture or the Notes or the transactions contemplated hereby. The Company and the Guarantors waive any objection that it may have to the venue of any suit, action or proceeding with respect to this Indenture or the Notes or the transactions contemplated hereby in the courts of the State of New York or the courts of the United States of America, in each case, located in the City of New York and County of New York, or that such suit, action or proceeding brought in the courts of the State of New York or the United States of America, in each case, located in the City of New York and County of New York was brought in an inconvenient court and agrees not to plead or claim the same. The Company and the Guarantors hereby irrevocably appoint Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, NY 10036, as its authorized agent in the State of New York upon which process may be served in any such suit or proceedings, and agrees that service of process upon such agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company and the Guarantors further agree to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for the term of this Indenture. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such writs, process or summonses in any other manner permitted by applicable law.

 

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ARTICLE 13.

GUARANTEE

Section 13.01 Guarantee.

(a) Each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to the Trustee, the Collateral Trustee and each Holder of a Note authenticated and delivered by the Trustee (and each of their respective successors and assigns): (i) the due and punctual payment of the principal of and interest and premium, if any, on such Note when and as the same shall become due and payable, whether at the maturity, by acceleration, repurchase or otherwise, and the due and punctual performance of all other obligations of the Company to the Holders, the Trustee or the Collateral Trustee, all in accordance with the terms of such Note and of this Indenture, (ii) the Company’s obligations under this Indenture and the Notes to deliver any shares of Common Stock (or Reference Property) (and pay cash in lieu of any fractional share) upon any conversion of the Notes and to duly and punctually pay or deliver, as the case may be, all other amounts due or to become due in connection with this Indenture, the Notes, (iii) the due and punctual performance of all other obligations of the Company or any Guarantor to the Holders, the Trustee or the Collateral Trustee under this Indenture, the Notes, the Guarantees and the Collateral Documents, according to the respective terms hereof and thereof, and (iv) in the case of any extension of time of payment or renewal of such Note or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the maturity or by acceleration, repurchase or otherwise.

(b) Each of the Guarantors hereby agrees that its obligations hereunder shall be absolute, unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of such Note or this Indenture, the absence of any action to enforce the same or any release, amendment, waiver or indulgence granted to the Company or any guarantor or any consent to departure from any requirement of any other guarantee of all or any of the Notes or any impairment of or failure to perfect any Lien on or any security interest in, any security held by the Trustee or the Collateral Trustee, or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each of the Guarantors hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of the Holders exhaust any right or take any action against the Company or any other Person, 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 or notice with respect to such Note or the indebtedness evidenced thereby and all demands whatsoever, and covenants that the Guarantee will not be discharged in respect of such Note except by complete performance of the obligations contained in such Note and in such Guarantee. Each of the Guarantors agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, each of the Guarantors agrees to pay to the Trustee for the

 

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account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders.

(c) Each of the Guarantors shall be subrogated to all rights of the Holders of the Notes upon which the Guarantee is endorsed against the Company in respect of, and solely to the extent of, any amounts paid by any Guarantor on account of such Note pursuant to the provisions of its Guarantee or this Indenture; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all payment and delivery obligation with respect to each Notes issued hereunder shall have been satisfied in full.

(d) The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any 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 and performance of the Notes, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of the Notes, whether as a “voidable preference” or otherwise, all as though such payment or performance 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.

Section 13.02 Execution and Delivery of Guarantees.

The Guarantee of a Guarantor shall be evidenced by such Guarantor’s execution and delivery of this Indenture or a supplemental indenture referencing this Article 13. The Guarantees set forth in this Article 13 and any applicable supplemental indentures shall be effective and enforceable whether or not a notation of guarantee (a “Notation of Guarantee”) is endorsed on the Notes. Any Notation of the Guarantee endorsed on the Notes shall be deemed to incorporate by reference the terms of the Guarantee set forth in Section 13.01.

The Guarantee shall be signed in the name and on behalf of the Guarantors by the manual or facsimile signature of an Officer of each of the Guarantors.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee hereunder on behalf of the Guarantor and shall bind the Guarantor notwithstanding the fact that the Guarantee may not bear a Notation of Guarantee. The Guarantor hereby agrees that its Guarantee set forth in Section 13.01 shall remain in full force and effect notwithstanding any failure to endorse a Notation of Guarantee on any Note.

Section 13.03 Release of Guarantors.

The Guarantee will remain in effect with respect to (i) each of the Guarantors until the entire principal of and interest on the Notes to which the Guarantee relates and all other

 

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obligations under this Indenture shall have been paid in full, fully performed or otherwise discharged in accordance with the provisions of such Notes and this Indenture (including through delivery of the full number of shares of Common Stock (or other Reference Property) (including the Additional Shares and any cash payable in lieu of any fractional share) deliverable upon conversion of the Notes Outstanding) and all amounts owing to the Trustee hereunder have been paid or (ii) a specific Guarantor, until such Guarantor has been released from its obligations pursuant to Section 9.02 or such Guarantor is no longer a guarantor under the Credit Agreement and is no longer required to provide a guarantee under the Credit Agreement; provided, however, that if the Notes are satisfied and discharged pursuant to Section 7.01, then upon delivery by the Company of an Officers’ Certificate and an Opinion of Counsel stating that all conditions precedent herein provided for relating to the release of such Guarantor from its obligations under its Guarantee and this Article 13 have been complied with, such Guarantor shall be released and discharged of its obligations under the Guarantee and under this Article 13 without any action on the part of the Trustee or any Holder, and the Trustee shall execute any documents reasonably required in order to acknowledge the release of such Guarantor from its obligations under the Guarantee endorsed on the Notes of a series and under this Article 13. Notwithstanding the foregoing, no Guarantor shall be released from its Guarantee if the Company would at such time be obligated to cause such Person to become a Guarantor.

ARTICLE 14.

COLLATERAL AND SECURITY

Section 14.01 Security Interest.

The Obligations under the Notes will be secured by a perfected Lien on the Company’s and each Guarantor’s right, title and interest in, to and under the Collateral, having priority specified in the Collateral Documents. Each Holder, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation, the provisions providing for release of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms. The Company and each Guarantor shall deliver to the Trustee copies of all documents delivered to the Collateral Trustee pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Collateral Documents, to assure and confirm to the Trustee and the Collateral Trustee the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes and the Note Guarantee secured hereby, according to the intent and purposes herein expressed.

The Company and each Guarantor will take any and all actions (including those requested by the Trustee or the Collateral Trustee) reasonably required to cause the Collateral Documents to create and maintain, as security for the obligations of the Company and each Guarantor hereunder, a valid and enforceable perfected Lien having priority specified in the Collateral Documents in and on all the Collateral in favor of the Collateral Trustee for the benefit of the Secured Parties.

 

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Each Holder, by accepting a Note, will be deemed to have authorized and consented to the appointment by the Trustee of the Collateral Trustee in Section 14.02 and to have irrevocably authorized the Collateral Trustee, to act as its agent under the Collateral Documents and to have irrevocably authorized the Collateral Trustee to (i) perform the duties and exercise the rights, powers and discretions that are specifically given to it under the Collateral Documents or other documents to which it is a party, together with any other rights, powers and discretions as are reasonably incidental thereto and (ii) execute each document expressed to be executed by the Collateral Trustee on its behalf.

Section 14.02 Trustee Duties.

(a) On the date hereof, the Trustee, on behalf of the Secured Parties, shall enter into the Collateral Trust Agreement to appoint Wilmington Trust, National Association to act as the Collateral Trustee. The Trustee shall not be obligated to take any action (or to direct the Collateral Trustee to take any action) under the Collateral Trust Agreement or any other Collateral Document without the written direction of the Holders and may, at the expense of the Company, request the direction of the Holders of a majority in aggregate principal amount of the outstanding Notes with respect to any such actions and, upon receipt of the written consent of the Holders of a majority in aggregate principal amount of the outstanding Notes along with security and indemnity satisfactory to the Trustee and the Collateral Trustee, shall take such actions.

(b) Neither the Trustee nor any of its officers, directors, employees, attorneys or agents shall be responsible or liable (i) for the legality, enforceability, effectiveness or sufficiency of the Collateral 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 Collateral Documents or any delay in doing so, or (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.

(c) 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 are extended to the Trustee when acting under the Collateral Trust Agreement and the other Notes Documents.

(d) The Trustee will not 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.

(e) Whenever an action under the Collateral Trust Agreement requires an Act of Required Pari Passu Lien Secured Parties, the Trustee, in its capacity as Pari Passu Lien Representative, shall seek the direction of Holders of the Notes. Subject to the next

 

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succeeding sentence, if the minimum consent or directions of Holders for such action required by Sections 6.05 or 8.02 or otherwise under this Indenture are met, the Trustee shall deliver a written direction to the Collateral Trustee (i) directing such Act of Required Pari Passu Lien Secured Parties and (ii) notifying the Collateral Trustee of the aggregate principal amount of Notes that consented or directed such action, which upon request of the Collateral Trustee, shall be accompanied by indemnity or security acceptable to the Collateral Trustee for any losses, liabilities or expenses that may be incurred in connection with such direction (it being understood that the Trustee, in its individual capacity, shall not be obligated to provide such indemnity or security). If the requested action requires the consent or direction of each Holder of the Notes affected thereby, then the Trustee shall not deliver a direction to the Collateral Trustee in such Act of Required Pari Passu Lien Secured Parties unless a unanimous consent is obtained for the Holders. For purposes of determining the consent or direction of Holders for an action under the Collateral Trust Agreement that requires an Act of Required Pari Passu Lien Secured Parties, the Notes registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and neither the Company nor any Affiliate of the Company will be entitled to vote such Notes and the Company shall notify the Trustee and the Collateral Trustee in writing whether any Notes are owned by it or any of its Affiliates.

Section 14.03 Authorization of Actions to be Taken.

(a) Each Holder of Notes, by its acceptance thereof, (i) consents and agrees to the terms of the Collateral Documents (including, without limitation, the Collateral Trust Agreement and the Intercreditor Agreement), as originally in effect and as amended, supplemented or replaced from time to time in accordance with their terms or the terms of this Indenture, (ii) authorizes, empowers and directs the Trustee to enter into the Collateral Trust Agreement, to appoint the Collateral Trustee thereunder, and to perform its duties thereunder as a Pari Passu Lien Representative, (iii) authorizes and empowers the Collateral Trustee to act as the collateral trustee under the Collateral Documents, (iv) authorizes and directs the Trustee and the Collateral Trustee to enter into and perform its obligations under the Collateral Documents (including, without limitation, the Collateral Trust Agreement and the Intercreditor Agreement) to which each is a party, and authorizes and empowers each of the Trustee and the Collateral Trustee to bind the Holders as set forth in the Collateral Documents (including, without limitation, the Collateral Trust Agreement and the Intercreditor Agreement) to which it is a party and to perform its obligations and exercise its rights and powers thereunder.

(b) Subject to the provisions of Section 11.01 and Section 11.03 hereof and the Collateral Documents, the Trustee, upon the written direction of the Holders holding a majority of the aggregate outstanding principal amount of the Notes shall, direct, on behalf of the Holders, the Collateral Trustee to take all actions it deems necessary or appropriate in order to:

 

  (i) foreclose upon or otherwise enforce any or all of the Liens on the Collateral;

 

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  (ii) enforce any of the terms of the Collateral Documents to which the Collateral Trustee is a party; or

 

  (iii) collect and receive payment of any and all Obligations.

(c) At the Company’s sole cost and expense and subject to the Trustee and the Collateral Trustee having been indemnified by the Holders and/or the Company, the Trustee is authorized and empowered (but is not obligated) to institute and maintain, or direct the Collateral Trustee to institute and maintain, such suits and proceedings as may be reasonably expedient to preserve or protect its interests and the interests of the Holders of Notes 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 hereunder or be prejudicial to the interests of Holders or the Trustee.

Section 14.04 Release of Collateral.

The Liens on the Collateral will be released with respect to the Notes and the Guarantees, as applicable:

(i) in whole, upon satisfaction and discharge of liability on the Notes pursuant to Article 7; and

(ii) otherwise in accordance with, and as expressly provided for under, this Indenture or the Collateral Documents.

Upon release of the Collateral, the Trustee shall promptly, and is hereby authorized to, take such actions as reasonably requested by the Company in order to direct the Collateral Trustee to reconvey to the Company or each Guarantor the released Collateral. In connection with any such reconveyance or filing, the Trustee or the Collateral Trustee, as applicable, shall receive and be fully protected in conclusively relying upon an Opinion of Counsel and an Officers’ Certificate and such other documents as prescribed by this Indenture or the Collateral Documents.

 

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

 

SunEdison, Inc.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   EVP, CAO & CFO
SUNE ML 1, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
MEMC Pasadena, Inc.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
Solaicx
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
SunEdison Holdings Corporation
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
SunEdison International, Inc.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
EnFlex Corporation
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer


Sun Edison LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
SunEdison Canada, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
SunEdison International, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
NVT, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
Fotowatio Renewable Ventures, Inc.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
SunEdison Contracting, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
NVT Licenses, LLC
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
TEAM-SOLAR INC.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer


SunEdison Utility Holdings, Inc.
By:  

/s/ Brian Wuebbels

Name:   Brian Wuebbels
Title:   Authorized Officer
Wilmington Trust, National Association, as Trustee, Conversion Agent, Registrar, Bid Solicitation Agent and Paying Agent
By:  

/s/ W. Thomas Morris

Name:   W. Thomas Morris
Title:   Vice President


SCHEDULE A

The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased pursuant to Section 4.06 based on the hypothetical Stock Prices and the dates set forth below.

 

Execution                                
Convertible bond offering                                   
                    Convertible Senior Notes due 2018                                               

Coupon rate

        5.000%                                

Principal amount

        $200,000,000                                

Public offering price

        100%                                

Last reported sale price

        $5.66                                

Conversion premium

        32.5%                                

Conversion rate

        133.3333                                

Approximate conversion price

        $7.5000                                

Pricing date

        1/6/16                                

Trade date

        1/11/16                                

Closing date

        7/2/18                                

Fundamental change increase in conversion rate — Convertible Senior Notes due 2018

           
     Stock Price
Effective Date    $5.66    $6.50    $7.50    $10.00     $12.50      $15.00    $17.50    $20.00    $25.00    $30.00    $35.00    $45.00    $55.00    $65.00

1/11/2016

   43.3451    33.6647    25.7174      14.6246        9.2493       6.2742    4.4676    3.2925    1.9117    1.1658    0.7214    0.2519    0.0448    0.0000

7/1/2016

   43.3451    33.2998    24.9000      13.4823        8.1847       5.3723    3.7270    2.6904    1.5139    0.8992    0.5394    0.1651    0.0192    0.0000

1/1/2017

   43.3451    32.2149    23.2687      11.5937        6.5500       4.0581    2.6935    1.8812    1.0129    0.5822    0.3351    0.0802    0.0000    0.0000

7/1/2017

   43.3451    30.5123    20.7915      8.8857        4.3433       2.3879    1.4528    0.9594    0.4915    0.2752    0.1478    0.0143    0.0000    0.0000

1/1/2018

   43.3451    27.1770    16.2338      4.4902        1.2037       0.2823    0.0501    0.0100    0.0016    0.0000    0.0000    0.0000    0.0000    0.0000

7/2/2018

   43.3451    20.5129    0.0000      0.0000        0.0000       0.0000    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000    0.0000

Maximum conversion rate

        176.6784      $ 5.660000                              

No additional shares

                               

Above

            $ 65.00                                

Below

            $ 5.66                                

 

A-1


EXHIBIT A

[FORM OF FACE OF NOTE]

[For all Notes, include the following legend (the “Non-Affiliate Legend”):]

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

[For Global Notes, include the following legend (the “Global Notes Legend”):]

[THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]

[For all Notes that are Restricted Notes, include the following legend (the “Restricted Notes Legend”):]

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

 

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

 

(2)

AGREES FOR THE BENEFIT OF SUNEDISON, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN OR THEREIN PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) (X) THAT IS AT LEAST ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE NOTES OR SUCH OTHER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES

 

A-1


  ACT OR ANY SUCCESSOR PROVISION THERETO, AND (Y) ON WHICH WE HAVE INSTRUCTED THE TRUSTEE THAT THE RESTRICTIONS DESCRIBED IN THE LEGEND WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE, EXCEPT:

 

  (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

 

  (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED (OR HAS BECOME) EFFECTIVE UNDER THE SECURITIES ACT THAT COVERS RESALE OF THE NOTES OR SUCH SHARES OF COMMON STOCK, OR

 

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

 

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

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE OR THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK, AS APPLICABLE, RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, AND THE TRUSTEE AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK WILL NOT BE REQUIRED TO ACCEPT FOR REGISTRATION OF TRANSFER ANY SECURITIES ACQUIRED BY A PURCHASER, INCLUDING UPON EXERCISE OF THE CONVERSION RIGHTS, EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY TO THE TRUSTEE OR TRANSFER AGENT, AS APPLICABLE, THAT THE RESTRICTIONS SET FORTH HEREIN HAVE BEEN COMPLIED WITH. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

A-2


SunEdison, Inc.

5% Guaranteed Convertible Senior Secured Notes due 2018

 

No.:    [            ]   
CUSIP:       86732Y AN9; provided that, at such time as the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this CUSIP number will be deemed removed and replaced with the CUSIP number 86732Y AP4.
Principal Amount $       [        ] as revised by the Schedule of Increases and Decreases in the Global Note attached hereto

SunEdison, Inc., a Delaware corporation (the “Company”), promises to pay to [                    ] [include “Cede & Co.” for Global Note] or registered assigns, the principal amount of [add principal amount in words] $[        ] [For Global Notes, include the following: as revised by the Schedule of Increases and Decreases in the Global Note attached hereto,] on July 2, 2018 (the “Maturity Date”).

Interest Payment Dates: January 2 and July 2.

Regular Record Dates: December 17 and June 17.

Additional provisions of this Security are set forth on the other side of this Note.

 

A-3


IN WITNESS WHEREOF, SunEdison, Inc. has caused this instrument to be signed manually or by facsimile by one of its duly authorized Officers.

 

SunEdison, Inc.
By:  

 

Name:  
Title:  

 

A-4


This is one of the Notes referred to in the within-mentioned Indenture.

Dated:

 

Wilmington Trust, National Association, as Trustee
By:  

 

  Authorized Signatory

 

A-5


[FORM OF REVERSE OF NOTE]

SunEdison, Inc.

5% Guaranteed Convertible Senior Secured Notes due 2018

This Note is one of a duly authorized issue of securities of the Company (herein called the “Notes”), issued under the Indenture dated as of January 11, 2016 by and among the Company the guarantors named therein (the “Guarantors”) and Wilmington Trust, National Association (in such capacity, herein called the “Trustee”), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.

This Note does not benefit from a sinking fund. This Note shall not be redeemable at the Company’s option.

As provided in and subject to the provisions of the Indenture, upon the occurrence of a Fundamental Change, the Holder of this Note will have the right, at such Holder’s option, to require the Company to purchase this Note, or any portion of this Note such that the principal amount of this Note that is not purchased equals $1,000 or an integral multiple of $1,000, on the Fundamental Change Purchase Date at a price equal to the Fundamental Change Purchase Price for such Fundamental Change Purchase Date.

As provided in and subject to the provisions of the Indenture, the Holder hereof has the right, prior to the Close of Business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert this Note or a portion of this Note such that the principal amount of this Note converted equals $1,000 or an integral multiple of $1,000, into a number of shares of Common Stock determined in accordance with Article 4 of the Indenture and subject to adjustment as set forth therein.

As provided in and subject to the provisions of the Indenture, the Company will make all payments in respect of the Fundamental Change Purchase Price for and the principal amount of, this Note to the Holder that surrenders this Note to the Paying Agent to collect such payments in respect of this Note. The Company will pay cash amounts in money of the U.S. that at the time of payment is legal tender for payment of public and private debts.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantors and the rights of the Holders of the Notes to be effected under the Indenture at any time by the Company, the Guarantors and the Trustee with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

 

A-6


As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Note, the Holders of not less than 25% in principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity to the Trustee, and the Trustee shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity, and shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of the principal hereof, premium, if any, or interest hereon, the Fundamental Change Purchase Price with respect to and the amount of cash, the number of shares of Common Stock or the combination thereof, as the case may be, due upon conversion of this Note or after the respective due dates expressed in the Indenture.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay or deliver, as the case may be, the principal of (including the Fundamental Change Purchase Price), premium, interest on and the amount of cash, a number of shares of Common Stock or a combination of cash and shares of Common Stock, if any, as the case may be, due upon conversion of, this Note at the time, place and rate, and in the coin and currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Register, upon surrender of this Note for registration of transfer to the Trustee, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon a new Note of this series and of like tenor for the same aggregate principal amount will be issued to the designated transferee.

The Notes are issuable only in registered form without coupons in minimum denominations of $1,000 and integral multiples of $1,000. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

Subject to the rights of the Holders as of the Regular Record Date to receive interest on the related Interest Payment Date, prior to due presentment of this Note for registration of transfer, the Company, the Trustee, the Agents and any of their respective agents may treat the Person in whose name the Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee, the Agents nor any agents shall be affected by notice to the contrary.

 

A-7


Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).

Upon the issuance of any new Note, the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including fees and expenses of the Trustee) connected therewith.

All defined terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture. If any provision of this Note limits, qualifies or conflicts with a provision of the Indenture, such provision of the Indenture shall control.

 

A-8


NOTATION OF GUARANTEE

Each of the Guarantors listed below (hereinafter referred to as the “Guarantors,” which term includes any successors or assigns under the Indenture, dated the date hereof, among the Guarantors, the Company (defined below) and Wilmington Trust, National Association, as trustee (the “Indenture”)), has irrevocably and unconditionally guaranteed on a senior basis (i) the due and punctual payment of the principal of and interest and premiums, if any, on the 5% Guaranteed Convertible Senior Secured Notes due 2018 (the “Notes”) when and as the same shall become due and payable, whether at the maturity, by acceleration, repurchase or otherwise, and the due and punctual performance of all other obligations of the Company to the Holders, the Trustee or the Collateral Trustee, (ii) the Company’s obligations under the Indenture and the Notes to deliver any shares of Common Stock (or Reference Property) (and pay cash in lieu of any fractional share) upon any conversion of the Notes and to duly and punctually pay or deliver, as the case may be, all other amounts due or to become due in connection with the Indenture, the Notes, (iii) the due and punctual performance of all other obligations of the Company or any Guarantor to the Holders, the Trustee or the Collateral Trustee under the Indenture, the Notes, the Guarantees and the Collateral Documents, and (iv) in the case of any extension of time of payment or renewal of the Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the maturity or by acceleration, repurchase or otherwise, in each case, all in accordance with and subject to the terms and limitations of this Note and the Indenture, including Article 13 thereof. This Guarantee will not become effective until the Trustee duly executes the certificate of authentication on this Note. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles thereof.

THE TERMS OF ARTICLE 13 OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.

Capitalized terms used herein have the same meanings given in the Indenture unless otherwise indicated.

[Remainder of page intentionally left blank]

 

A-9


IN WITNESS WHEREOF, each of the Guarantors has caused this instrument to be duly executed.

Dated:                     

 

SUNE ML 1, LLC
By:  

 

Name:  
Title:  
MEMC Pasadena, Inc.
By:  

 

Name:  
Title:  
Solaicx
By:  

 

Name:  
Title:  
SunEdison Holdings Corporation
By:  

 

Name:  
Title:  
SunEdison International, Inc.
By:  

 

Name:  
Title:  
EnFlex Corporation
By:  

 

Name:  
Title:  

 

A-10


Sun Edison LLC
By:  

 

Name:  
Title:  
SunEdison Canada, LLC
By:  

 

Name:  
Title:  
SunEdison International, LLC
By:  

 

Name:  
Title:  
NVT, LLC
By:  

 

Name:  
Title:  
Fotowatio Renewable Ventures, Inc.
By:  

 

Name:  
Title:  
SunEdison Contracting, LLC
By:  

 

Name:  
Title:  
NVT Licenses, LLC
By:  

 

Name:  
Title:  
TEAM-SOLAR INC.
By:  

 

Name:  
Title:  

 

A-11


SunEdison Utility Holdings, Inc.
By:  

 

Name:  
Title:  

[Signature Page to Guarantee]

 

A-12


ATTACHMENT 1

[FORM OF NOTICE OF CONVERSION]

 

To: SunEdison, Inc.

The undersigned owner of this Note hereby irrevocably exercises the option to convert this Note, or a portion hereof (which is such that the principal amount of the portion of this Note that will not be converted equals $1,000 or an integral multiple of $1,000 in excess thereof) below designated, into a number of shares of Common Stock in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon conversion, together with any Notes representing any unconverted principal amount hereof, be paid and/or issued and/or delivered, as the case may be, to the registered Holder hereof unless a different name is indicated below.

Subject to certain exceptions set forth in the Indenture, if this notice is being delivered on a date after the Close of Business on a Regular Record Date and prior to the Open of Business on the Interest Payment Date corresponding to such Regular Record Date, this notice must be accompanied by payment of an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Note to be converted. If any shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect to such issuance and transfer as set forth in the Indenture.

Principal amount to be converted (if less than all):

$        

Dated:                    

 

Signature(s)
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) another guarantee program acceptable to the Trustee.)

Fill in if a check is to be issued, or shares of Common Stock or Notes are to be registered, otherwise than to or in the name of the registered Holder.

 

A-13


(Name)

(Address)

Please print name and address

(including zip code)

(Social Security or other Taxpayer

Identifying Number)

Dated:                    

 

Signature(s)
(Sign exactly as such Person’s name appears above)
Signature Guarantee
(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee.)

 

A-14


ATTACHMENT 2

[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]

 

To: SunEdison, Inc.

The undersigned registered owner of this Note hereby acknowledges receipt of a Fundamental Change Company Notice from SunEdison, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Purchase Date and requests and instructs the Company to pay to the registered holder hereof in accordance with the applicable provisions of the Indenture referred to in this Note (i) the entire principal amount of this Note, or the portion thereof (that is such that the portion not to be purchased has a principal amount equal to $1,000 or an integral multiple of $1,000 in excess thereof) below designated, and (ii) if such Fundamental Change Purchase Date does not occur during the period after a Regular Record Date and on or prior to the Interest Payment Date corresponding to such Regular Record Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Purchase Date.

Principal amount to be purchased (if less than all):

$        

Certificate number (if Notes are in certificated form)

Dated:                    

 

Signature(s)
(Sign exactly as your name appears on the other side of this Note)
Social Security or Other Taxpayer Identification Number

 

A-15


ATTACHMENT 3

[FORM OF ASSIGNMENT AND TRANSFER]

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

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

¨  To SunEdison, Inc. or a subsidiary thereof; or

¨  Pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended; or

¨  To a qualified institutional buyer in compliance with Rule 144A under the Securities Act of 1933, as amended; or

¨  Pursuant to an exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended.

[TO BE SIGNED BY PURCHASER IF THE SECOND, THIRD OR FOURTH BOX ABOVE IS CHECKED]

[Include if the second, third or fourth box above is checked] [The undersigned (on the immediately following signature line) represents and warrants that it is not, and has not been for the immediately preceding 90 days, an “affiliate” (as defined in Rule 144 under the Securities Act of 1933, as amended) of SunEdison, Inc.]

[Include if the third box above is checked] [The undersigned (on the immediately following signature line) represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.]

 

[Date:

                                                                                    Signed:                                                                                ]

Unless one of the above boxes is checked, the Trustee and Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided that, if the fourth box is checked, the Company may require, prior to

 

A-16


registering any such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.

If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.11 of the Indenture shall have been satisfied.

 

Dated:                    

 

 

Signature(s)

(Sign exactly as your name appears on the other side of this Note)

 

 

Signature Guarantee

(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs: (i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee)

 

A-17


ATTACHMENT 4

[Insert for Global Note]

SCHEDULE OF INCREASES AND DECREASES IN THE GLOBAL NOTE

Initial Principal Amount of Global Note:

 

Date

 

Amount of Increase

in Principal

Amount of Global

Note

 

Amount of

Decrease in

Principal Amount

of Global Note

   Principal Amount
of Global Note
After Increase or
Decrease
   Notation by
Registrar, Note
Custodian or
authorized
signatory of
Trustee
         
         
         
         

 

A-18


EXHIBIT B

[FORM OF FREE TRANSFERABILITY CERTIFICATE]

Officer’s Certificate

[date]

[NAME OF OFFICER], the [TITLE] of SunEdison, Inc., a Delaware corporation (the “Company”) does hereby certify, in connection with the occurrence of the Free Trade Date on [date] in respect of $[add principal amount] of the Company’s 5% Guaranteed Convertible Senior Secured Notes due 2018 (CUSIP: 86732Y AN9)(the “Notes”) pursuant to the terms of the Indenture, dated as of January 11, 2016 (as may be amended or supplemented from time to time, the “Indenture”), by and between the Company and Wilmington Trust, National Association (the “Trustee”), that:

1. The undersigned is permitted to sign this “Officer’s Certificate” on behalf of the Company, as the term “Officer’s Certificate” is defined in the Indenture.

2. The undersigned has read, and thoroughly examined, the Indenture and the definitions therein relating thereto.

3. In the opinion of the undersigned, the undersigned has made such examination as is necessary to enable the undersigned to express an informed opinion as to whether or not all conditions precedent to the removal of the Restricted Notes Legend described herein from the Notes as provided for in the Indenture have been complied with.

4. To the best knowledge of the undersigned, all conditions precedent described herein as provided for in the Indenture and, in the case of Global Notes, the Applicable Procedures have been complied with.

5. The Resale Restriction Termination Date for the Notes is the date of this Officer’s Certificate. The Company is satisfied that the Notes are not subject to the restrictions set forth in the Restricted Notes Legend and Section 2.07 of the Indenture.

In accordance with Section 2.08 of the Indenture, the Company hereby advises you as follows:

1. The Restricted Notes Legend set forth on the Notes shall be deemed removed from the Notes in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of the Holders.

2. The restricted CUSIP number for the Notes shall be deemed removed from the Notes and replaced with an unrestricted CUSIP number, which unrestricted CUSIP number shall be 86732Y AP4, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on the part of the Holders.

Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Indenture.

 

B-1


IN WITNESS WHEREOF, the undersigned signed this Officer’s Certificate as of the date written above.

 

SunEdison, Inc.
By:  

 

Name:  
Title:  

 

B-2


EXHIBIT C

[FORM OF RESTRICTED STOCK LEGEND]

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

 

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

 

(2) AGREES FOR THE BENEFIT OF SUNEDISON, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) (X) THAT IS AT LEAST ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF THE COMPANY’S 5% GUARANTEED CONVERTIBLE SENIOR SECURED NOTES DUE 2018 OR SUCH OTHER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, AND (Y) ON WHICH THE COMPANY HAS INSTRUCTED THE TRUSTEE FOR THE COMPANY’S 5% GUARANTEED CONVERTIBLE SENIOR SECURED NOTES DUE 2018 THAT THE RESTRICTIONS DESCRIBED IN THE LEGEND WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE GOVERNING THE COMPANY’S 5% GUARANTEED CONVERTIBLE SENIOR SECURED NOTES DUE 2018, EXCEPT:

 

  (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR

 

  (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED (OR HAS BECOME) EFFECTIVE UNDER THE SECURITIES ACT THAT COVERS RESALE OF THE SHARES OF COMMON STOCK UNDERLYING THE COMPANY’S 5% GUARANTEED CONVERTIBLE SENIOR SECURED NOTES DUE 2018, OR

 

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

 

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

 

C-1


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, AND THE TRANSFER AGENT WILL NOT BE REQUIRED TO ACCEPT FOR REGISTRATION OF TRANSFER ANY SECURITIES ACQUIRED BY A PURCHASER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY TO THE TRANSFER AGENT THAT THE RESTRICTIONS SET FORTH HEREIN HAVE BEEN COMPLIED WITH. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

C-2


EX-10.1

Exhibit 10.1

Execution Version

 

 

SECOND LIEN CREDIT AGREEMENT

Dated as of January 11, 2016

among

SUNEDISON, INC.,

as Borrower,

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent

DEUTSCHE BANK SECURITIES INC.,

BARCLAYS BANK PLC,

MACQUARIE CAPITAL (USA) INC.,

and

KEYBANC CAPITAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners

DEUTSCHE BANK SECURITIES INC.,

as Sole Syndication Agent

and

The Lenders Party Hereto

 

 

DEUTSCHE BANK SECURITIES INC.,

as Sole Documentation Agent

 

 


TABLE OF CONTENTS

 

          Section    Page  

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

     2   

1.01

 

Defined Terms

     2   

1.02

 

Other Interpretive Provisions

     47   

1.03

 

Accounting Terms

     48   

1.04

 

Rounding

     48   

1.05

 

[Reserved]

     48   

1.06

 

[Reserved]

     48   

1.07

 

[Reserved]

     48   

1.08

 

Times of Day

     48   

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

     48   

2.01

 

Loans

     48   

2.02

 

Borrowings, Conversions and Continuations of Term Loans

     49   

2.03

 

[Reserved]

     50   

2.04

 

[Reserved].

     50   

2.05

 

Prepayments

     50   

2.06

 

[Reserved]

     54   

2.07

 

Repayment of Loans

     54   

2.08

 

Interest

     54   

2.09

 

Fees

     55   

2.10

 

Computation of Interest and Fees

     56   

2.11

 

Evidence of Debt

     56   

2.12

 

Payments Generally; Administrative Agent’s Clawback

     57   

2.13

 

Sharing of Payments by Lenders

     58   

2.14

 

Increase in Commitments

     58   

2.15

 

Defaulting Lenders

     61   

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

     62   

3.01

 

Taxes

     62   

3.02

 

Illegality

     66   

3.03

 

Inability to Determine Rates

     67   

3.04

 

Increased Costs

     67   

3.05

 

Compensation for Losses

     69   

3.06

 

Mitigation Obligations; Replacement of Lenders

     69   

3.07

 

Survival

     70   

ARTICLE IV CONDITIONS PRECEDENT TO CLOSING DATE

     70   

4.01

 

Conditions Precedent to the Closing Date

     70   

ARTICLE V REPRESENTATIONS AND WARRANTIES

     72   

5.01

 

Existence, Qualification and Power

     72   

5.02

 

Authorization; No Contravention

     72   

5.03

 

Governmental Authorization; Other Consents

     73   

5.04

 

Binding Effect

     73   

5.05

 

Financial Statements; No Material Adverse Effect

     73   

 

i


TABLE OF CONTENTS (continued)

 

          Section    Page  

5.06

 

Litigation

     73   

5.07

 

No Default

     74   

5.08

 

Ownership of Property; Liens

     74   

5.09

 

Environmental Compliance

     75   

5.10

 

Insurance

     75   

5.11

 

Taxes

     75   

5.12

 

ERISA Compliance

     75   

5.13

 

Subsidiaries; Equity Interests

     76   

5.14

 

Margin Regulations; Investment Company Act

     76   

5.15

 

Disclosure

     77   

5.16

 

Compliance with Laws

     77   

5.17

 

Taxpayer Identification Number

     77   

5.18

 

Intellectual Property; Licenses, Etc.

     77   

5.19

 

Solvency

     78   

5.20

 

Security Documents

     78   

5.21

 

PATRIOT Act

     78   

5.22

 

Related Agreements

     78   

ARTICLE VI AFFIRMATIVE COVENANTS

     79   

6.01

 

Financial Statements

     79   

6.02

 

Certificates; Other Information

     80   

6.03

 

Notices

     82   

6.04

 

Payment of Obligations

     82   

6.05

 

Preservation of Existence, Etc.

     83   

6.06

 

Maintenance of Properties

     83   

6.07

 

Maintenance of Insurance

     83   

6.08

 

Compliance with Laws

     83   

6.09

 

Compliance with Environmental Laws

     84   

6.10

 

Books and Records

     84   

6.11

 

Inspection Rights

     84   

6.12

 

Use of Credit Facility

     85   

6.13

 

Additional Subsidiary Guarantors and Grantors

     85   

6.14

 

Additional Collateral

     87   

6.15

 

Material Contracts

     90   

6.16

 

Further Assurances

     90   

6.17

 

Post-Closing Matters

     90   

6.18

 

Lenders Meetings

     90   

6.19

 

Issuance of Warrants

     91   

6.20

 

Management Services and Operation and Maintenance Service Providers

     91   

ARTICLE VII NEGATIVE COVENANTS

     91   

7.01

 

Liens

     91   

7.02

 

Investments

     94   

7.03

 

Indebtedness

     99   

7.04

 

Fundamental Changes

     105   

 

ii


TABLE OF CONTENTS (continued)

 

          Section    Page  

7.05

 

Dispositions

     106   

7.06

 

Restricted Payments

     108   

7.07

 

Change in Nature of Business

     111   

7.08

 

Transactions with Affiliates

     111   

7.09

 

Burdensome Agreements

     111   

7.10

 

Use of Proceeds

     112   

7.11

 

Financial Covenants

     112   

7.12

 

Amendments to Organization Documents; Borrower/SSL TopCo Agreement, Borrower/YieldCo Agreement

     112   

7.13

 

Accounting Changes

     113   

7.14

 

Prepayments of Indebtedness

     113   

7.15

 

Amendment of Indebtedness

     117   

7.16

 

Pasadena Real Estate and Sherman Real Estate

     118   

7.17

 

YieldCo II IPO

     118   

7.18

 

Intermediate Holdings

     119   

ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES

     119   

8.01

 

Events of Default

     119   

8.02

 

Remedies Upon Event of Default

     123   

8.03

 

Application of Funds

     123   

ARTICLE IX ADMINISTRATIVE AGENT

     124   

9.01

 

Appointment and Authority

     124   

9.02

 

Rights as a Lender

     124   

9.03

 

Exculpatory Provisions

     125   

9.04

 

Reliance by Administrative Agent

     126   

9.05

 

Delegation of Duties

     126   

9.06

 

Resignation of Administrative Agent

     127   

9.07

 

Non-Reliance on Agents and Other Lenders

     127   

9.08

 

No Other Duties, Etc.

     128   

9.09

 

Administrative Agent May File Proofs of Claim

     128   

9.10

 

Collateral and Guaranty Matters; Collateral Trust Agreement

     129   

9.11

 

Withholding Taxes

     131   

ARTICLE X MISCELLANEOUS

     132   

10.01

 

Amendments, Etc.

     132   

10.02

 

Notices; Effectiveness; Electronic Communication

     133   

10.03

 

No Waiver; Cumulative Remedies; Enforcement

     135   

10.04

 

Expenses; Indemnity; Damage Waiver

     136   

10.05

 

Payments Set Aside

     138   

10.06

 

Successors and Assigns

     138   

10.07

 

Treatment of Certain Information; Confidentiality

     142   

10.08

 

Right of Setoff

     143   

10.09

 

Interest Rate Limitation

     143   

10.10

 

Counterparts; Integration; Effectiveness

     144   

10.11

 

Survival of Representations and Warranties

     144   

10.12

 

Severability

     144   

 

iii


TABLE OF CONTENTS (continued)

 

          Section    Page  

10.13

 

Replacement of Lenders

     144   

10.14

 

Governing Law; Jurisdiction; Etc.

     145   

10.15

 

Waiver of Jury Trial

     146   

10.16

 

No Advisory or Fiduciary Responsibility

     147   

10.17

 

Electronic Execution of Assignments and Certain Other Documents

     147   

10.18

 

USA PATRIOT Act

     147   

10.19

 

Judgment Currency

     148   

10.20

 

Segregation of Assets and Liabilities

     148   

 

iv


SCHEDULES

 

1.01(a)

 

Disqualified Lenders

1.01(c)

 

Closing Date Unrestricted Subsidiaries

1.01(d)

 

Closing Date Non-Recourse Subsidiaries

2.01

 

Commitments and Applicable Percentages

2.09

 

Lenders

4.01

 

Closing Checklist

5.13

 

Subsidiaries; Material Equity Investments

6.14(b)

 

Mortgaged Property Requirements

6.17

 

Post-Closing Obligations

6.19

 

Warrant Holders and Shares

7.01

 

Existing Liens

7.02

 

Existing Investments

7.03

 

Existing Indebtedness

10.02

 

Administrative Agent’s Office; Certain Addresses for Notices

EXHIBITS

 

 

Form of

A

 

Loan Notice

B

 

Warrant

C-1

 

Tranche A-1 Note

C-2

 

Tranche A-2 Note

D

 

Compliance Certificate

E-1

 

Assignment and Assumption

E-2

 

Administrative Questionnaire

F

 

Pledge and Security Agreement

G

 

Guaranty Agreement

H

 

Intercompany Note

I

 

Perfection Certificate

J

 

Apollo Sponsor Support Agreement Terms

K

 

Borrower/YieldCo II Agreements

L

 

Collateral Trust Agreement

M

 

Second Lien Convertible Notes Indenture

 

v


SECOND LIEN CREDIT AGREEMENT

This SECOND LIEN CREDIT AGREEMENT is entered into as of January 11, 2016, among SUNEDISON, INC., a Delaware corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent.

RECITALS:

WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.01 hereof;

WHEREAS, the Lenders have agreed to extend a credit facility to the Borrower consisting of up to $725,000,000 aggregate principal amount of Term Loans, consisting of $500,000,000 aggregate principal amount of Tranche A-1 Term Loans and $225,000,000 aggregate principal amount of Tranche A-2 Term Loans; the proceeds of which will be used (i) to refinance all of the indebtedness outstanding under that certain Second Lien Credit Agreement, dated as of August 11, 2015, among the Borrower, Goldman Sachs Bank USA, as administrative agent, and the lenders from time to time party thereto (as amended or otherwise modified prior to the date hereof, the “Existing Second Lien Credit Agreement”), (ii) to refinance all of the indebtedness outstanding under that certain Margin Loan Agreement, dated as of January 29, 2015, among SUNE ML 1, LLC, Deutsche Bank AG, London Branch, as administrative agent, and the lenders from time to time party thereto (as amended or otherwise modified prior to the date hereof, the “Existing Margin Loan Agreement”), (iii) to pay fees and expenses related to this Agreement, the other Loan Documents, the refinancing of the Existing Second Lien Credit Agreement, the refinancing of the Existing Margin Loan Agreement, the issuance of the Second Lien Convertible Notes and the transactions related thereto and hereto and (iv) for general corporate purposes;

WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a Second Priority Lien on substantially all of its assets, including, to the extent required by the Loan Documents, a pledge of all the Equity Interests of each of its Domestic Subsidiaries and sixty-five percent (65%) of the Equity Interests of each of its First-Tier Foreign Subsidiaries; and

WHEREAS, the Guarantors have agreed to guarantee the Obligations of the Borrower hereunder and to secure their respective Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a Second Priority Lien on substantially all of their respective assets, including, to the extent required by the Loan Documents, a pledge of all the Equity Interests of each of their respective Domestic Subsidiaries and sixty-five percent (65%) of the Equity Interests of each of their respective First-Tier Foreign Subsidiaries.

 

1


NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

Acquisition Consideration” means, with respect to any purchase or acquisition described in Section 7.02(g), the aggregate amount of all cash and noncash consideration (including the fair market value of all Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith).

Administrative Agent” means Deutsche Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

Administrative Questionnaire” means an administrative questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Agent” means each of (i) the Administrative Agent, (ii) the Syndication Agent, (iii) the Bookrunners, (iv) the Arrangers, (v) the Collateral Trustee, and (vi) any other Person appointed under the Loan Documents to serve in an agent or similar capacity.

Aggregate Commitments” means the Commitments of all the Lenders. The initial amount of the Aggregate Commitments in effect on the Closing Date is $725,000,000.

Agreement” means this Second Lien Credit Agreement.

Alternative Fuel Energy System” means a Solar Energy System and/or an energy generating installation utilizing wind power or an alternative fuel source other than solar energy.

Apollo” means Vivint Solar, Inc., a Delaware corporation.

Apollo Acquisition” means the direct or indirect acquisition by the Borrower of Apollo pursuant to and in accordance with the Apollo Acquisition Agreement.

Apollo Acquisition Agreement” means that certain Agreement and Plan of Merger, dated as of July 20, 2015, by and among the Borrower, SEV Merger Sub Inc., a Delaware corporation, and Apollo pursuant to which the SEV Merger Sub Inc. will merge with and into Apollo, subject to the terms and conditions set for therein, as amended prior to the date hereof.

 

2


Apollo Holdings” means a direct or indirect wholly owned Domestic Subsidiary of the Borrower to be formed on or prior to the consummation of a financing of the Apollo Subs (and notified as such by the Borrower to the Administrative Agent).

Apollo Permitted Seller Notes” means the 2.25% Convertible Senior Notes due 2020 to be issued by the Borrower pursuant to the Apollo Permitted Seller Notes Indenture on the date of the consummation of the Apollo Acquisition.

Apollo Permitted Seller Notes Indenture” mean the indenture substantially in the form attached as Exhibit B to the Apollo Acquisition Agreement, by and between the Borrower and Computershare Trust Company, National Association.

Apollo Permitted Seller Notes Refinancing Convertible Bond Indebtedness” has the meaning set forth in Section 7.01(l).

Apollo Purchase Agreement” means that certain Purchase Agreement, dated as of July 19, 2015, by and between the Borrower, as “Seller” thereunder, and YieldCo Intermediate, as “Purchaser” thereunder, as amended prior to the date hereof.

Apollo Sponsor Support Agreement” means the sponsor support agreement having terms substantially the same as those set forth in Exhibit J hereto, by and between the Borrower and an Apollo Sub.

Apollo Subs” means Apollo and each other subsidiary of Apollo Holdings.

Apollo TERP Note” means the promissory note issued by the Borrower to YieldCo Intermediate pursuant to the Apollo Purchase Agreement having terms substantially the same as those set forth on Exhibit E to the Apollo Purchase Agreement.

Apollo TERP Sale” means the sale of all of the equity interests in the subsidiaries of Apollo identified as “Purchased Subsidiaries” under (and as defined in) the Apollo Purchase Agreement pursuant and in accordance with the terms of the Apollo Purchase Agreement.

Applicable Percentage” means with respect to any Lender, with respect to any Facility or Facilities, as the case may be, the percentage obtained by dividing (a) the Term Loan Exposure of that Lender under the applicable Facility or Facilities by (b) the aggregate Term Loan Exposure of all Lenders under the applicable Facility or Facilities. The initial Applicable Percentage of each Lender with respect to each Facility as of the Closing Date is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

Applicable Rate” means the following percentages per annum:

 

For any Eurocurrency Rate Loans:

   For any Base Rate Loans:

10.00%

   9.00%

 

3


Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the FRB or other applicable banking regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall reflect any other reserves required to be maintained by member banks with respect to (i) any category of liabilities which includes deposits by reference to which the applicable Eurocurrency Rate or any other interest rate of a Loan is to be determined, or (ii) any category of extensions of credit or other assets which include Eurocurrency Rate Loans. A Eurocurrency Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.

Approved Bank” has the meaning specified in the definition of Cash Equivalents.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arrangers” means Deutsche Bank Securities Inc., Barclays Bank PLC, Macquarie Capital (USA) Inc. and KeyBanc Capital Markets Inc.

Arrangers Pro Rata Share” has the meaning specified in Section 2.09(b).

Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other Disposition to, or any exchange of property with, any Person (other than the Borrower or any Guarantor), in one transaction or a series of transactions, of all or any part of the Borrower’s or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed, including the Equity Interests of any of the Borrower’s Subsidiaries, other than (x) Dispositions in the form of Restricted Payments permitted under Section 7.06 or Investments permitted under Section 7.02 and (y) sales or other Dispositions of Excluded Assets; provided that any Disposition of Excluded Assets described in clauses (i), (ii), (iii), (iv) and (vii) of the defined term “Excluded Assets” shall not be deemed to be an Asset Sale solely to the extent such Disposition is in the ordinary course of business.

Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

 

4


Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form approved by the Administrative Agent.

Attributable Indebtedness” means, on any date, in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.

Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus  12 of 1% and (iii) the sum of (x) the Eurocurrency Rate then in effect that would be payable on such day for Eurocurrency Rate Loan (after giving effect to any Eurocurrency Rate Loan “floor”) with a one-month interest period plus 1.00%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, respectively.

Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

Blocked Account Agreement” has the meaning specified in Section 2.09(b).

Blocked Account Termination Date” has the meaning specified in Section 2.09(b).

Bookrunners” means Deutsche Bank Securities Inc., Barclays Bank PLC, Macquarie Capital (USA) Inc. and KeyBanc Capital Markets Inc.

Borrower” has the meaning specified in the introductory paragraph hereto.

Borrower Materials” has the meaning specified in Section 6.02.

Borrower/SSL TopCo Agreements” means, collectively, each of the following agreements, each by and between Borrower and SSL TopCo, and each in form and substance reasonably satisfactory to the Administrative Agent: (i) the Separation Agreement, (ii) the Polysilicon Supply Agreement, (iii) the CCZ and Diamond Coated Wire Licensing Agreement, (iv) the Patent and Technology Cross-License Agreement, (v) the Technology Joint Development Agreement, (vi) the Transition Services Agreement, and (vii) the Tax Matters Agreement.

Borrower/YieldCo Agreements” means, collectively, each of the following, each by and among, inter alia, Borrower and YieldCo Intermediate, and each substantially in the form attached on Exhibit K hereto or otherwise in form reasonably satisfactory to the Administrative Agent: (i) Interest Payment Agreement, (ii) Management Services Agreement, (iii) Call Rights Agreement, (iv) Limited Liability Company Agreement and (v) Repowering Services Right of Refusal Agreement.

 

5


Borrower/YieldCo II Agreements” means, collectively, each of the following, each by and among, inter alia, Borrower or any of the Guarantors and YieldCo II and/or YieldCo II Intermediate, and each substantially in the form attached as Exhibit K hereto or otherwise in form reasonably satisfactory to the Administrative Agent: (i) the Interest Payment Agreement, (ii) Management Services Agreement, (iii) Project Support Agreement, (iv) Limited Liability Company Agreement, (v) Repowering Services Agreement, (vi) Project Investment Agreement, (vii) Distribution Payment Agreement and (viii) each other support service agreement, supply agreement, license agreement, tax matters agreement and any other agreement, document or instrument entered into by the Borrower and YieldCo II.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York or the state where the Administrative Agent’s Office is located, and if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, it means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

Capital Expenditures” means expenditures made in respect of the purchase or other acquisition of any fixed or capital asset, but shall expressly exclude normal replacements and maintenance which are properly charged to current operations.

Cash” means money, currency or a credit balance in any demand account or Deposit Account.

Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (b) Dollar-denominated certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of six months or less from the date of acquisition and issued either (i) by a Lender or (ii) by a commercial bank both (A) having combined capital and surplus of not less than $500,000,000 and (B) that has a short-term credit rating of at least A-1 by S&P or P-1 by Moody’s (any Person meeting the criteria of this clause (ii) an “Approved Bank”); (c) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender or any Affiliate thereof or of any Approved Bank, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from the date of acquisition and issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any

 

6


foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date of acquisition and backed by standby letters of credit issued by any Lender or any Approved Bank; (g) shares of money market mutual or similar funds which invest substantially all of their assets in assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $3,000,000,000; (h) investments in money market funds access to which is provided as part of “sweep” accounts maintained with a Lender or an Approved Bank; or (i) investments in industrial development revenue bonds which (i) “re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer, and (iii) are supported by a direct pay letter of credit covering principal and accrued interest which is issued by a Lender or an Approved Bank.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” means:

(I) an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of

 

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individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a Controlling influence over the management or policies of the Borrower, or control over the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body of the Borrower on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 35% or more of the combined voting power of such securities; or

(II) an occurrence of a “Fundamental Change” under and as defined in the 2018 Convertible Senior Notes Indenture, a “Fundamental Change” under and as defined in the 2021 Convertible Senior Notes Indenture, a “Fundamental Change” under and as defined in the 2020 Convertible Senior Notes Indenture, a “Fundamental Change” under and as defined in the 2022 Convertible Senior Notes Indenture, a “Fundamental Change” under and as defined in the 2023 Convertible Senior Notes Indenture, a “Fundamental Change” under and as defined in the 2025 Convertible Senior Notes Indenture, a “Fundamental Change” (or equivalent) under the applicable indenture governing the Permitted Seller Notes, a “Fundamental Change” (or equivalent) under the Apollo Permitted Seller Notes Indenture, a “Fundamental Change” (or equivalent) under the applicable document governing the Permitted Mandatory Convertible Preferred or a “Fundamental Change” under and as defined in the Second Lien Convertible Notes Indenture.

Class A TERP Common Stock” means the Class A common stock of TerraForm Power, Inc., a Delaware corporation.

Closing Date” means January 11, 2016.

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

Collateral” means, collectively, all property of the Borrower, any Subsidiary or any other Person in which the Collateral Trustee, the Administrative Agent (with respect to the Fronting Compensation Fee Account) or any Lender is granted a Lien under any Security Document as security for all or any portion of the Obligations or any other obligation arising under any Loan Document.

Collateral Trust Agreement” means a collateral trust agreement substantially in the form of Exhibit L, as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

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Collateral Trustee” means Wilmington Trust, National Association, its successors and assigns as Collateral Trustee pursuant to the Collateral Trust Agreement.

Commitment” means a Tranche A-1 Commitment or a Tranche A-2 Commitment. The initial aggregate amount of the Commitments is $725,000,000.

Committed Borrowing” means a borrowing consisting of simultaneous Term Loans made by each of the Lenders pursuant to Section 2.01 on the Closing Date.

Committed Trade Loans” has the meaning specified in Section 2.09(b).

Compliance Certificate” means a certificate substantially in the form of Exhibit D.

Consolidated EBITDA” means, for any period of measurement thereof, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to the Consolidated Net Income of the Borrower and its Subsidiaries for such period plus, without duplication:

(1) provision for taxes based on income or profits of the Borrower and its Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(2) the following, for such period, to the extent deducted in computing such Consolidated Net Income:

(a) the consolidated interest expense of the Borrower and its Subsidiaries for such period (other than interest expense with respect to Non-Recourse Project Indebtedness), whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with capital lease obligations, imputed interest with respect to Attributable Indebtedness (other than Attributable Indebtedness of any capital lease that constitutes Non-Recourse Project Indebtedness), commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to First Lien Related Swap Contracts in respect of interest rates; plus

(b) the consolidated interest expense of the Borrower and its Subsidiaries (other than interest expense with respect to Non-Recourse Project Indebtedness) that was capitalized during such period; plus

(c) any interest on Indebtedness of another Person that is guaranteed by the Borrower or its Subsidiaries or secured by a Lien on assets of the Borrower or its Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

(d) the product of (i) all dividends, whether paid or accrued and whether or not in Cash, on any series of preferred stock of such Person or any of its Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Borrower (other than Disqualified Equity Interests) or to the Borrower or a Subsidiary of

 

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the Borrower, times (ii) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP; plus

(3) any foreign currency translation losses (including losses related to currency remeasurements of Indebtedness) of the Borrower and its Subsidiaries for such period, to the extent that such losses were taken into account in computing such Consolidated Net Income; plus

(4) the amount of any restructuring charge or expense and unusual or non-recurring charges or expenses, to the extent that such charges or expenses were deducted in computing such Consolidated Net Income; plus

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

(6) any foreign currency translation gains (including gains related to currency remeasurements of Indebtedness) of the Borrower and its Subsidiaries for such period, to the extent that such gains were taken into account in computing such Consolidated Net Income; minus

(7) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, all as determined for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; and provided that, notwithstanding anything to the contrary contained herein, the Consolidated EBITDA for any period of measurement thereof shall (x) include the appropriate financial items for any Person or business unit that has been acquired by the Borrower or any of its Subsidiaries for any portion of such period prior to the date of such acquisition, and (y) exclude the appropriate financial items for any Person or business unit that has been Disposed of by the Borrower or any of its Subsidiaries, for the portion of such period prior to the date of Disposition.

Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, including obligations under the First Lien Credit Agreement (b) all purchase money Indebtedness, (c) all issued and undrawn letters of credit (including standby and commercial, and including Letters of Credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, but excluding obligations arising under Performance Letters of Credit other than obligations in respect of drawings thereunder,

 

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(d) Attributable Indebtedness in respect of capital leases, (e) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (d) above of Persons other than the Borrower or any Subsidiary, and (f) all Indebtedness of the types referred to in clauses (a) through (e) above of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or other comparable limited liability entity) in which the Borrower or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made or as a matter of law is non-recourse to the Borrower or such Subsidiary; provided that Consolidated Funded Indebtedness shall not include (i) Non-Recourse Project Indebtedness (including capital leases that constitute Non-Recourse Project Indebtedness) and (ii) Indebtedness permitted by Sections 7.03(a), (l), (o), (p), (q), (r) and (s).

Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended on or prior to such date.

Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries, the aggregate of the net income (loss) of the Borrower and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:

(1) except as set forth in clause (7) below (but, in any event, without duplication with clause (7)), (A) all extraordinary gains and losses and (B) except, without duplication of amounts included in computing such Consolidated Net Income, for Dispositions of Excluded Assets described in clause (i) of the defined term “Excluded Assets” to the extent such Disposition is in the ordinary course of business, all gains and losses realized in connection with any Disposition made pursuant to Section 7.04 or Section 7.05(g) or the Disposition of securities and (C) the early extinguishment of Indebtedness, together with any related provision for taxes on any such gain, will be excluded;

(2) the net income (or loss) of any Person (other than any Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has a joint or minority interest and of any Person that is an Unrestricted Subsidiary will be excluded, except to the extent of the amount of dividends or other distributions actually paid in cash to the Borrower or any of its Subsidiaries during such period;

(3) the net income (or loss) of any Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its equity holders;

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

(5) non-cash charges and expenses associated with equity-based compensation plans will be excluded;

 

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(6) non-cash gains and losses attributable to movement in the mark-to-market valuation of First Lien Related Swap Contracts pursuant to Financial Accounting Standards Board Statement No. 133 will be excluded; and

(7) Foregone Margin will be included notwithstanding whether such Foregone Margin would be recognized in accordance with GAAP (it being understood and agreed that the Foregone Margin may be recognized and included in the Consolidated Net Income in a period prior to the period in which the related Disposition occurs and, in accordance with the calculation set for in the definition of the term “Foregone Margin”, over time).

For purposes of calculating Consolidated Net Income, (a) all direct sales transactions involving Solar Energy Systems and related assets will be accounted for at the time of sale pursuant to Staff Accounting Bulletin No. 104 and without giving effect to any reserves required under real estate accounting; (b) all sale and leaseback transactions involving Solar Energy Systems and related assets will be accounted for as sales transactions and without giving effect to any reserves required under real estate accounting, in the case of each of clauses (a) and (b), with the result that all deferred revenue and margin from such direct sales and sale and leaseback transactions will be recognized on the date of sale rather than over time; and (c) if any revenue and margin that was recognized on the date of sale rather than over time as a result of the application of clauses (a) or (b) above would not, if such clauses did not apply, be recognized in accordance with GAAP in the applicable future period in which such revenue and margin would otherwise be recognized in accordance with GAAP, then such revenue and margin will be deducted from Consolidated Net Income in such applicable future period.

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Controlled Foreign Corporation” means “controlled foreign corporation” as defined in the Code.

Controlled Person” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity 50% or less but more than 30% of the ownership interests of which is at the time beneficially owned, directly or indirectly through one or more intermediaries, by such Person, and the management of which is Controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Controlled Person” or to “Controlled Persons” shall refer to a Controlled Person or Controlled Persons of the Borrower.

Convertible Bond Indebtedness” means Indebtedness having a feature which entitles the holder thereof to convert all or a portion of such Indebtedness into common stock of Borrower (or other securities or property following a merger event or other change of the common stock of

 

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Borrower) and/or cash (in an amount determined by reference to the price of such common stock (or such other securities or property following a merger event or other change of the common stock of Borrower)).

Convertible Senior Notes” means, collectively, the 2018 Convertible Senior Notes, the 2021 Convertible Senior Notes, the 2020 Convertible Senior Notes, the 2022 Convertible Senior Notes, the 2023 Convertible Senior Notes, the 2025 Convertible Senior Notes, the Apollo Permitted Seller Notes, or any of them.

Credit Extension” means a Committed Borrowing.

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

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

Default Rate” means an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to any Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to (A) the Eurocurrency Rate plus (B) the Applicable Rate applicable to Eurocurrency Rate Loans plus (C) 2% per annum.

Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Term Loans within two (2) Business Days of the date such Term Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a written public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Term Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) Administrative Agent has received notification that such Lender is, or has a direct or indirect parent company that is (i) insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its

 

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creditors or (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

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

Designated Debt-For-Equity Exchange” means an exchange or conversion of any Indebtedness of the Borrower or any of its Subsidiaries solely for or into common Equity Interests in the Borrower.

Designated IPP Assets” means the Equity Interests held by Silver Ridge Power, LLC, a Delaware limited liability company, and the Equity Interests in, and the assets held by, each of the subsidiaries of Silver Ridge Power, LLC (other than the Equity Interests in, and assets held by, (i) AES Solaire France, SAS, an entity organized under the laws of France, and its subsidiaries, (ii) SRP Italia Holdings, an entity organized under the laws of The Netherlands, and its subsidiaries), (iii) Rogerione Investments Ltd., an entity organized under the laws of Cyprus, and its subsidiaries and (iv) AES Solar Hellas Energy SA, an entity organized under the laws of Greece and its subsidiaries.

Deutsche Bank” means Deutsche Bank AG New York Branch, and its successors.

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. For the avoidance of doubt, the issuance of Indebtedness or Equity Interests in the Borrower by the Borrower shall not constitute a Disposition.

Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Equity Interest), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is ninety-one (91) days after the latest to occur of (i) the date on which the 2025 Convertible Senior Notes mature or, if earlier, the date on which no 2025 Convertible Senior Note is outstanding, (ii) the date on which the 2023 Convertible Senior Notes mature or, if earlier, the date on which

 

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no 2023 Convertible Senior Note is outstanding, (iii) the date on which the 2022 Convertible Senior Notes mature or, if earlier, the date on which no 2022 Convertible Senior Note is outstanding, (iv) the date on which the 2020 Convertible Senior Notes mature or, if earlier, the date on which no 2020 Convertible Senior Note is outstanding, (v) the date on which the 2021 Convertible Senior Notes mature or, if earlier, the date on which no 2021 Convertible Senior Note is outstanding, (vi) the date on which the 2018 Convertible Senior Notes mature or, if earlier, the date on which no 2018 Convertible Senior Note is outstanding, (vii) the date on which the Apollo Permitted Seller Notes mature or, if earlier, the date on which no Apollo Permitted Seller Notes are outstanding, (viii) the date on which the Second Lien Convertible Notes mature, or, if earlier, the date on which no Second Lien Convertible Note is outstanding, and (vix) the Maturity Date. Notwithstanding the preceding sentence, any Equity Interest that would constitute a Disqualified Equity Interest solely because the holders of the Equity Interest have the right to require the Borrower to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale will not constitute a Disqualified Equity Interest if the terms of such Equity Interest provide that the Borrower may not repurchase or redeem any such Equity Interest pursuant to such provisions unless such repurchase or redemption complies with Section 7.06 hereof. The amount of Disqualified Equity Interests deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Equity Interests, exclusive of accrued dividends.

Disqualified Lender” means each financial institution set forth on Schedule 1.1(a); provided that neither Administrative Agent nor any Arranger shall have any responsibility for monitoring compliance with any provisions of this Agreement with respect to Disqualified Lenders.

Dollar” and “$” mean lawful money of the United States.

Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)) and each Warrant Holder (or any other assignee during the primary syndication of the Term Loans); provided, no Disqualified Lender shall be an Eligible Assignee.

Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to or imposing liability or standards of conduct with respect to pollution, the protection of human health or the environment, or the release, emission, discharge, generation, use, storage, transportation or disposal of, or exposure to, pollutants, contaminants or hazardous or toxic materials, substances or wastes.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly

 

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resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination; provided that none of the 2018 Convertible Senior Notes, the 2021 Convertible Senior Notes, the 2020 Convertible Senior Notes, the 2022 Convertible Senior Notes, the 2023 Convertible Senior Notes, the 2025 Convertible Senior Notes, the Apollo Permitted Seller Notes, the Second Lien Convertible Notes, any Specified Convertible Bond Exchange Refinancing, any Permitted Refinancing Convertible Bond Indebtedness or any Second Lien Convertible Refinancing Debt of the Borrower shall constitute an Equity Interest by virtue of being convertible into capital stock of the Borrower. For the avoidance of doubt, incentive distribution rights are Equity Interests.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto, in each case together with the regulations thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) under “common control” with the Borrower within the meaning of Section 414(b) or (c) of the Code (or Section 414(m) or (o) of the Code for purposes of provisions relating to Section 412 or 430 of the Code or Section 302 or 303 of ERISA).

ERISA Event” means (a) a Reportable Event with respect to a Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a “complete withdrawal” or “partial withdrawal” (as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA) by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in “reorganization” (as defined in Section 4241 of ERISA); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

 

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Eurocurrency Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurocurrency Rate Loan, the rate per annum obtained by dividing (i) (a) the rate per annum equal to the rate determined by Administrative Agent to be the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for offered rate) which appears on the page of the Reuters Screen which displays such rate (such page currently being LIBOR01 page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays the rate referenced in the preceding clause (a) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by Deutsche Bank for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in Same Day Funds comparable to the principal amount of the applicable Loan for which the Eurocurrency Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement; provided, however, that notwithstanding the foregoing, the Eurocurrency Rate shall at no time be less than 1.00% per annum.

Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans will be denominated in Dollars.

Event of Default” has the meaning specified in Section 8.01.

Excluded Assets” means (i) Solar Energy Systems and products related thereto and components thereof (including any real property interests associated therewith), Equity Interests in Non-Recourse Subsidiaries, services or accounts receivable or sales of joint venture enterprises in each case related to Solar Energy Systems, (ii) damaged, worn-out or obsolete assets (including the abandonment or other Disposition of intellectual property that is, in the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and its Subsidiaries taken as a whole), (iii) inventory (including semiconductor wafers, modules, trackers, inverters and other products that the Borrower and its Subsidiaries manufacture and/or sell in the ordinary course of business), (iv) non-exclusive licenses and sublicenses and licenses and sublicenses with regional exclusivity by the Borrower or any of its Subsidiaries of software or intellectual property or other IP Rights, (v) a transfer of assets between or among the Borrower and its Subsidiaries, (vi) an issuance of Equity Interests by a Subsidiary of the Borrower to the Borrower or to a Subsidiary of the Borrower, (vii) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business; (viii) the granting of Liens not prohibited by Section 7.01, (ix) [reserved], (x) [reserved], (xi) any assets permitted to be Disposed of by Section 7.02(n), Section 7.05(h)(iii) or Section 7.17, (xii) the contribution or deposit of Specified TERP Common Stock to or with the Seller Note SPV permitted by Section 7.02(u), (xiii) the contribution or other Dispositions permitted by Sections 7.05(j), (k), (l) and (n), (xiv) the Sherman Real Estate and (xv) Cash or Cash Equivalents.

 

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Excluded Subsidiary” means, as of any date, (a) any Immaterial Subsidiary and (b) any Non-Recourse Subsidiary.

Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding Tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United States withholding Tax that (i) is imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto or designates a new Lending Office (including FATCA) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii) or (iii).

Existing Margin Loan Agreement” has the meaning specified in the Recitals hereto.

Existing Second Lien Credit Agreement” has the meaning specified in the Recitals hereto.

Facility” means the Tranche A-1 Term Loans and the Tranche A-2 Term Loans, as the context may require.

FATCA” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) and any regulations or official interpretations thereof.

Federal Funds Effective Rate” means for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.

 

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Fee Letters” means (i) that certain Amended and Restated Agent Fee Letter dated as of January 8, 2016 among Deutsche Bank, Deutsche Bank Securities Inc. and the Borrower and (ii) that certain Arrangers Fee Letter dated as of January 11, 2016 among the Arrangers and the Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time.

First Lien Agent” means the “Administrative Agent” as defined in the First Lien Credit Agreement.

First Lien Aggregate Commitments” means those certain “Aggregate Commitments” as defined in the First Lien Credit Agreement.

First Lien Closing Date” means February 28, 2014.

First Lien Credit Agreement” means that that certain Credit Agreement dated as of February 28, 2014, by and among the Borrower, Wells Fargo Bank, National Association, as administrative agent, the various lenders party thereto from time to time, as amended through and including that certain Amendment No. 9 to Credit Agreement, dated as of the date hereof, and as it may be further amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms of this Agreement and the Intercreditor Agreement. The term “First Lien Credit Agreement” shall include any loan or credit agreement, indenture, note purchase agreement or other debt document governing or evidencing any First Lien Refinancing Debt.

First Lien Credit Documents” means the “Loan Documents” as defined in the First Lien Credit Agreement as in effect on the date hereof and as further amended in accordance with the terms of this Agreement and the Intercreditor Agreement. The term “First Lien Credit Documents” shall include the “Loan Documents” (or similar term or terms) relating to any First Lien Refinancing Debt.

First Lien Lender” means a “Lender” as defined in the First Lien Credit Agreement.

First Lien L/C-BA Obligations” means “L/C-BA Obligations” as defined in the First Lien Credit Agreement.

First Lien Loan” means a “Loan” as defined in the First Lien Credit Agreement.

First Lien Loan Obligations” means the “Obligations” as defined in the First Lien Credit Agreement.

First Lien Outstanding Amount” means the “Outstanding Amount” as defined in the First Lien Credit Agreement.

First Lien Refinanced Debt” has the meaning specified in Section 7.03(t).

First Lien Refinancing Debt” has the meaning specified in Section 7.03(t).

 

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First Lien Related Swap Contract” the “Related Swap Contract” as defined in the First Lien Credit Agreement.

First Lien Related Treasury Management Arrangements” the “Related Treasury Management Arrangements” as defined in the First Lien Credit Agreement.

First-Tier Foreign Subsidiary” means a Foreign Subsidiary whose Equity Interests are owned directly, in whole or in part, by the Borrower or a Domestic Subsidiary.

First Wind Holdings” means SunEdison Utility Holdings, Inc., a Delaware corporation.

Foregone Margin” means the net income (or loss) in connection with the Disposition or planned Disposition of any Solar Energy System (or any Person owning such Solar Energy System) by the Borrower or any of its Subsidiaries to YieldCo, YieldCo Intermediate, YieldCo II, YieldCo II Intermediate, a Warehouse Entity or any of their respective subsidiaries, calculated by (a) multiplying (i) the difference between (x) total revenue (as confirmed by an independent appraisal or third party certification) earned or projected to be earned by Borrower and its Subsidiaries from such Disposition and (y) total projected costs of Borrower and its Subsidiaries to construct such Solar Energy System (as determined by Borrower in good faith) by (ii) the estimated percentage of completion of such Solar Energy System at the time of calculation, and (b) subtracting from such product any Foregone Margin attributable to such Solar Energy System previously included in Consolidated EBITDA. For the avoidance of doubt, Foregone Margin is a non-GAAP calculation.

Foreign IP Rights” means patents, trademarks, copyrights or other intellectual property of any Loan Party that is created, registered or applied-for in any jurisdiction other than the U.S.

Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States and each political subdivision thereof shall be deemed to constitute a single jurisdiction.

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fronting Arranger” means any Initial Lender that is an Arranger or an Affiliate of an Arranger.

Fronting Compensation Fee” has the meaning specified in Section 2.09(b).

Fronting Compensation Fee Account” has the meaning specified in Section 2.09(b).

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

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GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are in effect on the date of this Agreement, consistently applied.

Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.

Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

Guarantors” means, collectively, each Person who is or becomes a party to the Guaranty (including by execution of a Guaranty Joinder Agreement pursuant to Section 6.13 or otherwise) as a guarantor.

Guaranty” means the Guaranty Agreement, substantially in the form of Exhibit G, and including each Guaranty Joinder Agreement entered into in connection therewith, whether pursuant to Section 6.13 or otherwise.

 

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Guaranty Joinder Agreement” means a joinder to the Guaranty Agreement, in form and substance satisfactory to the Administrative Agent.

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic materials, substances, wastes or other pollutants or contaminants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

Hurricane Acquisition” means the acquisition by the Buyers (as defined in the Hurricane Acquisition Agreement) of the assets and properties of the Sellers described in the Hurricane Acquisition Agreement pursuant to and in accordance with the Hurricane Acquisition Agreement.

Hurricane Acquisition Agreement” means that certain Purchase and Sale Agreement by and among SunEdison, Inc., a Delaware corporation, TerraForm Power, LLC, a Delaware limited liability company, TerraForm Power, Inc., a Delaware corporation, First Wind Holdings, LLC, First Wind Capital, LLC, a Delaware limited liability company and wholly owned subsidiary of First Wind Holdings, LLC, Blocker Parent (as defined therein), the Company Members set forth on Schedule 1.01(a) thereto, and the Sellers’ Representative (as defined therein), dated as of and as in effect on November 17, 2014.

Immaterial Subsidiary” means, as of any date, any Subsidiary (i) whose total assets, together with the assets of all other Subsidiaries that are Immaterial Subsidiaries, as of that date, are less than $75,000,000, and (ii) whose total revenues, together with the revenues of all other Subsidiaries that are Immaterial Subsidiaries, for the most recently ended 12-month period, are less than $75,000,000.

Increase Effective Date” has the meaning specified in Section 2.14(a).

Increase Joinder” has the meaning specified in Section 2.14(b).

Incremental Term Commitment” has the meaning specified in Section 2.14(a).

Incremental Termination Date” has the meaning specified in Section 2.14(a).

Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, including Indebtedness under the Convertible Senior Notes;

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c) net obligations of such Person under any Swap Contract;

 

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(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable and other similar accrued expenses in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) capital leases of such Person;

(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment (in each case other than through the issuance of Equity Interests (other than Specified Disqualified Equity Interests)) in respect of any Equity Interest in such Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall (i) include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation, limited liability company or other similar entity in which the liability of owners of Equity Interests is limited to their Equity Interest in such entity) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person and (ii) exclude Permitted Equity Commitments, Permitted Project Undertakings, Permitted Deferred Acquisition Obligations, Solar Project Contractual Obligations and the Permitted Mandatory Convertible Preferred. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. For the avoidance of doubt, the Borrower’s obligations under any 2018 Convertible Notes Call Transaction, any 2021 Convertible Notes Call Transaction, any 2020 Convertible Notes Call Transaction, any 2022 Convertible Notes Call Transaction, any 2023 Convertible Notes Call Transaction, any 2025 Convertible Notes Call Transaction and any Permitted Refinancing Call Transaction shall not constitute Indebtedness.

Indemnified Taxes” means Taxes other than Excluded Taxes.

Indemnitee” has the meaning specified in Section 10.04(b).

Information” has the meaning specified in Section 10.07.

Initial Lender” means any Lender with a Commitment that made Loans as of the Closing Date to the Borrower pursuant to Section 2.01.

Initial Purchasers” means the several initial purchasers named in that certain Purchase Agreement, dated as of December 12, 2013, relating to the sale of the 2018 Convertible Senior Notes and the 2021 Convertible Senior Notes, the several initial purchasers named in that certain Purchase Agreement, dated as of June 4, 2014, relating to the sale of the 2020 Convertible Senior

 

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Notes, the several initial purchasers named in that certain Purchase Agreement, dated as of January 20, 2015, relating to the sale of the 2022 Convertible Senior Notes, the several initial purchasers named in that certain Purchase Agreement, dated on or about May 7, 2015, relating to the sale of the 2023 Convertible Senior Notes and the sale of the 2025 Convertible Senior Notes.

Intercompany Note” means a promissory note substantially in the form of Exhibit H evidencing Indebtedness owed among Loan Parties and their Subsidiaries.

Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Closing Date by and among the First Lien Agent and the Collateral Trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.

Interest Period” means, in connection with a Eurocurrency Rate Loan, an interest period of one, two, three or six-months (or, in the sole discretion of the Administrative Agent, any period of less than a month), as selected by Borrower in the applicable Loan Notice, (i) initially, commencing on the date of a Committed Borrowing or a conversion or continuation thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (c) of this definition, end on the last Business Day of a calendar month; and (c) no Interest Period with respect to any portion of the Loans shall extend beyond the Maturity Date.

Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of related transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance (other than for purposes of determining the Net Joint Venture Investment Amount), the amount of any Investment shall be the amount actually invested, without adjustment for

 

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subsequent increases or decreases in the value of such Investment, but deducting therefrom (A) the amount of any repayments or distributions received on account of such Investment by, or the return on or of capital with respect to, such Investment to, the Person making such Investment, and (B) the profit component of any payments received by the Borrower, directly or indirectly, pursuant to a Contractual Obligation entered into in connection with such Investment; provided that (i) “profit component” shall mean Cash in excess of the cost of property sold, licensed, contributed or otherwise transferred, as applicable, by the Borrower, directly or indirectly, pursuant to a Contractual Obligation in connection with such Investment (with non-exclusive licenses with regional exclusivity of IP Rights being deemed to have no cost for purposes of such calculation) and (ii) such profit component shall only be deducted when actually received in Cash by a Loan Party. Neither (i) any Permitted Project Undertakings or any payment pursuant to and in accordance with the terms of Solar Project Contractual Obligations made by the Borrower or a Subsidiary that is in each case party to such Solar Project Contractual Obligation pursuant to which such Person owns, operates, develops or constructs one or more Solar Energy Systems nor (ii) any loan, advance, deposit, or capital contribution of common stock of the Borrower shall be deemed to constitute an Investment.

IP Rights” has the meaning specified in Section 5.18.

IRS” means the United States Internal Revenue Service.

Laws” means, collectively, all applicable international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lenders” means (a) the Initial Lenders (other than any such Person that has ceased to be a party hereto by assignment of all of its Loans) and (b) any Person that has purchased or otherwise holds Loans hereunder pursuant to an Assignment and Assumption or any Increase Joinder (other than any such Person that has ceased to be a party hereto by assignment of all of its Loans).

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

Letters of Credit” has the meaning specified in the First Lien Credit Agreement.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

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Liquid Investments” means (a) cash and Cash Equivalents on the balance sheet of the Borrower and its Subsidiaries, and (b) freely-tradable short-term and long-term Investments of the Borrower and its Subsidiaries which are redeemable for cash by the holder thereof in not more than three (3) Business Days, but excluding any Investments in equity securities of any Person or in any fund or investment vehicle that invests in equity securities of any Person.

Liquidity Amount” means, as of any date of measurement thereof, (A) the aggregate amount (measured at the market value thereof on such date in Dollars, using the applicable Spot Rate on such date with respect to any amounts valued in a currency other than Dollars) of all Liquid Investments on such date, but excluding therefrom any Liquid Investment that is (i) restricted from payment to the Administrative Agent or any Person in satisfaction of the Obligations in any manner, or (ii) otherwise not readily available to the Borrower in cash (including any amounts held by a Subsidiary which may not be dividended, loaned or otherwise distributed to the Loan Parties (directly or indirectly) without a prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of such Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its equity holders) plus (B) the amount by which the First Lien Aggregate Commitments not in excess of $400,000,000 exceed the First Lien Outstanding Amount of the First Lien Loans and First Lien L/C-BA Obligations on such date (it being understood and agreed that any Liquid Investments that is included in the Liquidity Amount pursuant to and in accordance with the foregoing terms of this definition will not be excluded therefrom solely because it is earmarked as “Cash for Construction Projects” on the books and records of the Borrower).

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan.

Loan Documents” means this Agreement, each Note, the Guaranty (including each Guaranty Joinder Agreement), the Security Documents, the Perfection Certificate, the Fee Letters, and all other instruments and documents heretofore or hereafter executed or delivered to or in favor of any Agent or any Lender in connection with the Loans made and transactions contemplated by this Agreement.

Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Term Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.

Loan Parties” means, collectively, the Borrower, each Guarantor and each Person that grants a Lien on Collateral pursuant to any Security Document.

Loan Party Service Providers” means NVT Licenses, LLC, a Delaware limited liability company, Team-Solar, Inc., a California corporation, SunEdison Contracting LLC, a Delaware limited liability company, and NVT LLC, a Delaware limited liability company.

Margin Stock” has the meaning given to such term in Regulation U issued by the FRB.

 

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Material Adverse Effect” means any or all of the following: (i) a material adverse change in, or a material adverse effect upon, the business, operations, properties, assets, liabilities or financial condition of, when used with reference to the Borrower and/or any of its Subsidiaries, the Borrower and its Subsidiaries, taken as a whole, or when used with reference to any other Person, such Person and its Subsidiaries, taken as a whole, as the case may be; (ii) any material adverse effect on the ability of the Borrower or any other Loan Party to perform its obligations under the Loan Documents to which it is a party; (iii) any material adverse effect on the ability of the Borrower and its Subsidiaries, taken as a whole, to pay their liabilities and obligations as they mature or become due; (iv) any material adverse effect on the legality, validity, effectiveness or enforceability, as against any Loan Party, of any of the Loan Documents to which it is a party or (v) any material adverse effect on the rights, remedies and benefits available to, or conferred upon, the Administrative Agent and any Lender or any Secured Party under any Loan Document.

Material Contract” has the meaning specified in Section 6.15.

Material Subsidiary” means, as of any date, any Subsidiary that is not an Immaterial Subsidiary. For the avoidance of doubt, all Loan Parties are Material Subsidiaries.

Maturity Date” means July 2, 2018; provided that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

Mortgage” means any mortgage, charge, hypothec, deed of trust, deed to secure debt or other agreement which conveys or evidences a Lien in favor of the Collateral Trustee, for the benefit of the Secured Parties, on real property (or any interest in real property) of a Loan Party, including any amendment, modification, restatement, replacement and/or supplement thereto or thereof.

Mortgaged Properties” means any real property in which a Mortgage is granted pursuant to any Security Document.

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six plan years, has made or been obligated to make contributions.

Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) received by the Borrower or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset Sale, including (a) income or gains taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Obligations and the First Lien Loan Obligations) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof

 

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as a result of such Asset Sale and (c) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of such Asset Sale undertaken by Borrower or any of its Subsidiaries in connection with such Asset Sale; provided that upon release of any such reserve, the amount released shall be considered Net Asset Sale Proceeds.

Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or proceeds received by the Borrower or any of its Subsidiaries (a) under any casualty insurance policy in respect of a covered loss thereunder or (b) as a result of the taking of any assets of the Borrower or any of its Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual and reasonable costs incurred by the Borrower or any of its Subsidiaries in connection with the adjustment or settlement of any claims of the Borrower or such Subsidiary in respect thereof, (b) any bona fide direct costs incurred in connection with such covered loss or taking, including income taxes payable as a result of any gain recognized in connection therewith, and (c) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Obligations and the First Lien Loan Obligations) that is secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of such covered loss or taking.

New Subsidiary” has the meaning specified in Section 6.13.

Non-Consenting Lender” has the meaning specified in Section 10.13.

Non-Defaulting Lender” means, at any time, each Lender that is not at such time a Defaulting Lender.

Non-Recourse Project Indebtedness” means (A) Indebtedness of a Non-Recourse Subsidiary owed to a Person that is not an Affiliate with respect to which the creditor has no recourse (including by virtue of a Lien, Guarantee or otherwise) to the Borrower or any other Loan Party other than recourse (i) to any Equity Interest in such Non-Recourse Subsidiary owned by a Loan Party, (ii) by virtue of rights of such Non-Recourse Subsidiary under a Solar Project Contractual Obligation assigned to such creditor, which rights may be exercised pursuant to such Solar Project Contractual Obligation against the Borrower or any other Loan Party that is in each case party to such Solar Project Contractual Obligation as the owner, operator, developer or construction company of the applicable Solar Energy Systems, (iii) pursuant to Permitted Project Undertakings or Permitted Equity Commitments or (iv) pursuant to Specified Surety Bonds, and (B) Indebtedness of SMP owed to an unrelated Person with respect to which the creditor has no recourse (including by virtue of a Lien, Guarantee or otherwise) to the Borrower or any other Loan Party other than recourse to any Equity Interest in such Non-Recourse Subsidiary owned by a Loan Party. Notwithstanding anything herein to the contrary, “Non-Recourse Project Indebtedness” shall not include any Indebtedness incurred, or the proceeds of which are used, to prepay, redeem, purchase, convert, exchange, defease, acquire or otherwise satisfy any Convertible Senior Notes or Permitted Refinancing Convertible Bond Indebtedness.

 

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Non-Recourse Subsidiary” means:

(a) any Subsidiary of the Borrower that (i) (w) is SMP, (x) is the owner and/or operator of one or more Solar Energy Systems, (y) is the lessee or borrower in respect of Non-Recourse Project Indebtedness financing one or more Solar Energy Systems, and/or (z) develops or constructs one or more Solar Energy Systems, (ii) has no Subsidiaries and owns no material assets other than those assets necessary for the development or operation of such Solar Energy Systems for which it was formed or, in the case of SMP, owns assets necessary for SMP to engage in the business SMP was formed to engage and (iii) has no Indebtedness other than intercompany Indebtedness to the extent permitted hereunder and Non-Recourse Project Indebtedness, and

(b) any Subsidiary that (i) is the direct or indirect owner of all of the Equity Interests in one or more Persons, each of which meets the qualifications set forth in clause (a) above, (ii) has no Subsidiaries other than Subsidiaries each of which meets the qualifications set forth in clause (a) or clause (b)(i) above, (iii) owns no material assets other than those assets necessary for the development or operation of the Solar Energy Systems or, in the case of SMP, owns assets necessary for SMP to engage in the business SMP was formed to engage for which it or its Subsidiaries was formed and (iv) has no Indebtedness other than intercompany Indebtedness to the extent permitted hereunder and Non-Recourse Project Indebtedness.

Each Subsidiary that is a Non-Recourse Subsidiary as of September 30, 2015 is listed on Schedule 1.01(d).

It is understood and agreed that, notwithstanding anything to the contrary, no Subsidiary that is a Loan Party shall be deemed to be a Non-Recourse Subsidiary and no such Subsidiary may be designated or characterized as a Non-Recourse Subsidiary.

Note” means a Tranche A-1 Note or a Tranche A-2 Note.

Notice of Default” means any written notice delivered by the Administrative Agent or the Required Lenders of a failure by the Borrower or any other Loan Party to perform or observe any applicable term, covenant or agreement under this Agreement or any other Loan Document, which such notice shall be identified as a “notice of default” and shall reference the clause of Section 8.01 to which it relates.

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

OID” has the meaning specified in Section 2.14(c).

Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents

 

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with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Other Applicable Indebtedness” has the meaning specified in Section 2.05(h).

Other Pari Passu Lien Debt” has the meaning ascribed to such term in clause (3) of the definition of “Pari Passu Lien Debt” in the Collateral Trust Agreement.

Other Pari Passu Lien Debt Documents” means any indenture, notes, credit agreement or other agreement or instrument pursuant to which any Other Pari Passu Lien Debt is incurred and each other instrument or agreement executed in connection with Other Pari Passu Lien Debt.

Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

Outstanding Amount” means with respect to Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans occurring on such date.

Participant” has the meaning specified in Section 10.06(d).

Pasadena Real Estate” means the real property located at 3000 N. South Street, Pasadena, Texas.

PATRIOT Act” has the meaning specified in Section 4.01(f).

PBGC” means the Pension Benefit Guaranty Corporation as defined in Subtitle A of Title IV of ERISA.

Perfection Certificate” means a certificate in the form of Exhibit I or any other form reasonably approved by the Administrative Agent and the Borrower, as the same shall be supplemented from time to time.

Performance Guaranties” means (a) Performance Letters of Credit that do not constitute Letters of Credit and (b) Specified Surety Bonds.

Performance Guaranty Limit” means $360,000,000.

Performance Letters of Credit” means any direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds

 

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and similar instruments that, in any such case, secure the performance of bids, trade contracts, solar incentive reservations, utility queue interconnection positions and leases (in each case not constituting Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business.

Permitted Deferred Acquisition Obligation” means an obligation of the Borrower or any of its Subsidiaries to pay the purchase price for the acquisition of a Person or assets over time or upon the satisfaction of certain conditions; provided that, with respect to each such acquisition to which Section 7.02(g)(v) applies, at the time the Borrower or such Subsidiary undertakes such obligations (i) the Borrower and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 7.11(a) (such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b)) and (ii) the Liquidity Amount shall be greater than or equal to the minimum Liquidity Amount required by Section 7.11(b) (determined on the basis of the Liquidity Amount as of the date of measurement).

Permitted Equity Commitments” means obligations of the Borrower or any of its Subsidiaries to make any payment in respect of any Equity Interest in any Non-Recourse Subsidiary (and any Guarantee by the Borrower or any of its Subsidiaries of such obligations) in connection with a Solar Energy System owned, operated, developed, constructed or financed by such Non-Recourse Subsidiary as long as each such payment in respect of such Equity Interest constitutes an Investment expressly permitted by Section 7.02.

Permitted Mandatory Convertible Preferred” means up to $600,000,000 of mandatory convertible preferred stock issued by the Borrower which (i) by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable) is convertible into or exchangeable for the common Equity Interest in the Borrower and no other Equity Interest, (ii) matures, or upon the happening of any event is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of such Equity Interest, in whole or in part, not earlier than a date that is 180 days after the Maturity Date (in each case excluding redemptions in the form of conversions into, or exchanges for, common Equity Interests in the Borrower (and related payments of Cash in lieu of fractional shares)) and (iii) has such other terms as are reasonably satisfactory to the Administrative Agent.

Permitted Project Undertakings” means Guarantees by the Borrower or any of its Subsidiaries of Solar Project Contractual Obligations.

Permitted Real Estate Lien” means, in the case of the Pasadena Real Estate and the Sherman Real Estate, Liens described in clauses (a), (d), (g), (i) and (j) of Section 7.01.

Permitted Refinancing Call Transaction” means one or more call or capped call option transactions (or substantively equivalent derivative transactions) on the Borrower’s common stock purchased by Borrower in connection with an issuance of Permitted Refinancing Convertible Bond Indebtedness (each, a “Permitted Refinancing Hedge Transaction”) and, if applicable, one or more call option or warrant transactions (or substantively equivalent derivative transactions) on the Borrower’s common stock sold by Borrower substantially concurrently with any such purchase (each, a “Permitted Refinancing Warrant Transaction”); provided that the

 

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purchase price for the Permitted Refinancing Hedge Transactions plus any net amounts received upon termination of any 2018 Convertible Notes Call Transaction, any 2021 Convertible Notes Call Transaction, any 2020 Convertible Notes Call Transaction, any 2022 Convertible Notes Call Transaction, any 2023 Convertible Notes Call Transaction and any 2025 Convertible Notes Call Transaction related to the convertible notes being refinanced, less the proceeds from the sale of the Permitted Refinancing Warrant Transactions does not exceed the net proceeds received by the Borrower from such Permitted Refinancing Convertible Bond Indebtedness (after proceeds from such Permitted Refinancing Convertible Bond Indebtedness are used to repay the Indebtedness being refinanced and all transactional expenses (other than such purchase price) in connection therewith).

Permitted Refinancing Convertible Bond Indebtedness” means any Refinancing Convertible Bond Indebtedness to the extent permitted under Section 7.03(l).

Permitted Refinancing Hedge Transaction” has the meaning specified in the definition of the term “Permitted Refinancing Call Transaction”.

Permitted Refinancing Warrant Transaction” has the meaning specified in the definition of the term “Permitted Refinancing Call Transaction”.

Permitted Seller Notes” means the senior secured exchangeable notes issued by the Seller Note SPV to the Sellers in an aggregate principal amount of up to $600,000,000 which (i) are secured by the Specified TERP Common Stock permitted to be contributed or deposited with the Seller Note SPV pursuant to Section 7.02(u) and not by the Collateral (ii) are convertible into or exchangeable for Class A TERP Common Stock and no other Equity Interest (other than in connection with a change of control or similar event involving YieldCo in which the securities for which such notes become exchangeable for the securities of another issuer under the indenture governing such notes), (iii) are Guaranteed solely by the Borrower on an unsecured basis and not by any other Loan Party or a Subsidiary of a Loan Party, (iv) have a scheduled maturity date not earlier than a date that is one hundred eighty (180) days after the Maturity Date, (v) have no scheduled amortization or required prepayments (other than in connection with a change of control or similar event of Borrower or YieldCo in which holders of the notes may require that the Seller Note SPV purchase such notes under the indenture governing such notes) and (vi) have such other material terms that are in substantially the form set forth in the indenture attached to the Hurricane Acquisition Agreement provided to the Administrative Agent.

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Multiemployer Plan, that (a) the Borrower or any ERISA Affiliate maintains, sponsors, contributes to, has an obligation to contribute to or has made contributions to at any time during the immediately preceding six years and (b) is subject to Section 412 or 430 of the Code or Section 302 or 303 of ERISA or Title IV of ERISA.

Platform” has the meaning specified in Section 6.02.

 

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Pledge and Security Agreement” means the Second Lien Pledge and Security Agreement, substantially in the form of Exhibit F, and including each Pledge and Security Agreement Joinder entered into in connection therewith, whether pursuant to Section 6.13 or otherwise.

Pledge and Security Agreement Joinder” means a joinder to the Pledge and Security Agreement, in form and substance reasonably satisfactory to the Administrative Agent.

Poly/Crystal/Module JV” has the meaning specified in Section 7.02(o).

Prepayment Notice” has the meaning specified in Section 2.05(i).

Prime Rate” means the rate of interest in effect for such day as publicly announced from time to time by Deutsche Bank as its “prime rate”. The “prime rate” is a rate set by Deutsche Bank based upon various factors including Deutsche Bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Deutsche Bank shall take effect at the opening of business on the day specified in the public announcement of such change.

Public Lender” has the meaning specified in Section 6.02.

Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

Register” has the meaning specified in Section 10.06(c).

Related Credit Arrangements” means, collectively, First Lien Related Swap Contracts and First Lien Related Treasury Management Arrangements.

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, shareholders, members, employees, agents, sub-agents, trustees, controlling persons and advisors of such Person and of such Person’s Affiliates.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

Request for Credit Extension” means, with respect to a borrowing, conversion or continuation of Term Loans, a Loan Notice.

Required Lenders” means, as of any date of determination, Lenders having more than 50% of the Term Loan Exposure; provided that the Term Loan Exposure of any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

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Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Person thereof).

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

S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

Same Day Funds” means immediately available funds.

Schedule 2.09 Lenders” has the meaning specified in Section 2.09(b).

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Second Lien Convertible Notes” means the 5.00% guaranteed convertible senior secured notes due 2018 in an initial aggregate principal amount of $225,000,000 issued by the Borrower on the Closing Date.

Second Lien Convertible Notes Indenture” means the Indenture, substantially in the form attached as Exhibit O, with such changes as are reasonably satisfactory to the Administrative Agent, by and between the Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the Second Lien Convertible Notes are issued.

Second Lien Convertible Refinanced Debt” has the meaning specified in Section 7.03(a).

Second Lien Convertible Refinancing Debt” has the meaning specified in Section 7.03(a).

Second Lien Documents” means the Loan Documents, the Second Lien Note Documents and the Other Pari Passu Lien Debt Documents.

Second Lien Note Documents” means the Second Lien Convertible Notes Indenture and each other instrument or agreement executed in connection with the Second Lien Convertible Notes and any instrument or agreement executed in connection with any Second Lien Convertible Refinancing Debt.

 

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Second Lien Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Second Lien Documents or otherwise with respect to any loan or security related thereto, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

Second Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is the only Lien to which such Collateral is subject, other than any Lien securing the First Lien Loan Obligations (under and as defined within the Intercreditor Agreement) and any Lien permitted under Section 7.01.

Secured Parties” has the meaning specified in the Pledge and Security Agreement.

Security Documents” means, collectively, the Pledge and Security Agreement, the Mortgages, the Intercreditor Agreement, the Collateral Trust Agreement, the Blocked Account Agreement, any other intercreditor agreement entered into by the Administrative Agent or Collateral Trustee, as applicable, under and in accordance with this Agreement, and all other agreements (including control agreements), instruments and other documents, whether now existing or hereafter in effect, pursuant to which the Borrower, any Subsidiary or other Person shall grant or convey to the Administrative Agent (in the case of the Fronting Fee Compensation Account) or Collateral Trustee, as applicable, a Lien in (or perfect such Lien in), or any other Person shall acknowledge any such Lien in, property as security for all or any portion of the Second Lien Obligations.

Seller Note SPV” means the special purpose entity to be formed in connection with the issuance of the Permitted Seller Notes all of the Equity Interests in which are owned by a wholly-owned Subsidiary of the Borrower (the “Intermediate Holdings”).

Sellers” has the meaning specified in the Hurricane Acquisition Agreement.

Sherman Real Estate” means the real property located at 6416 South Highway 75, Sherman, TX 75091 (which is noted as 6800 South U.S. Highway 75 on the survey, designated as Job 11072, dated May 26, 2011 and last revised on June 9, 2011, by Ringley & Associates, Inc.).

SMP” means SMP Ltd. a company organized and existing under the law of Korea created pursuant to and governed by that certain Joint Venture Agreement, dated as of February 10, 2011 (as amended by that certain Joinder and Amendment Agreement, dated on or about May 28, 2014), by and among SunEdison Products Singapore Pte. Ltd. (formerly known as MEMC Singapore Pte. Ltd.), a company organized and existing under the laws of Singapore, Samsung Fine Chemicals Co., Ltd., a company organized and existing under the law of Korea, and SunEdison Semiconductor B.V., a private limited liability company incorporated under the law of the Netherlands.

 

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Solar Energy System” means a solar, wind, biomass, natural gas, hydroelectric, geothermal or other clean energy generating installation or a hybrid energy generating installation that utilizes a combination of solar, wind, biomass, natural gas, hydroelectric, geothermal or other clean fuel and an alternative fuel source, in each case whether commercial or residential in nature.

Solar Project Contractual Obligation” means, as to the Borrower or any Subsidiary, any Contractual Obligation of such Person under power purchase agreements, renewable energy credit purchase contracts, tax indemnities, operation and maintenance agreements, development contracts, construction contracts, management services contracts, warranties, and other similar ordinary course contracts entered into in connection with such Person owning, operating, developing or constructing (but not financing) one or more Solar Energy Systems.

Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

SPC” has the meaning specified in Section 10.20.

Specified Convertible Bond Exchange Refinancing” means any Indebtedness that refinances any Convertible Senior Notes (other than the Apollo Permitted Seller Notes), which refinancing is effected by a cashless (other than with respect to closing fees and expenses) exchange of such Convertible Senior Notes being refinanced for such refinancing Indebtedness so long as (i) no such refinancing Indebtedness shall be incurred or guaranteed by any Subsidiary of the Borrower (including, for the avoidance of doubt, any Unrestricted Subsidiary), (ii) such refinancing Indebtedness does not amortize, (iii) the maturity of such refinancing Indebtedness shall be no earlier than the maturity of the Obligations as of the Closing Date, (iv) the other material terms (taken as a whole) of any such refinancing Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Obligations, (v) the interest rate applicable to any such refinancing Indebtedness does not exceed the then applicable market interest rate and (vi) the aggregate outstanding principal amount of all such refinancing Indebtedness does not exceed $600,000,000 at any time.

Specified Disqualified Equity Interest” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Equity Interest), or upon the happening of any event,

 

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matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Equity Interest, in whole or in part, on or prior to the date that is 91 days after the Maturity Date (in each case excluding maturities, redemptions, settlements or conversions into, or exchanges for, common Equity Interests in the Borrower). Notwithstanding the preceding sentence, any Equity Interest that would constitute a Specified Disqualified Equity Interest solely because the holders of the Equity Interest have the right to require the Borrower to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale will not constitute a Specified Disqualified Equity Interest if the terms of such Equity Interest provide that the Borrower may not repurchase or redeem any such Equity Interest pursuant to such provisions unless such repurchase or redemption complies with Section 7.06 hereof. The amount of Specified Disqualified Equity Interests deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Specified Disqualified Equity Interests, exclusive of accrued dividends.

Specified Indebtedness” means any unsecured Indebtedness that is expressly subordinated to the prior payment in full in cash of the Obligations on customary subordination terms (including without limitation, any such Indebtedness that is convertible into or exchangeable for Equity Interests (other than any Disqualified Equity Interest)) of the Borrower, so long as (i) no such Indebtedness shall be guaranteed by any Subsidiary of a Loan Party other than such Subsidiaries that are Guarantors of the Obligations, (ii) such Indebtedness shall have a maturity date not earlier than a date that is one hundred eighty (180) days after the Maturity Date, (iii) such Indebtedness shall be subject to financial and other covenants, if any, that are no more restrictive than the covenants contained in this Agreement and (iv) the terms and conditions of such Indebtedness are otherwise reasonably satisfactory to the Administrative Agent.

Specified Stock Certificates” and “Specified Stock Certificate” have the meanings specified in Section 6.14(d).

Specified Surety Bonds” means surety bonds issued for the account of the Borrower or one or more of its Subsidiaries, including, without limitation, one or more Non-Recourse Subsidiaries; provided that the aggregate amount at any time outstanding of all such surety bonds described above, when added to all other Performance Guaranties, does not exceed the Performance Guaranty Limit. The amount of any Specified Surety Bond shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Specified Surety Bond is made or, if not stated or determinable, the maximum reasonable anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

Specified TERP Common Stock” means the Class A TERP Common Stock, B common stock of TerraForm Power, Inc., a Delaware corporation and the Class B units of TerraForm Power, LLC, a Delaware limited liability company.

Spot Rate” for a currency means the rate determined by the Administrative Agent as the spot rate for the purchase of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two (2) Business Days prior to

 

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the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for any such currency.

SSC Cap” has the meaning specified in Section 7.02(bb).

SSL TopCo” means SunEdison Semiconductor Pte. Ltd., a private limited company organized under the law of the Republic of Singapore.

subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned or otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.

Subsidiary” means, except as provided in the immediately next sentence, a Restricted Subsidiary of the Borrower. For purposes of Sections 5.09, 5.12, 5.13, 6.01(a), 6.01(b), 6.09, 7.14 and Section 7.17 only, references to Subsidiaries shall be deemed also to be references to Unrestricted Subsidiaries which are subsidiaries of the Borrower.

SUNE Residential Portfolio” means the Equity Interests in SUNE RESIDENTIAL HOLDINGS LLC, EchoFirst, Inc. and SunEdison Residential Services, LLC.

Sun Edison” means Sun Edison LLC, a Delaware limited liability company and a wholly-owned Subsidiary of the Borrower.

SunEdison International” means SunEdison International, Inc., a Delaware corporation and a wholly-owned Subsidiary of the Borrower.

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement. Notwithstanding the foregoing, any 2018 Convertible Notes Call Transaction, any 2021 Convertible Notes Call Transaction, any 2020 Convertible Notes Call Transaction, any

 

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2022 Convertible Notes Call Transaction, any 2023 Convertible Notes Call Transaction, any 2025 Convertible Notes Call Transaction and any Permitted Refinancing Call Transaction shall not constitute a Swap Contract.

Swap Termination Value” means, in respect of any one or more Swap Contracts, any 2018 Convertible Notes Bond Hedge Transaction, any 2021 Convertible Notes Bond Hedge Transaction, any 2020 Convertible Notes Bond Hedge Transaction, any 2022 Convertible Notes Call Transaction, any 2023 Convertible Notes Call Transaction, any 2025 Convertible Notes Call Transaction and any Permitted Refinancing Hedge Transaction, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, such 2018 Convertible Notes Bond Hedge Transaction, such 2021 Convertible Notes Bond Hedge Transaction, such 2020 Convertible Notes Bond Hedge Transaction, such 2022 Convertible Notes Call Transaction, such 2023 Convertible Notes Call Transaction, such 2025 Convertible Notes Call Transaction and such Permitted Refinancing Hedge Transaction, as applicable (a) for any date on or after the date such Swap Contracts, such 2018 Convertible Notes Bond Hedge Transaction, such 2021 Convertible Notes Bond Hedge Transaction, such 2020 Convertible Notes Bond Hedge Transaction, such 2022 Convertible Notes Call Transaction, such 2023 Convertible Notes Call Transaction, such 2025 Convertible Notes Call Transaction and such Permitted Refinancing Hedge Transaction, as applicable, have been closed out and termination value(s) determined in accordance therewith, and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, such 2018 Convertible Notes Bond Hedge Transaction, such 2021 Convertible Notes Bond Hedge Transaction, such 2020 Convertible Notes Bond Hedge Transaction, such 2022 Convertible Notes Call Transaction, such 2023 Convertible Notes Call Transaction, such 2025 Convertible Notes Call Transaction and such Permitted Refinancing Hedge Transaction, as applicable, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts, such 2018 Convertible Notes Bond Hedge Transaction, such 2021 Convertible Notes Bond Hedge Transaction, such 2020 Convertible Notes Bond Hedge Transaction, such 2022 Convertible Notes Call Transaction, such 2023 Convertible Notes Call Transaction, such 2025 Convertible Notes Call Transaction and such Permitted Refinancing Hedge Transaction, as applicable (which may include a Lender or any Affiliate of a Lender).

Syndication Agent” means Deutsche Bank Securities Inc.

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to taxes or penalties applicable thereto.

Term Loan” means a Tranche A-1 Term Loan and/or a Tranche A-2 Term Loan.

Term Loan Exposure” means, with respect to any Lender, as of any date of determination, (i) prior to the initial funding of the Term Loans on the Closing Date, that Lender’s Commitment, (ii) after the initial funding of the Term Loans on the Closing Date but prior to the subsequent funding of the Term Loans, the sum of (a) the aggregate outstanding principal amount of the Term Loans of that Lender and (b) the remaining Commitment of that Lender and (iii) after the subsequent funding of the Term Loans or termination of the Commitments, the aggregate outstanding principal amount of the Term Loans of that Lender.

 

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Termination Date” has the meaning specified in Section 9.10(b).

Threshold Amount” means $24,000,000.

Total Outstandings” means the aggregate Outstanding Amount of all Loans.

Tranche A-1 Commitment” means, as to each Lender, its obligation to make Tranche A-1 Term Loans to the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Tranche A-1 Commitments is $500,000,000.

Tranche A-1 Note” means a promissory note made by the Borrower in favor of a Lender evidencing Tranche A-1 Term Loans made by such Lender to the Borrower, substantially in the form of Exhibit C-1.

Tranche A-1 Term Loan” has the meaning specified in Section 2.01(a).

Tranche A-2 Commitment” means, as to each Lender, its obligation to make Tranche A-2 Term Loans to the Borrower pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The initial aggregate amount of the Tranche A-2 Commitments is $225,000,000.

Tranche A-2 Note” means a promissory note made by the Borrower in favor of a Lender evidencing Tranche A-2 Term Loans made by such Lender to the Borrower, substantially in the form of Exhibit C-2.

Tranche A-2 Term Loan” has the meaning specified in Section 2.01(b).

Transfer Agent” has the meaning specified in Section 6.14(d).

Treasury Rate” means, as of any date of voluntary or mandatory prepayment of the Loans, the weekly average yield on actually traded Unites States Treasury securities adjusted to a constant maturity of one year (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 date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)).

Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

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UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state, the laws of which are required to be applied in connection with the issue of perfection of security interests.

Unfunded Pension Liability” means the excess of the current value of a Plan’s “benefit liabilities” under Section 4001(a)(16) of ERISA (based on the assumptions used for purposes of Statement No. 87 (as amended by Statement No. 158) of the Financial Accounting Standards Board) for the applicable plan year, over the current value of that Plan’s assets, determined in accordance with the assumptions used for funding such Plan pursuant to Section 412 or 430 of the Code or Section 302 or 303 of ERISA for such plan year.

United States” and “U.S.” mean the United States of America.

Unrestricted Subsidiary” means (i) YieldCo and YieldCo Intermediate and each of their subsidiaries (including any Non-Recourse Subsidiary that becomes a subsidiary of YieldCo and/or YieldCo Intermediate, at which time such subsidiary shall cease to be a Non-Recourse Subsidiary hereunder and become an Unrestricted Subsidiary), (ii) [reserved], (iii) YieldCo II and YieldCo II Intermediate and each of their subsidiaries (including any Non-Recourse Subsidiary that becomes a subsidiary of YieldCo II and/or YieldCo II Intermediate, at which time such subsidiary shall cease to be a Non-Recourse Subsidiary hereunder and become an Unrestricted Subsidiary), (iv) the Seller Note SPV, (v) any Warehouse Entity and (vi) the Apollo Subs (provided, that, upon a one-time irrevocable written notice to the Administrative Agent, the Borrower may elect to have one or more Apollo Subs cease to be deemed “Unrestricted Subsidiaries”; whereupon the Apollo Subs shall become “Subsidiaries” and “Restricted Subsidiaries” for all purposes hereunder (and such election shall constitute the incurrence by the Apollo Subs at the time of such election of any Indebtedness and Liens of the Apollo Subs existing at such time). Each Unrestricted Subsidiary in existence on the Closing Date is listed on Schedule 1.01(c). It is understood and agreed that, notwithstanding anything to the contrary, no Unrestricted Subsidiary may guarantee or otherwise directly or indirectly provide credit support for any Indebtedness of a Loan Party or any Restricted Subsidiary thereof (including, without limitation, the Convertible Senior Notes and the Permitted Refinancing Convertible Bond Indebtedness), and no Unrestricted Subsidiary may guarantee, incur, assume, purchase, exchange, acquire, defease or become an obligor or pledgor of assets with respect to any Convertible Senior Notes or Permitted Refinancing Convertible Bond Indebtedness.

Warehouse Entity” means any entity that purchases Solar Energy Systems or Non-Recourse Subsidiaries from the Borrower or any of its Subsidiaries in advance of a planned Disposition of such Solar Energy Systems or Non-Recourse Subsidiaries to YieldCo or YieldCo II, or any of their respective subsidiaries.

Warrant” means the Warrant to Purchase Stock substantially in the form of Exhibit B.

Warrant Holder” has the meaning specified in Section 6.19.

Yield Maintenance Amount” has the meaning specified in Section 2.05(b)(i).

 

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YieldCo” means TerraForm Power, Inc. (f/k/a SunEdison Yieldco, Inc.), a Delaware corporation.

YieldCo II” means TerraForm Global, Inc. (f/k/a SunEdison Emerging Markets Yield, Inc.), a Delaware corporation.

YieldCo II Intermediate” means TerraForm Global, LLC (f/k/a SunEdison Emerging Markets Yield, LLC), a Delaware limited liability company.

YieldCo Intermediate” means TerraForm Power, LLC (f/k/a SunEdison Yieldco, LLC), a Delaware limited liability company.

313 Facility” means unsecured loans made by 313 Acquisition LLC, a Delaware limited liability company, as stockholder of Apollo, or an Affiliate thereof, borrowed and/or guaranteed by the Loan Parties, in an aggregate principal amount of up to $250,000,000.

2018 Convertible Notes Bond Hedge Transaction” has the meaning specified in the definition of the term “2018 Convertible Notes Call Transaction”.

2018 Convertible Notes Call Transaction” means call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with the issuance of the 2018 Convertible Senior Notes from certain Initial Purchasers (or their affiliates) (each a “2018 Option Counterparty” and, collectively, the “2018 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated December 12, 2013 and December 16, 2013, the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2018 Option Counterparty, the purchase price for which the Borrower paid to the 2018 Option Counterparties in full on December 20, 2013 (each, a “2018 Convertible Notes Bond Hedge Transaction”), and warrant transactions relating to the Borrower’s common stock sold by Borrower to the respective 2018 Option Counterparties substantially concurrently with such purchase pursuant to those certain confirmations of terms and conditions dated December 12, 2013 and December 16, 2013, the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc. and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2018 Option Counterparty, all of the proceeds of which sale the Borrower received from the 2018 Option Counterparties on December 20, 2013 (each, a “2018 Convertible Notes Warrant Transaction”).

2018 Convertible Notes Warrant Transaction” has the meaning specified in the definition of the term “2018 Convertible Notes Call Transaction”.

2018 Convertible Senior Notes” means the 2.00% convertible senior notes due October 1, 2018 in an initial aggregate principal amount of $600,000,000 issued by the Borrower on December 20, 2013.

2018 Convertible Senior Notes Indenture” means the Indenture, dated as of December 20, 2013, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2018 Convertible Senior Notes are issued.

 

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2018 Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

2018 Option Counterparty” and “2018 Option Counterparties” have the meanings specified in the definition of the term “2018 Convertible Notes Call Transaction”.

2020 Convertible Notes Bond Hedge Transaction” has the meaning specified in the definition of the term “2020 Convertible Notes Call Transaction”.

2020 Convertible Notes Call Transaction” means call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with an issuance of the 2020 Convertible Senior Notes from certain Initial Purchasers (or their affiliates) (each a “2020 Option Counterparty” and, collectively, the “2020 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated June 4, 2014 the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2020 Option Counterparty, the purchase price for which the Borrower shall pay to the 2020 Option Counterparties in full on or about June 9, 2014 (each, a “2020 Convertible Notes Bond Hedge Transaction”), and warrant transactions relating to the Borrower’s common stock sold by Borrower to the respective 2020 Option Counterparties substantially concurrently with such purchase pursuant to those certain confirmations of terms and conditions dated June 4, 2014, the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc. and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2020 Option Counterparty, all of the proceeds of which sale the Borrower shall receive from the 2020 Option Counterparties on or about June 9, 2014 substantially concurrently with the Borrower’s payment of the purchase price to the 2020 Option Counterparties (each, a “2020 Convertible Notes Warrant Transaction”).

2020 Convertible Notes Warrant Transaction” has the meaning specified in the definition of the term “2020 Convertible Notes Call Transaction”.

2020 Convertible Senior Notes” means the convertible senior notes due January 15, 2020 in an aggregate principal amount of up to $600,000,000 to be issued by the Borrower on or about June 9, 2014.

2020 Convertible Senior Notes Indenture” means the Indenture, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2020 Convertible Senior Notes are issued, which has the terms and provisions that are substantially similar to those described in Borrower’s Preliminary Offering Memorandum relating to the 2020 Convertible Senior Notes, dated June 4, 2014, as supplemented by the pricing terms disclosed to the Lenders on June 4, 2014.

2020 Option Counterparty” and “2020 Option Counterparties” have the meanings specified in the definition of the term “2020 Convertible Notes Call Transaction”.

2020 Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

 

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2021 Convertible Notes Bond Hedge Transaction” has the meaning specified in the definition of the term “2021 Convertible Notes Call Transaction”.

2021 Convertible Notes Call Transaction” means call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with an issuance of the 2021 Convertible Senior Notes from certain Initial Purchasers (or their affiliates) (each a “2021 Option Counterparty” and, collectively, the “2021 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated December 12, 2013 and December 16, 2013, the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2021 Option Counterparty, the purchase price for which the Borrower paid to the 2021 Option Counterparties in full on December 20, 2013 (each, a “2021 Convertible Notes Bond Hedge Transaction”), and warrant transactions relating to the Borrower’s common stock sold by Borrower to the respective 2021 Option Counterparties substantially concurrently with such purchase pursuant to those certain confirmations of terms and conditions dated December 12, 2013 and December 16, 2013, the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc. and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2021 Option Counterparty, all of the proceeds of which sale the Borrower received from the 2021 Option Counterparties on December 20, 2013 (each, a “2021 Convertible Notes Warrant Transaction”).

2021 Convertible Notes Warrant Transaction” has the meaning specified in the definition of the term “2021 Convertible Notes Call Transaction”.

2021 Convertible Senior Notes” means the 2.75% convertible senior notes due January 1, 2021, in an initial aggregate principal amount of $600,000,000 issued by the Borrower on December 20, 2013.

2021 Convertible Senior Notes Indenture” means the Indenture, dated as of December 20, 2013, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2021 Convertible Senior Notes are issued.

2021 Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

2021 Option Counterparty” and “2021 Option Counterparties” have the meanings specified in the definition of the term “2021 Convertible Notes Call Transaction”.

2022 Convertible Notes Call Transaction” means one or more capped call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with an issuance of the 2022 Convertible Senior Notes from one or more of the Initial Purchasers (or their affiliates) (each a “2022 Option Counterparty” and, collectively, the “2022 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated January 20, 2015 in connection with the issuance of the initial 2022 Convertible Senior Notes (“Base Capped Call Confirmation”) and subsequent confirmations of terms and conditions (if any) in connection with the issuance of additional 2022 Convertible Senior Notes (“Additional Capped

 

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Call Confirmations”), the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2022 Option Counterparty, the purchase price for which the Borrower shall pay to the 2022 Option Counterparties in full for the Based Capped Call Confirmation on or about January 20, 2015 and for the Additional Capped Call Confirmation, substantially concurrently with the issuance of the additional 2022 Convertible Senior Notes.

2022 Convertible Senior Notes” means the convertible senior notes due April 15, 2022 in an aggregate principal amount of up to $500,000,000 issued by the Borrower on or about January 27, 2015.

2022 Convertible Senior Notes Indenture” means the Indenture, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2022 Convertible Senior Notes are issued, which has the terms and provisions that are substantially similar to those described in Borrower’s Preliminary Offering Memorandum relating to the 2022 Convertible Senior Notes, dated January 20, 2015, as supplemented by the pricing terms disclosed to the Lenders.

2022 Option Counterparty” and “2022 Option Counterparties” have the meanings specified in the definition of the term “2022 Convertible Notes Call Transaction”.

2022 Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

2023 Additional Capped Call Confirmations” has the meaning specified in the definition of the term “2023 Convertible Notes Call Transaction”.

2023 Base Capped Call Confirmation” has the meaning specified in the definition of the term “2023 Convertible Notes Call Transaction”.

2023 Convertible Notes Call Transaction” means one or more capped call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with an issuance of the 2023 Convertible Senior Notes from one or more of the Initial Purchasers (or their affiliates) (each a “2023 Option Counterparty” and, collectively, the “2023 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated on or about May 7, 2015 in connection with the issuance of the initial 2023 Convertible Senior Notes (“2023 Base Capped Call Confirmation”) and subsequent confirmations of terms and conditions (if any) in connection with the issuance of additional 2023 Convertible Senior Notes (“2023 Additional Capped Call Confirmations”), the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2023 Option Counterparty, the purchase price for which the Borrower shall pay to the 2023 Option Counterparties in full for the 2023 Based Capped Call Confirmation on or about May 7, 2015 and for the 2023 Additional Capped Call Confirmation, substantially concurrently with the issuance of the additional 2023 Convertible Senior Notes.

 

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2023 Convertible Senior Notes” means the convertible senior notes due May 15, 2023 in an aggregate principal amount of up to $500,000,000 issued by the Borrower on or about May 13, 2015.

2023 Convertible Senior Notes Indenture” means the Indenture, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2023 Convertible Senior Notes are issued, which has the terms and provisions that are substantially similar to those described in Borrower’s Preliminary Offering Memorandum relating to the 2023 Convertible Senior Notes, dated on or about May 6, 2015, as supplemented by the pricing terms disclosed to the Lenders.

2023 Option Counterparty” and “2023 Option Counterparties” have the meanings specified in the definition of the term “2023 Convertible Notes Call Transaction”.

2025 Additional Capped Call Confirmations” has the meaning specified in the definition of the term “2025 Convertible Notes Call Transaction”.

2025 Base Capped Call Confirmation” has the meaning specified in the definition of the term “2025 Convertible Notes Call Transaction”.

2025 Convertible Notes Call Transaction” means one or more capped call option transactions relating to the Borrower’s common stock purchased by Borrower in connection with an issuance of the 2025 Convertible Senior Notes from one or more of the Initial Purchasers (or their affiliates) (each a “2025 Option Counterparty” and, collectively, the “2025 Option Counterparties”) pursuant to those certain confirmations of terms and conditions dated on or about May 7, 2015 in connection with the issuance of the initial 2025 Convertible Senior Notes (“2025 Base Capped Call Confirmation”) and subsequent confirmations of terms and conditions (if any) in connection with the issuance of additional 2025 Convertible Senior Notes (“2025 Additional Capped Call Confirmations”), the 2002 ISDA Equity Derivatives Definitions published by the International Swaps and Derivatives Association, Inc., and related agreements in the form of the ISDA 2002 Master Agreement between the Borrower and each applicable 2025 Option Counterparty, the purchase price for which the Borrower shall pay to the 2025 Option Counterparties in full for the 2025 Based Capped Call Confirmation on or about May 7, 2015 and for the 2025 Additional Capped Call Confirmation, substantially concurrently with the issuance of the additional 2025 Convertible Senior Notes.

2025 Convertible Senior Notes” means the convertible senior notes due May 15, 2025 in an aggregate principal amount of up to $500,000,000 issued by the Borrower on or about May 13, 2015.

2025 Convertible Senior Notes Indenture” means the Indenture, by and between Borrower and Wilmington Trust, National Association, as Trustee, governing and pursuant to which the 2025 Convertible Senior Notes are issued, which has the terms and provisions that are substantially similar to those described in Borrower’s Preliminary Offering Memorandum relating to the 2025 Convertible Senior Notes, dated on or about May 6, 2015, as supplemented by the pricing terms disclosed to the Lenders.

 

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2025 Option Counterparty” and “2025 Option Counterparties” have the meanings specified in the definition of the term “2025 Convertible Notes Call Transaction”.

2025 Refinancing Convertible Bond Indebtedness” has the meaning specified in Section 7.03(l).

1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

(d) For the purposes of calculating the amount of any Investment permitted hereunder among the Borrower and its Subsidiaries resulting from a series of related transactions occurring on a substantially concurrent basis, such amount shall be deemed to be the aggregate amount of such Investments outstanding (but without duplication) after giving effect to all such substantially concurrent related transactions, and such related transactions shall not be prohibited notwithstanding anything herein to the contrary so long as the Investment in the ultimate recipient is permitted hereunder.

 

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1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

(b) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.

1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05 [Reserved].

1.06 [Reserved].

1.07 [Reserved].

1.08 Times of Day. Unless otherwise specified, all references herein to times of day shall b