lpsn-20240603
0001102993falseTRUE00011029932024-06-032024-06-030001102993us-gaap:CommonStockMember2024-06-032024-06-030001102993us-gaap:RightsMember2024-06-032024-06-03

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): June 3, 2024

LivePerson, Inc.
(Exact Name of Registrant as Specified in its Charter)

Delaware0-3014113-3861628
(State or other jurisdiction
of incorporation)
(Commission File Number)(I.R.S. Employer
Identification No.)
530 7th Ave, Floor M1
New York, New York 10018
(Address of principal executive offices, with zip code)

(212) 609-4200
Registrant's telephone number, including area code

N/A
(Former name or former address, if changed since last report)

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))
Securities registered pursuant to Section 12(b) of the Act:
Title of each classTrading Symbol(s)Name of each exchange on which registered
Common Stock, par value $0.001 per shareLPSNThe Nasdaq Stock Market LLC
Rights to Purchase Series A Junior Participating Preferred StockNoneThe Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐



Item 1.01 Entry into a Material Definitive Agreement.

As previously disclosed, on May 13, 2024, LivePerson, Inc. (the “Company”) entered into a privately negotiated exchange and purchase agreement (the “Original Agreement”) with Lynrock Lake Master Fund LP (“Lynrock”). On June 3, 2024, the Company and Lynrock entered into a First Amendment to the Exchange and Purchase Agreement (the “Exchange Agreement Amendment”, and the Original Agreement as so amended, the “Exchange and Purchase Agreement”), dated as of June 3, 2024.

Pursuant to the Exchange and Purchase Agreement, on June 3, 2024, the Company consummated (i) an exchange (the “Exchange”) of $145,957,000 aggregate principal amount of the Company’s outstanding 0% Convertible Senior Notes due December 15, 2026 (the “2026 Notes”) held by Lynrock for $100,000,000 aggregate principal amount of First Lien Convertible Senior Notes due 2029 (the “New Notes”), (ii) a private offering and sale of $50,000,000 in aggregate principal amount of New Notes to Lynrock for a subscription price of $50,000,000 (the “Initial Draw Notes”) and (iii) issuances to Lynrock of 10-year warrants with a strike price of $0.75 per share, exercisable for approximately 8.9% of the Company’s common stock, $0.001 par value per share (the “Common Stock”), calculated on a fully diluted basis (the “Share-Settled Warrants”) and 10-year warrants with a strike price of $0.75 per share, exercisable with respect to a notional amount of approximately 2.1% of the Common Stock for cash payments equal to the excess of Fair Market Value (as defined therein) per share over the strike price, fully diluted subject to certain adjustments (the “Cash-Settled Warrants,” and collectively with the Share-Settled Warrants, the “Warrants.”). The Cash-Settled Warrants will permit the Company, subject to certain conditions (including that the Company has maximum Available Cash (as defined therein) of $100,000,000), to defer payment of the settlement amount at an annualized interest rate of 6.0%, compounded monthly. Warrants outstanding at the 10-year expiration will be exercised automatically (and in the case of the Share-Settled Warrants, will be exercised on a cashless basis) if, immediately prior to the expiration, the Fair Market Value per share is greater than the strike price.

The Initial Draw Notes were issued pursuant to, and are governed by, an indenture (the “Indenture”), dated as of June 3, 2024, by and among the Company, the subsidiary guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and collateral agent (the “Collateral Agent”). Pursuant to the Exchange and Purchase Agreement, Lynrock has agreed to purchase up to $50,000,000 of additional New Notes upon the Company’s request at any time prior to December 3, 2024 for an aggregate cash purchase price equal to the aggregate principal amount of the New Notes so purchased (the “Delayed Draw Notes”).

The New Notes are guaranteed on a senior basis by certain of the Company’s direct and indirect domestic and foreign subsidiaries (the “Subsidiary Guarantors”) and secured by first priority security interests in substantially all of the assets of the Company and the Subsidiary Guarantors, subject to customary exceptions. Accordingly, the New Notes rank effectively senior to the 2026 Notes to the extent of the value of the assets securing the New Notes, and the 2026 Notes are also structurally subordinated to the guarantees of the New Notes. The Indenture contains affirmative and negative covenants and events of default customary for senior secured indebtedness. The negative covenants include limitations on asset sales, the incurrence of debt, preferred stock and liens, fundamental changes, investments, dividends and other payment restrictions affecting subsidiaries, restricted payments and transactions with affiliates. Among other things, these covenants generally prohibit the payment of cash dividends on the Common Stock. The Indenture permits the Company and its subsidiaries to incur, subject to certain requirements, up to $150,000,000 of debt that is junior in lien priority and subordinated in right of payment to the New Notes. The Indenture also includes a financial covenant that requires the Company to maintain a minimum cash balance of $60,000,000 at all times. Upon request of Lynrock, the Indenture requires the Company to enter into a registration rights agreement with respect to the New Notes containing customary terms including demand, shelf and piggyback registration rights.

From June 3, 2024 until the earlier of the date of issuance of the Delayed Draw Notes and December 15, 2026, interest on the New Notes will accrue at a rate of 10.83% (consisting of 4.17% cash and 6.66% paid in kind (“PIK”)) per annum. From the date of issuance of the Delayed Draw Notes and prior to December 15, 2026, interest on the New Notes will increase and accrue at a rate of 11.375% (consisting of 4.375% cash and 7.00% PIK) per annum. On and after December 15, 2026, interest on the New Notes will further increase and accrue at a rate of 13% (consisting of 5% cash and 8% PIK) per annum.

The New Notes will mature on the earlier of (a) June 15, 2029 and (b) 91 days before the maturity of the 2026 Notes, if greater than $60,000,000 principal amount of 2026 Notes remains outstanding on such date. The amount payable by the Company if the New Notes mature pursuant to clause (b) will be equal to 100% of the aggregate principal amount of the New Notes, plus accrued and unpaid interest (including cash and PIK components thereof), plus the remaining future interest payments (including cash and PIK components thereof) that would have been payable through June 15, 2029, discounted at a rate equal to the comparable treasury rate plus 50 basis points (the “Make-Whole Amount”). The Company may, at its option, redeem the New Notes, in whole or in part, on a pro rata basis, prior to June 15, 2025 at a price equal to the Make-Whole Amount. On or after June 15, 2025, and prior to June 15, 2026, the Company may, at its option, redeem the New Notes, in whole or in part on a pro rata basis for an amount of cash equal to the sum of (i) 106.50% of the aggregate principal amount of the New Notes



(including all increases to the principal amount as the result of previous payments of PIK Interest) plus (ii) 106.50% of all accrued and unpaid PIK interest plus (iii) all accrued and unpaid cash interest. On or after June 15, 2026, and prior to December 15, 2026, the Company may, at its option, redeem the New Notes, in whole or in part on a pro rata basis for an amount of cash equal to the sum of (i) 103.25% of the aggregate principal amount of the New Notes (including all increases to the principal amount as the result of previous payments of PIK Interest) plus (ii) 103.25% of all accrued and unpaid PIK interest plus (iii) all accrued and unpaid cash interest. From December 15, 2026 until maturity, the Company may, at its option, redeem the New Notes, in whole or in part on a pro rata basis for an amount of cash equal to the sum of (i) 113% of the aggregate principal amount of the New Notes (including all increases to the principal amount as the result of previous payments of PIK Interest) plus (ii) 113% of all accrued and unpaid PIK interest plus (iii) all accrued and unpaid cash interest. In addition, the Make-Whole Amount will be payable in the event of an acceleration of the Notes or repurchase triggered by certain asset sales. No sinking fund is provided for the Notes.

If the Company undergoes a fundamental change (which includes a change of control or certain delistings of the Common Stock), holders may require the Company to repurchase all or any portion of their New Notes at a repurchase price equal to 100% of the aggregate principal amount of the New Notes to be repurchased, plus accrued and unpaid interest (including cash and PIK components thereof), plus an amount equal to 66% of the remaining future interest payments (including cash and PIK components thereof) that would have been payable through June 15, 2029, discounted at a rate equal to the comparable treasury rate plus 50 basis points.

The New Notes (including all accrued and unpaid interest (including cash and PIK components thereof)) are convertible at the option of the holders thereof at certain times into cash based on a daily conversion value calculated on a proportionate basis for each trading day in a 50 trading day observation period, initially corresponding to 13.2933 shares of Common Stock per $1,000 principal amount of New Notes. The Company is not required to deliver Common Stock upon conversion under any circumstances. The conversion rate for the New Notes is subject to adjustment if certain events occur and contains customary anti-dilution protections.

Holders of the Notes may convert their Notes at their option at any time prior to the close of business on the business day immediately preceding February 15, 2029 only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending on September 30, 2024 (and only during such calendar quarter), if the last reported sale price of the Common Stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price for the Notes on each applicable trading day as determined by the Company; (2) during the five business day period after any five consecutive trading day period (the “measurement period”) in which the Trading Price (as defined in the Indenture) per $1,000 principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount (as defined in the Indenture) in respect of $1,000 principal amount of Notes on such trading day divided by (ii) 1,000 times (y) the conversion rate for the Notes on each such trading day; (3) with respect to any Notes that the Company calls for redemption, at any time prior to the close of business on the scheduled trading day immediately preceding the redemption date; (4) upon the occurrence of specified corporate events; or (5) during the period from August 17, 2026 through September 14, 2026, if the aggregate principal amount of 2026 Notes exceeds $60,000,000 on August 16, 2026. On or after February 15, 2029, holders may convert all or any portion of their Notes at any time prior to the close of business on June 13, 2029, regardless of the foregoing circumstances.

The Warrants contain customary anti-dilution protections and a beneficial ownership limitation on Lynrock’s ownership of the Common Stock, on a post-exercise basis (aggregating all securities convertible into or exercisable for Common Stock), of 4.99%, subject to increase upon 61 days’ notice by Lynrock, but not to exceed 9.99%.

Pursuant to the Exchange Agreement Amendment, the Company has agreed, among other things, to (a) not amend, supplement or otherwise modify certain provisions of the Indenture and the Intercreditor Agreement, or make certain determinations thereunder, without the consent of Lynrock, (b) not enter into (or permit any of its subsidiaries to enter into) any line of business it was not already engaged in on June 3, 2024 without the consent of Lynrock and (c) deliver certain written reports relating to specified provisions of the Indenture to Lynrock, in each case, so long as Lynrock maintains certain beneficial ownership of the New Notes.

In connection with the Exchange, the Company expects to unwind a portion of the capped call options associated with the aggregate principal amount of 2026 Notes exchanged.

Copies of the Indenture, the form of New Note, the Share-Settled Warrant, the Cash-Settled Warrant and the Exchange Agreement Amendment are filed as Exhibits 4.1, 4.2, 4.3, 4.4 and 10.1, respectively, to this Current Report on Form 8-K and



are incorporated herein by reference. The foregoing descriptions of the Indenture, the New Notes and the Exchange Agreement Amendment do not purport to be complete and are qualified in their entirety by reference to such exhibits.

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 under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference into this Item 2.03.

Item 3.02 Unregistered Sales of Equity Securities.

The New Notes and the Warrants have been sold to Lynrock in a private placement in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), provided by Section 4(a)(2) of the Securities Act. The Company is relying on this exemption from registration based in part on representations made by Lynrock in the Exchange and Purchase Agreement.

The information related to the issuance of the Notes contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference.

Item 3.03 Material Modification to Rights of Security Holders.

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference into this Item 3.03.

Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following documents are included as exhibits to this report:
Exhibit No. Description
4.1
4.2
Form of Senior Secured Convertible Note due 2029 (included within the Indenture filed as Exhibit 4.1 hereto).
4.3
4.4
10.1
104.1Cover Page Interactive Data File (embedded within the Inline XBRL document).

















SIGNATURE
 
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.
 
 
LIVEPERSON, INC.
(Registrant)
Date:June 4, 2024By:/s/ MONICA L. GREENBERG
  Monica L. Greenberg
  Executive Vice President, Policy and General Counsel

Document
Exhibit 4.1

LIVEPERSON, INC.

THE SUBSIDIARY GUARANTORS PARTY HERETO FROM TIME TO TIME

AND

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

as Trustee and as Collateral Agent

INDENTURE



Dated as of June 3, 2024
First Lien Convertible Senior Notes due 2029




TABLE OF CONTENTS
Page
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ii



iii



iv



SCHEDULES
Schedule 4.11:    Existing Liens
Schedule 4.12:    Existing Investments
Schedule 4.15:    Post-Closing Requirements


EXHIBITS
Exhibit A:    Form of Note
Attachment 1:    Form of Notice of Conversion
Attachment 2:     Form of Fundamental Change Repurchase Notice
Attachment 3:     Form of Asset Sale Offer Repurchase Notice
Attachment 4:    Form of Assignment and Transfer
Exhibit B:    Form of Intercreditor Agreement


v





vi



INDENTURE, dated as of June 3, 2024, between LIVEPERSON, INC., a Delaware corporation, as issuer (the “Company”, as more fully set forth in Section 1.01), the Subsidiary Guarantors from time to time party hereto and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”, as more fully set forth in Section 1.01) and as collateral agent (in such capacity, the “Collateral Agent”, as more fully set forth in Section 1.01).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of its First Lien Convertible Senior Notes due 2029 (the “Notes”, as more fully set forth in Section 1.01), initially in an aggregate principal amount not to exceed $150,000,000, subject to the issuance of (i) Additional Notes in an aggregate principal amount of up to $50,000,000 in accordance with Section 2.10 and (ii) PIK Notes issuable from time to time on each Interest Payment Date in connection with the PIK Payment required to be made on such Interest Payment Date in accordance with Section 2.11, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, the obligations of the Company with respect to the due and punctual payment of the principal of, Notes Premium, if any, and interest on the Notes and the performance and observation of each covenant and agreement under this Indenture to be performed or observed will be guaranteed by the Subsidiary Guarantors; and 
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Offer Repurchase Notice, the Form of Asset Sale Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its terms, have been done and performed, and the execution of this Indenture by the Company and the Subsidiary Guarantors and the issuance hereunder of the Notes by the Company have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, each of the Company and the Subsidiary Guarantors covenants and agrees with the Trustee and the Collateral Agent for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01    Definitions. 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.
1



Acceleration Date” means the date on which all the Notes have been declared or have become due and payable pursuant to Section 6.02.
Acceleration Premium” means, with respect to any Note on any applicable Acceleration Date, the present value at such Acceleration Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Acceleration Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such acceleration had not occurred (excluding accrued and unpaid interest to, but excluding, the Acceleration Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Acceleration Date plus 50 basis points, as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Acceleration Premium.
Thus, as an example, and for the avoidance of doubt, if an Acceleration Date occurs, the amount payable on the Acceleration Date on all the Notes (including any Notes previously issued as PIK Notes) will consist of cash in an amount equal to the sum of (i) 100% of the aggregate principal amount of all the Notes (including the principal amount of all Notes previously issued as PIK Notes) plus (ii) all the accrued and unpaid interest on all the Notes (including on all the Notes previously issued as PIK Notes) at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) to, but excluding, the Acceleration Date plus (iii) the applicable Acceleration Premium on all the Notes (including any Notes previously issued as PIK Notes).
Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Commission.
Action” shall have the meaning specified in Section 13.01(e).
Additional Interest” means all amounts, if any, payable pursuant to Section 4.06(d) or Section 4.06(e).
Additional Notes” means Notes in an aggregate principal amount not to exceed $50,000,000 issued on the Additional Notes Issue Date in accordance with Section 2.10, (it being understood that neither any PIK Note issued pursuant to and in accordance with Section 2.11 nor any Note issued in exchange for or replacement of any Note issued pursuant to and in accordance with Section 2.05 or Section 2.06 shall be an Additional Note).
Additional Notes Issue Date” means, as to Additional Notes, the date of issuance thereof pursuant to and in accordance with Section 2.10.
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 or cause the direction of 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. Notwithstanding anything to the contrary herein, the determination of whether one Person is an “Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time such determination is made or required to be made, as the case may be, hereunder. For purposes of this definition, the Designated Holders will not be deemed an “Affiliate” of the Company as a result of the transactions contemplated by the Exchange Agreement.
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After-Acquired Collateral” shall have the meaning specified in Section 4.15(a).
Anti-Corruption Laws” means the FCPA, UK Bribery Act 2010, and any other state or federal Requirements of Law of any jurisdiction applicable to the Company, any Subsidiary Guarantor or any of their Subsidiaries or controlled Affiliates from time to time concerning or relating to bribery or corruption.
Anti-Terrorism Laws” means Executive Order No. 13224 (effective September 24, 2001), the Patriot Act, Money Laundering Control Act of 1986, the laws comprising or implementing the Bank Secrecy Act, the UK Proceeds of Crime Act 2002, the UK Terrorism Act 2000, and any other Requirements of Law of any jurisdiction applicable to the Company, any Subsidiary Guarantor or any of their Subsidiaries or Affiliates from time to time concerning or relating to terrorism financing or money laundering.
Applicable Procedures” means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
Asset Sale” means:
(a)    the sale, lease, conveyance or other disposition of any assets or rights (whether in a single transaction or a series of related transactions) outside of the ordinary course of business of the Company and its Subsidiaries; provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole will be governed under Article 11; and
(b)    the issuance of Capital Stock by any of the Company’s Subsidiaries or the sale of Capital Stock in any of the Company’s Subsidiaries (other than directors’ qualifying Capital Stock or Capital Stock required by applicable law to be held by a Person other than the Company or one of its Subsidiaries).
Notwithstanding anything to the contrary in the preceding paragraph, none of the following items will be deemed to be an Asset Sale:
(a)    a transfer of assets or rights between or among the Company and its Subsidiary Guarantors;
(b)    an issuance or sale of Capital Stock by any Subsidiary of the Company to the Company or to another Subsidiary; provided, that any Subsidiary that is not a Subsidiary Guarantor shall not own Capital Stock of a Subsidiary Guarantor;
(c)    any sale or other disposition of damaged, worn-out or obsolete assets or assets otherwise unsuitable or no longer required for use in the ordinary course of the business of the Company and its Subsidiaries (including the abandonment or other disposition of property that is, in the reasonable judgment of the Company, no longer profitable, economically practicable to maintain or useful in the conduct of the business of the Company and its Subsidiaries, taken as a whole);
(d)    a Restricted Payment that is not prohibited under Section 4.12 or a Permitted Investment;
(e)    dispositions constituting casualty or condemnation events;
3



(f)    the creation of or realization on a Lien to the extent that the granting of such Lien was not prohibited under Section 4.11;
(g)    the sale or other disposition of cash, Cash Equivalents or marketable securities in the ordinary course of business;
(h)    the lapse, abandonment or other disposition of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Company are no longer commercially reasonable to maintain or are not material to the conduct of the Company and its Subsidiaries, taken as a whole;
(i)    the sale or other disposition of the two businesses identified in the Exchange Agreement, provided, however, that the corresponding purchase and sale agreement (or similar agreement) must provide that the net proceeds received from such sale will be delivered to the Company or a Subsidiary Guarantor;
(j)    non-exclusive licenses or sublicenses of intellectual property rights to non-Affiliates for Fair Market Value (for the avoidance of doubt, unless otherwise excluded pursuant to any other clause of this definition, any exclusive licenses or sublicenses of intellectual property rights to non-Affiliates shall be an Asset Sale); and
(k)    additional non-ordinary course asset sales, transfers or other dispositions in an aggregate amount during the term of this Indenture not to exceed $1,000,000 of Fair Market Value determined at the time of sale, transfer or disposition, as applicable.
Asset Sale Offer” shall have the meaning specified in Section 4.13(b)(i).
Asset Sale Offer Company Notice” shall have the meaning specified in Section 4.13(b)(iv).
Asset Sale Offer Consideration Amount” shall have the meaning specified in Section 4.13(b)(i).
Asset Sale Offer Repurchase Date” shall have the meaning specified in Section 4.13(b)(i).
Asset Sale Offer Repurchase Notice” shall have the meaning specified in Section 4.13(b)(iii).
Asset Sale Offer Repurchase Premium” means, with respect to any Note on any applicable Asset Sale Offer Repurchase Date, the present value at such Asset Sale Offer Repurchase Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Asset Sale Offer Repurchase Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such Asset Sale Trigger had not occurred (excluding accrued and unpaid interest to, but excluding, the Asset Sale Offer Repurchase Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Asset Sale Offer Repurchase Date plus 50 basis points, as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Asset Sale Offer Repurchase Premium.
Thus, as an example, and for the avoidance of doubt, upon the occurrence of an Asset Sale Trigger, the amount payable as the “Asset Sale Offer Repurchase Price” on all Notes (including any Notes previously issued as PIK Notes) to be repurchased on the Asset Sale Offer Repurchase Date (unless
4



such Asset Sale Offer Repurchase Date falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date) will consist of cash in an amount equal to the sum of (i) 100% of the aggregate principal amount of such Notes plus (ii) all the accrued and unpaid interest on such Notes at the full amount of Stated Interest to, but excluding, such Asset Sale Offer Repurchase Date plus (iii) the Asset Sale Offer Repurchase Premium on such Notes (including any such Notes previously issued as PIK Notes).
To continue this example and for the further avoidance of doubt, if the Asset Sale Offer Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Holders at the close of business on such Interest Record Date of all the Notes (including any Notes previously issued as PIK Notes) to be repurchased will be entitled, notwithstanding such Asset Sale Offer Repurchase Date, to receive, on such Interest Payment Date, the unpaid interest on such Notes at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date, if such Asset Sale Offer Repurchase Date is before such Interest Payment Date); and (ii) the Holders of such Notes to be repurchased on the Asset Sale Offer Repurchase Date will be entitled to receive on such Asset Sale Offer Repurchase Date the Asset Sale Offer Repurchase Price in an amount in cash equal to the sum of 100% of the aggregate principal amount of such Notes plus the Asset Sale Offer Repurchase Premium on such Notes (including any such Notes previously issued as PIK Notes).
Asset Sale Offer Repurchase Price” shall have the meaning specified in Section 4.13(b)(i).
Asset Sale Trigger” shall have the meaning specified in Section 4.13(b)(i).
Authorized Denomination” means, with respect to a Note, a minimum principal amount thereof equal to $1.00 or any integral multiple of $1.00 in excess thereof.
Bankruptcy Law” means Title 11, U.S. Code, as amended, or any similar federal or state law for the relief of debtors. 
Bid Solicitation Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation Agent.
Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
Capital Lease” means any lease that is required to be capitalized for financial reporting purposes in accordance with U.S. GAAP (with the amount of any Indebtedness in respect of a Capital Lease being
5



the capitalized amount of the obligations under such Capital Lease determined in accordance with U.S. GAAP).
Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with U.S. GAAP providedhowever, that all obligations of any Person that are or would have been treated as operating leases (including for avoidance of doubt, any network lease or any operating indefeasible right of use) for purposes of U.S. GAAP prior to December 15, 2018 shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of the Indenture (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with U.S. GAAP as in effect on or after December 15, 2018 to be treated as Capital Lease Obligations in the Company’s financial statements.
Capital Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.
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, or insured by the United States Government or any government of any member of the European Union or the United Kingdom or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full-faith-and-credit obligation of such government, in each case, maturing within one (1) year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one (1) year or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof, having combined capital and surplus of not less than $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act); (c) commercial paper of an issuer rated at least A-1 by McGraw Hill Financial, Inc. (“S&P”) or P-1 by Moody’s Investors Service, Inc. (“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 one (1) year from the date of acquisition; (d) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, 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 (1) year or less from the date of acquisition 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 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 (6) months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of one or more of the clauses (a) through (e) of this definition; (h) money market funds that (i) comply with the criteria set forth in SEC 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 $5,000,000,000; or (i) instruments comparable in credit quality and tenor to those referred to in clauses (a) through (h) above
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and customarily used by corporations for normal cash management purposes in a jurisdiction outside of the United States.
Clause A Distribution” shall have the meaning specified in Section 14.04(c).
Clause B Distribution” shall have the meaning specified in Section 14.04(c).
Clause C Distribution” shall have the meaning specified in Section 14.04(c).
close of business” means 5:00 p.m. (New York City time).
Code” shall have the meaning specified in Section 14.12(a).
Collateral” means the rights, property and assets securing the Notes over which a Lien has been granted pursuant to the Security Documents, and any rights, property or assets over which a Lien has been granted to secure the Notes Obligations of the Company and the Subsidiary Guarantors under the Notes, the Note Guarantees and this Indenture.
Collateral Agent” means the Person named as the “Collateral Agent” in the first paragraph of this Indenture until a successor collateral agent shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Collateral Agent” shall mean or include each Person who is then a Collateral Agent hereunder.
Commission” means the U.S. Securities and Exchange Commission.
Common Equity” of any Person means 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 Common Stock of the Company, par value $0.001 per share, at the date of this Indenture, subject to Section 14.07.
Company” shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.
“Company Order” means a written order of the Company, signed by the Company’s Chief Executive Officer, Chief Financial Officer, any President or Vice President (whether or not designated by a number or numbers or word or words added before or after the title “President” or “Vice President”) or the Company’s Treasurer or Assistant Treasurer, and delivered to the Trustee.
Conversion Agent” shall have the meaning specified in Section 4.02.
Conversion Amount” means, with respect to any Notes being converted, an amount in dollars equal to the sum of (i) the aggregate principal amount of such Notes, plus (ii) the accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) on such principal amount of such Notes to, and including the Conversion Date.
Conversion Date” shall have the meaning specified in Section 14.02(c).
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Conversion Obligation” shall have the meaning specified in Section 14.01(a).
Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of such time.
Conversion Rate” shall have the meaning specified in Section 14.01(b).
Corporate Event” shall have the meaning specified in Section 14.01(b)(iii).
Corporate Trust Office” means the designated office of the Trustee or the Collateral Agent, as applicable, at which at any time this Indenture shall be administered, which office at the date hereof is located at 633 West Fifth Street, 24th Floor, Los Angeles, California 90071, Attention: B. Scarbrough (LivePerson, Inc.), or such other address as the Trustee or the Collateral Agent, as applicable, may designate from time to time by notice to the Holders and the Company, or the designated corporate trust office of any successor trustee or successor collateral agent (or such other address as such successor trustee or successor collateral agent may designate from time to time by notice to the Holders and the Company).
Custodian” means the Trustee, as custodian for Cede & Co., with respect to the Global Notes, or any successor entity thereto.
Daily Conversion Value” means, for each of the 50 consecutive Trading Days during the relevant Observation Period, 2.0% of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP on such Trading Day.
Daily VWAP” means, for each of the 50 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “LPSN <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
Defaulted Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, the Asset Sale Offer Repurchase Price, the Fundamental Change Repurchase Price, principal, any applicable Notes Premium (to the extent not duplicative of the foregoing) and interest) that are payable but are not punctually paid or duly provided for.
Delayed Draw Purchase” has the meaning ascribed thereto in the Exchange Agreement.
delivered” with respect to any notice to be delivered, given or mailed to a Holder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with accepted practices or Applicable Procedures (in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Note Register, in each case in accordance
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with Section 17.03. Notice so “delivered” shall be deemed to include any notice to be “mailed” or “given,” as applicable, under this Indenture.
Depositary” means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.
Designated Holders” shall have the meaning specified in Section 4.34.
Designated Person” means at any time, (a) any Person who is the target of Sanctions including any Person listed in any Sanctions-related list of designated Persons maintained by the U.S. government, including OFAC, the U.S. Department of State, the U.S. Department of Commerce or His Majesty’s Treasury, (b) any Person operating, organized or resident in a country or territory that it the subject of comprehensive Sanctions or whose government is the subject or target of Sanctions or (c) any Person owned or otherwise controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
Distributed Property” shall have the meaning specified in Section 14.04(c).
Domestic Subsidiary” means any Subsidiary that is organized or existing under the laws of the United States, or any state thereof or the District of Columbia.
Effective Date” as used in Section 14.04 and Section 14.05, shall mean the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.
ERISA” means the Employee Retirement Income Security Act of 1974, as amended, including (unless the context otherwise requires) any rules or regulations promulgated thereunder.
ERISA Affiliate” means each corporation, trade or business (whether or not incorporated) which is treated as a single employer with the Company or any Subsidiary of the Company under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, any other Person required to be aggregated with the Company or any Subsidiary of the Company under Section 414(m) or (o) of the Code. Any former ERISA Affiliate of the Company or any Subsidiary of the Company shall continue to be considered an ERISA Affiliate of the Company or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Company or such Subsidiary and with respect to liabilities arising after such period for which the Company or such Subsidiary could be liable under the Code or ERISA.
ERISA Event”: any of (a) a reportable event as defined in Section 4043 of ERISA with respect to a Pension Plan, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; (b) the applicability of the requirements of Section 4043(b) of ERISA with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, to any Pension Plan where an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such plan within the following 30 days, excluding, however, such events as to which the PBGC by regulation has waived the requirement of Section 4043(b) of ERISA); (c) a withdrawal by any of the Company and its Subsidiaries or any ERISA Affiliate from a Pension Plan or the termination of any Pension Plan resulting in liability under Sections 4063 or 4064 of ERISA; (d) the withdrawal of any of the
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Company and its Subsidiaries or any ERISA Affiliate in a complete or partial withdrawal (within the meaning of Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any of the Company and its Subsidiaries or any ERISA Affiliate of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA; (e) 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 Pension Plan or the receipt by any of the Company and its Subsidiaries or any ERISA Affiliate of notice from any Multiemployer Plan that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (f) the imposition of liability on any of the Company and its Subsidiaries or any ERISA Affiliate pursuant to Sections 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the failure by any of the Company and its Subsidiaries or any ERISA Affiliate to make any required contribution to a Pension Plan, or the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430 of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (h) the determination that any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or any Multiemployer Plan is, or is expected to be, in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (i) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (j) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any of the Company and its Subsidiaries or any ERISA Affiliate with respect to any Pension Plan; (k) an application for a funding waiver under Section 302 of ERISA or Section 412 of the Code or an extension of any amortization period pursuant to Section 303 of ERISA or Section 430 of the Code with respect to any Pension Plan; (l) the occurrence of a non-exempt prohibited transaction under Sections 406 or 407 of ERISA or Section 4975 of the Code for which any of the Company and its Subsidiaries or any Subsidiary thereof may be directly or indirectly liable; (m) the occurrence of an act or omission which would be reasonably expected to give rise to the imposition on any of the Company and its Subsidiaries of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Sections 409, 502(c), (i) or (1) or 4071 of ERISA; (n) the assertion of a material claim (other than routine claims for benefits) against any Plan or the assets thereof, or against any of the Company and its Subsidiaries or any Subsidiary thereof in connection with any Plan; (o) receipt from the IRS of notice of the failure of any Qualified Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Qualified Plan to fail to qualify for exemption from taxation under Section 501(a) of the Code; or (p) the imposition of any lien (or the fulfillment of the conditions for the imposition of any lien) on any of the rights, properties or assets of any of the Company and its Subsidiaries or any ERISA Affiliate thereof, in either case pursuant to Title I or IV of ERISA, including Section 303(k) of ERISA or to Section 430(k) of the Code.
Existing Notes” means the Company’s 0% Convertible Senior Notes due 2026 issued on December 4, 2020.
Existing Notes Test Date” means September 15, 2026.
Existing Notes Test Date Notice” has the meaning set for in Section 15.01(c)
Existing Notes Test Maturity Date” has the meaning set forth in Section 15.01(b).
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Existing Notes Test Maturity Premium” means, with respect to any Note on any applicable Existing Notes Test Maturity Date, the present value at such Existing Notes Test Maturity Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Existing Notes Test Maturity Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such Existing Notes Test Maturity Date had not occurred (excluding accrued and unpaid interest to, but excluding, the Existing Notes Test Maturity Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Existing Notes Test Maturity Date plus 50 basis points, as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Existing Notes Test Maturity Premium.
Thus, as an example, and for the avoidance of doubt, the amount payable on the Existing Notes Test Maturity Date (unless such Existing Notes Test Maturity Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates) on all the Notes (including any Notes previously issued as PIK Notes) will consist of cash in an amount equal to the sum of (i) 100% of the aggregate principal amount of all of the Notes (including the principal amount of all Notes previously issued as PIK Notes) plus (ii) all of the accrued and unpaid interest on all of the Notes at the full amount of Stated Interest on all the Notes (including both the cash interest and PIK Interest portions thereof) to, but excluding, the Existing Notes Test Maturity Date plus (iii) the applicable Existing Notes Test Maturity Premium thereon on all the Notes (including any Notes previously issued as PIK Notes).
To continue this example and for the further avoidance of doubt, if the Existing Notes Test Maturity Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Holders of Notes (including any Notes previously issued as PIK Notes) at the close of business on such Interest Record Date will be entitled, notwithstanding such Existing Notes Test Maturity Date, to receive, on such Interest Payment Date, the unpaid interest on all the Notes at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date, if such Existing Notes Test Maturity Date is before such Interest Payment Date); and (ii) the Holders of such Notes on the Existing Notes Test Maturity Date will be entitled to receive on such Existing Notes Test Maturity Date an amount in cash equal to the sum of 100% of the aggregate principal amount of such Notes plus the Existing Notes Test Maturity Premium on such Notes (including any such Notes previously issued as PIK Notes).
Export/Import Controls” means (a) the U.S. Export Administration Regulations administered by the U.S. Department of Commerce, the International Traffic in Arms Regulations administered by the U.S. Department of State, and any other applicable Requirements of Law related to export controls and (b) customs laws administered or enforced by the United States, including the U.S. Customs and Border Protection, and any other applicable Requirements of Law related to import controls or customs.
Event of Default” shall have the meaning specified in Section 6.01.
Excluded Property” means any of the following:
(a)    any General Intangible, Capital Stock, authorization, permit, lease, license, franchise, charter, contract, intellectual property, property right or agreement to which any grantor is a party or any of its rights, title or interests thereunder, in each case, if and only to the extent as to which pledges thereof
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or a grant of a security interest in favor of the Collateral Agent shall constitute or result in a breach of a term or provision of, or the termination of the abandonment, invalidation or unenforceability or a default under the terms of, such General Intangible, Capital Stock, authorization, permit, lease, license, franchise, charter, contract, intellectual property, property right or agreement (other than to the extent that (I) such restriction or condition was established in contemplation of this exception, (II) such restriction or condition is in favor of any grantor or any Subsidiary or (III) any such law, rule, regulation, term or provision or limitation on such grant would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity)); provided, however, that; (x) if such breach, termination, invalidation or unenforceability or default arises solely from a contractual obligation with a non-affiliated third party as of the Original Issue Date or at the time of its acquisition and not entered into in contemplation thereof prohibiting or restricting pledges of such assets (including Capital Stock) covered in this clause (a), such Capital Stock shall be excluded under this clause (a) only if the applicable grantor has used commercially reasonable efforts to obtain, and nevertheless has failed to obtain, consent from such third party to such Lien or to remove such prohibition or restriction, (y) the right to receive Proceeds arising therefrom or any other rights referred to in Sections 9-406(f), 9-407(a), or 9-408(a) of the UCC or any Proceeds, substitutions or replacements thereof shall not be Excluded Property (unless such rights, Proceeds, substitutions or replacements would otherwise independently constitute Excluded Property) and (z) at such time as the contractual or legal prohibitions or restrictions on such grant described above shall no longer be applicable and to the extent severable, such asset or property (or portion thereof) shall cease to be Excluded Property and the Lien of the Collateral Agent shall attach immediately to the portion of such General Intangible or authorization, permit, lease, license, franchise, charter, contract, intellectual property, property right or agreement not subject to the limitations and exclusions specified in the provisions above;
(b)    any letter-of-credit rights to the extent a security interest therein cannot be perfected by the filing of a UCC-1 financing statement in the jurisdiction of organization (or other location of a grantor under Section 9-307 of the UCC) of the applicable grantor;
(c)    (i) with respect to any trademarks, applications in the PTO to register trademarks on the basis of any of grantor’s “intent to use” such trademarks will not be deemed to be Collateral unless and until a “statement of use” or “amendment to allege use” has been filed and accepted in the PTO, whereupon such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, and (ii) with respect to any other trademark or any patents or copyrights, such trademarks, patents or copyrights will not be deemed to be Collateral if the creation of a security interest therein will constitute or result in the abandonment, impairment, invalidation or unenforceability thereof any assets to the extent and for so long as the pledge of such assets is prohibited by law and such prohibition is not overridden by the UCC or other applicable law;
(d)    margin stock (within the meaning of Regulation U issued by the Federal Reserve Board) to the extent the creation of a security interest therein in favor of the Collateral Agent will result in a violation of Regulation U issued by the Federal Reserve Board;
(e)    assets to the extent as to which pledges thereof or a grant of security interest therein are prohibited or restricted by applicable law (including any requirement to obtain the consent of (i) any governmental authority or (ii) similar regulatory third party, in each case, except to the extent such consent has been obtained);
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(f)    assets (with the consent of the Collateral Agent (at the direction of the Required Holders)) to the extent as to which pledges thereof or the grant of a security interest therein would result in material adverse tax consequences to any grantor or any of its Subsidiaries;
(g)    (i) any leasehold or subleasehold interest (including any ground lease interest) in real property and (ii) any fee interest in owned real property other than owned real property having a fair market value in excess of $250,000;
(h)    all Commercial Tort Claims where the amount of damages reasonably expected to be realized by the applicable grantor in such Commercial Tort Claims (as determined by the Company in good faith) is not in excess of $250,000 individually or in the aggregate;
(i)    motor vehicles, aircraft and other assets subject to certificates of title or ownership (including, without limitation, aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof and rolling stock) in each case, to the extent a security interest therein cannot be perfected by the filing of a UCC-1 financing statement in the jurisdiction of organization (or other location of a grantor under Section 9-307 of the UCC) of the applicable grantor; and
(j)    any specifically identified asset with respect to which the costs of obtaining, perfecting or maintaining a security interest or pledge exceed the fair market value thereof and the practical benefit to the Holders afforded thereby as determined by the Collateral Agent (at the direction of the Required Holders);
provided, however, that Excluded Property shall not include any Proceeds, substitutions or replacements of any Excluded Property unless such Proceeds, substitutions or replacements would independently constitute Excluded Property.
Excluded Subsidiary” means, as of any date, with respect to any Subsidiary of the Company acquired or organized after the date of the Exchange Agreement, (a) Domestic Subsidiaries that have less than $10,000 of total assets, (b) Foreign Subsidiaries that have less than $10,000 of total assets (or the local currency equivalent), (c) Foreign Subsidiaries organized in jurisdictions where the costs of obtaining a secured guarantee exceed the practical benefit afforded to the Holders thereby (as determined by the Designated Holders, or at such time the Designated Holders no longer constitute Required Holders, by the Company it its reasonable discretion) or where upstream guarantees are not customarily provided for in respect of senior secured high yield debt instruments (with guarantee limitations for such entities customary in such foreign jurisdictions) and (d) (with the consent of the Designated Holders, or at such time the Designated Holders no longer constitute Required Holders, by the Company it its reasonable discretion) any Subsidiary to the extent the provision of a guarantee by such Subsidiary would reasonably be expected to result in material adverse tax consequences to the Company or its Subsidiaries, provided, however, that an “Excluded Subsidiary” will not include any Subsidiary that guarantees any Indebtedness of the Company.
Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of the Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
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Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Exchange Agreement” means that certain Exchange and Purchase Agreement, dated as of May 13, 2024, by and between the Company and Lynrock, as may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.
Fair Market Value” means the value that would be paid by a willing buyer or licensor to an unaffiliated willing seller or licensee in a transaction not involving distress or necessity of either party, determined in good faith by the Company.
FCPA”: the Foreign Corrupt Practices Act of 1977, as amended.
Foreign Benefit Arrangement”: any employee benefit arrangement mandated by nonUS law that is maintained or contributed to by the Company or any Subsidiary thereof.
Foreign Plan”: each employee benefit plan (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or contributed to by the Company or any Subsidiary thereof.
Foreign Plan Event”: with respect to any Foreign Benefit Arrangement or Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Benefit Arrangement or Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Benefit Arrangement or Foreign Plan required to be registered; or (c) the failure of any Foreign Benefit Arrangement or Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Benefit Arrangement or Foreign Plan.
Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
Form of Assignment and Transfer” shall mean the “Form of Assignment and Transfer” attached as Attachment 4 to the Form of Note attached hereto as Exhibit A.
Form of Asset Sale Offer Repurchase Notice” shall mean the “Form of Asset Sale Offer Repurchase Notice” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.
Form of Fundamental Change Repurchase Notice shall mean the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached hereto as Exhibit A.
Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A.
Form of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a)     a “person” or “group” within the meaning of Section 13(d) or 14(a) of the Exchange Act, other than the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, has become the direct or indirect
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“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of more than 50% of the voting power of the Company’s Common Equity.
(b)     the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, or other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Company’s Common Stock will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one of the Company’s Wholly Owned Subsidiaries;
(c)    the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company;
(d)     any merger, consolidation or sale of all or substantially all of the property or assets of the Company and its Subsidiaries, taken as a whole, to any third party; or
(e)    the Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The Nasdaq Global Select Market, or The Nasdaq Global Market (or any of their respective successors).
Fundamental Change Company Notice” shall have the meaning specified in Section 15.02(c).
Fundamental Change Repurchase Date” shall have the meaning specified in Section 15.02(b).
Fundamental Change Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).
Fundamental Change Repurchase Premium” means, with respect to any Note on any applicable Fundamental Change Repurchase Date, the product of (i) 66% and (ii) the present value at such Fundamental Change Repurchase Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Fundamental Change Repurchase Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such Fundamental Change had not occurred (excluding accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Fundamental Change Repurchase Date plus 50 basis points, as calculated by the Company or its agent; the Trustee shall have no responsibility to calculate or verify the calculation of the Fundamental Change Repurchase Premium.
Thus, as an example, and for the avoidance of doubt, if a Fundamental Change occurs at any time prior to the Stated Maturity, the amount payable as the “Fundamental Change Repurchase Price” on all Notes (including any Notes previously issued as PIK Notes) to be repurchased on the Fundamental Change Repurchase Date (unless such Fundamental Change Repurchase Date falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date) will consist of cash in an amount equal to the sum of (i) 100% of the aggregate principal amount of such Notes plus (ii) all the accrued and unpaid interest on such Notes at the full amount of Stated Interest to, but excluding, such
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Fundamental Change Repurchase Date plus (iii) the Fundamental Change Repurchase Premium on such Notes (including any such Notes previously issued as PIK Notes).
To continue this example and for the further avoidance of doubt, if the Fundamental Change Repurchase Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Holders at the close of business on such Interest Record Date of all the Notes (including any Notes previously issued as PIK Notes) to be repurchased will be entitled, notwithstanding such Fundamental Change Repurchase Date, to receive, on such Interest Payment Date, the unpaid interest on such Notes at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Holders of such Notes to be repurchased on the Fundamental Change Repurchase Date will be entitled to receive on such Fundamental Change Repurchase Date the Fundamental Change Repurchase Price in an amount in cash equal to the sum of 100% of the aggregate principal amount of such Notes plus the Fundamental Change Repurchase Premium on such Notes (including any such Notes previously issued as PIK Notes).
Fundamental Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
Global Note” shall have the meaning specified in Section 15.02(b).
Governmental Approval” means any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
Governmental Authority” means the government of the United States of America, or any other nation, or of any political subdivision thereof, whether state, provincial, territorial 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, and any group or body charged with setting accounting or regulatory capital rules or standards (including any successor or similar authority to any of the foregoing).
Holder”, as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), shall mean any Person in whose name at the time a particular Note is registered on the Note Register.
Immaterial Subsidiary” means a Subsidiary of the Company that does not individually account for greater than 2.5% of the total assets of the Company and its Subsidiaries on a consolidated basis or greater than 2.5% of the total revenue of the Company and its Subsidiaries on a consolidated basis; provided, that Subsidiaries may be characterized as “Immaterial Subsidiaries” only if they do not, in the aggregate, account for greater than 5.0% of the total assets of the Company and its Subsidiaries on a consolidated basis or greater than 5.0% of the total revenue of the Company and its Subsidiaries on a consolidated basis.
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 U.S. GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
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(b)    all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees, surety bonds and similar instruments;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts and accrued expenses payable in the ordinary course of business, obligations in respect of licenses and operating leases, payroll liabilities and deferred compensation and severance, pension, health and welfare retirement and equivalent benefits to current or former employees, directors or managers of such Person and its subsidiaries);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned by such Person (including indebtedness arising under conditional sales or other title retention agreements but excluding trade accounts and accrued expenses payable in the ordinary course of business and licenses and operating leases), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse, but solely to the extent such indebtedness is recourse to such Person or such property;
(f)    all attributable indebtedness in respect of Capital Leases and synthetic lease obligations;
(g)    all obligations in respect of Redeemable Equity; and
(h)    all guarantees of such Person in respect of any of the foregoing;
provided, that, notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) contingent obligations incurred in the ordinary course of business or (b) any operating lease as such an instrument would be determined in accordance with GAAP; provided, further, that Indebtedness shall be calculated without giving effect to Accounting Standards Codification topic 815, Derivatives and Hedging and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.
Indenture” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
Indenture Documents” means this Indenture, the Notes, the Security Documents, the Intercreditor Agreement (if applicable) and the Exchange Agreement (including amendments, supplements, waivers, consents and other modifications to the foregoing). For the avoidance of doubt, the Indenture Documents shall not include the Warrants.
Initial Notes” means the $150,000,000 initial aggregate principal amount of Notes issued on the Original Issue Date.
Intercreditor Agreement” means the intercreditor agreement substantially in the form of Exhibit B attached hereto or otherwise in form and substance satisfactory to the Required Holders in their sole and absolute discretion.
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Interest Payment Date” means each June 15 and December 15 of each year, beginning on December 15, 2024.
Interest Record Date” with respect to any Interest Payment Date, shall mean the June 1 or December 1 (whether or not such day is a Business Day) immediately preceding the applicable June 15 or December 15 Interest Payment Date, respectively.
Investments” means, with respect to any specified Person, all direct or indirect investments by such specified Person in other Persons (including Affiliates) in the forms of loans (including guarantees of Indebtedness or other obligations), advances or capital contributions (excluding (i) commission, travel and similar advances to officers and employees made in the ordinary course of business and (ii) extensions of credit to customers or advances, deposits or payment to or with suppliers, lessors or utilities or for workers’ compensation, in each case, that are incurred in the ordinary course of business), or purchases or other acquisitions for consideration of Indebtedness, Capital Stock or other securities. The acquisition by the Company or any Subsidiary of a Person that holds an Investment in a third Person that was acquired in contemplation of the acquisition of such Person will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person determined as provided in this Indenture. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value but after giving effect (without duplication) to all subsequent reductions in the amount of such Investment as a result of the return of capital, return on investment, repayment or disposition thereof, in each case, in cash, not to exceed the original amount of such Investment.
Issue Date” means (i) the Original Issue Date and (ii) any Additional Notes Issue Date.
Junior Indebtedness”: collectively, any Indebtedness of the Company or any of its Subsidiaries, that is (x) secured by a Lien that is junior in priority to the Lien securing the Notes Obligations, (y) Subordinated Indebtedness and/or (z) unsecured.
Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading session hours.
Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in the nature of a security interest in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof.
Lynrock” means Lynrock Lake Master Fund LP.
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Make-Whole Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as defined above).
Make-Whole Payment” shall have the meaning specified in Section 14.03(a).
Market Disruption Event” means, for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts traded on any U.S. exchange relating to the Common Stock.
Material Adverse Effect” means any event, circumstance or condition that, individually or in the aggregate, has had or would reasonably be expected to have a materially adverse effect on (a) the business, assets, properties, liabilities (contingent or otherwise), financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, (b) the ability of the Company and the Subsidiary Guarantors taken as a whole, to perform their respective obligations under the Indenture Documents or (c) the rights and remedies of the Holders, the Trustee and/or the Collateral Agent under the Indenture Documents taken as a whole; provided, that any adverse event, change, occurrence or effect publicly disclosed or announced in the Company’s 10-Q for the fiscal quarter ended March 31, 2024 or its May 8, 2024 earnings release for such fiscal quarter and any notification from The Nasdaq Stock Market to the extent related to an event that is curable by the Company will, in each case, be deemed not to constitute a Material Adverse Effect; provided, further, that the foregoing proviso shall not apply to any actual delisting of the Company’s Common Stock under Rule 5810(c) of The Nasdaq Stock Market.
Maturity Date” means the earlier of:
    (i)    the Stated Maturity; or
    (ii)    the Existing Notes Test Date if (but only if) on such date the aggregate outstanding principal amount of Existing Notes exceeds $60,000,000.
Maximum Percentage” shall have the meaning specified in Section 14.12(a).
Measurement Period” shall have the meaning specified in Section 14.01.
Multiemployer Plan” means a “multiemployer plan” (within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA) to which the Company or any Subsidiary of the Company or any ERISA Affiliate thereof makes, is making, or is obligated or has been obligated to make, contributions within the past six (6) years.
Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Company or any of its Subsidiaries in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, including, without limitation, any legal, accounting and investment banking fees and sales commissions, any relocation expenses incurred as a result of such Asset Sale, any taxes paid or payable as a result of the Asset Sale, in each case, other than
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to an Affiliate, and any distributions to the Company or any Subsidiary in order to pay taxes reasonably estimated to be payable by the Company or any Subsidiary as a result of the Asset Sale.
Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals of this indenture, including, unless the context otherwise requires, any Additional Notes issued in accordance with Section 2.10 and any PIK Notes issued in accordance with Section 2.11 and any Replacement Notes.
Note Guarantee” means a guarantee pursuant to Article 18 by each Subsidiary Guarantor of the obligations of the Company under the Indenture and the Notes.
Notes Obligations” means the Obligations of the Company and the other obligors (including the Subsidiary Guarantors) under this Indenture and the Indenture Documents to pay principal, any applicable Notes Premium and interest (including all interest accruing after the commencement of any bankruptcy, insolvency, reorganization or similar proceeding, whether or not a claim for such post-petition interest is allowed or allowable in such proceeding), fees, expenses and indemnities when due and payable, and all other amounts due or to become due under or in connection with this Indenture and the Indenture Documents and to perform the Conversion Obligation upon conversion of any Note and all other obligations of the Company and the Subsidiary Guarantors under this Indenture and the Indenture Documents, according to the respective terms thereof.
Notes Premium” means, as applicable, the Acceleration Premium, the Asset Sale Offer Repurchase Premium, the Existing Notes Test Maturity Premium, the Fundamental Change Repurchase Premium or the Redemption Premium and, in the case of a conversion of Notes, any applicable Make-Whole Payment.
Note Register” shall have the meaning specified in Section 2.05(a).
Note Registrar” shall have the meaning specified in Section 2.05(a).
Notice of Conversion” shall have the meaning specified in Section 14.02(b).
Obligations” means any principal, interest, penalties, fees, expenses (including any interest, fees or expenses that accrue following the commencement of any insolvency or liquidation proceeding, whether allowed or allowable in such proceeding), indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Observation Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior to February 15, 2029 the 50 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or after the Company’s issuance of a Redemption Notice with respect to the Notes pursuant to Section 16.02 and prior to the relevant Redemption Date, the 50 consecutive Trading Days beginning on, and including, the 51st Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after February 15, 2029, the 50 consecutive Trading Days beginning on, and including, the 51st Scheduled Trading Day immediately preceding the Maturity Date.
OFAC”: the Office of Foreign Assets Control of the United States Department of the Treasury and any successor thereto.
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Officer” means, with respect to the Company, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, the Secretary, or any President or Vice President (whether or not designated by a number or numbers or word or words added before or after the title “President” or “Vice President”).
Officer’s Certificate”, when used with respect to the Company or any Subsidiary Guarantor, means a certificate that is delivered to the Trustee or the Collateral Agent, as applicable, and that is signed by an Officer of the Company or a Subsidiary Guarantor, as applicable. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting officer of the Company.
open of business” means 9:00 a.m. (New York City time).
Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, that is delivered to the Trustee or the Collateral Agent, as applicable, which opinion may contain customary exceptions and qualifications as to the matters set forth therein. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such Section 17.05.
Optional Redemption” shall have the meaning specified in Section 16.01.
Original Issue Date” means June 3, 2024.
outstanding”, when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:
(a)     Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b)     Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent);
(c)    Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.06 unless proof reasonably satisfactory to the Trustee is presented that any such Notes are held by protected purchasers in due course;
(d)     Notes converted (and as to which the Conversion Obligation has been fully satisfied) pursuant to Article 14 and required to be cancelled pursuant to Section 2.08;
(e)     Notes redeemed pursuant to Article 16; and
(f)     Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10 or pursuant to an Asset Sale Offer in accordance with Section 4.13 or a Fundamental Change Repurchase Notice in accordance with Section 15.02 and any other Notes delivered to the Trustee for cancellation.
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Paying Agent” shall have the meaning specified in Section 4.02.
PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
Pension Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (x) that is or within the past six (6) years was maintained or sponsored by the Company or any Subsidiary of the Company or any ERISA Affiliate or to which the Company or any Subsidiary of the Company or any ERISA Affiliate thereof makes or is obligated to make, or within the past six years made or was obligated to make, contributions and (y) that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
Permitted Indebtedness” means, without duplication, each of the following:
(a)    Indebtedness in respect of the Existing Notes;
(b)    Junior Indebtedness in an aggregate principal amount not to exceed $150,000,000, which Junior Indebtedness (i) shall mature no earlier than December 15, 2029; (ii) is payment subordinated on terms satisfactory to the Required Holders; (iii) if secured, is subject to the Intercreditor Agreement; (iv) does not amortize and does not provide for payment of any cash interest prior to December 15, 2026; (v) does not include a cross-default event of default provision with respect to the Notes (but, for the avoidance of doubt, may include a cross-acceleration event of default provision with respect to the Notes); and (vi) is not guaranteed by any obligors that are not obligors in respect of the Notes or secured by any assets that are not pledged as Collateral in respect of the Notes;
(c)    Indebtedness in an aggregate principal amount not to exceed (i) $200,000,000 in respect of the Initial Notes and Additional Notes issued pursuant to Section 2.01(a) or Section 2.10, as applicable to Lynrock, unless otherwise agreed by Lynrock in its sole discretion (and any Replacement Notes in respect thereof) and any Notes Guarantees in respect thereof plus (ii) any PIK Notes and Note Guarantees in respect of any Notes issued pursuant to Section 2.11 (and any Replacement Notes in respect thereof) and any Notes Guarantees in respect thereof, which capacity will be deemed reduced by the amount of Notes issued and repurchased, repaid, redeemed, cancelled or that otherwise cease to be outstanding;
(d)    Indebtedness of the Company or any of its Subsidiaries in respect of purchase money Indebtedness, Capital Lease Obligations, synthetic lease obligations or mortgage financings in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;
(e)    intercompany Indebtedness (i) among the Company and any of its Subsidiary Guarantors and (ii) owed by the Company or a Subsidiary Guarantor to a Subsidiary that is not a Subsidiary Guarantor; provided, that such Indebtedness must be unsecured and subordinated pursuant to the terms of an intercompany note that is reasonably satisfactory to the Required Holders;
(f)    Indebtedness in connection with standby and/or trade letters of credit for general corporate purposes in an aggregate outstanding face amount not to exceed $1,000,000;
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(g)    obligations in respect of the warrants issued on the Original Issue Date to the Designated Holder as the same may be transferred from time to time, to the extent constituting Indebtedness; and
(h)    other Indebtedness in an aggregate outstanding principal amount not to exceed $1,000,000.
Permitted Investments” means:
(a)    Investments in cash and Cash Equivalents;
(b)    intercompany Investments (i) by any Subsidiary that is not a Subsidiary Guarantor into any other Subsidiary that is not a Subsidiary Guarantor or (ii) into the Company or any Subsidiary Guarantor; provided, that any Investments by a Subsidiary that is not a Subsidiary Guarantor in the Company or the Subsidiary Guarantors in the form of a loan must be unsecured and subordinated pursuant to the terms of an intercompany note that is reasonably satisfactory to the Required Holders;
(c)    Investments existing on the date of the Exchange Agreement and set forth on Schedule 4.12; provided, that the amount of the Investments described on such Schedule is not increased (except as permitted pursuant to any clause of the definition of “Permitted Investments” other than this clause (c));
(d)    Investments by the Company or any Subsidiary in non-Guarantor Subsidiaries and professional corporations owned by or associated with Wild Health, Inc. in an aggregate outstanding amount not to exceed (i) $1,000,000 plus (ii) the aggregate amount of additional cash investments from time to time not to exceed an amount necessary (giving effect to applicable transfer pricing requirements) (as reasonably determined by the Company) to make vendor expense (solely with respect to Wellington Provider Group, P.C.), payroll, compensation, rent and other payments in respect of real estate, equipment for the employees employed by such Subsidiary or such professional corporation, hosting fees, subcontracted labor, software, legal and tax advisory, insurance, employee benefits, taxes, reseller fees, marketing expenses, reimbursement of travel and entertainment, assurance services and similar payments directly or indirectly by any non-Guarantor Subsidiaries or professional corporations that are associated with Wild Health, Inc. within the 30 days following the making of any such Investment, in each case, in the ordinary course of business and consistent with past practice;
(e)    in connection with any sale of Wild Health, Inc. and its associated professional corporations, a working capital facility in the aggregate outstanding principal amount as outlined in the Exchange Agreement provided by the Company or any Subsidiary Guarantor to the purchaser thereof for up to 24 months following the consummation of such sale; provided, however, that the corresponding purchase and sale agreement (or similar agreement) must provide that the net proceeds received from such sale will be delivered to the Company or a Subsidiary Guarantor; and
(f)    other Investments in an aggregate outstanding amount not to exceed $1,000,000.
Permitted Liens” means:
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(a)    Liens in existence on the date of the Exchange Agreement and listed on Schedule 4.11 (the “Liens Schedule”); provided, that (i) no such Lien is spread to cover any additional property after the date of the Exchange Agreement other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof, (ii) the amount of any Indebtedness secured thereby is not increased (except as permitted pursuant to Section 4.10), (iii) the direct or contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of any Indebtedness secured thereby is permitted by Section 4.10;
(b)    Liens created pursuant to the Security Agreement and the other Security Documents and other Liens in favor of the Collateral Agent;
(c)    Liens securing Junior Indebtedness permitted pursuant to clause (b) of the definition of “Permitted Indebtedness”, subject at all times to the Intercreditor Agreement;
(d)    Liens on the assets or equity of Wild Health, Inc. and its associated professional corporations in the form of a customary conditional sale agreement arising in connection with any sale of Wild Health, Inc. and its associated professional corporations;
(e)    Liens in favor of a banking or other financial institution arising as a matter of law or in the ordinary course of business under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions;
(f)    Liens (i) arising by operation of law (or by agreement to the same effect) in the ordinary course of business and consistent with past practice, securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities, (ii) in favor of the Company or any Subsidiary (other than Liens on property or assets of the Company or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (iii) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business and consistent with past practice (iv) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business and consistent with past practice, and (v) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business and consistent with past practice;
(g)    Liens consisting of letters of intent or agreements to sell, transfer, lease or otherwise dispose of any property in transactions permitted under this Indenture;
(h)    Liens on specific items of inventory or other goods and proceeds thereof of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods in the ordinary course of business;
(i)    pledges, deposits or Liens in connection with workers’ compensation, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements) in the ordinary course of business and consistent with past practice;
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(j)    pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business and consistent with past practice;
(k)    Liens arising from precautionary Uniform Commercial Code (or equivalent statutes) financing statement filings regarding operating leases entered into by the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice;
(l)    leases or subleases and non-exclusive licenses or sublicenses granted in the ordinary course of business to others not interfering in any material respect with the business of the Company or any of its Subsidiaries, taken as a whole;
(m)    Liens arising from the rights of lessors under leases (including financing statements regarding property subject to lease) permitted under clause (d) of the definition of “Permitted Indebtedness”; provided, that such Liens do not at any time encumber any property other than the property financed thereby;
(n)    Liens on cash collateral securing any letters of credit permitted by clause (f) of the definition of “Permitted Indebtedness” in an aggregate amount not to exceed $1,000,000;
(o)    Liens for taxes (including interest, penalties and additional amounts with respect thereto) that are (i) not yet delinquent or (ii) where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with U.S. GAAP with respect thereto have been provided on the books of the Company or the relevant Subsidiary;
(p)    to the extent constituting Liens, non-exclusive licenses or sublicenses of intellectual property pursuant to clause (j) of the definition of “Asset Sale” (for the avoidance of doubt, unless otherwise permitted pursuant to any other clause of this definition, exclusive licenses or sublicenses of intellectual property shall not be Permitted Liens); and
(q)    other Liens securing an aggregate amount at any time outstanding not to exceed $1,000,000; provided, that if the obligations secured by such Liens consist of Indebtedness for borrowed money, such Liens shall rank junior in priority to the Liens securing the Notes Obligations on terms acceptable to the Required Holders.
Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
Physical Notes” means permanent certificated Notes in registered form issued in Authorized Denominations.
PIK Interest” means Interest paid in kind on any Notes by, if such Note is a Global Note, increasing the principal amount of such Global Note or, if such Note is a Physical Note, issuing a new Physical Note, in each case in a principal amount equal to such interest.
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Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.
Premium Payment Date” means the Asset Sale Offer Repurchase Date, Fundamental Change Repurchase Date, Existing Notes Test Maturity Date, Acceleration Date or Redemption Date, as applicable.
Premium Treasury Rate” means, as of the applicable Premium Payment Date, the yield to maturity as of such Premium Payment Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available two Business Days prior to such Premium Payment Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from such Premium Payment Date to the Stated Maturity, provided, however, that if the period from such Premium Payment Date to the Stated Maturity is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Proceeds” shall have the meaning assigned in Article 9 of the UCC and, in any event, shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Collateral Agent or any grantor from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any grantor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or any Person acting under color of governmental authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
PTO” means the United States Patent and Trademark Office.
Qualified Cash” means at any time of determination, the aggregate amount of unrestricted cash and Cash Equivalents included in the consolidated balance sheet of the Company and its Subsidiary Guarantors as of such time that (i) is free and clear of all Liens other than Liens permitted hereunder, (ii) may be applied to payment of the Notes Obligations without violating any law, contract, or other agreement and (iii) is in deposit accounts or securities accounts subject to a perfected lien in favor of the Collateral Agent (or similar agreement or arrangement in any non-U.S. jurisdiction to the extent such concept exists in such jurisdiction); provided, that this clause (iii) will only apply after the date that is (x) in the case of any such deposit accounts or securities accounts of the Company or any Subsidiary Guarantor that is a Domestic Subsidiary, 45 Business Days or (y) in the case of any such deposit accounts or securities accounts of any Subsidiary Guarantor that is a Foreign Subsidiary, 60 Business Days following the Original Issue Date (in each case, or such later date as may be agreed by the Required Holders in their reasonable discretion).
Qualified Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) other than a Multiemployer Plan (a) that is maintained or sponsored by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries makes or is obligated to make contributions and (b) that is intended to be tax-qualified under Section 401(a) of the Code.
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Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).
Redeemable Equity” means any equity security of the Company or any of its Subsidiaries that by its terms (or by terms of any security into which it is convertible or for which it is exchangeable), or otherwise (including by the passage of time or the happening of an event), is required to be redeemed (other than solely for common stock or another security that is not Redeemable Equity or Indebtedness and cash in lieu of fractional shares), is redeemable (other than solely for common stock and cash in lieu of fractional shares) at the option of the holder thereof in whole or in part (including by operation of a sinking fund), or is convertible or exchangeable for Indebtedness of such Person (with a scheduled maturity prior to the 366th day immediately following the Stated Maturity), in each case, at the option of the holder thereof, in whole or in part, at any time prior to the 366th day immediately following the Stated Maturity (other than upon the occurrence of a Fundamental Change, change of control or Asset Sale); provided, however, that only the portion of such equity security which is required to be redeemed, is so convertible or exchangeable or is so redeemable at the option of the holder thereof before such date will be deemed to be Redeemable Equity. Redeemable Equity will not include any common stock issued by the Company or its Subsidiaries to its employees or directors that is subject to repurchase by the Company or its Subsidiaries pursuant to the terms of any employment agreement, benefit plan or other arrangement. The aggregate principal amount of Redeemable Equity deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company or its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Equity or portion thereof, exclusive of accrued dividends.
Redemption Date” shall have the meaning specified in Section 16.02(a).
Redemption Notice” shall have the meaning specified in Section 16.02(a).
Redemption Premium” means, with respect to any Note on any applicable Redemption Date:
(a)    if the Redemption Date is prior to June 15, 2025, the present value at such Redemption Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Redemption Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such Optional Redemption had not occurred (excluding accrued and unpaid interest to, but excluding, the Redemption Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Redemption Date plus 50 basis points, as calculated by the Company or its agent;
(b)    if the Redemption Date is on or after June 15, 2025 and prior to June 15, 2026, the sum of (i) 6.50% of the aggregate principal amount of such Note plus (ii) 6.50% of the portion of the accrued and unpaid interest on such Note to, but excluding, such Redemption Date that would (without giving effect to Section 2.03(d)) otherwise be payable solely in the form of PIK Interest pursuant to Section 2.03(c);
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(c)    if the Redemption Date is on or after June 15, 2026 and prior to December 15, 2026, the sum of (i) 3.25% of the aggregate principal amount of such Note plus (ii) 3.25% of the portion of the accrued and unpaid interest on such Note to, but excluding, such Redemption Date that would (without giving effect to Section 2.03(d)) otherwise be payable solely in the form of PIK Interest pursuant to Section 2.03(c); or
(d)    if the Redemption Date is on or after December 15, 2026, the sum of (i) 13.00% of the aggregate principal amount of such Note plus (ii) 13.00% of the portion of the accrued and unpaid interest on such Note to, but excluding, such Redemption Date that would (without giving effect to Section 2.03(d)) otherwise be payable solely in the form of PIK Interest pursuant to Section 2.03(c);
provided, that the Trustee shall have no responsibility to calculate or verify the calculation of the Redemption Premium.
Thus, as an example, and for the avoidance of doubt, if the Company elects an Optional Redemption of all the Notes on any Redemption Date prior to June 15, 2025 (unless such Redemption Date falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date), the amount payable as the “Redemption Price” on the Redemption Date will consist of cash in an amount equal to the sum of (i) 100% of the aggregate principal amount of such Notes plus (ii) all the accrued and unpaid interest on such Notes at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) to but excluding such Redemption Date plus (iii) the present value at such Redemption Date of all unpaid interest payments in the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would be due after such Redemption Date on such Note (and on any PIK Notes that would be issued to effect payment of such PIK Interest) through the Stated Maturity if such Optional Redemption had not occurred (excluding accrued and unpaid interest to, but excluding, the Redemption Date), computed using a discount rate equal to the relevant Premium Treasury Rate as of such Redemption Date plus 50 basis points, as calculated by the Company or its agent.
As a further example, and for the avoidance of doubt, if the Company elects an Optional Redemption of all the Notes on any Redemption Date on or after December 15, 2026 (other than a Redemption Date that falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date), the amount payable as the “Redemption Price” on Redemption Date will consist of cash in an amount equal to the sum of (i) 113% of the aggregate principal amount of all of the Notes (including the principal amount of all Notes previously issued as PIK Notes) plus (ii) 113% of all the accrued and unpaid interest on all of the Notes (including on all of the Notes previously issued as PIK Notes) to, but excluding, such Redemption Date that would otherwise be payable in the form of PIK Interest plus (iii) all the accrued and unpaid interest on all of the Notes (including on all of the Notes previously issued as PIK Notes) to, but excluding, such Redemption Date that would in any event (and regardless of such Optional Redemption) be payable in cash.
To continue these examples, and for the further avoidance of doubt, if the Redemption Date falls after an Interest Record Date but on or prior to the Interest Payment Date to which such Interest Record Date relates, then (i) the Holders at the close of business on such Interest Record Date of all the Notes (including any Notes previously issued as PIK Notes) to be redeemed will be entitled, notwithstanding such Redemption Date, to receive, on such Interest Payment Date, the unpaid interest on such Notes at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding such Interest Payment Date (assuming solely for these purposes, that such Notes remained outstanding through such Interest Payment Date, if such
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Redemption Date is before such Interest Payment Date) and (ii) the Holders of such Notes to be redeemed on the Redemption Date will be entitled to receive on such Redemption Date the Redemption Price in an amount in cash equal to the sum of 100% of the aggregate principal amount of such Notes plus the Redemption Premium on such Notes (including any such Notes previously issued as PIK Notes).
Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01, (i) 100% of the aggregate principal amount of such Notes, plus (ii) accrued and unpaid interest at the full amount of Stated Interest (including the cash and PIK Interest components thereof) to, but excluding, the Redemption Date (unless the Redemption Date falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case the Company shall instead pay, on such Interest Payment Date, to the Holders of record of such Notes to be redeemed as of the close of business on such Interest Record Date the full amount of the accrued and unpaid interest at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date) plus (iii) the applicable Redemption Premium on such Notes (including any such Notes previously issued as PIK Notes).
Reference Property” shall have the meaning specified in Section 14.07(a).
Reportable Compliance Event” means any of the Company, the Subsidiary Guarantors or their respective Subsidiaries, or any of their respective officers or directors, (a) becomes a Designated Person (b) is charged by indictment, criminal complaint or similar charging instrument under Anti-Terrorism Laws, Anti-Corruption Laws, Export/Import Controls, or Sanctions; or (c) receives a subpoena or other notification from a Governmental Authority pursuant to the laws, rules and regulations relating to information technology and communication supply chain (including U.S. Executive Order 13873 and 15 C.F.R. Part 7).
Required Holders” means, as of any date of determination, Holders (or, in the case of Lynrock, beneficial owners) of more than 50% of the aggregate outstanding principal amount of the Notes. The Trustee and/or the Collateral Agent shall be entitled to accept a written certification from Lynrock that Lynrock constitutes the Required Holders, together with indemnity and/or security satisfactory to the Trustee and/or the Collateral Agent, and the Trustee and/or Collateral Agent shall be entitled to conclusively rely on such certification in taking any action or inaction requested by Lynrock (in its capacity as Required Holders) permitted by the Indenture Documents to be taken at the direction of the Required Holders, which shall be binding on all Holders to the extent permitted under the Indenture Documents.
Requirements of Law” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case, binding upon such Person or any of its property or to which such Person or any of its property is subject.
Resale Restriction Termination Date” shall have the meaning specified in Section 2.05(c).
Responsible Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter relating to this Indenture is referred because of such person’s
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knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
Restricted Investment” shall have the meaning specified in Section 4.12(a)(iv).
Restricted Payments” shall have the meaning specified in Section 4.12(a).
Restricted Securities” shall have the meaning specified in Section 2.05(d).
Rule 144” means Rule 144 as promulgated under the Securities Act.
Rule 144A” means Rule 144A as promulgated under the Securities Act.
Sale Leaseback Transaction” means any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions the Company or any of its Subsidiaries sells substantially all of its right, title and interest in any property and, in connection therewith, acquires, leases or licenses back the right to use any portion of such property.
Sanction(s)”: any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the United States Government (including those administered by OFAC and the U.S. Department of State and the U.S. Department of Commerce), (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom (including His Majesty’s Treasury), or (e) Canada.
Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
Security Agreement” means that certain U.S. Security and Pledge Agreement, dated as of the Original Issue Date, by and among the Collateral Agent and the Company and the Subsidiary Guarantors party thereto, as amended, restated, modified and/or supplemented in accordance with the provisions hereof.
Security Documents” means the Security Agreement, each control agreement and all other security agreements, pledge agreements, collateral assignments, patent, copyright and trademark security agreements, and other agreements or documents executed and delivered by the Company or any Subsidiary Guarantor creating (or purporting to create) or perfecting or purporting to perfect) a Lien upon Collateral in favor of the Collateral Agent, and all amendments, restatements, modifications or supplements thereof or thereto.
Share Exchange Event” shall have the meaning specified in Section 14.07(a).
Significant Subsidiary” for purposes of Section 6.01(g), 6.01(h), 6.01(i) and 6.01(j), means any Subsidiary of the Company, other than any Immaterial Subsidiary.
Spin-Off” shall have the meaning specified in Section 14.04(c).
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Stated Interest” shall have the meaning specified in Section 2.03(c).
Stated Maturity” means June 15, 2029.
Stock Adjustment Event” shall have the meaning specified in Section 14.01(b).
Stock Price” shall have the meaning specified in Section 14.03(c).
Subordinated Indebtedness” means any Indebtedness of the Company or any of its Subsidiaries that is expressly contractually subordinated in right of payment to the Notes Obligations.
Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person. Unless the context otherwise requires, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Company.
Subsidiary Guarantor” means, collectively, each Subsidiary that is not an Excluded Subsidiary that executes this Indenture as a guarantor on the Original Issue Date and each other Subsidiary that incurs a Note Guarantee; provided, that upon the release or discharge of such Person from its Note Guarantee in accordance with the terms of this Indenture, such Subsidiary automatically ceases to be a Subsidiary Guarantor.
Subsidiary Guarantee” means the joint and several guarantee pursuant to Article 12 hereof by a Subsidiary Guarantor of the Notes Obligations.
Successor Company” shall have the meaning specified in Section 11.01(a).
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. For the avoidance of doubt, none of the Company’s equity securities that are issued or distributed pursuant to any of the Company’s equity incentive plans shall be considered a Swap Contract.
Trading Day” means a day on which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on The Nasdaq Global Select Market or, if the Common Stock (or such other security) is not then listed on The Nasdaq Global Select Market, on
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the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market; provided, that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day; and provided, further, that for purposes of determining amounts due upon conversion only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The Nasdaq Global Select Market or, if the Common Stock is not then listed on The Nasdaq Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.
Trading Price” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $2,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects for this purpose; provided, that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, then that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid for $2,000,000 principal amount of Notes from a nationally recognized securities dealer on any determination date, then the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Day divided by (ii) 1,000 times (y) the Conversion Rate.
transfer” shall have the meaning specified in Section 2.05(c).
Trigger Event” shall have the meaning specified in Section 14.04(c).
Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
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 the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.
Uniform Commercial Code” or “UCC”: the Uniform Commercial Code (or any similar or equivalent legislation) as in effect from time to time in the State of New York, or as the context may require, any other applicable jurisdiction.
unit of Reference Property” shall have the meaning specified in Section 14.07(a).
Valuation Period” shall have the meaning specified in Section 14.04(c).
Warrants” shall have the meaning specified in Section 14.04(j).
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Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.
Section 1.02    Rules of Construction.
For purposes of this Indenture:
(a)    “or” is not exclusive;
(b)    “including” means “including without limitation”;
(c)    “will” expresses a command;
(d)    the “average” of a set of numerical values refers to the arithmetic average of such numerical values;
(e)    words in the singular include the plural and in the plural include the singular, unless the context requires otherwise;
(f)    “herein,” “hereof,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision of this Indenture, unless the context requires otherwise;
(g)    references to currency mean the lawful currency of the United States of America, unless the context requires otherwise;
(h)    references to “principal amount” of Notes include the principal amount of any PIK Notes issued as a PIK Payment (whether by increase of the principal amount of Global Notes or by issuance of new Physical Notes to Holders of Physical Notes); and, for avoidance of doubt, the aggregate principal amount of all the Notes at any time shall include not only the aggregate principal amount of all Notes then outstanding issued as Initial Notes pursuant to Section 2.01(a) or as Additional Notes issued pursuant to Section 2.10 but also the aggregate principal amount of all Notes then outstanding issued as PIK Notes pursuant to Section 2.11.
(i)    the exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture;
(j)    the term “interest”, when used with respect to a Note, includes any Additional Interest, unless the context requires otherwise;
(k)    unless otherwise provided in this Indenture or in any Note, the words “execute,” “execution,” “signed” and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures, which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state laws based on the Uniform Electronic Transactions Act. All notices, approvals, consents, requests and any communications hereunder must be in writing, (provided,
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that any communication sent to the Trustee hereunder that is required to be signed must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative), in English. The Company agrees to assume all risks arising out of the use of digital signatures and electronic methods to submit this Indenture or any document to be signed in connection with this Indenture to the Trustee or the Collateral Agent, including without limitation the risk of the Trustee or the Collateral Agent acting on unauthorized instructions, and the risk of interception and misuse by third parties;
(l)    except to the extent specifically and explicitly provided for, the Trust Indenture Act shall not apply to this Indenture;
(m)    the term “to, but excluding,” when used with respect to establishing the accrual of interest from a first date to, but excluding, a last date, means the number of days for which interest is computed and includes the first date but excludes the last date; as an example and for the avoidance of doubt, interest accrued from May 1 to, but excluding, May 5 comprises 4 days of interest; and
(n)    any terms (whether capitalized or lower case) used in this Indenture that are defined in the UCC (including, without limitation, Account, Account Debtor, Chattel Paper, Commercial Tort Claims, Commodities Account, Deposit Account, Drafts, Documents, Equipment, Farm Products, Fixtures, General Intangibles, Inventory, Instruments, Letters of Credit, Letter-of-Credit Rights, Promissory Notes, Proceeds, Securities Account and Supporting Obligations) shall be construed and defined as set forth in the UCC unless otherwise defined herein or in the Security Documents; provided, that to the extent that the UCC is used to define any term used herein and if such term is defined differently in different Articles of the UCC, the definition of such term contained in Article 9 of the UCC shall govern.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01    Designation and Amount; Maturity Date.
(a)    The Notes shall be designated as the “First Lien Convertible Senior Notes due 2029.” The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to $150,000,000, subject to the issuance of (i) Additional Notes in an aggregate principal amount of up to $50,000,000 in accordance with Section 2.10; (ii) PIK Notes issuable from time to time on each Interest Payment Date in connection with the PIK Payment required to be made on such Interest Payment Date in accordance with Section 2.11; and (iii) Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder (such Notes referred to in this clause (iii), “Replacement Notes”). For the avoidance of doubt, the Company may not supplement or amend this Indenture to issue additional notes except solely as provided in clauses (i), (ii) and (iii) of the second sentence of this Section 2.01(a).
(b)    The aggregate principal amount of all outstanding Notes together with all accrued and unpaid interest thereon (including both the cash interest and PIK Interest portions thereof) and, if the Maturity Date is the Existing Notes Test Date, the Existing Notes Test Maturity Premium, shall become due and payable on the Maturity Date.
Section 2.02    Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this
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Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and a Note or any other Indenture Document, the provisions of this Indenture shall control and govern to the extent of such conflict (for the avoidance of doubt, the foregoing shall not limit or modify the determination of a breach of the Exchange Agreement in accordance with the terms therein).
Any Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Notes are subject.
Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be increased or reduced to reflect issuances of Additional Notes or PIK Notes, redemptions, repurchases, cancellations, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, and any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for herein. With respect to any PIK Interest payable on any Interest Payment Date, any reference in this Indenture to the execution, authentication or delivery of Notes shall be deemed to refer to and include increasing the principal amount of any then outstanding Global Note in payment of such PIK Interest pursuant to Section 2.11. With respect to any PIK Payment on any Global Note, except to the extent otherwise provided in a Company Order delivered to the Trustee as provided under Section 2.11, the Trustee shall increase the principal amount of such Global Note by an amount equal to the interest payable thereon as PIK Interest, rounded up to the nearest whole dollar, on the relevant Interest Payment Date on the principal amount of such Global Note, and an adjustment shall be made on the books and records of the Trustee with respect to such Global Note to reflect such increase.
Section 2.03    Date and Denomination of Notes; Interest.
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(a)    The Notes shall be issuable in registered form in Authorized Denominations. Each Note shall be dated the date of its authentication and shall accrue interest in the manner specified in Section 2.03(c). Interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.
(b)    The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Interest Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company designated by the Company for such purposes in the continental United States of America, which shall initially be the Corporate Trust Office and (y) in the case of any Global Note, shall be payable by wire transfer in immediately available funds to the account of the Depositary or its nominee. The Company shall pay, or cause the Paying Agent to pay, interest payable in cash (i) on any Physical Notes (A) to Holders holding Physical Notes of an aggregate principal amount of $5,000,000 or less of the Notes, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes of an aggregate principal amount of more than $5,000,000 of the Notes, either by check mailed to each such Holder or, upon application by such a Holder to the Note Registrar (containing the requisite information for the Trustee or Paying Agent to make such wire transfer) not later than the relevant Interest Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States of America, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.
(c)    Each Note will accrue interest (the “Stated Interest”) at a rate per annum (i) from the Original Issue Date until the earlier of (x) the Additional Notes Issue Date and (y) December 15, 2026, equal to 10.83%, consisting of interest payable solely in cash accruing at a rate per annum equal to 4.17% and interest payable solely in the form of PIK Interest accruing at a rate per annum equal to 6.66%; (ii) if any Additional Notes are issued, from the Additional Notes Issue Date to, but excluding, December 15, 2026, equal to 11.375%, consisting of interest payable solely in cash accruing at a rate per annum equal to 4.375% and interest payable solely in the form of PIK Interest accruing at a rate per annum equal to 7.00%, and (iii) on and after December 15, 2026, equal to 13.00%, consisting of interest payable solely in cash accruing at a rate per annum equal to 5.00% and interest payable solely in the form of PIK Interest accruing at a rate per annum equal to 8.00%, plus, in each case, any Additional Interest. Stated Interest on each Note will accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest and be, subject to any provision herein expressly providing for payment of interest on any date other than an Interest Payment Date (and without duplication of any payment of interest), payable semiannually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in such Note, to the Holder of such Note as of the close of business on the immediately preceding Interest Record Date. Any references in this Indenture to accrued interest and unpaid on or in respect of any Note shall be deemed to refer to both the cash interest and PIK Interest portions of such interest that has accrued and that has not been paid.
(d)    Notwithstanding any other provision hereof, any accrued but unpaid interest otherwise payable in the form of PIK Interest (i) on any Acceleration Date, Redemption Date, Fundamental Change Repurchase Date, Asset Sale Offer Repurchase Date or Maturity Date; (ii) if any
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Notes mature or are repurchased or redeemed, as applicable, on an Asset Sale Offer Repurchase Date, Existing Notes Test Maturity Date, Fundamental Change Repurchase Date or Redemption Date that falls after an Interest Record Date but on or prior to the immediately succeeding Interest Payment Date, on such immediately succeeding Interest Payment Date in accordance with the proviso to Section 4.13(b)(i), the proviso to Section 15.01(a), the proviso to Section 15.02(a) or the third sentence of Section 16.03(a), as applicable; or (iii) upon an exercise of remedies upon an Event of Default or otherwise pursuant to Section 6.04, Section 6.05, Section 6.06, Section 6.09, Section 6.10 or Section 6.11 shall, in any such case, accrue at the rate specified in Section 2.03(c) for PIK Interest but be payable solely in cash.
(e)    Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but such Defaulted Amounts shall accrue interest per annum at a rate equal to the rate per annum at which Stated Interest accrues (including both the cash interest and PIK Interest portions thereof), subject to the enforceability thereof under applicable law, from, and including, such relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, and such Defaulted Amounts together with any such interest thereon shall be paid solely in cash by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i)    The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder at its address as it appears in the Note Register, or by electronic means to the Depositary in the case of Global Notes, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(e). The Trustee shall have no responsibility whatsoever for the calculation of the Defaulted Amounts.
(ii)    The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required by such exchange or automated quotation system, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
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(f)    On each Interest Payment Date, upon the Trustee’s receipt of a Company Order in accordance with Section 2.04, there will be originally issued such aggregate principal amount of PIK Notes as is required for issuance in connection with the PIK Payment required to be made on such Interest Payment Date.
Section 2.04    Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual, facsimile or other electronic signature of any of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.
At any time and from time to time after the execution and delivery of this Indenture, subject to Section 2.01(a), 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, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder; provided, that the Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel of the Company with respect to the issuance, authentication and delivery of such Notes.
Only such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.09), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the date of the execution of this Indenture any such Person was not such an Officer.
Section 2.05    Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.
(a)    The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
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transferee or transferees, one or more new Notes of any Authorized Denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any Authorized Denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or other similar governmental charge required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer or otherwise required by law.
None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or (iii) any Notes selected for redemption in accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.
All Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b)    So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary. Each Global Note shall bear the legend required on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and the Applicable Procedures therefor.
(c)    Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including those contained in the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company, and
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the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security.
Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the last Issue Date of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):
THIS SECURITY AND THE RELATED NOTE GUARANTEES 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:
(A)    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
(B)    AGREES FOR THE BENEFIT OF LIVEPERSON, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR THE RELATED NOTE GUARANTEES OR ANY BENEFICIAL INTEREST HEREIN OR THEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ISSUE DATE OF THE SERIES OF NOTES OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
i.    TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
ii.    PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR
iii.    TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR
iv.    PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(B)(iv) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS
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MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.
Any Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes has been declared effective under the Securities Act. Any exchange pursuant to the foregoing paragraph shall be in accordance with the Applicable Procedures.
Notwithstanding any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.
The Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Custodian.
If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and, subject to the Applicable Procedures, a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate, an Opinion of Counsel and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii),
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Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as all interests in a Global Note have been converted, canceled, redeemed, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance with its customary procedures. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, redeemed, repurchased or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
None of the Company, the Trustee (including in its capacity as Paying Agent) or any agent of the Company or the Trustee shall have any responsibility or liability for the payment of amounts to owners of beneficial interest in a Global Note, for any aspect of the records relating to or payments made on account of those interests by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such beneficial ownership interests.
(d)    [Reserved].
(e)    Any Note issued upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not be resold by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.
(f)    The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any securities laws or 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.
(g)    Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary, and may assume performance absent written notice to the contrary.
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Section 2.06    Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or other similar governmental charge required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase or for redemption or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent of the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, redemption, conversion or repurchase of negotiable instruments or other securities without their surrender.
Section 2.07    Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any Authorized Denomination, and substantially in the form of the Physical Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially
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the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.
Section 2.08    Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for payment, repurchase, redemption, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates), to be delivered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it in accordance with its customary procedures, and no Notes shall be authenticated in exchange therefor except for Notes surrendered for registration of transfer or exchange. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate of such disposition to the Company upon the Company’s written request.
Section 2.09    CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
Section 2.10    Additional Notes; Repurchases. Subject to the terms and conditions of the Exchange Agreement, the Company may, without the consent of or notice to the Holders and notwithstanding Section 2.01(a), reopen this Indenture to issue Additional Notes hereunder solely to satisfy the Company’s obligations in relation to the Delayed Draw Purchase. Any Additional Notes issued shall have the same terms as the Notes initially issued hereunder (other than differences in the issue date, the issue price, and, if applicable, restrictions on transfer in respect of such Additional Notes (including pursuant to Section 2.05 hereunder)); provided, that if any such Additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal securities law or income tax purposes, such Additional Notes shall have one or more separate CUSIP numbers. The Initial Notes, any Additional Notes and any PIK Notes (and any Replacement Notes in respect thereof) shall be treated as a single series for all purposes under this Indenture, including directions, waivers, amendments, consents, liquidating distributions and offers to purchase, and none of the Holders of any Initial Notes, any Additional Notes or any PIK Notes (and any Replacement Notes in respect thereof) shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent.  Prior to the issuance of any such Additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters required by Section 17.05. In addition, subject to the Exchange Agreement, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives, in each case, without prior written notice to Holders. The Company shall cause any Notes so repurchased to be surrendered to the Trustee for
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cancellation in accordance with Section 2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.
Section 2.11    Issuance of PIK Notes.
(a)    In connection with any payment of the portion of Stated Interest in respect of the Notes that the Company is required pursuant to Section 2.03(c) to effect payment in the form of PIK Interest, the Company shall, without the consent of the Holders of the Notes, make such payment of PIK Interest by increasing the principal amount of the Global Notes to reflect such PIK Interest payable on such Global Notes or by issuing additional Physical Notes to Holders of Physical Notes to reflect such PIK Interest payable on such Physical Notes (the Notes represented by the increase to the principal amount of Global Notes or by such additional Physical Notes, as applicable, the “PIK Notes”) under this Indenture on the same terms and conditions as the Notes (in each case, a “PIK Payment”); and upon any PIK Payment being so effected, such portion of Stated Interest shall be deemed to have been paid in full; provided, that any such amount of PIK Interest shall be rounded up to the nearest $1.00; provided, further, that in the case of any PIK Payment on a Global Note, the Company shall deliver a Company Order to the Trustee and the Trustee shall, upon receipt of such a Company Order, increase the principal amount of such Global Note by such PIK Payment. The Initial Notes, any Additional Notes and any PIK Notes (and any Replacement Notes in respect thereof) shall be treated as a single class for all purposes under this Indenture, including directions, waivers, amendments, consents, liquidating distributions and offers to purchase, and none of the Holders of any Initial Notes, any Additional Notes or any PIK Notes (and any Replacement Notes in respect thereof) shall have the right to vote or consent as a separate class on any matter to which such Holders are entitled to vote or consent. Any PIK Payment made with respect to an unrestricted Note shall be in the form of (i) with respect to owners of beneficial interests in an unrestricted Global Note, an increase of the principal amount of such unrestricted Global Note or (ii) with respect to Holders of unrestricted Physical Notes, by issuance of new unrestricted Physical Notes. Following an increase in the principal amount of the outstanding Global Notes as a result of a PIK Payment, the Global Notes shall bear interest on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued as Physical Notes shall be dated as of the applicable Interest Payment Date and shall bear interest from and after such date. All PIK Notes issued pursuant to a PIK Payment shall be governed by, and subject to the terms, provisions and conditions of, this Indenture and shall have the same rights and benefits as the Notes issued on the Original Issue Date.
(b)    With respect to any PIK Notes to be authenticated by the Trustee (including by increasing the principal amount of any Global Notes), the Company shall set forth in a Company Order, a copy of which shall be delivered to the Trustee at or prior to original issuance thereof, the following information:
(i)    the aggregate principal amount of such PIK Notes to be authenticated and delivered pursuant to this Indenture;
(ii)    the issue date (and the corresponding date from which interest shall accrue thereon and the first Interest Payment Date therefor), the CUSIP and/or ISIN number of such PIK Notes;
(iii)     whether such PIK Notes shall be subject to the restrictions on transfer set forth herein relating to restricted Global Notes and restricted Physical Notes; and
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(iv)    (a) the principal amount of such PIK Notes to be issued by increasing the principal amount of the outstanding Global Notes held in book-entry form and (b) the principal amount of such PIK Notes to be issued by issuing new Physical Notes.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01    Satisfaction and Discharge. This Indenture, the Notes and the other Indenture Documents shall upon request of the Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee and the Collateral Agent, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture, the Notes and each other Indenture Document, when (a) (i) all Notes theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06 and (y) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.04(d)) have been delivered to the Trustee for cancellation; or (ii) the Company has irrevocably deposited with the Trustee, after all of the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date or any Asset Sale Offer Repurchase Date or otherwise, cash in an amount sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture or the Notes and the other Indenture Documents by the Company; and (b) the Company has delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture and the Notes have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee and the Collateral Agent under Section 7.06 shall survive.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01    Payment of Principal, Interest and Notes Premium. The Company covenants and agrees that it will cause to be paid the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, and any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes. All amounts payable by the Company or any Subsidiary Guarantor under the Notes, this Indenture or any other Indenture Document (other than solely any portion of Stated Interest payable in the form of PIK Interest pursuant to Section 2.03 and Section 2.11 (except as otherwise provided in Section 2.03(d))) shall be paid solely in cash in U.S. dollars.
Section 4.02    Maintenance of Office or Agency. The Company will maintain in the continental United States of America an office or agency where the Notes may be presented for registration of transfer or exchange or for payment, redemption or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company 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
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in the continental United States of America as a place where Notes may be presented for payment or for registration of transfer.
The Company may also from time to time designate as co-Note 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 of America so designated by the Trustee as a place 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, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in the continental United States of America where Notes may be presented for registration of transfer or exchange or for payment, redemption or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served; provided, that the Corporate Trust Office shall not be a place for service of legal process on the Company.
Section 4.03    Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.04    Provisions as to Paying Agent.
(a)    If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:
(i)    that it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, and any accrued and unpaid interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, 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 (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, and any accrued and unpaid interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, 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 (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, or any accrued and unpaid cash interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) or any such accrued and unpaid cash interest and any applicable Notes
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Premium (to the extent not duplicative of the foregoing), 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 (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, and any accrued and unpaid cash interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, 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 (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) and such accrued and unpaid cash interest, if any, and any applicable Notes Premium (to the extent not duplicative of the foregoing) 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 (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, or any accrued and unpaid interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, the Notes when the same shall become due and payable.
(c)    Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d)    Subject to applicable law, any money deposited with the Trustee, the Conversion Agent or any Paying Agent, or then held by the Company, in trust for the payment of the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, any accrued and unpaid interest on and any applicable Notes Premium (to the extent not duplicative of the foregoing) and remaining unclaimed for two years after such principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable), any accrued and unpaid interest and any applicable Notes Premium (to the extent not duplicative of the foregoing) has become due and payable shall be paid to the Company on 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, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee, the Conversion Agent or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. Upon any Event of Default pursuant to Section 6.01(i) or 6.01(j), the Trustee shall automatically be the Paying Agent, if the Trustee is not the Paying Agent at such time.
Section 4.05    Existence. Subject to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.06    Rule 144A Information Requirement and Annual Reports.
(a)    At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes at such time constitute “restricted securities” within
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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 the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes pursuant to Rule 144A.
(b)    The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission (giving effect to all applicable grace periods under the Exchange Act or otherwise permitted by the Commission), copies of any documents or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor thereto) shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system (or any successor thereto), it being understood that the Trustee shall not be responsible for determining whether such filings have been made.
(c)    Delivery of the reports, information and documents described in subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
(d)    If, at any time during the six-month period beginning on, and including, the date that is six months after the Original Issue Date, or if the Delayed Draw Purchase occurs, six months after the Additional Notes Issue Date, the Company fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder or otherwise permitted by the Commission and other than reports on Form 8-K), or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that have been the Company’s Affiliates at any time during the three months immediately preceding (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall accrue on the Notes at the rate of 0.25% per annum of the aggregate principal amount of the Notes outstanding for each day during the first 90 days after the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely tradable as described above by Holders other than the Company’s Affiliates (or Holders that have been the Company’s Affiliates at any time during the three months immediately preceding), and 0.50% per annum of the aggregate principal amount of the Notes outstanding for each day during the period from the 91st day after the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that have been the Company’s Affiliates at any time during the three months immediately preceding) as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes. As used in this Section 4.06(d), documents or reports that the Company is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(e)    If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed, the Notes are assigned a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders that have been the Company’s Affiliates at any time during the three months immediately preceding (as a
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result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes) from and after the 380th calendar day after the Original Issue Date, or if the Delayed Draw Purchase occurs, six months after the Additional Notes Issue Date, the Company shall pay Additional Interest on such Notes at a rate equal to 0.25% per annum of the aggregate principal amount of Notes outstanding for each day during the first 90 calendar days, and 0.50% per annum of the aggregate principal amount of the Notes outstanding thereafter, in each case, until the restrictive legend on the Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP number and the Notes are freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that have been the Company’s Affiliates at any time during the three months immediately preceding) (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes).
(f)    Additional Interest will be payable in arrears on each Interest Payment Date following accrual on the Notes in the same manner as the cash portion of Stated Interest.
(g)    [Reserved].
(h)    If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable and the Trustee shall not have any duty to verify the Company’s calculation of Additional Interest. 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.
Section 4.07    Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or any interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 4.08    Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2024) an Officer’s Certificate stating whether the signers thereof know of any Default or Event of Default that occurred during the previous year and, if so, specifying each such Default or Event of Default and the nature thereof.
Section 4.09    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 and the other Indenture Documents.
Section 4.10    Limitation on Incurrence of Additional Indebtedness.
(a)    The Company shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, enter into a guarantee of or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the
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Company shall not permit any of its Subsidiaries to issue any preferred stock or preferred interests. Notwithstanding anything to the contrary herein, the foregoing covenant will not prohibit the Company or its Subsidiaries from incurring Permitted Indebtedness. For purposes of determining compliance with this Section 4.10, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness, the Company will be permitted to classify all or a portion of such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness (based on circumstances existing on the date of reclassification), in any manner that complies with this covenant.
(b)    The accrual of interest, the accrual of dividends, the accretion or amortization of original issue discount, the amortization of debt discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, the reclassification of operating leases as Capital Leases due to a change in accounting principles and the payment of dividends on Redeemable Equity or preferred stock or preferred interests in the form of additional shares of the same class of Redeemable Equity will not be deemed to be an incurrence of Indebtedness for purposes of this covenant. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred (or, in the case of revolving Indebtedness, on the date such Indebtedness was first committed); provided, that if any such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any of its Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(c)    The amount of any Indebtedness outstanding as of any date will be:
(i)    [reserved];
(ii)    the amount of Redeemable Equity or preferred stock or preferred interests deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company or its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Redeemable Equity or preferred stock or preferred interests, exclusive of accrued dividends;
(iii)    the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(iv)    in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A)    the Fair Market Value of such assets at the date of determination; and
(B)    the amount of the Indebtedness of the other Person.
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Section 4.11    Limitation on Liens. The Company shall not, nor shall it permit any of its Subsidiaries to create, assume or suffer to exist any Lien to secure Indebtedness or otherwise on any asset now owned or hereafter acquired by the Company or any of its Subsidiaries except for Permitted Liens.
Section 4.12    Limitation on Restricted Payments.
(a)    The Company shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly:
(i)    declare or pay any dividend or make any other payment or distribution on or in respect of the Company’s or any of its Subsidiary’s Capital Stock (excluding payments in lieu of the issuance of fractional shares in connection with a reverse share split or any such payment in connection with any merger or consolidation involving the acquisition by the Company or any of its Subsidiaries of any Person), except dividends or distributions (x) payable solely in Capital Stock (other than Redeemable Equity, except to the extent permitted under Section 4.10) or the proceeds thereof of the Company or any such Subsidiary or (y) payable solely to the Company or any of its Subsidiaries (or, if such Subsidiary is not a Wholly Owned Subsidiary, to its other Capital Stock holders on a pro rata basis with respect to the class of Capital Stock on which such dividend or distribution is made, or on a basis that results in the receipt by the Company or any of its Subsidiaries of dividends or distributions of greater value than it would receive on a pro rata basis);
(ii)    purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any of the Company’s Capital Stock;
(iii)    make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Junior Indebtedness of the Company or any Subsidiary, except a payment of principal at the stated maturity thereof (or as otherwise expressly permitted hereby and by the applicable intercreditor or subordination agreement); or
(iv)    make any Investment other than a Permitted Investment (a Restricted Investment)
(all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”).
(b)    Notwithstanding anything to the contrary therein, this covenant will not prohibit:
(i)    Restricted Payments from any Subsidiary to the Company or any Subsidiary Guarantor;
(ii)    any repurchase, exchange or other retirement of the Existing Notes (including the making of cash payments in connection therewith or exchanging the Existing Notes for Permitted Indebtedness of the type described in clause (b) of the definition thereof) in accordance with the terms and conditions of the Exchange Agreement, subject to compliance with Section 4.24 (on a pro forma basis for such cash payment);
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(iii)    if applicable, payments in amounts sufficient to make, any “AHYDO catch-up payment” with respect to any Indebtedness of the Company or any of its Subsidiaries permitted to be incurred under this Indenture; and
(iv)    the payment of cash in satisfaction of the Company's obligations under the warrants issued on the Original Issue Date to the Designated Holder as the same may be transferred from time to time, to the extent such payment would otherwise constitute a Restricted Payment.
Notwithstanding anything to the contrary herein or in any other Indenture Document, (I) no Subsidiary that is not a Subsidiary Guarantor may own or hold an exclusive license to any intellectual property that is material to the business of the Company and its Subsidiaries, taken as a whole, and (II) the Company and the Subsidiary Guarantors shall not sell, dispose of or otherwise transfer to any Subsidiary that is not a Subsidiary Guarantor any assets (including intellectual property) that are material to the business of the Company and its Subsidiaries, taken as a whole.
Section 4.13    Limitation on Asset Sales.
(a)    The Company shall not, nor shall it permit any of its Subsidiaries to, consummate an Asset Sale unless:
(i)    the Company (or its Subsidiaries, as the case may be) receive consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Capital Stock issued or sold or otherwise disposed of; and
(ii)    85% of the consideration received in the Asset Sale by the Company or its Subsidiaries is in the form of cash or Cash Equivalents.
(b)    Asset Sale Offer.
(i)    Notwithstanding anything to the contrary in this Indenture, at any time when the Company and its Subsidiaries receive Net Proceeds in connection with an Asset Sale (other than the Asset Sales identified in the Exchange Agreement and other non-ordinary course Asset Sales for which the Company and its Subsidiaries receive Net Proceeds in an aggregate amount not in excess of $1,000,000 during the term of this Indenture) (such event, an “Asset Sale Trigger”), the Company will make an offer (an “Asset Sale Offer”) to all Holders to repurchase Notes for an amount of cash equal to 100% of such Net Proceeds (excluding, for the avoidance of doubt, any Net Proceeds previously applied to the repurchase of any Notes pursuant to any preceding Asset Sale Offer) (the “Asset Sale Offer Consideration Amount”), on the date (the “Asset Sale Offer Repurchase Date”) specified by the Company that is not less than 20 days or more than 35 days following the date of such Asset Sale Trigger, at a repurchase price per Note equal to 100% of the principal amount thereof, plus the Asset Sale Offer Repurchase Premium, plus accrued and unpaid interest at the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) thereon to, but excluding, the Asset Sale Offer Repurchase Date (the “Asset Sale Offer Repurchase Price”), provided, however, that, if the Asset Sale Offer Repurchase Date falls after a Record Date but on or prior to the Interest Payment Date to which such Record Date relates, then (i) the Company shall instead pay, on such Interest Payment Date, to the Holder of record of such Note as of the close of business on such Record Date the full amount of accrued and unpaid interest (including both the cash interest and PIK
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Interest portions thereof) that would have accrued on such Notes to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment Date); and (ii) the Holder of such Note on the Asset Sale Offer Repurchase Date will be entitled to receive on such Asset Sale Offer Repurchase Date an amount in cash equal to the aggregate principal amount of such Note to be repurchased pursuant to this Section 4.13(b) plus the Asset Sale Offer Repurchase Premium. The Asset Sale Offer Repurchase Date shall be subject to postponement in order to allow the Company to comply with applicable law.
(ii)    To the extent that the aggregate Asset Sale Offer Repurchase Price of Notes tendered and accepted pursuant to an Asset Sale Offer is less than the Net Proceeds (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use the Net Proceeds Deficiency, or a portion thereof, for general corporate purposes, but only after tendering any declined amounts to the remaining Holders.
(iii)    Repurchases of Notes under this Section 4.13(b) shall be made, at the option of the Holder thereof, upon:
(A)    delivery to the Paying Agent by a Holder of a duly completed notice (the “Asset Sale Offer Repurchase Notice”) in the form of the Form of Asset Sale Offer Repurchase Notice, if the Notes are Physical Notes, or in compliance with the Applicable Procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or before the close of business on the Business Day immediately preceding the Asset Sale Offer Repurchase Date; and
(B)    delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Asset Sale Offer Repurchase Notice (together with all necessary endorsements for transfer) at the office of the Paying Agent, or book- entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt by the Holder of the Asset Sale Offer Repurchase Price therefor;
provided, that, with respect to any Asset Sale Offer, if Holders opt to tender (for repurchase pursuant to this Section 4.13(b)) Notes, the Asset Sale Offer Repurchase Price of which would in the aggregate exceed the Asset Sale Offer Consideration Amount, then the aggregate principal amount of Notes to be repurchased shall be limited to an aggregate principal amount of Notes for which the Asset Sale Offer Repurchase Price does not exceed the Asset Sale Offer Consideration Amount. If fewer than all tendered Notes are to be repurchased pursuant to the preceding sentence and (x) the Notes to be repurchased are Global Notes, the Notes to be repurchased shall be selected by the Company on a pro rata basis in accordance with the Applicable Procedures of the Depositary, or (y) the Notes to be repurchased are not Global Notes, the Company shall select the Notes or portions thereof of a Global Note or the Notes in certificated form to be repurchased in Authorized Denominations on a pro rata basis (subject to adjustment to maintain the Authorized Denominations of the Notes). If any Note selected for partial repurchase is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for repurchase.
The Asset Sale Offer Repurchase Notice in respect of any Notes to be repurchased shall state:
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(A)    in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(B)    the portion of the principal amount of Notes to be repurchased, which must be in Authorized Denominations; and
(C)    that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided, however, that if the Notes are Global Notes, the Asset Sale Offer Repurchase Notice must comply with the Applicable Procedures.
Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Asset Sale Offer Repurchase Notice contemplated by this Section 4.13(b) shall have the right to withdraw, in whole or in part, such Asset Sale Offer Repurchase Notice at any time prior to the close of business on the Business Day immediately preceding the Asset Sale Offer Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 4.13(b)(vii).
The Paying Agent shall promptly notify the Company of the receipt by it of any Asset Sale Offer Repurchase Notice or written notice of withdrawal thereof.
(iv)    On or before the 20th day after the occurrence of the effective date of an Asset Sale Trigger, the Company shall provide to all Holders of Notes, the Trustee, the Conversion Agent (if other than the Trustee) and the Paying Agent (in the case of a paying agent other than the Trustee) a written notice (the “Asset Sale Offer Company Notice”) of the occurrence of the effective date of the Asset Sale Trigger and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the Applicable Procedures of the Depositary. Each Asset Sale Offer Company Notice shall specify:
(A)    a brief description of the Asset Sale Trigger;
(B)    the effective date of the Asset Sale Trigger;
(C)    the last date on which a Holder may exercise the repurchase right pursuant to this Section 4.13(b);
(D)    the Asset Sale Offer Consideration Amount;
(E)    the Asset Sale Offer Repurchase Price;
(F)    the Asset Sale Offer Repurchase Date;
(G)    the name and address of the Paying Agent and the Conversion Agent, if applicable;
(H)    the Conversion Rate;
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(I)    that the Notes with respect to which an Asset Sale Offer Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Asset Sale Offer Repurchase Notice and validly delivers a Notice of Conversion, each in accordance with the terms of this Indenture;
(J)    the “Conversion Amount” on the Scheduled Trading Day prior to the Asset Sale Offer Repurchase Date applicable to each $1,000 principal amount of a Note; and the procedures a converting Holder must follow to convert its Notes;
(K)    the place or places where such Notes are to be surrendered for payment of the principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and the Asset Sale Offer Repurchase Premium on the Notes; and
(L)    the procedures that Holders must follow to require the Company to repurchase their Notes.
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 this Section 4.13(b). Simultaneously with providing such notice, the Company will publish such information on its website or through such other public medium as the Company may use at that time.
At the Company’s written request, given at least five days prior to the date the Asset Sale Offer Company Notice is to be sent (or such shorter period as agreed by the Paying Agent), the Paying Agent shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of such Asset Sale Offer Company Notice shall be prepared by the Company.
(v)    Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders in connection with an Asset Sale Offer if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Asset Sale Offer Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Asset Sale Offer Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Asset Sale Offer Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(vi)    For purposes of this Section 4.13(b), the Paying Agent may be any agent, depositary, tender agent, Paying Agent or other agent appointed by the Company to accomplish the purposes set forth herein.
(vii)    An Asset Sale Offer Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the office of the Paying Agent in accordance with this Section 4.13(b)(vii) at any time prior to the close of business on the Business Day immediately preceding the Asset Sale Offer Repurchase Date, specifying:
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(A)    the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be in an Authorized Denominations,
(B)    if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and
(C)    the principal amount, if any, of such Note that remains subject to the original Asset Sale Offer Repurchase Notice, which portion must be in Authorized Denominations;
provided, however, that if the Notes are Global Notes, the notice of withdrawal must comply with appropriate procedures of the Depositary.

(viii)    The Company will deposit with the Trustee (or other Paying Agent appointed by the Company), or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04 on or prior to 11:00 a.m., New York City time, on the Asset Sale Offer Repurchase Date (subject to extension in order to allow the Company to comply with applicable law) an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate Asset Sale Offer Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn prior to the close of business on the Business Day immediately preceding the Asset Sale Offer Repurchase Date) will be made on the later of (i) the Asset Sale Offer Repurchase Date (provided the Holder has satisfied the conditions of this Section 4.13(b)) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 4.13(b) by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the amount necessary to repurchase all of the Notes to be repurchased at the appropriate Asset Sale Offer Repurchase Price.
(ix)    If by 11:00 a.m. New York City time, on the Asset Sale Offer Repurchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Asset Sale Offer Repurchase Date, or, if extended in order to allow the Company to comply with applicable law, such later date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn in accordance with the provisions of this Indenture and the Applicable Procedures of the Depositary, (i) such Notes will cease to be outstanding, (ii) except in the circumstances specified in the proviso to Section 4.13(b)(i), interest will cease to accrue on such Notes on the Asset Sale Offer Repurchase Date or, if extended in order to allow the Company to comply with applicable law, such later date (whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes with respect to the Notes will terminate on the Asset Sale Offer Repurchase Date or, if extended in order to allow the Company to comply with applicable law, such later date (other than the right to receive (x) the Asset Sale Offer Repurchase Price and (y) to the extent not included in the Asset Sale
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Offer Repurchase Price as specified in the proviso to Section 4.13(b)(i), accrued and unpaid interest, if applicable).
(x)    Upon surrender of a Physical Note that is to be repurchased in part pursuant to this Section 4.13(b), the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Physical Note in Authorized Denominations equal in principal amount to the unrepurchased portion of the Physical Note surrendered.
(xi)    In connection with any repurchase offer upon an Asset Sale Trigger pursuant to this Section 4.13(b), the Company will, if required:
(A)    comply with the provisions of any tender offer rules under the Exchange Act that may then be applicable;
(B)    file a Schedule TO or any other required schedule under the Exchange Act; and
(C)    otherwise comply in all material respects with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
in each case, so as to permit the rights and obligations under this Section 4.13(b) to be exercised in the time and in the manner specified in this Section 4.13(b) subject to postponement in order to allow the Company to comply with applicable law. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture relating to the Company’s obligations to purchase the Notes upon an Asset Sale Trigger, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions of this Indenture by virtue of such conflict.
Section 4.14    Transactions with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into any transaction, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate unless such transaction is (a) otherwise permitted under this Indenture, (b) in the ordinary course of business of the Company or the relevant Subsidiary and consistent with past practice, (c) upon fair and reasonable terms no less favorable to the Company or the relevant Subsidiary than it would obtain in a comparable arm’s length transaction with a Person that is not an Affiliate; provided, that solely with respect to this clause (c), (i) with respect to any such transaction or series of related transactions involving aggregate payments or consideration in excess of $250,000, the Company shall deliver to the Trustee a Board Resolution, and (ii) with respect to any such transaction or series of transactions involving aggregate payments or consideration in excess of $500,000, the Company shall deliver to the Trustee an opinion issued by an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction is, or series of related transactions are, fair to the Company or its relevant Subsidiary from a financial point of view or (d) any transaction between or among the Issuer and/or one or more Subsidiary Guarantors.
Section 4.15    Further Assurances.
(a)    The Company will complete, or cause to be completed, the post-closing requirements set forth on Schedule 4.15.
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(b)    Promptly following (and in any event, within the applicable time periods specified by any Security Document) the Company’s or any Subsidiary Guarantor’s acquisition of any assets or property (other than Excluded Property) after the date hereof, which in each case constitutes Collateral (“After-Acquired Collateral”), the Company shall, and shall cause each such Subsidiary Guarantor to, execute and deliver such security instruments and deliver such financing statements as shall be reasonably necessary to vest in the Collateral Agent a perfected security interest in such After-Acquired Collateral and to have such After-Acquired Collateral added to the Collateral, in each case to the extent required by and subject to the limitations under this Indenture and the Security Documents and subject to limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Collateral to the same extent and with the same force and effect.
(c)    The Company shall, and shall cause each Subsidiary Guarantor to, at its own cost and expense, execute any and all further Security Documents, agreements and instruments and take all further action that may be required under applicable law, or that the Collateral Agent at the direction of the Required Holders may reasonably request (including without limitation, the delivery of Officer’s Certificates and Opinions of Counsel), 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 Security Documents, in each case, subject to the limitations set forth in this Indenture and the Security Documents and subject to limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries. The Company shall, and shall cause each Subsidiary Guarantor to, take all actions necessary to ensure the recordation of appropriate evidence of the Liens and security interests granted hereunder and/or under the Security Documents in the Company’s intellectual property with the United States Patent and Trademark Office and the United States Copyright Office, file financing statements in the appropriate jurisdictions and take such other actions as appropriate to record and perfect the Liens and security interests granted under the Security Documents, in each case subject to the limitations on required perfection actions set out in this Indenture and the Security Documents and subject to limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries. Such security interests and Liens will be created under the Security Documents and other security agreements and other instruments and documents.
Section 4.16    Additional Subsidiary Guarantors.
(a)    Subject to guarantee limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries on and after the date hereof, the Company will cause each of the Company’s Subsidiaries that is not an Excluded Subsidiary to promptly (but in any event within (i) thirty (30) calendar days (or such later date as may be agreed by the Required Holders in their reasonable discretion) in the case of a Domestic Subsidiary and (ii) seventy-five (75) calendar days in the case of a Foreign Subsidiary, in each such case of (x) such Subsidiary that was previously deemed an Excluded Subsidiary ceasing to be an Excluded Subsidiary, or (y) the acquisition or formation of a Subsidiary which is not an Excluded Subsidiary) execute and deliver a supplemental indenture to this Indenture, pursuant to which such Subsidiary will agree to be a Subsidiary Guarantor under this Indenture and be bound by the terms of this Indenture applicable to Subsidiary Guarantors, including, but not limited to, Article 18; provided, that such Subsidiary Guarantor shall deliver to the Trustee and the Collateral Agent an Opinion of Counsel. In addition, the Company shall cause each Subsidiary Guarantor to become a party to the applicable Security Documents and take such actions required thereby to grant to the Collateral Agent, for the benefit of itself, the Trustee and the Holders, a perfected security interest in any Collateral held by such Subsidiary Guarantor and subject to Permitted Liens and subject to limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries.
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Section 4.17    ERISA. The Company shall not, nor shall it permit any of its Subsidiaries or any ERISA Affiliate to, enter into any new Pension Plan or modify any existing Pension Plan so as to increase its obligations thereunder, in each case, which could reasonably be expected to result in a Material Adverse Effect.
Section 4.18    Sale Leaseback Transactions. The Company shall not, nor shall it permit any of its Subsidiaries, enter into any Sale Leaseback Transaction.
Section 4.19    Accounting Changes. The Company shall not, nor shall it permit any of its Subsidiaries to, make any Accounting Changes or any other change in its accounting policies or reporting practices, except as required by U.S. GAAP, or make any change to its fiscal year, in each case, unless such Accounting Changes or other change could not reasonably be expected to be materially adverse to the Holders.
Section 4.20    Negative Pledge Clauses. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of the Company or any Subsidiary Guarantor to create, incur, assume or suffer to exist any Lien upon any of its property or revenues constituting Collateral, whether now owned or hereafter acquired, to secure its Notes Obligations under the Indenture Documents to which it is a party, other than (a) this Indenture and the other Indenture Documents, (b) customary restrictions on the assignment of leases, licenses and other agreements, (c) any restriction pursuant to any document, agreement or instrument governing or relating to any Lien permitted under Section 4.11 or any agreement or option to dispose of any asset of the Company or any of its Subsidiaries, the disposition of which is permitted by any other provision of this Indenture (in each case, provided, that any such restriction relates only to the assets or property subject to such Lien or being disposed), or (d) restrictions existing under Requirements of Law.
Section 4.21    Clauses Restricting Subsidiary Distributions. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the Company to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held by, or to pay any Indebtedness owed to, the Company or any Subsidiary Guarantor, (b) make loans or advances to, or other Investments in, the Company or any Subsidiary Guarantor, or (c) transfer any of its assets to the Company or any Subsidiary Guarantor, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the Indenture Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been entered into in connection with a disposition permitted hereby of the Capital Stock or assets of such Subsidiary or a disposition that is conditioned on the satisfaction and discharge of this Indenture, (iii) customary restrictions on the assignment of leases, licenses and other agreements or (iv) consisting of restrictions existing under Requirements of Law.
Section 4.22    [Reserved]
Section 4.23    Amendments to Organizational Agreements and Junior Indebtedness Documents. The Company shall not, nor shall it permit any of its Subsidiaries to, amend or permit any amendments to (i) the Company’s or any Subsidiary Guarantor’s organizational documents or (ii) any documentation evidencing Junior Indebtedness, in each case, to the extent such amendment could reasonably be expected to be materially adverse to the Holders.
Section 4.24    Minimum Qualified Cash. The Company shall not permit Qualified Cash, at any time, to be less than $60,000,000 (excluding any proceeds received on account of the Notes).
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Section 4.25    Payment of Obligations. The Company shall, and shall cause each of its Subsidiaries to, pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations and liabilities of whatever nature (including any tax liabilities), except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with U.S. GAAP with respect thereto have been provided on the books of the Company or the relevant Subsidiary, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 4.26    Maintenance of Existence; Compliance. The Company shall, and shall cause each of its Subsidiaries to, (a)(i) preserve, renew and keep in full force and effect its organizational existence; provided, that any Subsidiary of the Company shall not be required to preserve any such existence if the Company or such Subsidiary shall determine that the preservation thereof is no longer desirable or necessary in the conduct of the business of such Subsidiary, and the failure to preserve such existence could not reasonably be expected to have a Material Adverse Effect and (ii) take all reasonable action to maintain or obtain all Governmental Approvals and all other rights, privileges and franchises necessary in the normal conduct of its business or necessary for the performance by such Person of its Notes Obligations, except, in each case, as otherwise permitted by Section 4.13 and except, in the case of clause (ii) above, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (b) comply with all Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect; and (c) comply with all Governmental Approvals, and any term, condition, rule, filing or fee obligation, or other requirement related thereto, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company shall, and shall cause each ERISA Affiliate to: (1) maintain each Pension Plan in compliance in all material respects with the applicable provisions of ERISA, the Code or other applicable law; (2) cause each Qualified Plan to maintain its qualified status under Section 401(a) of the Code; (3) make all required contributions to any Pension Plan; (4) make all required contributions to any Multiemployer Plan; (5) ensure that all liabilities under each Pension Plan are funded to at least the minimum level required by law or, if higher, to the level required by the terms governing such Plan; and (6) ensure that the contributions or premium payments to or in respect of each Plan are and continue to be promptly paid at no less than the rates required under the rules of such Plan and in accordance with the most recent actuarial advice received in relation to such Pension Plan (if any) and applicable law, except, with respect to (1) through (6), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
Section 4.27    Maintenance of Property; Insurance. The Company shall, and shall cause each of its Subsidiaries to (a) keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear and obsolescence excepted except where the failure to do so could reasonably be expected to have a Material Adverse Effect and (b) maintain with financially sound and reputable insurance companies insurance on all its property in at least such amounts and against at least such risks as are usually insured against by companies engaged in similar businesses and owning similar properties in localities where the Company and the Subsidiary Guarantors operate, except where the failure to do so could reasonably be expected to have a Material Adverse Effect.
Section 4.28    Inspection of Property; Books and Records; Audits; Discussions. The Company shall, and shall cause each of its Subsidiaries to (a) keep proper books of record and account, that are full, true and correct in all material respects in accordance with U.S. GAAP of all material dealings and transactions in relation to its business and (b) at any reasonable time, from time to time, during regular business hours and upon reasonable advance notice, permit representatives (including independent contractors) of the Required Holders to visit and inspect any of its properties and examine and make
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abstracts from any of its books and records and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers of the Company and its Subsidiaries and with their independent certified public accountants (subject to such accountants’ policies and procedures); provided, that a representative of the Company and the Subsidiary Guarantors shall be permitted to participate in any discussion with the accountants. The foregoing inspections and audits shall be at the Company’s expense. Notwithstanding the foregoing, such visits, inspections and audits shall not be undertaken more frequently than once per year, unless an Event of Default has occurred and is continuing, in which case such inspections and audits shall occur as often as the Required Holders shall reasonably determine is necessary during regular business hours and upon reasonable advance notice. Notwithstanding anything to the contrary herein, neither the Company nor any Subsidiary shall be required to disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information, or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Company and/or any of its Subsidiaries, customers and/or suppliers, (ii) in respect of which disclosure to the Required Holders (or any of their representatives) is prohibited by applicable Requirements of Law; provided, that, with respect to this clause (ii), the Company shall (A) provide written notice to the Trustee or the Collateral Agent, as applicable, making it aware that information is being withheld (to the extent permitted by Requirements of Law) and (B) use commercially reasonable efforts to communicate the relevant information in a way that does not violate such Requirements of Law, (iii) that is subject to attorney-client or other legal privilege or constitutes attorney work product; provided, that, with respect to this clause (iii), the Company shall (A) provide written notice to the Trustee or the Collateral Agent, as applicable, making it aware that information is being withheld and (B) use commercially reasonable efforts to communicate the relevant information in a way that does not violate such attorney-client or other legal privilege or (iv) in respect of which the Company or any Subsidiary owes confidentiality obligations to any third party; provided, that, with respect to this clause (iv), the Company shall (A) provide written notice to the Trustee or the Collateral Agent, as applicable, making it aware of such confidentiality obligations (to the extent permitted under the applicable confidentiality obligation) and (B) use commercially reasonable efforts to communicate the relevant information in a way that does not violate such confidentiality obligations.
Section 4.29    Notices. The Company shall, and shall cause each of its Subsidiaries to, give prompt written notice to the Trustee, the Collateral Agent and the Designated Holders or their designee of:
(a)     the occurrence of any Default or Event of Default of which the Company has knowledge or becomes aware;
(b)    [reserved];
(c)    promptly after the Company has knowledge or becomes aware of (i) any material development that has had or would reasonably be expected to have a Material Adverse Effect or (ii) the written threat or commencement of any dispute, litigation, arbitration, investigation or proceeding that may exist at any time between the Company and any Subsidiary, on the one hand, and any Governmental Authority, on the other hand, that would reasonably be expected to have a Material Adverse Effect;
(d)    any litigation or proceeding with any of the Company or any Subsidiary as a party (i) in which the amount involved is $500,000 or more and not covered by insurance, or (ii) which relates to any Indenture Document; and
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(e)    (i) promptly after the Company has knowledge or becomes aware of the occurrence of any of the following events affecting the Company, any Subsidiary or any ERISA Affiliate that could reasonably be expected to have a Material Adverse Effect (but in no event more than fifteen days after such event), the occurrence of any of the following events, and shall provide the Trustee and the Collateral Agent with a copy of any notice with respect to such event that may be required to be filed with a Governmental Authority and any notice delivered by a Pension Plan or a Governmental Authority to the Company, any Subsidiary or any ERISA Affiliate with respect to such event: (A) an ERISA Event or a Foreign Plan Event, (B) the adoption of any new Pension Plan by the Company, any Subsidiary Guarantor or any ERISA Affiliate, (C) the adoption of any amendment to a Pension Plan, if such amendment will result in an increase in benefits or unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), or (D) the commencement of contributions by the Company, any Subsidiary or any ERISA Affiliate to any Multiemployer Plan or Pension Plan; (ii)(A) promptly after the giving, sending or filing thereof, or the receipt thereof, copies of (1) each Schedule SB (Actuarial Information) to the annual report (Form 5500 Series) filed by the Company, any Subsidiary or any ERISA Affiliate with the IRS with respect to each Pension Plan, (2) all notices received by the Company, any Subsidiary or any ERISA Affiliate from a Multiemployer Plan sponsor concerning an ERISA Event, and (3) copies of such other documents or governmental reports or filings relating to any Pension Plan as the Trustee or the Collateral Agent at the direction of the Required Holders shall reasonably request; and (B) without limiting the generality of the foregoing, such certifications or other evidence of compliance with the provisions of Section 4.17 as the Trustee or the Collateral Agent may from time to time reasonably request; and (iii) the Company or any Subsidiary Guarantor becoming a “benefit plan investor” under Section 3(42) of ERISA and/or the Company or any Subsidiary Guarantor’s assets being deemed to include “plan assets” under Section 3(42) of ERISA or under any similar law applicable to the Company or such Subsidiary Guarantor.
Section 4.30    [Reserved].
Section 4.31    Anti-Corruption Laws; Anti-Terrorism Laws; Sanctions.
The Company shall, and shall cause each of its Subsidiaries to:
(a)    conduct its business, and cause each of its Subsidiaries to conduct its business, in compliance with all Anti-Corruption Laws, Anti-Terrorism Laws, Export/Import Controls and Sanctions and maintain and enforce policies and procedures designed to ensure compliance with such laws. The Company shall deliver to the Trustee any certificate or other evidence reasonably requested from time to time by the Trustee confirming the Company’s compliance with this Section 4.31; and
(b)    provide prompt written notice to the Trustee the Collateral Agent and the Designated Holders or their designee upon the occurrence of a Reportable Compliance Event.
Section 4.32    Use of Proceeds. All proceeds of the Notes (i) shall be held in a deposit or money market account in the name of the Company and/or a Subsidiary Guarantor, which account will be at all times (no later than 30 Business Days after the Original Issue Date unless otherwise agreed by Lynrock in its sole discretion) subject to a deposit account control agreement or securities account control agreement, as applicable, in favor of the Collateral Agent, and (ii) will be used solely to (v) make cash interest payments on, or cash settlement of, the Notes, (w) cash settle the Warrants, (x) exchange, repurchase, redeem, replace or otherwise refinance the Existing Notes in whole or in part, (y) replenish or refund any cash of the Company or any of its subsidiaries that was used to exchange, repurchase, redeem, replace or otherwise refinance any Existing Notes after the date of the Exchange Agreement, and (z) pay or
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reimburse any fees, costs and expenses in connection with the foregoing (including, for the avoidance of doubt, cash tax payments triggered by the exchange or repurchase of any Existing Notes or any guarantee or Collateral with respect to the Notes) and the other transactions contemplated by the Exchange Agreement and the Company’s obligations under the Exchange Agreement and that certain letter agreement dated as of the Original Issue Date between the Company and the Noteholder related to the reimbursement of certain fees and expenses.
Section 4.33    [Reserved].
Section 4.34    Registration Rights. Upon the written request of Lynrock (Lynrock with its Affiliates, collectively, the “Designated Holders”) or any of its designated Affiliates, the Company shall, within 30 days thereafter, enter into a registration rights agreement with the Designated Holders with respect to the Notes, which shall contain customary terms and provide that:
(a)    the Designated Holders shall have customary demand, shelf and piggyback registration rights and obligations, including rights with respect to shelf registration on Form S-1 (or any similar or successor form) if the Company is not eligible to use Form S-3 (or any similar or successor form) at such time; and
(b)    such registration rights shall include customary indemnities and the right to receive customary cooperation from the Company and its directors and officers in connection with any dispositions (which may take the form of underwritten offerings, block trades, derivative transactions and other lawful means of disposition) pursuant to the applicable registration statement(s) (including entering into customary agreements with underwriters and other counterparties and providing such underwriters and other counterparties with customary indemnities, opinions, certificates and due diligence cooperation). The Trustee shall have no obligation to determine beneficial ownership in connection with this Section 4.35.
ARTICLE 5
LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01    Lists of Holders. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 5 days after each June 1 or December 1 in each year beginning with December 1, 2024, and at such other times as the Trustee may request in writing, within 5 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.
Section 5.02    Preservation and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
ARTICLE 6
DEFAULTS AND REMEDIES
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Section 6.01    Events of Default. Each of the following events shall be an “Event of Default” with respect to the Notes:
(a)    default in any payment of any interest (including any cash interest or any PIK Interest portion thereof) on any Note when due and payable, and the default continues for a period of 20 days;
(b)    default in the payment of principal of, or the Redemption Price, Fundamental Change Repurchase Price or Asset Sale Offer Repurchase Price for, or the applicable Notes Premium (to the extent not duplicative of the foregoing) on, any Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required repurchase, upon declaration of acceleration or otherwise;
(c)    failure by the Company to comply with its obligation to convert the Notes (and satisfy the Conversion Obligation) in accordance with this Indenture upon exercise of a Holder’s conversion right and such failure continues for a period of five (5) Business Days;
(d)    failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c), Asset Sale Offer Repurchase Notice in accordance with Section 4.13, Existing Notes Test Date Notice in accordance with Section 15.01(c), notice of a Make-Whole Fundamental Change in accordance with Section 14.03(b) or notice of a specified distribution or Corporate Event in accordance with Section 14.01(b)(ii) or Section 14.01(b)(iii), in each case when due and such failure continues for a period of five (5) Business Days;
(e)    failure by the Company to comply with its obligations under Section 4.15(a) and Article 11;
(f)    failure by the Company for 40 days after written notice from the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes, this Indenture or any other Indenture Document (other than the Exchange Agreement);
(g)    default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $5,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary (provided, that such materiality threshold will not apply in respect of obligations incurred under clause (b) of the definition of “Permitted Indebtedness”), whether such indebtedness now exists or shall hereafter be created (i) either (x) resulting in such indebtedness becoming or being declared due and payable before its stated maturity, or (y) in the case of obligations incurred under clause (b) of the definition of “Permitted Indebtedness”, permitting the holders thereof to cause or declare such indebtedness to be, due and payable before its stated maturity or (ii) constituting a failure to pay the principal or interest of any such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, in each case after the expiration of any applicable grace period, and, in the cases of clauses (i)(x) and (ii), as applicable, such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or discharged, as the case may be, within 20 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding in accordance with this Indenture;
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(h)    a final judgment or judgments for the payment of $5,000,000 (or its foreign currency equivalent) or more (excluding any amounts covered by insurance) in the aggregate rendered against the Company or any Significant Subsidiary of the Company, which judgment is not discharged, bonded, paid, waived or stayed within 40 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;
(i)    the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due;
(j)    an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive days;
(k)    the obligation of any Subsidiary Guarantor under its Note Guarantee herein or any other Indenture Document to which any Subsidiary Guarantor is a party is limited or terminated (other than, in each case, in accordance with the terms of this Indenture or such other Indenture Documents and limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries), or any Subsidiary Guarantor fails to perform any obligation under its Note Guarantee, or repudiates or revokes or purports to repudiate or revoke in writing any obligation under its Note Guarantee herein, or any Subsidiary Guarantor ceases to exist for any reason (other than in accordance with the terms of this Indenture);
(l)    any Security Document after delivery thereof shall for any reason cease (or shall be asserted in writing by the Company or any Subsidiary Guarantor to cease) to create a valid and perfected Lien to the extent required by the Security Documents, subject to no other Liens other than Permitted Liens, on any material portion of the Collateral that is purported to be covered thereby (other than in accordance with the terms of this Indenture or the terms of the Intercreditor Agreement or the Security Documents or limitations customary in foreign jurisdictions with respect to Foreign Subsidiaries);
(m)    the validity or enforceability of any Indenture Document shall at any time for any reason be declared to be null and void by a court of competent jurisdiction, or a proceeding shall be commenced by the Company or any Subsidiary Guarantor, or a proceeding shall be commenced by any Governmental Authority having jurisdiction over the Company or any Subsidiary Guarantor, seeking to establish the invalidity or unenforceability thereof, or the Company shall deny in writing that the Company or any Subsidiary Guarantor has any liability on account of the Notes Obligations; and
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(n)    so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, failure by the Company for 30 days after written notice from Lynrock has been received by the Company to comply with any covenant, agreement or requirement under the Exchange Agreement, including, for the avoidance of doubt, breach or default in the observance or performance of any covenant, agreement or requirement set forth on the exhibits, annexes and schedules thereto (for the avoidance of doubt, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, if the Company fails to comply with any covenant, agreement or requirement under the Exchange Agreement, including, for the avoidance of doubt, breach or default in the observance or performance of any covenant, agreement or requirement set forth on the exhibits, annexes and schedules thereto, an Event of Default will result after 30 days following receipt of such written notice by the Company from Lynrock regarding same).
Each of the events set forth in Section 6.01 will constitute an Event of Default regardless of the cause thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
Section 6.02    Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j)), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04 (or, in the case of Section 6.01(n), so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, Lynrock, individually), by notice in writing to the Company (and to the Trustee if given by Holders) may declare 100% of the aggregate principal of, and any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and the applicable Acceleration Premium on, all the then outstanding Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs and is continuing, 100% of the aggregate principal of, and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and the applicable Acceleration Premium on, all Notes shall become and shall automatically be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. For the avoidance of doubt, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, Lynrock, acting individually, may accelerate the Notes as provided above after the occurrence and during the continuance of an Event of Default specified in Section 6.01(n).
The immediately preceding paragraph, however, except in the case of Events of Default specified in Section 6.01(n), is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay any overdue installments of any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) upon all Notes and the principal of and any applicable Notes Premium on any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue installments of any accrued and unpaid interest and on such principal and any applicable Note Premium, all at the rate borne by the Notes at such time) and amounts due to the Trustee and the Collateral Agent pursuant to Section 7.06, and if (1) rescission would not
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conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under this Indenture, other than the nonpayment of the principal of and any applicable Notes Premium on and any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) on Notes that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09 and amounts due to the Trustee or the Collateral Agent pursuant to Section 7.06 have been paid, then and in every such case (except as provided in the immediately succeeding sentence) the Required Holders, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, or any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes. For the avoidance of doubt, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, only Lynrock will have the ability to waive, rescind and annul any Event of Default specified in Section 6.01(n) and any acceleration of the Notes as a result thereof.
It is understood and agreed that if the Notes are accelerated or otherwise become due prior to the Stated Maturity (including as a result of the occurrence and continuance of any Event of Default and any acceleration as a result thereof (including the acceleration of claims by operation of law), upon an Optional Redemption, on an Existing Notes Test Maturity Date or upon an Asset Sale Offer Repurchase Date or Fundamental Change Repurchase Date, or the Notes are converted in the circumstances specified in Section 14.03), the applicable Notes Premium will also automatically be due and payable and shall constitute part of the Notes Obligations with respect to the Notes. In view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of the applicable Holder’s lost profits as a result thereof, any such applicable Notes Premium payable shall be presumed to be the liquidated damages sustained by the applicable Holder as the result of such early prepayment or such conversion and the Company and each of the Subsidiary Guarantors agrees that it is reasonable under the circumstances currently existing. EACH OF THE COMPANY AND THE SUBSIDIARY GUARANTORS EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING AMOUNTS IN CONNECTION WITH ANY SUCH ACCELERATION OR REPAYMENT OR REDEMPTION OR REPURCHASE OR CONVERSION, ANY RESCISSION OF SUCH ACCELERATION OR THE COMMENCEMENT OF ANY PROCEEDING UNDER DEBTOR RELIEF LAWS. Each of the Company and the Subsidiary Guarantors expressly agrees (to the fullest extent it may lawfully do so) that: (A) the applicable Notes Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the applicable Notes Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the applicable Holder and the Company and the Subsidiary Guarantors giving specific consideration in this transaction for such agreement to pay such applicable Notes Premium; and (D) each of the Company and the Subsidiary Guarantors shall be estopped hereafter from claiming differently than as agreed to in this paragraph. Each of the Company
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and the Subsidiary Guarantors expressly acknowledges that its agreement to pay such applicable Notes Premium to the Holders as herein described is a material inducement to the Holders to acquire the Notes.
Section 6.03    [Reserved].
Section 6.04    Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred and be continuing, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium thereon and, to the extent the payment thereof shall be legally enforceable, interest on any overdue principal and on any applicable Notes Premium and on any overdue interest at the rate of the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) borne by Notes at such time and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee and the Collateral Agent under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, or the Collateral Agent, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.
In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Bankruptcy Law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee and the Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, their agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee and the Collateral Agent under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to each of the Trustee and the Collateral Agent any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee and the Collateral Agent under Section 7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions,
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dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, the Collateral Agent, their agents and counsel, be for the ratable benefit of the Holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders, the Trustee and the Collateral Agent shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee and the Collateral Agent shall continue as though no such proceeding had been instituted.
Section 6.05    Application of Monies Collected by Trustee. Any monies or property collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies or property, upon (in the case of Physical Notes) presentation of the several Physical Notes, and stamping thereon the payment, if only partially paid, and the surrender thereof, if fully paid:
First, to the payment of all amounts due the Trustee and the Collateral Agent (in each of its capacities under this Indenture) hereunder;
Second, in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of any interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and any applicable Notes Premium and cash due upon conversion, as the case may be, with interest (to the extent that any such interest is payable pursuant to this Indenture and has been collected by the Trustee) upon such overdue payments at the rate of the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
Third, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable, the Redemption
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Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) with interest on the overdue principal, and overdue installments of interest at the rate of the full amount of Stated Interest (including both the cash interest and PIK Interest portions thereof) borne by the Notes at such time and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price and any cash due upon conversion) and interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) without preference or priority of any kind, including any preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price and any cash due upon conversion) and any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing); and
Fourth, to the payment of the remainder, if any, to the Company.
Section 6.06    Proceedings by Holders. Without limiting in any way Lynrock’s ability, acting individually (so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes), to accelerate the Notes as provided above after the occurrence and during the continuance of an Event of Default specified in Section 6.01(n), except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price) or any interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture or the Notes to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a)    such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;
(b)    Holders of at least 25% in aggregate principal amount of the Notes then outstanding (or, in the case of an Event of Default specified in Section 6.01(n), so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, Lynrock, acting individually, as the case may be) shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c)    such Holders shall have offered to the Trustee such indemnity or security reasonably satisfactory to it against any loss, liability or expense to be incurred therein or thereby;
(d)    the Trustee for 35 days after its receipt of such notice, request and offer of such indemnity or security, shall have neglected or refused to institute any such action, suit or proceeding; and
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(e)    no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Required Holders (or, in the case of an Event of Default specified in Section 6.01(n), so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, Lynrock, acting individually, as the case may be) within such 20-day period pursuant to Section 6.09, it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable) of, (y) accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such Note or in this Indenture, and the right to institute suit for the enforcement of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.
Section 6.07    Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.08    Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.06, every power 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 shall be deemed expedient, by the Trustee or by the Holders.
Section 6.09    Direction of Proceedings and Waiver of Defaults by Required Holders. Subject to the Trustee’s and the Collateral Agent’s right to receive security or indemnity from the relevant Holders as described herein, the Required Holders or, in the case of an Event of Default specified in Section 6.01(n), so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, Lynrock, acting individually, as the case may be, shall have the right to direct
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the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Collateral Agent or exercising any trust or power conferred on the Trustee or the Collateral Agent with respect to the Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee and the Collateral Agent, as applicable, may take any other action deemed proper by the Trustee or the Collateral Agent, as applicable, that is not inconsistent with such direction. Without limiting in any way Lynrock’s ability, acting individually, to accelerate the Notes as provided above after the occurrence and during the continuance of an Event of Default specified in Section 6.01(n) (so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes), each of the Trustee and the Collateral Agent may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee or the Collateral Agent in personal liability or that conflicts with applicable law or this Indenture. The Required Holders may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on, or the principal (including any Redemption Price, the Fundamental Change Repurchase Price and any Asset Sale Offer Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected; provided, that, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, only Lynrock will have the ability to waive, rescind and annul any Event of Default specified in Section 6.01(n) and any acceleration of the Notes as a result thereof. Upon any such waiver the Company, the Trustee, the Collateral Agent and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10    Notice of Defaults. The Trustee shall, within 45 days after it receives written notice of the occurrence and continuance of a Default of which the Trustee has actual knowledge, deliver to all Holders notice of all such Defaults, unless such Defaults shall have been cured or waived before the giving of such notice; provided, that, except in the case of a Default in the payment of the principal of (including the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price, if applicable), or any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) on and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such notice if and so long as it in good faith determines that the withholding of such notice is in the interests of the Holders.
Section 6.11    Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, 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,
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that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium on any Note (including, but not limited to, the Redemption Price, the Fundamental Change Repurchase Price and the Asset Sale Offer Repurchase Price with respect to the Notes being redeemed or repurchased as provided in this Indenture) on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the provisions of Article 14.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01    Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default of which the Trustee has written notice or actual knowledge and after the curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers conferred on it by this Indenture as directed by the Required Holders (or, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, in the case of an Event of Default specified in Section 6.01(n), Lynrock, acting individually, as the case may be); provided, that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered (and, if requested, provided) to the Trustee indemnity or security satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
No provision of this Indenture shall be construed to relieve the Trustee or the Collateral Agent from liability for its own grossly negligent action, its own grossly negligent failure to act or its own willful misconduct, except that:
(a)    prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee has written notice or actual knowledge and after the curing or waiving of all Events of Default that may have occurred:
(i)    the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)    in the absence of bad faith or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein);
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(b)    the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c)    the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Required Holders (or, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, in the case of an Event of Default specified in Section 6.01(n), Lynrock, acting individually, as the case may be) 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 7.01;
(e)    the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note 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)    in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent, Collateral Agent or transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent, Collateral Agent or transfer agent;
(h)    in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company; and
(i)    under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
None of the provisions contained in this Indenture shall require the Trustee or the Collateral Agent to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers.
Section 7.02    Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
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(a)    the Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document (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 Board Resolution may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c)    the Trustee may consult with counsel of its selection and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d)    the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(e)    the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, custodian, nominee or attorney appointed by it with due care hereunder;
(f)    the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(g)    the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder; and
(h)    the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; and
(i)    the Trustee shall have no obligation to monitor or enforce the terms of the Exchange Agreement or any registration rights agreement entered into between any beneficial owner and the Company.
In no event shall the Trustee be liable for any consequential, punitive, special or indirect loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been given to a Responsible Officer of the Trustee by the Company or by any Holder of the Notes at the Corporate Trust Office and such notice references the Notes and/or this Indenture.
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Section 7.03    No Responsibility for Recitals, Etc. 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, sufficiency or enforceability 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 in conformity with the provisions of this Indenture or any money paid to the Company or upon the Company’s direction under any provision of the Indenture.
Section 7.04    Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent, Bid Solicitation Agent (if other than the Company or any Affiliate thereof), Collateral Agent or Note Registrar, 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 the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent, Collateral Agent or Note Registrar.
Section 7.05    Monies to Be Held in Trust. All monies 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 or property except to the extent required by law. The Trustee shall be under no liability for interest or investment income on any money received by it hereunder except as may be agreed from time to time by the Company and the Trustee.
Section 7.06    Compensation and Expenses of Trustee. The Company and the Subsidiary Guarantors, jointly and severally, covenant and agree to pay to the Trustee and Collateral Agent (in each of their capacities under this Indenture) from time to time, and the Trustee and Collateral Agent shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee, Collateral Agent and the Company, and the Company will pay or reimburse the Trustee and Collateral Agent upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee and Collateral Agent in accordance with any of the provisions of this Indenture or the Security Documents in any capacity hereunder or thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence, willful misconduct or bad faith. The Company and the Subsidiary Guarantors, jointly and severally, also covenant to indemnify the Trustee and Collateral Agent in any capacity under this Indenture, the Security Documents and any other document or transaction entered into in connection herewith and its officers, directors, attorneys, employees and agents and any authenticating agent for, and to hold them harmless against, any loss, claim (whether asserted by the Company, a Holder or any Person), damage, liability or expense incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee or Collateral Agent, as the case may be, its officers, directors, attorneys, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture, the Security Documents or in any other capacity hereunder or thereunder, including the reasonable costs and expenses of defending themselves against any claim or liability (including the obligations under this Section 7.06). The obligations of the Company under this Section 7.06 to compensate or indemnify the Trustee and Collateral Agent and to pay or reimburse the Trustee and Collateral Agent for expenses, disbursements and advances shall be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s and Collateral
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Agent’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture, the payment or conversion of the Notes and the earlier resignation or removal of the Trustee or Collateral Agent, as applicable. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, attorneys, agents and employees of the Trustee and Collateral Agent.
Without prejudice to any other rights available to the Trustee and the Collateral Agent under applicable law, when the Trustee, the Collateral Agent and their agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
Section 7.07    Officer’s Certificate and Opinion of Counsel as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee or Collateral Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence, willful misconduct and bad faith on the part of the Trustee or Collateral Agent, as applicable, be deemed to be conclusively proved and established by an Officer’s Certificate and an Opinion of Counsel delivered to the Trustee and Collateral Agent, if applicable, and such Officer’s Certificate and Opinion of Counsel, in the absence of gross negligence, willful misconduct and bad faith on the part of the Trustee and Collateral Agent, if applicable, shall be full warrant to the Trustee and Collateral Agent, if applicable, for any action taken or omitted by it under the provisions of this Indenture and the Security Documents upon the faith thereof.
Section 7.08    Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if, for this purpose, the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 7.08, 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 7.08, it shall resign immediately in the manner and with the effect hereinafter specified in this Article 7.
Section 7.09    Resignation or Removal of Trustee.
(a)    The Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders and at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a
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successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)    In case at any time any of the following shall occur:
(i)    the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(ii)    the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction at the expense of the Company for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)    The Required Holders may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.
(d)    Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section 7.10    Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien prior to the Notes on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
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No successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions of Section 7.08.
Upon acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders. If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the expense of the Company.
Section 7.11    Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, that in the case of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the 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 an authenticating agent appointed by such successor trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided, that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 7.12    Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the 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 to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three (3) Business Days after notice to the Company has been deemed to have been given pursuant to Section 17.03, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
Section 7.13    Limitation on Duty of Trustee in Respect of Collateral. The Trustee and Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity
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of the title of the Company to the Collateral, 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 (except with respect to certificates actually delivered to the Collateral Agent representing securities pledged under the Security Documents). The Trustee and Collateral Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Security Documents by the Company or any Subsidiary Guarantor.
ARTICLE 8
CONCERNING THE HOLDERS
Section 8.01    Action by Holders. Whenever in this Indenture it is provided, that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company, the Trustee or the Collateral Agent solicits the taking of any action by the Holders of the Notes, the Company, the Trustee or the Collateral Agent may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02    Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03    Who Are Deemed Absolute Owners. The Company, the Trustee, the Collateral Agent, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar shall deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Redemption Price, any Fundamental Change Repurchase Price and any Asset Sale Offer Repurchase Price) of and (subject to Section 2.03) any accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) on such Note, for conversion of such Note and for all other purposes under this Indenture; and neither the Company nor the Trustee nor the Collateral Agent nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. The sole registered holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums so paid or delivered, effectual to satisfy and discharge the liability for monies payable upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of Default, any owner of a beneficial interest in a Global Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such
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owner’s right to exchange such beneficial interest for a Physical Note in accordance with the provisions of this Indenture.
Section 8.04    Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company or by any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided, that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action, only Notes with respect to which a Responsible Officer has received written notice that such Notes are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision or indecision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05    Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
ARTICLE 9
HOLDERS’ MEETINGS
Section 9.01    Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:
(a)    to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
(b)    to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c)    to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Article 10; or
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(d)    to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes under any other provision of this Indenture or under applicable law.
Section 9.02    Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized representatives or have, before or after the meeting, waived notice.
Section 9.03    Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.
Section 9.04    Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
Section 9.05    Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Required Holders.
Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as
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aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Required Holders represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06    Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated.
Section 9.07    No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes. Nothing contained in this Article 9 shall be deemed or construed to limit any Holder’s actions pursuant to the Applicable Procedures so long as the Notes are Global Notes.
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01    Supplemental Indentures Without Consent of Holders. Without the consent of any Holder, the Company, the Subsidiary Guarantors and the Trustee and the Collateral Agent, if applicable, at the Company’s expense, may from time to time and at any time amend or supplement this Indenture, the Notes, the Security Documents or the Intercreditor Agreement in writing for one or more of the following purposes:
(a)    to cure any ambiguity, omission, mistake, defect, error or inconsistency in this Indenture or the other Indenture Documents;
(b)    to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture and the other Indenture Documents pursuant to Article 11 or a Subsidiary Guarantor under this Indenture and the other Indenture Documents pursuant to Article 11;
(c)    to add a Subsidiary Guarantor or otherwise to add guarantees with respect to Notes Obligations under this Indenture, the Notes and any of the other Indenture Documents, or to confirm the release of a Subsidiary Guarantor from its Note Guarantee in accordance with this Indenture, the Notes and the Security Documents;
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(d)    to add additional assets as Collateral to secure the Notes or any Note Guarantee;
(e)    to add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company or any Subsidiary under this Indenture or the Notes or any other Indenture Document;
(f)    to make any change that does not adversely affect the rights of any Holder under this Indenture or the Notes or any other Indenture Document in any material respect as determined in good faith by the Company;
(g)    in connection with any Share Exchange Event, to provide that the Notes are convertible into an amount of cash based upon Reference Property, subject to the provisions of Section 14.02 and in accordance with Section 14.07;
(h)    to evidence or provide for the acceptance of appointment by a successor trustee or collateral agent in accordance with the terms of this Indenture or to facilitate the administration of the trusts under this Indenture by more than one trustee or collateral agent;
(i)    [reserved];
(j)    to comply with the rules of any applicable securities depositary, including The Depository Trust Company, so long as such amendment does not adversely affect the rights of any Holder;
(k)    to provide for the issuance of Additional Notes pursuant to Section 2.10;
(l)    to provide for or confirm the issuance of, or to comply with any Applicable Procedures with respect to the issuance of, PIK Notes issued in accordance with Section 2.11;
(m)    to confirm and evidence the release, termination, discharge or retaking of any Subsidiary Guarantee of or Lien with respect to or securing the Notes when such release, termination, discharge or retaking is permitted by this Indenture and the Security Documents and any applicable Intercreditor Agreement;
(n)    to increase the Conversion Rate as provided in this Indenture;
(o)    to release Collateral from the Lien pursuant to this Indenture or the Security Documents in accordance with the terms of this Indenture and the Security Documents;
(p)    to make, complete or confirm any grant of Collateral to secure the Note Obligations and, solely to the extent constituting "Permitted Liens" pursuant to clause (c) of the definition thereof, and at all times subject to the Intercreditor Agreement, Junior Indebtedness, permitted or required under this Indenture, the Notes, the Security Documents or the other Indenture Documents in accordance with the terms thereof; or
(q)    with respect to the Security Documents and any applicable Intercreditor Agreement, as provided in the relevant Security Document, such Intercreditor Agreement.
Upon the written request of the Company, the Trustee and, as applicable, the Collateral Agent, are each hereby authorized to, and shall join with the Company and the Subsidiary Guarantors, as
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applicable, in the execution of any such supplemental indenture, amendment or supplement, except that neither the Trustee nor the Collateral Agent shall be obligated to, but each may in its discretion, enter into any such supplemental indenture, amendment or supplement that affects such Person’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Any supplemental indenture or amendment to any Security Document authorized by the provisions of this Section 10.01 may be executed by the Company, the Subsidiary Guarantors, the Trustee and, as applicable, the Collateral Agent, without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section 10.02    Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Required Holders (including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, the Notes), the Company, the Subsidiary Guarantors, as applicable, and the Trustee and the Collateral Agent, if applicable, at the Company’s expense, may from time to time and at any time amend or supplement the Indenture Documents or enter into an indenture or indentures supplemental hereto, or to enter into any amendment to any Security Document or Intercreditor Agreement, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Notes or any other Indenture Document or any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental indenture or other such amendment or supplement shall:
(a)    reduce the principal amount of Notes whose Holders must consent to an amendment or waiver;
(b)    reduce the rate of or extend the stated time for, or change the manner of, payment of interest on any Note;
(c)    reduce the principal of or extend the Maturity Date of any Note;
(d)    make any change that adversely affects the conversion rights of any Note;
(e)    reduce the Redemption Price, the Fundamental Change Repurchase Price or the Asset Sale Offer Repurchase Price of, or the applicable Notes Premium payable on, any Note or amend or modify in any manner adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
(f)    make any Note payable in money, or at a place of payment, other than that stated in the Notes;
(g)    change the ranking or priority of the Notes;
(h)    impair the right of any Holder to receive payment of principal and interest and any applicable Notes Premium on such Holder’s 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;
(i)    release all or substantially all of the Note Guarantees of the Subsidiary Guarantors;
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(j)    release all or substantially all of the Collateral from the Liens securing the Notes Obligations created by the Security Documents;
(k)    permit the designation of unrestricted subsidiaries; or
(l)    make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09.
For the avoidance of doubt, pursuant to clauses (a), (b), (c), (d), (e) and (f) of the proviso to the first paragraph of this Section 10.02, no amendment or supplement to this Indenture or the Notes or any of the other Indenture Documents, or waiver of any provision of this Indenture or the Notes or any of the other Indenture Documents, may change the amount or type of consideration due on any Note (whether on an Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date, Asset Sale Offer Repurchase Date or the Maturity Date or upon acceleration, conversion or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each affected Holder.
Upon the written request of the Company, and upon the delivery to the Trustee and, if applicable, the Collateral Agent, of evidence of the consent of the requisite Holders as aforesaid and subject to Section 10.05, the Trustee and, if applicable, the Collateral Agent, shall join with the Company and the Subsidiary Guarantors, as applicable, in the execution of such supplemental indenture or amendment or supplement to the other Indenture Documents except that the Trustee and Collateral Agent shall not be obligated to, but may in their respective discretion, enter into any supplemental indenture or amendment or supplement to the Indenture Documents that affects the Trustee’s or the Collateral Agent’s own rights, duties, liabilities or immunities under this Indenture or otherwise.
Holders do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture or amendment or supplement to any Indenture Document. It shall be sufficient if such Holders approve the substance thereof. After any such supplemental indenture or amendment becomes effective, the Company shall deliver to the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture or amendment. However, the failure to give such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture or amendment.
Notwithstanding the foregoing, so long as the Designated Holders are the beneficial owners of at least $20,000,000 in aggregate principal amount of Notes, no amendment, supplement, waiver or modification may be made to this Indenture or any other Indenture Document that would have the effect of removing or impairing (i) the Event of Default specified in Section 6.01(n), (ii) the right of Lynrock, acting individually, to accelerate the Notes as provided in Article 6 after the occurrence and during the continuance of an Event of Default specified in Section 6.01(n) or (iii) the right of Lynrock, in its sole discretion, to waive, rescind and annul any Event of Default specified in Section 6.01(n) and any acceleration of the Notes as a result thereof.
Section 10.03    Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture or any other Indenture Document of the Trustee, the Collateral Agent, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such
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supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.04    Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s request and expense, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any modification of this Indenture or any other Indenture Document contained in any such supplemental indenture may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.09) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.
Section 10.05    Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee and Collateral Agent. In addition to the documents required by Section 17.05, the Trustee and the Collateral Agent, if applicable, shall receive, and the Trustee and the Collateral Agent shall join in any supplemental indenture or amendment to any Security Document specified in Section 10.01 or Section 10.02 only upon receiving, an Officer’s Certificate and an Opinion of Counsel to the effect that any supplemental indenture or amendment to any Security Document executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture and the Security Documents and all the conditions precedent thereunder with respect thereto have been satisfied, and that the supplemental indenture or amendment constitutes the legal, valid and binding obligation of the Company enforceable in accordance with its terms and that such amendments, supplements or other instruments have been duly executed, filed and recorded in such jurisdictions as may be required by applicable law (subject to the limitations set forth in this Indenture and the other Indenture Documents) to preserve and protect the Lien on the Collateral owned by or transferred to the surviving Person, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions.
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01    Company May Consolidate, Etc. on Certain Terms.
(a)    Subject to the provisions of Section 11.03, the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its consolidated properties and assets to another Person, in one transaction or a series of related transactions, unless:
(i)    the resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company (if not the Company) shall expressly assume by supplemental indenture all of the obligations of the Company under the Notes and this Indenture and each other Indenture Document;
(ii)    immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture;
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(iii)    if the Company is not the Successor Company, the Successor Company shall have delivered to the Trustee and Collateral Agent an Officer’s Certificate and Opinion of Counsel, each (x) stating that such consolidation, merger, sale, conveyance, transfer or lease complies with this Indenture and (y) satisfying the requirements of Article 10 herein; and
(iv)    to the extent the Company is not the Successor Company, (x) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that pursuant to the terms of Section 18.06 shall be released from its obligations under its Note Guarantee in connection with such transactions and (y) any Subsidiary Guarantor that is a party to the transactions in this Section 11.01, in which case Section 11.02 shall apply) shall have by supplemental indenture confirmed that its Note Guarantee (other than any Note Guarantee that pursuant to the terms of Section 18.06 shall be discharged or terminated in connection with such transactions) shall apply to the Successor Company’s obligations in respect of this Indenture and the Notes shall have by written agreement confirmed that its obligations under the other Indenture Documents shall continue to be in effect and (y) the Successor Company shall cause such amendments, supplements or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law (subject to the limitations set forth in this Indenture and the other Indenture Documents) to preserve and protect the Liens on the Collateral owned by or transferred to such Successor Company, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral that may be perfected by the filing of a financing statement or similar document under the UCC or other similar statute or regulation of the relevant statutes or jurisdictions.
For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, in one transaction or a series of related transactions, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or substantially all of the consolidated properties and assets of the Company to another Person.
Section 11.02    Subsidiary Guarantors May Consolidate, Etc. on Certain Terms.
(a)    The Company shall not permit any Subsidiary Guarantor to, and no Subsidiary Guarantor shall, consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person, in one transaction or a series of related transactions, unless:
(i)    immediately after giving effect to such transaction, no Default or Event of Default has occurred and is continuing under this Indenture;
(ii)    either:
(1)    unless the provisions of Section 18.06 of this Indenture result in the release of the Note Guarantee by such Subsidiary Guarantor in connection with such consolidation, merger or sale conveyance, transfer or lease, the Person acquiring the assets in any such sales, conveyance, transfer or lease or the Person formed by or surviving any such consolidation or merger (any such Person, a “Surviving Guarantor”), subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary, expressly assumes, by a supplemental indenture in a form reasonably satisfactory to the Trustee, executed and delivered to the
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Trustee and Collateral Agent, all of such Subsidiary Guarantor’s obligations under the Notes, this Indenture and the other Indenture Documents and causes such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law (subject to the limitations set forth in this Indenture and the other Indenture Documents) to preserve and protect the Lien on the Collateral owned by or transferred to the Surviving Guarantor, subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary, together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary; or
(2)    if the provisions of Section 18.06 of this Indenture result in the release of the Note Guarantee by such Subsidiary Guarantor in connection with such consolidation, merger or sale, conveyance, transfer or lease, (x) such sale, conveyance, transfer or lease is otherwise permitted under this Indenture and (y) if such Subsidiary Guarantor is merging with or into or consolidating with the Company or another Subsidiary Guarantor wherein the Company or such other Subsidiary Guarantor, as applicable, is the surviving Person in such merger or consolidation or such Subsidiary Guarantor is transferring all or substantially all of its assets to the Company or another Subsidiary Guarantor, the Company or such other Subsidiary Guarantor, as applicable, causes such amendments, supplements, or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law (subject to the limitations set forth in this Indenture and the other Indenture Documents) to preserve and protect the Lien on the Collateral owned by or transferred to the Company or such other Subsidiary Guarantor, subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary, as applicable together with such financing statements or comparable documents as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or a similar document under the UCC or other similar statute or regulation of the relevant states or jurisdictions subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary; and
(iii)    the Company shall have delivered to the Trustee and Collateral Agent an Officer’s Certificate and Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, transfer or lease complies with this Indenture and, in such transaction in which there is a Surviving Guarantor, that such supplemental indenture and other amendments and supplements are authorized or permitted by this Indenture and the other Indenture Documents and an Opinion of Counsel stating that the supplemental indenture is the valid and binding obligation of the surviving Person, subject to customary exceptions and subject to limitations customary in foreign jurisdictions with respect to any Surviving Guarantor that is a Foreign Subsidiary.
Section 11.03    Successor Company or Surviving Guarantor to Be Substituted.
(a)    In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company (if other than the Company) by supplemental indenture,
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executed and delivered to the Trustee and the Collateral Agent and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest and any applicable Notes Premium on all of the Notes, the due and punctual delivery and/or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture and the other Indenture Documents to be performed by the Company, all in accordance with Section 11.01, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated properties and assets of the Company, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and may thereafter exercise every right and power of, the Company under this Indenture and each other Indenture Document. 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 and each other Indenture Document 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 the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture, the Notes and each other Indenture Document.
(b)    In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by a Surviving Guarantor (if not the applicable Subsidiary Guarantor) by supplemental indenture, executed and delivered to the Trustee and the Collateral Agent and satisfactory in form to the Trustee, of the due and punctual performance of all of the covenants and conditions of this Indenture and the other Indenture Documents to be performed by the applicable Subsidiary Guarantor, all in accordance with Section 11.02, such Surviving Guarantor (if not the applicable Subsidiary Guarantor) shall succeed to and, except in the case of a lease of all or substantially all of the consolidated properties and assets of the applicable Subsidiary Guarantor, shall be substituted for the applicable Subsidiary Guarantor with the same effect as if it had been named herein as the party of the first part, and may thereafter exercise every right and power of the applicable Subsidiary Guarantor under this Indenture and each other Indenture Document.
(c)    In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 11.04    Officer’s Certificate and Opinion of Counsel to Be Given to Trustee. No such consolidation, merger, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive (and shall be conclusively entitled to rely upon) an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent in this Article 11 to such transaction and any related supplemental indenture have been satisfied and that the supplemental indenture is the valid, binding
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obligations of the Successor Company, enforceable against such Successor Company in accordance with its terms, such Opinion of Counsel to be subject to customary exceptions.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01    Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or any accrued and unpaid interest and any applicable Notes Premium on any Note or Note Guarantee, nor the payment or delivery of consideration due upon conversion of, any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company, any Subsidiary of the Company or any of their respective Affiliates in this Indenture or in any supplemental indenture or in any Note, Notes Guarantee or any other Indenture Document, nor because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company, any Subsidiary of the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes and Notes Guarantees.
ARTICLE 13
SECURITY
Section 13.01    Security Interest; Collateral Agent. The due and punctual payment of the principal (including the Redemption Price, Fundamental Change Repurchase Price or the Asset Sale Offer Repurchase Price, if applicable) of, and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, and Conversion Obligation with respect to, the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption, prepayment, demand or otherwise, and interest on the overdue principal (including the Redemption Price, Fundamental Change Repurchase Price or the Asset Sale Offer Repurchase Price, if applicable) of, and accrued and unpaid interest (including both the cash interest and PIK Interest portions thereof) and any applicable Notes Premium (to the extent not duplicative of the foregoing) on, the Notes and performance of all other obligations of the Company and the Subsidiary Guarantors to the Holders, the Trustee and the Collateral Agent under this Indenture, the Notes and the Note Guarantees, according to the terms hereunder or thereunder, are secured as provided in the Security Documents.
(a)    Each Holder of Notes, by its acceptance thereof, and the Trustee hereby appoints U.S. Bank Trust Company, National Association, as Collateral Agent, and consents and agrees to the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral and authorizing the Collateral Agent to enter into any Security Document on its behalf) and the Intercreditor Agreement, in each case, as the same may be in effect or may be amended or otherwise modified from time to time in accordance with their terms and this Indenture, and authorizes and directs the Collateral Agent to enter into the Intercreditor Agreement and the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. The Collateral Agent shall be entitled to all rights, privileges, immunities and protections of the Trustee set forth in this Indenture, including but not limited to the right to be compensated, reimbursed and indemnified under Section 7.06, in the acceptance, execution, delivery and performance of its role as Collateral Agent
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hereunder and under the Intercreditor Agreement and the Security Documents as though fully set forth therein. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the Collateral Agent shall not have any duties or responsibilities hereunder nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Trustee, any Holder or the Company, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture, the Intercreditor Agreement and the Security Documents or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b)    The Company consents and agrees to be bound, and, subject to Section 13.05, to cause the Subsidiary Guarantors to consent and agree to be bound by the terms of the Intercreditor Agreement and the Security Documents, as the same may be in effect from time to time, and agrees to perform its, and to cause the Subsidiary Guarantors to perform their, obligations thereunder in accordance therewith. The Company will deliver to the Trustee copies of all documents delivered to the Collateral Agent pursuant to the Security Documents, and the Company will, and, subject to Section 13.05, the Company will cause each Subsidiary Guarantor to, do or cause to be done all such acts and things as may be required by the provisions of the Security Documents to assure and confirm to the Trustee that the Collateral Agent holds for the benefit of itself, the Trustee and the Holders duly created, enforceable and perfected Liens as contemplated by the Intercreditor Agreement and the Security Documents or any part thereof, as from time to time constituted.
(c)     Neither the Trustee nor the Collateral Agent shall (i) be liable for any action taken or omitted to be taken by it under or in connection with this Indenture or the transactions contemplated hereby (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction) or under or in connection with the Intercreditor Agreement or any Security Document or the transactions contemplated thereby (except for its own gross negligence or willful misconduct as determined by a final order of a court of competent jurisdiction), or (ii) be responsible in any manner to any of the Trustee or any Holder for any recital, statement, representation, warranty, covenant or agreement made by the Company or any Affiliate of the Company, or any officer or Affiliate thereof, contained in this Indenture, the Intercreditor Agreement, any Security Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture, the Intercreditor Agreement or the Security Documents, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Indenture, the Intercreditor Agreement or the Security Documents, or for any failure of any other party to this Indenture, the Intercreditor Agreement or the Security Documents to perform its obligations hereunder or thereunder. The Collateral Agent shall not be under any obligation to the Trustee or any Holder to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Indenture, the Intercreditor Agreement or the Security Documents or to inspect the properties, books, or records of the Company or any of its Affiliates.
(d)    No provision of this Indenture, the Intercreditor Agreement or any Security Document shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action hereunder or thereunder or take any action at the request or direction of Holders or the Trustee if it shall have reasonable grounds for believing that repayment of such funds is not assured to it. Notwithstanding anything to the contrary contained in this Indenture, the Intercreditor Agreement or the Security
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Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances unless the Collateral Agent has received security or indemnity from the Holders in an amount and in a form satisfactory to the Collateral Agent in its sole discretion, protecting the Collateral Agent from all such liability. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(e)    Subject to Section 13.05 hereof, in each case that the Collateral Agent may or is required hereunder to take any action (an “Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder, under the Intercreditor Agreement or under any Security Document, the Collateral Agent may seek direction from the Trustee or the Required Holders or Lynrock, as applicable. Neither the Trustee nor the Collateral Agent shall be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Required Holders or Lynrock, as applicable. Subject to Section 17.05 hereof, if the Trustee or the Collateral Agent shall request direction from the Required Holders or Lynrock, as applicable, with respect to any Action, the Trustee and the Collateral Agent shall be entitled to refrain from such Action unless and until the Trustee or Collateral Agent, as applicable, shall have received direction from the Required Holders or Lynrock, as applicable, and neither the Trustee nor the Collateral Agent shall incur liability to any Person by reason of so refraining.
(f)    The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Collateral Agent shall have received written notice from the Trustee, a Holder or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Required Holders or Lynrock, as applicable.
(g)    Beyond the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and neither the Trustee nor the Collateral Agent shall 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 security interest in the Collateral. Each of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or the Collateral Agent, as applicable, in good faith.
(h)    Each successor Trustee may become the successor Collateral Agent as and when the successor Trustee becomes the Trustee.
Section 13.02    Recording and Opinion. The Company shall furnish to the Trustee and the Collateral Agent (if other than the Trustee), on or within one month of December 15 of each year,
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commencing December 15, 2025, (a) an Opinion of Counsel to the effect that no further action was necessary to maintain the perfection of the security interest in the Collateral described in both the applicable UCC-1 financing statement and the Security Agreement, and (b) an Officer’s Certificate stating that all action required by the Security Documents to maintain and perfect or continue the perfection of the security interests created by the Security Documents have been taken, and reciting the details of such action or referring to prior Officer’s Certificates in which such details are given.
Section 13.03     Authorization of Actions to Be Taken by the Trustee or the Collateral Agent Under the Intercreditor Agreement and the Security Documents.
(a)     Subject to the provisions of Section 7.01, the Intercreditor Agreement and the terms of the Security Documents, the Trustee may (but shall have no obligation to), in its sole discretion and without the consent of the Holders, direct, on behalf of the Holders of Notes, the Collateral Agent to take all actions it deems necessary or appropriate in order to:
(i)    enforce any of the terms of the Intercreditor Agreement and the Security Documents; and
(ii)    collect and receive any and all amounts payable in respect of the obligations of the Company and the Subsidiary Guarantors under this Indenture, the Notes, the Intercreditor Agreement and the Security Documents.
(b)    Subject to the provisions of this Indenture, the Intercreditor Agreement and the Security Documents, the Trustee and/or the Collateral Agent will have power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of this Indenture, the Intercreditor Agreement or the Security Documents, and such suits and proceedings as may be necessary to preserve or protect the interests of the Trustee, the Collateral Agent 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 under the Security Documents or be prejudicial to the interests of the Holders or of the Trustee and/or the Collateral Agent).
Section 13.04    Authorization of Receipt of Funds by the Trustee under the Security Documents and the Intercreditor Agreement.  The Trustee and/or the Collateral Agent is authorized to receive any funds for the benefit of the Collateral Agent and the Holders distributed under the Security Documents or the Intercreditor Agreement, and to make further distributions of such funds to the Holders according to the provisions of this Indenture with respect to the Collateral.
Section 13.05    Termination of Security Interest; Release of Collateral.
(a)    Collateral will be released automatically from the Liens securing the Notes Obligations of the Company and the Subsidiary Guarantors under this Indenture, the Notes, the Note Guarantees and the Security Documents without the consent or further action of any Person:
(i)    in whole or in part, as applicable, upon the sale, transfer or other disposition of such property or assets (including a disposition resulting from eminent domain, condemnation or similar circumstances) by the Company or any Subsidiary Guarantor if (but only if) (x) such disposition is permitted pursuant to this Indenture and the Security Documents and complies with
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any applicable provisions of Section 4.13; (y) such disposition does not constitute the sale, conveyance, transfer or lease by the Company or any Subsidiary Guarantor of all or substantially all of its consolidated properties and assets to another Person, in one transaction or a series of related transactions; and (z) the Company has delivered to the Trustee and the Collateral Agent an Officer’s Certificate and Opinion of Counsel stating that such disposition complies with the provisions of this Section 13.05;
(ii)    with the Required Holders (or, in the case of a release of all or substantially all of the Collateral from the Liens securing the Notes, the consent of all Holders) of the aggregate principal amount of the outstanding Notes;
(iii)    with respect to any Collateral securing the Note Guarantee of any Subsidiary Guarantor, when the Note Guarantee of such Subsidiary Guarantor is released in accordance with the terms of Section 18.06(a) (except for a release of a Note Guarantee of a Subsidiary Guarantor pursuant to clause (ii) or clause (iii) of Section 18.06(a)); or
(iv)    in accordance with the applicable provisions of the Intercreditor Agreement and the Security Documents.
(b)    Neither the Trustee nor the Collateral Agent shall have any duty or liability for determining the Company’s compliance with this Section 13.05, but instead may rely on the Officer’s Certificates issued by the Company under this Section 13.05.
(c)    The security interests granted under this Indenture and all Security Documents will terminate upon the full and final payment and performance of all Notes Obligations (other than contingent indemnification obligations for which no claim has been made) of the Company and any other obligors, if any and as applicable, under this Indenture, the Notes, the Note Guarantees and the Security Documents.
(d)    The release of any Collateral from the terms of the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof or affect the Lien of this Indenture or the Security Documents if and to the extent the Collateral is released pursuant to this Indenture or the Security Documents or upon the satisfaction and discharge of this Indenture. For the avoidance of doubt, the requirements of Section 314(d) of the Trust Indenture Act shall not apply to any release of the Collateral.
(e)    Subject to the Intercreditor Agreement, upon such release or any release of Collateral or any part thereof in accordance with the provisions of this Indenture or the Security Documents, upon the request and at the sole cost and expense of the Company and the Subsidiary Guarantors, the Trustee shall direct the Collateral Agent to and upon such request and direction, the Collateral Agent shall:
(i)    assign, transfer and deliver to the Company or the applicable Subsidiary Guarantor, as the case may be, against receipt and without recourse to or warranty by the Collateral Agent except as to the fact that the Collateral Agent has not encumbered the released assets, such of the Collateral or any part thereof to be released as may be in possession of the Collateral Agent and as shall not have been sold or otherwise applied pursuant to the terms of the Intercreditor Agreement and the Security Documents;
(ii)    execute and deliver UCC financing statement amendments or releases (which shall be prepared by the Company or any Subsidiary Guarantor) to the extent necessary to delete
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such Collateral or any part thereof to be released from the description of assets in any previously filed financing statements; and
(iii)    execute and deliver such documents, instruments or statements (which shall be prepared by the Company) and take such other action as the Company may request to cause to be released and reconveyed to the Company, or the applicable Subsidiary Guarantor, as the case may be, such Collateral or any part thereof to be released and to evidence or confirm that such Collateral or any part thereof to be released has been released from the Liens of each of this Indenture and each of the Security Documents.
Section 13.06    Maintenance of Collateral. The Company shall, and shall cause each of its Subsidiaries to keep and maintain the Collateral and all properties material to the conduct of the business of the Company and its Subsidiaries, taken as a whole, in good working order and condition (ordinary wear and tear and casualty and condemnation excepted), except where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its Subsidiaries’ businesses, taken as a whole; provided, that nothing in this Section 13.06 shall prevent the Company or any Subsidiary from discontinuing the maintenance of any of such property if such discontinuance is, in the judgment of the Company, desirable to the conduct of the business of the Company and its Subsidiaries, taken as a whole.
Section 13.07    Collateral Agent.
(a)    Each Holder agrees that any action taken by the Collateral Agent in accordance with the provisions of this Indenture and the Security Documents, and the exercise by the Collateral Agent of any rights or remedies set forth herein and therein shall be authorized and binding upon all Holders. Notwithstanding any provision to the contrary contained elsewhere in this Indenture and the Security Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the Security Documents, to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder or any grantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture and the Security Documents, or otherwise exist against the Collateral Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Indenture with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b)    The Collateral Agent may perform any of its duties under this Indenture or the Security Documents by or through receivers, agents, employees, attorneys-in-fact or with respect to any specified Person, such Person’s Affiliates, and the respective officers, directors, employees, agents, advisors and attorneys-in-fact of such Person and its Affiliates (a “Related Person”), and shall be entitled to advice of counsel concerning all matters pertaining to such duties, and shall be entitled to act upon, and shall be fully protected in taking action in reliance upon any advice or opinion given by legal counsel (absent gross negligence or willful misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent shall not be responsible for the negligence or misconduct of any receiver, agent, employee, attorney-in-fact or Related Person that it selects as long as such selection was made in good faith and with due care.
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(c)    The Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, certification, telephone message, statement, or other communication, document or conversation (including those by telephone or e-mail) believed by it in good faith to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including, without limitation, counsel to the Company or any other grantor), independent accountants and other experts and advisors selected by the Collateral Agent (absent gross negligence or willful misconduct as determined in an non-appealable judgment by a court of competent jurisdiction). The Collateral Agent 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. Except as otherwise expressly provided herein, the Collateral Agent shall be fully justified in failing or refusing to take any action under this Indenture or the Security Documents unless it shall first receive such advice or concurrence of the Trustee or the Required Holders or Lynrock, as applicable, and, if it so requests, it shall first be indemnified to its satisfaction by the Holders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Collateral Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Indenture or the Security Documents in accordance with a request, direction, instruction or consent of the Trustee or the Required Holders or Lynrock, as applicable, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Holders.
(d)    The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless a Responsible Officer of the Collateral Agent shall have received written notice from the Trustee, a Holder or the Company referring to this Indenture, describing such Default or Event of Default and stating that such notice is a “notice of default.” The Collateral Agent shall take such action with respect to such Default or Event of Default as may be requested by the Trustee in accordance with Article 6 or the Required Holders or Lynrock, as the case may be (subject to this Section 13.07 and the Intercreditor Agreement).
(e)    The Collateral Agent may (i) resign at any time by 30 days’ written notice to the Trustee and the Company or (ii) be removed at any time by 30 days’ written notice to the Trustee, the Collateral Agent and the Company from the Required Holders, such resignation or removal to be effective upon the acceptance of a successor agent to its appointment as Collateral Agent. If the Collateral Agent resigns or is removed under this Indenture, the Required Holders, in consultation with the Company, shall appoint a successor collateral agent. If no successor collateral agent is appointed prior to the intended effective date of the resignation or removal of the Collateral Agent (as stated in the notice of resignation or removal), the Trustee, at the direction of the Required Holders, may appoint a successor collateral agent in consultation with the Company. If no successor collateral agent is appointed and consented to by the Company pursuant to the preceding sentence within thirty (30) days after the intended effective date of resignation (as stated in the notice of resignation or removal, as applicable) the Collateral Agent shall be entitled to petition a court of competent jurisdiction to appoint a successor. Upon the acceptance of its appointment as successor collateral agent hereunder, such successor collateral agent shall succeed to all the rights, powers and duties of the retiring Collateral Agent, and the term “Collateral Agent” shall mean such successor collateral agent, and the retiring Collateral Agent’s appointment, powers and duties as the Collateral Agent shall be terminated. After the retiring Collateral Agent’s resignation hereunder, the provisions of this Section 13.07 (and Section 7.06 and 7.13 hereof) shall continue to inure to its benefit and the retiring Collateral Agent shall not by reason of such resignation or removal be deemed to be released from liability as to any actions taken or omitted to be taken by it while it was the Collateral Agent under this Indenture.
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(f)    U.S. Bank Trust Company, National Association shall initially act as Collateral Agent and shall be authorized to appoint co-Collateral Agents as necessary in its sole discretion. Except as otherwise explicitly provided herein or in the Security Documents, neither the Collateral Agent nor any of its respective officers, directors, employees or agents or other Related Persons shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The Collateral Agent shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Collateral Agent nor any of its officers, directors, employees or agents shall be responsible for any act or failure to act hereunder, except for its own gross negligence or willful misconduct.
(g)    The Collateral Agent is authorized and directed to (i) enter into the Security Documents and Intercreditor Agreement to which it is party, whether executed on or after the date of this Indenture, (ii) make the representations of the Holders set forth in the Security Documents, (iii) bind the Holders on the terms as set forth in the Security Documents, and (iv) perform and observe its obligations under the Security Documents.
(h)    If at any time or times the Trustee shall receive (i) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral or any payments with respect to the Notes Obligations arising under, or relating to, this Indenture, except for any such proceeds or payments received by the Trustee from the Collateral Agent pursuant to the terms of this Indenture, or (ii) payments from the Collateral Agent in excess of the amount required to be paid to the Trustee pursuant to Article 6, the Trustee shall promptly turn the same over to the Collateral Agent, in kind, and with such endorsements as may be required to negotiate the same to the Collateral Agent such proceeds to be applied by the Collateral Agent pursuant to the terms of this Indenture, the Security Documents and the Intercreditor Agreement.
(i)    The Collateral Agent is each Holder’s agent for the purpose of perfecting the Holders’ security interest in assets which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. Should the Trustee obtain possession of any such Collateral, the Trustee shall notify the Collateral Agent thereof and promptly shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.
(j)    The Collateral Agent (and the Trustee) shall have no obligation whatsoever to the Trustee (in the case of the Collateral Agent) or any of the Holders to assure that the Collateral exists or is owned by any grantor or is cared for, protected, or insured or has been encumbered, or that the Collateral Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, maintained or enforced or are entitled to any particular priority, or to determine whether all of the grantor’s property constituting Collateral intended to be subject to the Lien and security interest of the Security Documents has been properly and completely listed or delivered, as the case may be, or the genuineness, validity, marketability or sufficiency thereof or title thereto, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and powers granted or available to the Collateral Agent pursuant to this Indenture or any Security Document other than pursuant to the instructions of the Required Holders or Lynrock, as applicable, or as otherwise provided in the Security Documents.
(k)    No provision of this Indenture or any Security Document shall require the Collateral Agent (or the Trustee) to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or to take or omit to take any action
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hereunder or thereunder or take any action at the request or direction of Holders (or the Trustee in the case of the Collateral Agent) unless it shall have received indemnity satisfactory to the Collateral Agent and the Trustee against potential costs and liabilities incurred by the Collateral Agent relating thereto. Notwithstanding anything to the contrary contained in this Indenture or the Security Documents, in the event the Collateral Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Collateral Agent shall not be required to commence any such action or exercise any remedy or to inspect or conduct any studies of any property or take any such other action if the Collateral Agent has determined that the Collateral Agent may incur personal liability as a result of the presence at, or release on or from, the Collateral or such property, of any hazardous substances. The Collateral Agent shall at any time be entitled to cease taking any action described in this clause (k) if it no longer reasonably deems any indemnity, security or undertaking from the Company or the Holders to be sufficient.
(l)    The Collateral Agent (i) shall not be liable for any action taken or omitted to be taken by it in connection with this Indenture, the Intercreditor Agreement and the Security Documents or instruments referred to herein or therein, except to the extent that any of the foregoing are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted from its own gross negligence or willful misconduct, (ii) shall not be liable for interest on any money received by it except as the Collateral Agent may agree in writing with the Company (and money held in trust by the Collateral Agent need not be segregated from other funds except to the extent required by law) and (iii) may consult with counsel of its selection and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it in good faith and in accordance with the advice or opinion of such counsel (absent gross negligence or willful misconduct as determined in a non-appealable judgment by a court of competent jurisdiction). The grant of permissive rights or powers to the Collateral Agent shall not be construed to impose duties to act.
(m)    [Reserved].
(n)    The Collateral Agent does not assume any responsibility for any failure or delay in performance or any breach by the Company or any other grantor under this Indenture and the Security Documents. The Collateral Agent shall not be responsible to the Holders or any other Person for any recitals, statements, information, representations or warranties contained in this Indenture, the Security Documents or in any certificate, report, statement, or other document referred to or provided for in, or received by the Collateral Agent under or in connection with, this Indenture or any Security Document; the execution, validity, genuineness, effectiveness or enforceability of any Security Documents of any other party thereto; the genuineness, enforceability, collectability, value, sufficiency, location or existence of any Collateral, or the validity, effectiveness, enforceability, sufficiency, extent, perfection or priority of any Lien therein; the validity, enforceability or collectability of any Notes Obligations; the assets, liabilities, financial condition, results of operations, business, creditworthiness or legal status of any obligor; or for any failure of any obligor to perform its Notes Obligations under this Indenture and the Security Documents. The Collateral Agent shall have no obligation to any Holder or any other Person to ascertain or inquire into the existence of any Default or Event of Default, the observance or performance by any obligor of any terms of this Indenture the Security Documents, or the satisfaction of any conditions precedent contained in this Indenture and any Security Documents. The Collateral Agent shall not be required to initiate or conduct any litigation or collection or other proceeding under this Indenture and the Security Documents unless expressly set forth hereunder or thereunder. The Collateral Agent shall have the right at any time to seek instructions from the Holders with respect to the administration of this Indenture and the Security Documents.
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(o)    The parties hereto and the Holders hereby agree and acknowledge that neither the Collateral Agent nor the Trustee shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any environmental law as a result of this Indenture, the Security Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto and the Holders hereby agree and acknowledge that in the exercise of its rights under this Indenture and the Security Documents, the Collateral Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral and that any such actions taken by the Collateral Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral.
(p)    Subject to Section 10.02, upon the receipt by the Collateral Agent of a written request of the Company signed by an Officer (a “Security Document Order”), the Collateral Agent is hereby authorized to execute and enter into, and shall execute and enter into, without the further consent of any Holder or the Trustee, any Security Document or amendment or supplement thereto to be executed after the date of this Indenture; provided, that the Collateral Agent shall not be required to execute or enter into any such Security Document which, in the Collateral Agent’s reasonable opinion is reasonably likely to adversely affect the rights, duties, liabilities or immunities of the Collateral Agent or that the Collateral Agent determines is reasonably likely to involve the Collateral Agent in personal liability. Such Security Document Order shall (i) state that it is being delivered to the Collateral Agent pursuant to, and is a Security Document Order referred to in, this Section 13.07(p), and (ii) instruct the Collateral Agent to execute and enter into such Security Document. Other than as set forth in this Indenture, any such execution of a Security Document shall be at the direction and expense of the Company, upon delivery to the Collateral Agent of an Officer’s Certificate and Opinion of Counsel stating that all conditions precedent to the execution and delivery of the Security Document have been satisfied. The Holders, by their acceptance of the Notes, hereby authorize and direct the Collateral Agent to execute such Security Documents (subject to the first sentence of this Section 13.07(p)).
(q)    Subject to the provisions of the applicable Security Documents and the Intercreditor Agreement, each Holder, by acceptance of the Notes, agrees that the Collateral Agent shall execute and deliver the Security Documents and any Intercreditor Agreement to which it is a party and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof. For the avoidance of doubt, the Collateral Agent shall have no discretion under this Indenture or the Security Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Required Holders, Lynrock or the Trustee, as applicable. Each Holder, by acceptance of the Notes, authorizes and directs the Trustee to execute and deliver the Intercreditor Agreement and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof.
(r)    [Reserved].
(s)    The Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents or the Intercreditor Agreement and to the extent not prohibited under any Intercreditor Agreement for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.05 and the other provisions of this Indenture.
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(t)    In each case that the Collateral Agent may or is required hereunder or under any Security Document or under any Intercreditor Agreement to take any Action, including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any Security Document, the Collateral Agent may seek direction from the Required Holders or Lynrock, as the case may be. The Collateral Agent shall not be liable with respect to any Action taken or omitted to be taken by it in accordance with the direction from the Required Holders or Lynrock, as the case may be. If the Collateral Agent shall request direction from the Required Holders or Lynrock, as applicable, with respect to any Action, the Collateral Agent shall be entitled to refrain from such Action unless and until the Collateral Agent shall have received direction from the Required Holders or Lynrock, as applicable, and the Collateral Agent shall not incur liability to any Person by reason of so refraining.
(u)    Notwithstanding anything to the contrary in this Indenture or in any Security Document, in no event shall the Collateral Agent or the Trustee be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by this Indenture or the Security Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall the Collateral Agent or the Trustee be responsible for, and neither the Collateral Agent nor the Trustee makes any representation regarding, the validity, effectiveness or priority of any of the Security Documents or the security interests or Liens intended to be created thereby.
(v)    Before the Collateral Agent acts or refrains from acting in each case at the request or direction of the Company or the Subsidiary Guarantors, other than as set forth in this Indenture, it may require an Officer’s Certificate and an Opinion of Counsel. The Collateral Agent shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion (absent gross negligence or willful misconduct as determined in a non-appealable judgment by a court of competent jurisdiction).
(w)    Notwithstanding anything to the contrary contained herein, the Collateral Agent shall act pursuant to the instructions of the Holders and the Trustee with respect to the Security Documents and the Collateral, except as otherwise expressly set forth in the Intercreditor Agreement.
(x)    Notwithstanding any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under the Intercreditor Agreement or any other Security Document except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserves the right, instead of taking such action, to either resign as set forth herein or arrange for the transfer of the title or control of the asset to a court-appointed receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any person other than the Company or a Subsidiary Guarantor, the Required Holders or Lynrock, as the case may be,
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shall direct the Collateral Agent or Trustee, as applicable, to appoint an appropriately qualified person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral.
(y)    The rights, privileges, benefits, immunities, indemnities and other protections given to the Trustee under this Indenture are extended to, and shall be enforceable by, the Collateral Agent as if the Collateral Agent were named as the Trustee herein and the Security Documents were named as this Indenture herein. The Collateral Agent shall be entitled to compensation, reimbursement and indemnity as set forth in Section 7.06, as if references therein to Trustee were references to Collateral Agent.
ARTICLE 14
CONVERSION OF NOTES
Section 14.01    Conversion Privilege.
(a)    Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is an Authorized Denomination) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding February 15, 2029 under the circumstances and during the periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after February 15, 2029 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Stated Maturity, in each case, at an initial conversion rate of 13.2933 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000 Conversion Amount of Notes, together with any applicable Make-Whole Payment in accordance with Section 14.03 (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion Obligation”).
(b)    
(i)    Prior to the close of business on the Business Day immediately preceding February 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this Section 14.01(b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Day divided by (ii) 1,000 times (y) the Conversion Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this Section 14.01(b)(i) and the definition of Trading Price set forth in this Indenture. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination in writing and has provided the Bid Solicitation Agent with the names and contact information of the securities dealers the Company has selected for such purpose, and the Company shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes on a specified Trading Day would be less than 98% of the product of the Last Reported Sale Price
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of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Day divided by (ii) 1,000 times (y) the Conversion Rate, at which time the Company shall instruct the Bid Solicitation Agent in writing (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Day divided by (ii) 1,000 times (y) the Conversion Rate. At such time as the Company directs the Bid Solicitation Agent in writing to solicit bid quotations, the Company shall provide the Bid Solicitation Agent with the names and contact details of the three independent nationally recognized securities dealers selected by the Company, and the Company shall direct those security dealers to provide bids to the Bid Solicitation Agent. Any such determination will be conclusive absent manifest error. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the Bid Solicitation Agent to obtain bids, or if the Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Day divided by (ii) 1,000 times (y) the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing. If, at any time after the Trading Price condition set forth above has been met, the Bid Solicitation Agent, or if the Company is acting as Bid Solicitation Agent, the Company, determines that the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock the product of (x) the quotient of (i) the Conversion Amount in respect of $1,000 principal amount of Notes on such Trading Days divided by (ii) $1,000 times (y) and the Conversion Rate for such date, the Company shall so notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation Agent (if other than the Company) shall be required to solicit bids again until a new holder request is made as provided above.
(ii)    If, prior to the close of business on the Business Day immediately preceding February 15, 2029, the Company elects to:
(x)    distribute to all or substantially all holders of the Common Stock any rights, options, or warrants (other than in connection with a stockholder rights plan prior to separation of the relevant rights from the Common Stock) entitling them, for a period of not more than 45 calendar days after the announcement date of such distribution, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution; or
(y)    distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities of the Company (other than in
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connection with a stockholder rights plan prior to separation of the relevant rights from the Common Stock as to which Section 14.11 will apply), which distribution has a per share value, as reasonably determined by the Company, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution, then, in case of either clause (x) or clause (y), the Company shall notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 55 scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event has occurred or will occur). Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take place, even if the Notes are not otherwise convertible at such time.
If shares of the Company’s common stock are listed on The Tel Aviv Stock Exchange, and the Company elects to distribute bonus shares, offer by way of rights issue, distribute dividends, consolidate share capital, consolidate shares, reduce or split our share capital, or effectuate a forward or reverse stock split (any of the foregoing, a “Stock Adjustment Event”), then, in any of these cases, the Company must notify the holders of the notes (with a copy to the Trustee and the Conversion Agent (if other than the Trustee)) in writing at least 30 scheduled Trading Days prior to the ex-dividend date for such Stock Adjustment Event. None of the notes may be converted on the record date for such Stock Adjustment Event. In addition, if the ex-dividend date with respect to a Stock Adjustment Event occurs before the record date relating to such Stock Adjustment Event, then no conversion of the notes or a part thereof shall take place on such ex-dividend date. In the event a holder of the notes attempts to convert its notes on the record date for a Stock Adjustment Event, then the date for such conversion shall be postponed to the next Business Day. In the event the ex-dividend date occurs before the record date relating to such Stock Adjustment Event, then such ex-dividend date shall be postponed to the next Business Day.
(iii)    If (i) a transaction or event that constitutes (x) a Fundamental Change or (y) a Make-Whole Fundamental Change occurs prior to the close of business on the Business Day immediately preceding February 15, 2029, or (ii) if the Company is a party to a Share Exchange Event that occurs prior to the close of business on the Business Day immediately preceding February 15, 2029 (other than a merger effected in accordance with Section 11.01 solely to change the Company’s jurisdiction of incorporation that does not otherwise constitute a Fundamental Change or a Make-Whole Fundamental Change) (each such Fundamental Change, Make-Whole Fundamental Change or Share Exchange Event, a “Corporate Event”), then, in each case, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the earlier of (i) the date the Company gives notice of such Corporate Event, and (ii) the effective date of such Corporate Event until the date 35 Trading Days after the effective date of such Corporate Event (or if the Company gives notice after the effective date of such Corporate Event, until the date 35 Trading Days after the date the Company gives notice) or, if such Corporate Event also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing as promptly as practicable following the date the Company publicly announces such Corporate Event, but in no event later than five (5) Business Days after the actual effective date of such Corporate Event.
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(iv)    Prior to the close of business on the Business Day immediately preceding February 15, 2029, a Holder may surrender all or any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on September 30, 2024 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day as determined by the Company.
(v)    If the Company calls any Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day immediately preceding February 15, 2029, then Holders may surrender for conversion the Notes called for redemption at any time prior to the close of business on the Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) on account of the Company’s delivery of the relevant Redemption Notice shall expire, unless the Company defaults in the payment of the Redemption Price, in which case Holders may convert the Notes called for redemption until the Redemption Price has been paid or duly provided for. Notwithstanding the foregoing, if the Company calls fewer than all of the outstanding Notes for redemption pursuant to Article 16 and a Holder (including, for this purpose, the owner of a beneficial interest in a Global Note) is not able to reasonably determine in good faith, prior to the close of business on the 53rd Scheduled Trading Day immediately preceding the relevant Redemption Date, whether the Notes owned by such Holder (or beneficially owned by such owner of a beneficial interest, as applicable) are subject to such partial redemption and, as a result thereof, convertible in accordance with the provisions of this Section 14.01(b)(v), then such Holder (or such owner of a beneficial interest, as applicable) shall be entitled to convert such Notes after the date of the Redemption Notice until the Scheduled Trading Day immediately preceding the Redemption Date, regardless of whether such Notes (or such beneficial interests, as applicable) are subject to such partial redemption, and any such conversion shall be deemed to be of a Note called for redemption (including, without limitation, for purposes of Section 14.03). The Trustee shall have no obligation to make any determination in connection with this Section 14.01(b)(v).
(vi)    If the aggregate outstanding principal amount of Existing Notes exceeds $60,000,000 on the date 30 days before Existing Notes Test Date, (A) on such date the Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing thereof and (B) all or any portion of a Holder’s Notes may be surrendered for conversion at any time during the period beginning on the next succeeding Trading Day and ending on the Scheduled Trading Day immediately preceding the Existing Notes Test Date.
(c)    Neither the Trustee nor the Conversion Agent shall have any obligation to make any calculation or to determine whether the Notes may be surrendered for conversion or to notify the Company, the Depositary or any Holders if the Notes have become convertible.
Section 14.02    Conversion Procedure; Settlement Upon Conversion.
(a)    Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its Conversion Obligation by (i) paying to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash in an amount based upon the Conversion Amount with respect to the Notes being converted and the applicable
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Conversion Rate, as set forth in this Section 14.02 and (ii) paying to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, an amount in cash equal to any applicable Make-Whole Payment payable in accordance with Section 14.03.
(i)    [Reserved].
(ii)    [Reserved].
(iii)    [Reserved].
(iv)    The cash in respect of any conversion of Notes shall be computed as follows:
(A)    [Reserved];
(B)    the Company shall pay to the converting Holder cash in an amount equal to the product of (x) the quotient of (i) the aggregate Conversion Amount of the Notes being converted on the Conversion Date divided by (ii) $1,000 times (y) the sum of the Daily Conversion Values for each of the 50 consecutive Trading Days during the related Observation Period.
(v)    The Daily Conversion Values shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Conversion Values, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Conversion Values. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b)    Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the Applicable Procedures in effect at that time for converting a beneficial interest in a Global Note and, if required, pay funds equal to the interest payable on the next Interest Payment Date which such Holder is required to remit as set forth in clause (ii) of the first sentence of Section 14.02(h) (and, if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to the interest payable on the next Interest Payment Date which such Holder is required to remit as set forth in clause (ii) of the first sentence of Section 14.02(h) (and if required, pay all transfer or similar taxes, if any, as set forth in Section 14.02(e)). The Conversion Agent shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered an Asset Sale Offer Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Asset Sale Offer Repurchase Notice in accordance with Section 4.13(b)(vii) or such Fundamental Change Repurchase Notice in accordance with Section 15.03, as applicable.
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If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the aggregate Conversion Amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.
(c)    A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the second Business Day immediately following the last Trading Day of the relevant Observation Period.
(d)    In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(e)    [Reserved].
(f)    [Reserved].
(g)    Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h)    If Notes are converted after the close of business on an Interest Record Date and prior to the open of business on the corresponding Interest Payment Date, (i) Holders of such Notes as of the close of business on such Interest Record Date will receive the full amount of interest (including both the cash interest and PIK Interest portions thereof) payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion; (ii) Notes so surrendered for conversion during the period from the close of business on any Interest Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of any interest payable on the Notes so converted; and (iii) notwithstanding the payment of interest on such Notes on the corresponding Interest Payment Date pursuant to clause (i) above as a result of the payment requirements set forth in clause (ii) above, for purposes of clause (ii) of the definition of “Conversion Amount,” with respect to such Notes, such interest (including both the cash interest and PIK Interest portions thereof) shall continue to be deemed unpaid; provided, that no such payment shall be required to the extent of any overdue interest or interest that has accrued on any overdue interest. Therefore, for the avoidance of doubt, (x) all Holders of record on the Interest Record Date immediately preceding the Maturity Date shall receive the full interest payment (including both the cash interest and PIK Interest portions thereof) due on the Maturity Date in cash regardless of whether their Notes have been converted following such Interest Record Date; and (y) if the Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the close of business on the Interest Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment Date, the unpaid
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interest (including both the cash interest and PIK Interest portions thereof) that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 14.02(h).
(i)    At the close of business on the Conversion Date for a Note (or any portion thereof) to be converted, such Note (or such portion thereof) will (unless there occurs a Default in the delivery of the interest due or in the performance of the Conversion Obligation, pursuant to Section 14.02(a) or Section 14.02(h) upon such conversion) be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof) as of the close of business on such Conversion Date), except to the extent provided in Section 14.02(h).
Section 14.03    Make-Whole Payment Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or Redemption Notice or Existing Notes Test Date Notice.
(a)    If (x) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date; (y) the Company gives a Redemption Notice with respect to any or all of the Notes in accordance with Section 16.02; or (z) the Company gives an Existing Notes Test Date Notice pursuant to Section 15.01(c) and, in each case, a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or Redemption Notice or Existing Notes Test Date Notice, as the case may be, the Company shall, under the circumstances described below and in accordance with Section 14.02(c), pay such Holder an amount in cash (the “Make-Whole Payment”) equal to:
(i)    if clause (x) applies, the Fundamental Change Repurchase Premium on the Notes being converted (computed as if such Notes had been repurchased pursuant to Section 15.02 (instead of being converted)) on the Conversion Date;
(ii)    if clause (y) applies, the Redemption Premium on the Notes being converted (computed as if such Notes had been redeemed pursuant to Article 16 (instead of being converted)) on the Conversion Date; or
(iii)    if clause (z) applies, the Existing Notes Test Maturity Premium on the Notes being converted (computed as if such Notes had matured pursuant to Section 15.01 (instead of being converted)) on the Conversion Date.
A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date.
A conversion of Notes shall be deemed for these purposes to be “in connection with” a Redemption Notice if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the date of the Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the Redemption Date; provided, that if the Company gives a Redemption Notice with respect to fewer than all of the Notes outstanding, then the Make-Whole Payment for Notes converted in connection with such Redemption Notice as described in this Section 14.03 shall apply with respect to only the Notes called for redemption that are converted in connection therewith, and not with respect to the Notes not called for redemption, and Holders of Notes not called for redemption will not be entitled to a Make-Whole Payment for such Notes as described in this Section 14.03 on account of the Redemption Notice; provided further that, notwithstanding the foregoing and for the avoidance of doubt, Notes (or beneficial interests in a Global Note, as applicable) that are deemed to be called for such partial
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redemption in the circumstances described in Section 14.01(b)(v) and are converted in connection with the related Redemption Notice shall be entitled to a Make-Whole Payment pursuant to this Section 14.03 on account of such deemed redemption.
A conversion of Notes shall be deemed for these purposes to be “in connection with” an Existing Notes Test Date Notice if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the date of the Existing Notes Test Date Notice until the close of business on the Scheduled Trading Day immediately preceding the Existing Notes Test Date.
(b)    Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii) or a Redemption Notice pursuant to Section 16.02 or an Existing Notes Test Date Notice pursuant to Section 15.01(c), the Company shall satisfy the related Conversion Obligation by (i) paying an amount in cash in accordance with Section 14.02 based on the Conversion Rate and (ii) paying in cash any applicable Make-Whole Payment; provided, however, that if, the Reference Property in any Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation (other than any applicable Make-Whole Payment) shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash for all the converted Notes equal to the product of (x) the quotient of (i) the aggregate Conversion Amount of the Notes being converted on the Conversion Date divided by (ii) $1,000 times (y) the Conversion Rate, multiplied by such Stock Price. In such event, the Conversion Obligation shall thenceforth in all cases be determined and paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change in writing no later than five Business Days after such Effective Date.
(c)    “Stock Price” means the amount paid (or deemed to be paid) per share of Common Stock in a Make-Whole Fundamental Change described in clause (b) or (d)(ii) of the definition of Fundamental Change or, otherwise, determined pursuant to the following two sentences with respect to any other Make-Whole Fundamental Change or a Redemption Notice or an Existing Notes Test Date Notice, as the case may be. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) or (d)(ii) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change or the date of the Redemption Notice or the date of the Existing Notes Test Date Notice, as the case may be.
(d)    Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.
Section 14.04    Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs; provided, however, that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to convert their Notes, as if they held a
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number of shares of Common Stock equal to the Conversion Rate, multiplied by the Conversion Amount at such time (expressed in thousands) of Notes held by such Holder.
(a)    If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects a share split or share combination (excluding an issuance of Reference Property pursuant to a Share Exchange Event as to which Section 14.07 will apply), the Conversion Rate shall be adjusted based on the following formula:
OS'
CR' = CR0 x ---------
                 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 share combination, as applicable;

CR’ = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately after the open of business on the Effective Date of such share split or share combination, as applicable;

OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, share split or share combination); and

OS’ = the number of shares of Common Stock outstanding immediately after, and solely as a result of, giving effect to such dividend, distribution, share split or share combination.

Any adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b)    If the Company distributes to all or substantially all holders of Common Stock any rights, options or warrants (other than rights issued or otherwise distributed pursuant to a stockholder rights plan prior to separation of the relevant rights as to which Section 14.11 will apply and excluding an issuance of Reference Property pursuant to a Share Exchange Event as to which Section 14.07 will apply) entitling them, for a period of not more than 45 calendar days after the announcement date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate shall be increased based on the following formula:
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OS0 x X
CR' = CR0 x -------------
                 OS0 x Y

where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR’ = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights, options or warrants.
Any increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. To the extent that shares of the 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 distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such distribution had not occurred.
For purposes of this Section 14.04(b) and Section 14.01(b)(ii)(x), in determining whether any rights, options or warrants entitle the holders of Common Stock to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company in good faith and in a commercially reasonable manner.
(c)    If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock or other securities of the Company, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected (or would be required without regard to the proviso in the first sentence of Section 14.04) pursuant to Section 14.04(a) or Section 14.04(b), (ii) rights issued under a stockholder rights plan prior to separation thereof from the
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Common Stock, as to which Section 14.11 will apply, (iii) dividends or distributions paid exclusively in cash as to which an adjustment was effected (or would be required without regard to the proviso in the first sentence of Section 14.04) pursuant to Section 14.04(d), (iv) distributions of Reference Property in a Share Exchange Event as to which Section 14.07 will apply, (v) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (or would apply without regard to the proviso to the first sentence of Section 14.04) and (vi) distributions solely pursuant to a tender offer or exchange offer for shares of Common Stock as to which the provisions set forth in Section 14.04(e) shall apply (any of such shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following formula:
SP0
CR' = CR0 x ----------------
                 SP0 x FMV

where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR’ = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV = the fair market value (as determined by the Company in good faith and in a commercially reasonable manner) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.
Any increase made under the portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution is not paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not been declared. In the case of any distribution of rights, options, or warrants, to the extent any such rights, options, or warrants expire unexercised, the Conversion Rate shall be immediately readjusted to the Conversion Rate that would then be in effect had the increase made for the distribution of such rights, options, or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered upon exercise of such rights, options, or warrants. 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 Conversion Amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property 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.
With respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to any Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (excluding
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an issuance of Reference Property pursuant to a Share Exchange Event as to which Section 14.07 will apply) (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:
FMV0 + MP0
CR' = CR0 x ------------------
                 MP0

where,
CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR’ = the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided, that for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references to “10” in the portion of this Section 14.04(c) related to Spin-Offs shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. If any dividend or distribution that constitutes a Spin-Off is declared but not paid or made, the Conversion Rate shall be immediately decreased, effective as of the date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.
For purposes of this Section 14.04(c) (and subject in all respects to Section 14.11), rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed
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distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants that 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 a holder or holders of Common Stock with respect to such rights, options or warrants (assuming 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 that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.
For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is applicable (other than a Spin-Off) also includes one or both of:
(i)    a dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”); or
(ii)    a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),
then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution first then be made, and (2) the Ex-Dividend Date for the Clause B Distribution, if any, shall be deemed to immediately follow the Ex-Dividend Date for the Clause C Distribution and any Conversion Rate adjustment required by Section 14.06(b) with respect to the Clause B Distribution shall then be made immediately after the adjustment pursuant to clause (1), except that, if determined by the Company, any shares of Common Stock that become outstanding as a result of 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 14.06(b), and (3) the Ex-Dividend Date for the Clause A Distribution, if any, shall be deemed to immediately follow the Ex-Dividend Date for the Clause C Distribution or the Clause B Distribution, as the case may be, and any Conversion Rate adjustment required by Section 14.06(a) with respect to the Clause A Distribution shall then be made immediately after the adjustments pursuant to clauses (1) and (2), except that, if determined by the Company, any shares of Common Stock that become outstanding as a result of the Clause A Distribution shall not be deemed to be “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.06(a).
(d)    If any cash dividend or distribution is made to all or substantially all holders of the Common Stock (excluding an issuance of Reference Property pursuant to a Share Exchange Event as to which Section 14.07 will apply), the Conversion Rate shall be adjusted based on the following formula:
SP0
CR' = CR0 x ------------
                 SP0 x C
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where,
CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
CR’ = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
C = the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.
Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 Conversion Amount of Notes it holds, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for such cash dividend or distribution.
(e)    If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock that is subject to the then-applicable tender offer rules under the Exchange Act (other than solely pursuant to an odd-lot tender offer that satisfies the requirements of Rule 13e-4(h)(5) under the Exchange Act, or any successor to such rule), to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:
AC + (SP' x OS')
CR' = CR0 x -------------------------
                 OS0 x SP'

where,
CR