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1 Pg 1 of 22 Lisa M. Schweitzer Jane VanLare CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York Telephone: Facsimile: Attorneys for SMP Ltd. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: SUNEDISON, INC., et al., Debtors. Chapter 11 Case No (SMB) Jointly Administered SMP LTD., -against- SUNEDISON, INC., Plaintiff, Adv. Proc. No. ( ) COMPLAINT Defendant. Plaintiff SMP Ltd. ( SMP ), by its attorneys, Cleary Gottlieb Steen & Hamilton LLP, as and for its complaint (the Complaint ) against defendant SunEdison, Inc., f/k/a MEMC Electronic Materials, Inc. ( SunEdison ), alleges as follows: NATURE OF THE ACTION 1. SMP brings this action for a judgment pursuant to 11 U.S.C. 105, 28 U.S.C and Rules 7001 and 7065 of the Federal Rules of Bankruptcy Procedure declaring that SunEdison s Termination Notice (defined below) for that certain supply and license agreement, dated as of September 28, 2011, by and between SMP and SunEdison (then

2 Pg 2 of 22 known as MEMC Electronic Materials, Inc.) (the SLA ), 1 which seeks termination pursuant to section 8.2(a)(ii) of the SLA (the Ipso Facto Clause ), is null and void and ineffective because the Ipso Facto Clause is unenforceable against SMP due to the Korean Bankruptcy Court s entry of the Commencement Order commencing the Korean Bankruptcy Proceedings (each defined below) with respect to SMP, which automatically renders the Ipso Facto Clause unenforceable against SMP, a debtor in rehabilitation, under applicable Korean law, and also because the basis for termination and the purported termination by SunEdison reek of bad faith and are barred by the doctrines of equitable estoppel, waiver and/or unclean hands. SMP also seeks a mandatory injunction ordering SunEdison to withdraw the Termination Notice (defined below) and a permanent injunction enjoining SunEdison (including any successor to SunEdison s rights or interests under the SLA) from taking any action to enforce the Ipso Facto Clause against SMP, including any attempt to issue a subsequent termination notice pursuant to the Ipso Facto Clause. 2. The SLA, which is key to SMP s operations and its ability to rehabilitate itself, contains various provisions related to the sale of assets, the license of intellectual property and other matters. Through the SLA, SMP purchased certain equipment developed by SunEdison, as well as a license to use polysilicon manufacturing technology. Also, as part of the SLA, SunEdison guaranteed that SMP s polysilicon plant in Ulsan, Korea (the Ulsan Plant ), SMP s only plant, which was constructed for the purpose of producing polysilicon with the assets sold and license granted to SMP through the SLA, would meet certain performance metrics. Following the parties entry into the SLA, SunEdison repeatedly failed to ensure that the Ulsan Plant met these performance metrics. Moreover, SunEdison Products Singapore Pte. Ltd. (formerly known as MEMC Singapore Pte. Ltd.) ( SPS ), a SunEdison affiliate, separately 1 Given that the SLA contains confidentiality restrictions and that SMP believes that SunEdison has a copy of the SLA, it is not attached to the Complaint, but rather is incorporated herein by reference as if attached hereto. -2-

3 Pg 3 of 22 agreed to purchase certain of the polysilicon produced by the Ulsan Plant. SPS repeatedly failed to pay SMP for the polysilicon it received, leading to overdue accounts in excess of $60 million owed to SMP. SPS then rejected its purchase agreement with SMP shortly after commencing its chapter 11 proceedings, leaving such outstanding amounts unpaid. The filing of the SunEdison Chapter 11 Proceedings (defined below), SunEdison s failure to ensure that the Ulsan Plant met its performance metrics and SPS s failure to pay for SMP s products, as well as the failure of the SunEdison Debtors (defined below) to provide financial support required by SMP on account of the financial instability caused by their failure to perform their contractual obligations to SMP, directly led to SMP s commencement of its rehabilitation proceeding in Korea (the Korean Bankruptcy Proceedings ) under Korea s Debtor Rehabilitation and Bankruptcy Act (the DRBA ) before the 21 st Civil Division of the Ulsan District Court (the Korean Bankruptcy Court ). 3. This action seeks a judgment declaring that the SLA s Ipso Facto Clause is unenforceable against SMP and the Termination Notice (defined below) is ineffective and invalid under applicable law, including based on the Korean Bankruptcy Court s entry of the Commencement Order (defined below) commencing the pending Korean Bankruptcy Proceedings with respect to SMP, which automatically rendered the Ipso Facto Clause unenforceable against SMP under applicable Korean law. In the alternative, SMP seeks a declaratory judgment that SunEdison s attempted termination of the SLA is barred by the doctrines of equitable estoppel, waiver and/or unclean hands. SMP also seeks a mandatory injunction ordering SunEdison to withdraw the Termination Notice (defined below) and a permanent injunction enjoining SunEdison (including any successor to SunEdison s rights or -3-

4 Pg 4 of 22 interests under the SLA) from taking any action to enforce the Ipso Facto Clause against SMP, including any attempt to issue a subsequent termination notice pursuant to the Ipso Facto Clause. PARTIES AND RELATED ENTITIES 4. Plaintiff SMP is a corporation organized under the laws of the Republic of Korea with its principal place of business located at 18 Yeochonro 217-gil, Nam-Gu Ulsan, , Republic of Korea. Mr. Heein Lee has been appointed as SMP s custodian in the Korean Bankruptcy Proceedings. 5. Defendant SunEdison is a corporation organized under the laws of the state of Delaware with its principal place of business located at Riverport Drive, Maryland Heights, Missouri Upon information and belief, SPS is a corporation organized under the laws of Singapore with its principal place of business located at 9 Battery Road, #15-01 Straits Trading Building, Singapore , and is an affiliate of SunEdison. SPS owns approximately 62.25% of the outstanding shares of capital stock of SMP. JURISDICTION AND VENUE 7. This Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. 157 and 1334(b), and the Standing Order of Referral of Cases to Bankruptcy Judges, dated July 10, This adversary proceeding is properly brought in this Court pursuant to this Court s Stipulated Order Approving Settlement Agreement (Mar. 28, 2017), Dkt. No This is an adversary proceeding brought pursuant to Rule 7001(2), (7) and (9) of the Federal Rules of Bankruptcy Procedure, and the Court s March 28, 2017 order. -4-

5 Pg 5 of Venue of this adversary proceeding is proper in this District under 28 U.S.C THE SUNEDISON AGREEMENTS 10. SMP is a Korean corporation formed in 2011, principally to utilize the SLA Materials (defined below) to produce polysilicon at the Ulsan Plant. Polysilicon is a necessary component in the manufacture of polysilicon ingots and wafers. SMP s production and sale of polysilicon is the subject of certain agreements entered into with SunEdison and its affiliates. 11. As relevant to this Complaint, SunEdison and SMP entered into the SLA, dated September 28, Under the terms of the SLA, SMP acquired from SunEdison a license to use certain polysilicon manufacturing technology (the License ), as well as certain equipment to produce polysilicon (together with the License, the SLA Materials ). Pursuant to its section 11.9, the SLA is governed by the laws of the [s]tate of New York and the Federal laws of the United States applicable thereto. 12. In exchange for the SLA Materials, SMP agreed to pay SunEdison a license fee of $40 million (the License Fee ) and an equipment fee of $219 million (the Equipment Fee ) in accordance with and subject to the terms of the SLA. SMP timely paid the License Fee in full. SMP also paid $174 million of the Equipment Fee. SMP withheld the remainder of the Equipment Fee as a result of SunEdison s failure to meet its performance guarantee obligations under the SLA. 13. The Ulsan Plant is essentially SMP s sole tangible asset and was designed specifically and solely to produce polysilicon using the SLA Materials. Under the terms of the -5-

6 Pg 6 of 22 SLA, SunEdison guaranteed that the Ulsan Plant would meet certain production metrics related to the production of polysilicon (as defined in the SLA, the Performance Guarantees ). 14. SMP also entered into that certain polysilicon supply agreement with SPS dated February 27, 2015 (the PSA and, together with the SLA, the SunEdison Agreements ), whereby SPS agreed to purchase at least 65% of the polysilicon produced at the Ulsan Plant. In fact, SPS subsequently purchased, but did not pay for, nearly all of the polysilicon produced by SMP at the Ulsan Plant. SUNEDISON AND SPS FAIL TO PERFORM THEIR OBLIGATIONS 15. SunEdison failed to meet certain of the Performance Guarantee metrics contained in the SLA, which significantly affected the Company s ability to profitably operate the Ulsan Plant. As a result of this failure, SMP withheld $45 million of the Equipment Fee, as permitted under the terms of the SLA 16. SPS also failed to honor its obligations under the PSA by repeatedly failing to pay the invoices SMP issued on account of the polysilicon delivered to SPS. As of March 2016, 52 separate invoices, reflecting SMP s delivery of more than 3,400 metric tons of polysilicon products to SMP and totaling $60,336, in principal and accrued interest, remained unpaid. The SunEdison Debtors (defined below), despite SMP s financial instability caused by their failure to perform their contractual obligations to SMP, did not provide any financial support to SMP. THE PARTIES INSOLVENCY PROCEEDINGS 17. On April 21, 2016, SunEdison and SPS, as well as certain of their affiliates (collectively, the SunEdison Debtors ), each commenced a bankruptcy case under chapter 11 of the United States Bankruptcy Code (jointly administered under Case No. -6-

7 Pg 7 of (SMB) before the Honorable Stuart M. Bernstein, United States Bankruptcy Judge for the Southern District of New York (the Chapter 11 Court )) (such cases collectively, the SunEdison Chapter 11 Proceedings ). 18. As of April 2016, SPS had not paid any of the outstanding amounts owed to SMP under the PSA. As of that time, SunEdison also had failed to meet the Performance Guarantees under the SLA. Further, the SunEdison Debtors had not provided any financial support to SMP despite the fact that SMP s financial instability had been caused by their failure to perform their contractual obligations to SMP. These failures and breaches directly caused SMP to have to shut down production at the Ulsan Plant and, on May 3, 2016, to seek protection under the DRBA. On June 13, 2016, the Korean Bankruptcy Court issued an order commencing the Korean Bankruptcy Proceedings (the Commencement Order ), which are currently pending before the Korean Bankruptcy Court. 19. On or around June 29, 2016, SMP provided notice to SunEdison and SPS of the entry of the Commencement Order and the pendency of the Korean Bankruptcy Proceedings. 20. Section 8.2 of the SLA contains various termination provisions, including the Ipso Facto Clause contained in section 8.2(a)(ii), which states in relevant part that either party to the SLA may terminate the agreement if the other party (A)... files or commences a proceeding for the liquidation, bankruptcy, receivership, reorganization, rehabilitation, composition or dissolution of such other [p]arty... or (B) such other [p]arty is unable to pay or has suspended payment of its debts generally as they become due. -7-

8 Pg 8 of Despite receiving prompt notice that the Korean Bankruptcy Proceedings had been commenced by virtue of the Commencement Order, SunEdison did not send a notice of termination in the months following the commencement of the Korean Bankruptcy Proceedings. SUNEDISON S BELATED ATTEMPT TO TERMINATE THE SLA 22. On August 26, 2016, the SunEdison Debtors filed a motion (the Sale Motion ) 2 for an order approving, inter alia, the sale of their Solar Materials Business (as defined in the Sale Motion). The motion proposed the sale of, among other things, SPS s ownership interest in SMP. The Sale Motion also sought approval of an agreement (the Stalking Horse Agreement ) which contemplated the sale of the Solar Materials Business to GCL-Poly Energy Holdings Limited ( GCL ). 23. Article 6.1(a)(vi) of the Stalking Horse Agreement ( Article 6.1 ) required SunEdison to reject [the SLA] pursuant to [11 U.S.C. 365], to take such actions in Korea or the United States as [GCL] may reasonably request to terminate the [SLA] (including exercising [its] contractual rights, pursuant to and in accordance with the terms and conditions of [the SLA]), and to exercise any rights under the SLA to recover from SMP all proprietary information, technology, equipment and other licensed assets provided to SMP under the SLA. Article 6.1 also stated that, notwithstanding the foregoing, SunEdison was not obligated to take any action in breach of any applicable [l]aw. 2 Notice of Debtors Mot. for (I) an Order (A) Approving the Bidding Procedures for the Sale of the Solar Materials Business, (B) Establishing the Notice Procedures and Approving the Form and Manner of Notice thereof, (C) Approving Procedures for the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases, (D) Scheduling a Sale Hr g, and (E) Granting Related Relief and (II) an Order (A) Approving the Sale of the Solar Materials Business Free and Clear of all Liens, Claims, Encumbrances, and Other Interests, (B) Approving the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases Related thereto, and (C) Granting Related Relief, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Aug. 26, 2016), Dkt. No

9 Pg 9 of On October 17, 2016, SMP filed a reservation of rights in connection with the proposed sale of the Solar Materials Business (the SMP Sale Objection ). 3 The SMP Sale Objection objected to the proposed sale because, inter alia, SunEdison s obligations under Article 6.1 including the obligation to recover from SMP all proprietary information, technology, equipment and other licensed assets improperly attempted to abrogate SMP s ability to make an election to retain the License pursuant to 11 U.S.C. 365(n) in the event SunEdison attempts to reject the SLA On October 25, 2016, the Chapter 11 Court entered an order approving the Sale Motion and Stalking Horse Agreement and adjourning the SMP Sale Objection. 5 Even after the Stalking Horse Agreement was approved by the Chapter 11 Court, more than four months after the commencement of the Korean Bankruptcy Proceedings, SunEdison did not attempt to terminate the SLA. 26. On February 6, 2017, the Chapter 11 Court entered an order assigning to mediation the dispute regarding the sale of the Solar Materials Business and directing the SunEdison Debtors, SMP and GCL to attend an in-person mediation (the Mediation ). 6 3 SMP Ltd. s Reservation of Rights in Connection with the Debtors Sale of the Solar Materials Business Free and Clear of all Liens, Claims, Encumbrances, and Other Interests, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Oct. 17, 2016), Dkt. No For the avoidance of doubt, SMP expressly reserves its rights and defenses with regard to any purported rejection of the SLA by SunEdison, and all other rights, defenses and arguments preserved under the Settlement Agreement (defined below) and all applicable laws. 5 Order (I) Authorizing the Sale of the Solar Materials Business Free and Clear of All Liens, Claims, Encumbrances, and Interests; (II) Approving the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (III) Granting Related Relief, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Oct. 25, 2016), Dkt. No Order Assigning Matter to Mediation, In re SunEdison, Inc. et al., No (SMB) (Bankr. S.D.N.Y. Feb. 6, 2017), Dkt. No. 2406; see also Am. Order Assigning Matter to Mediation, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Feb. 7, 2017), Dkt. No. 2408; Second Am. Order Assigning Matter to Mediation, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Feb. 21, 2017), Dkt. No

10 Pg 10 of The Mediation did not finally resolve all disputes among the SunEdison Debtors, SMP and GCL. Rather, on March 28, 2017, as a result of the Mediation, the Chapter 11 Court entered an order approving a settlement agreement resolving the SMP Sale Objection (the Settlement Agreement ) that sets forth procedures by which SunEdison s right to either terminate the SLA or, alternatively, to reject the SLA, and the consequences thereof, would be determined. 7 Under paragraph 7 of the Settlement Agreement, the parties thereto agreed that SunEdison would send a notice terminating the SLA in accordance with the terms of the SLA, provided that SunEdison, GCL and SMP acknowledge and agree that SMP s rights to contest and challenge [SunEdison s] rights to terminate [the SLA] are hereby fully preserved. (emphasis added). 28. The parties to the Settlement Agreement agreed that SMP could challenge the termination by initiating the challenge no later than 30 days after the later of (i) SMP s receipt of a settlement-related payment from the SunEdison Debtors or (ii) SMP s receipt of written notice of termination of the SLA from the SunEdison Debtors. The parties further agreed that any dispute arising from or related to the termination of the SLA shall, at SMP s election, be brought (i) before the Chapter 11 Court or (ii) submitted to arbitration in accordance with the terms of the SLA. Further, under the Settlement Agreement, if SMP successfully challenges SunEdison s attempted termination of the SLA, SunEdison is obligated to attempt to reject the SLA pursuant to 11 U.S.C. 365(a), after which SMP may seek to elect to avail itself of the rights provided for under 11 U.S.C. 365(n). 29. In establishing these procedures, the parties agreed that time is of the essence in resolving the dispute. 7 Stipulated Order Approving Settlement Agreement, In re SunEdison, Inc., et al., No (SMB) (Bankr. S.D.N.Y. Mar. 28, 2017), Dkt. No

11 Pg 11 of As contemplated by the Settlement Agreement s dispute resolution procedures, SunEdison transmitted a notice of termination pursuant to the Ipso Facto Clause, dated March 30, 2017 (the Termination Notice ), to SMP one day prior to the closing of the Solar Materials Business sale, over nine months after the commencement of the Korean Bankruptcy Proceedings. The Termination Notice purported to terminate the SLA pursuant to the Ipso Facto Clause as a result of SMP s pending rehabilitation proceeding and its failure to pay debts generally as they come due. SMP received the Termination Notice in Ulsan, Korea on March 31, 2017 (Korean Standard Time). On April 3, 2017 (Korean Standard Time), an SMP bank account was credited $5 million, which constituted the settlement payment provided for under paragraph 3 of the Settlement Agreement. Accordingly, this action is timely commenced under the terms of the Settlement Agreement executed by and among SunEdison, GCL and SMP. 31. Upon information and belief, SunEdison s decision to send the Termination Notice based on the Ipso Facto Clause, nine months after the issuance of the Commencement Order and with full knowledge of the pendency of the Korean Bankruptcy Proceedings, was motivated by a bad faith desire to deprive SMP of the continued intellectual property rights it would otherwise have under the SLA, including under 11 U.S.C. 365(n) had the SLA been rejected by SunEdison. This attempt to frustrate SMP s rights under 11 U.S.C. 365(n) inures directly and unjustly to the benefit of the new owner of the Solar Materials Business, GCL, and violates applicable law. 32. Delivery of the Termination Notice based on the Ipso Facto Clause also frustrates SMP s ability to rehabilitate its business. The SLA and SMP s rights to use the SLA Materials are essential to SMP s ability to produce polysilicon. The Ulsan Plant, essentially SMP s sole tangible asset, was specifically designed to produce polysilicon using the SLA -11-

12 Pg 12 of 22 Materials and has no other production capabilities. Absent the ability to use the SLA Materials to produce polysilicon, SMP would be forced to liquidate its assets and, even in the event of such liquidation, would be unlikely to have sufficient funds to repay its creditors. As a result, SMP cannot be rehabilitated under the DRBA if the SLA is terminated pursuant to the Ipso Facto Clause. 33. In accordance with the Settlement Agreement s dispute resolution procedures, SMP is initiating this proceeding to enforce its right to challenge SunEdison s right to terminate the SLA based on the Ipso Facto Clause, which right is fully preserved under the Settlement Agreement. SMP S CHAPTER 15 PROCEEDING 34. On May 1, 2017, SMP filed a voluntary petition for recognition of the Korean Bankruptcy Proceedings under chapter 15 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the Chapter 15 Proceedings ). FIRST CAUSE OF ACTION Declaratory Relief and Order Declaring the Ipso Facto Clause Unenforceable and the Termination Notice Ineffective and Invalid 35. SMP repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 36. SunEdison purported to deliver its Termination Notice by letter dated March 30, 2016, via facsimile from SunEdison s counsel to SMP s representative director in Ulsan, Korea. 37. At the time the Termination Notice was delivered to SMP in Korea, the Korean Bankruptcy Court had issued the Commencement Order. Therefore, at the time the -12-

13 Pg 13 of 22 Termination Notice was delivered to SMP, SMP was a debtor in the Korean Bankruptcy Proceedings pending in the Korean Bankruptcy Court. 38. At the time the Termination Notice was delivered to SMP in Korea, since at least June 2016, SunEdison has had knowledge that SMP was a debtor in the Korean Bankruptcy Proceedings. 39. Under established Korean law, including under court precedents deciding issues under the DRBA, the issuance by a Korean court of a commencement order, like the Commencement Order issued by the Korean Bankruptcy Court, renders an ipso facto clause in an executory contract unenforceable against the debtor in rehabilitation under the DRBA without any further action by such debtor or such Korean court, because, inter alia, operation of such a clause would (i) strip the debtor s custodian of his or her statutory right to elect performance or termination of the contract and (ii) effectively allow discriminatory treatment of the debtor solely by reason of its commencement of a rehabilitation proceeding under the DRBA. This is particularly true where the termination of the contract pursuant to the ipso facto clause would have a material adverse effect on the rehabilitation of the debtor. 40. At the time the Termination Notice was delivered, the SLA was an executory contract because neither SunEdison nor SMP had fully performed its obligations under the SLA. At the time of SunEdison s delivery of the Termination Notice relying on the Ipso Facto Clause, SMP was a debtor in the Korean Bankruptcy Proceedings pending in the Korean Bankruptcy Court by virtue of the Commencement Order. The issuance of the Commencement Order automatically rendered the Ipso Facto Clause unenforceable against SMP, the debtor in rehabilitation, under applicable Korean law. Under Korean law, the Ipso Facto Clause is unenforceable against SMP because, inter alia, enforcement of the Ipso Facto Clause would strip -13-

14 Pg 14 of 22 SMP s custodian of his statutory right under the DRBA to elect to require SunEdison to perform and honor its obligations under the SLA and would effectively allow SunEdison to discriminate against SMP and deprive it of its rights under the SLA solely on the basis that SMP has commenced the Korean Bankruptcy Proceedings, in violation of the DRBA. Accordingly, enforcement of the termination of the SLA based on the Ipso Facto Clause would violate applicable law, including Korean law. 41. Further, the SLA and SMP s rights thereunder to use the SLA Materials are essential to SMP s ability to operate and to rehabilitate under the DRBA. The Ulsan Plant is essentially SMP s sole tangible asset and was designed to produce polysilicon using the SLA Materials. If SMP is deprived of its right to use the SLA Materials, the Ulsan Plant will have no useful function and SMP will likely be forced to liquidate. In the event of liquidation, it is unlikely that SMP will have the funds necessary to repay its creditors. For this reason, SunEdison s termination of the SLA pursuant to the Ipso Facto Clause would have more than just a material adverse effect on the rehabilitation of SMP; it would totally frustrate any hope for its rehabilitation. 42. Moreover, the SunEdison Debtors breaches of their obligations under the SLA and related agreements including SunEdison s breach of its obligation to fulfill the Performance Guarantees under the SLA and SPS s breach of its payment obligations to SMP under the PSA rendered SMP unable to pay its debts generally as they became due and ultimately caused SMP to commence the Korean Bankruptcy Proceedings. By providing the Termination Notice, SunEdison is now seeking to terminate the SLA based on the very termination condition it created, namely, SMP s inability to pay its debts generally as they became due and SMP s resulting filing for and commencement of the Korean Bankruptcy -14-

15 Pg 15 of 22 Proceedings. Under these circumstances, allowing SunEdison to terminate the SLA pursuant to the Ipso Facto Clause also would be contrary to the public order and good morals of Korea, and therefore also would be contrary to U.S. and applicable state public policy. 43. Accordingly, as a result of the Korean Bankruptcy Court s entry of the Commencement Order and the pendency of the Korean Bankruptcy Proceedings, the Ipso Facto Clause is automatically unenforceable against SMP under applicable law and the SLA cannot be terminated by SunEdison based on the Ipso Facto Clause. 44. The DRBA, the Commencement Order and the Korean Bankruptcy Proceedings are intended to, inter alia, centralize all claims and enable the assets of Korean debtors to be dispensed in an equitable, orderly and systematic manner. The DRBA, the Commencement Order and the Korean Bankruptcy Proceedings afford adequate procedural safeguards and a procedurally fair process to creditors of Korean debtors. These safeguards and process do not conflict with U.S. public policy. 45. In fact, under U.S. bankruptcy law, specifically 11 U.S.C. 365(e)(1), SunEdison benefits from the very same protections that apply to SMP under applicable Korean law such that SMP would be barred from terminating the SLA pursuant to the Ipso Facto Clause based on the commencement of the SunEdison Chapter 11 Proceedings. 46. The Court has the authority, including under the dispute resolution procedures in the Settlement Agreement, as well as under Federal Rule of Civil Procedure 44.1, made applicable to this adversary proceeding by Rule 9019 of the Federal Rules of Bankruptcy Procedure, and well-established principles of comity arising under state and federal law, to determine the unenforceability of the Ipso Facto Clause under Korean law in light of the Korean Bankruptcy Court s entry of the Commencement Order and the Korean Bankruptcy Proceedings -15-

16 Pg 16 of 22 currently pending in Korea with respect to SMP. Such treatment is warranted and required under the law governing the SLA. 47. Accordingly, pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201, 11 U.S.C. 105 and Rule 7001 of the Federal Rules of Bankruptcy Procedure, SMP is entitled to a judgment declaring that the Ipso Facto Clause is unenforceable against SMP and the Termination Notice is ineffective and invalid. SECOND CAUSE OF ACTION Declaratory Relief and Order Declaring That SunEdison s Attempted Termination of the SLA Is Null and Void Under the Doctrines of Equitable Estoppel, Waiver and/or Unclean Hands 48. SMP repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 49. As early as June 2016, SunEdison had knowledge of the commencement of the Korean Bankruptcy Proceedings, the predicate upon which it now purports to rely to terminate the SLA pursuant to the Ipso Facto Clause, but did not deliver the Termination Notice or otherwise attempt to terminate the SLA until more than nine months had passed after the commencement of the Korean Bankruptcy Proceedings. Further, under Article 6.1 of the Stalking Horse Agreement, approved by the Chapter 11 Court on October 25, 2016, SunEdison affirmatively obligated itself to reject the SLA. Upon information and belief, prior to March 2017, SunEdison did not disclose to SMP that it did not intend to reject the SLA, but instead would seek to terminate it according to the Ipso Facto Clause or, in the alternative, that it had not yet determined whether it intended to comply with its publicly disclosed, court-sanctioned obligation to reject the SLA pursuant to the Stalking Horse Agreement. In either event, SunEdison s combination of actions, inaction and/or omissions between June 2016 and March 2017, including but not limited to those described herein, misrepresented to SMP that SunEdison -16-

17 Pg 17 of 22 would reject the SLA, where such rejection would trigger certain protections to SMP including the protections afforded under 11 U.S.C. 365(n). 50. Between June 2016 and March 2017, SMP reasonably relied on SunEdison s actions, inaction, misrepresentations and/or omissions by taking actions to further SMP s rehabilitation efforts, including but not limited to taking steps to pursue its own rehabilitation in the Korean Bankruptcy Proceedings, pursuing claims and disputes in respect of other agreements with the SunEdison Debtors and preparing pleadings and proofs of claim in anticipation of SunEdison s rejection of the SLA. SMP s efforts, undertaken in justifiable reliance on SunEdison s actions, resulted in the expenditure of valuable resources. As a result, SMP s reliance on SunEdison s actions was materially detrimental to SMP. Upon information and belief, SunEdison intended, expected, knew or should have known that SMP would rely, and did rely, on SunEdison s actions, inaction, misrepresentations, and/or omissions. 51. Accordingly, SunEdison s attempt to terminate the SLA pursuant to the Ipso Facto Clause is barred by the doctrine of equitable estoppel. 52. Further, even if SunEdison hypothetically had any right to terminate the SLA pursuant to the Ipso Facto Clause upon the commencement of the Korean Bankruptcy Proceedings, which it does not because such provisions are unenforceable against a debtor in rehabilitation under applicable law, SunEdison has waived any such right or ability to seek termination of the SLA based on the Ipso Facto Clause by its prolonged failure to seek termination pursuant to such provisions after the commencement of the Korean Bankruptcy Proceedings, which unwarranted delays unreasonably extended until nine months after commencement of the Korean Bankruptcy Proceedings. -17-

18 Pg 18 of Finally, throughout the relevant period, as alleged above, SunEdison acted inequitably, in bad faith and with unclean hands in the course of its dealings with SMP and in respect of the SLA and its obligations thereunder. SunEdison s failures were compounded by the extended period that passed, while SMP remained subject to its own rehabilitation proceeding and expended time, resources and attention to other dealings and disputes with SunEdison and its affiliates. SunEdison s actions were immoral and unconscionable, and resulted in prejudice to SMP. Accordingly, SunEdison s attempt to assert that the Korean Bankruptcy Proceedings give rise to a right to terminate the SLA pursuant to the Ipso Facto Clause is barred by the doctrine of unclean hands. 54. Therefore, SMP is entitled to a judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201, 11 U.S.C. 105 and Rule 7001 of the Federal Rules of Bankruptcy Procedure declaring that SunEdison s attempted termination of the SLA is null and void and the Termination Notice is ineffective and invalid under the doctrines of equitable estoppel, waiver and/or unclean hands. THIRD CAUSE OF ACTION Injunctive Relief Requiring SunEdison to Withdraw the Termination Notice and Enjoining any Further Exercise of the Ipso Facto Clause against SMP 55. SMP repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 56. As alleged above, SunEdison s attempt to terminate the SLA, and its transmission of the Termination Notice, are ineffective and invalid, including because (i) the Commencement Order renders the Ipso Facto Clause unenforceable against SMP, as a debtor in rehabilitation, under applicable Korean law and/or (ii) SunEdison s attempt to terminate the SLA is barred by the doctrines of equitable estoppel, waiver and/or unclean hands. -18-

19 Pg 19 of As alleged above, SMP s continued retention of the rights conferred under the SLA, including its use of the SLA Materials, is essential to the ability of SMP to carry out its sole business purpose, to manufacture and sell polysilicon products. Loss of its rights under the SLA, including the right to use the SLA Materials, would cause SMP irreparable harm, because among other things, it would prevent SMP from operating its business, render SMP unable to rehabilitate itself and likely cause SMP s liquidation. As such, there is no adequate legal or monetary relief available to remedy the harm SMP would suffer if it were to lose its right to use the SLA Materials. 58. The balance of the hardships also weighs strongly in favor of SMP, and the granting of injunctions to withdraw the Termination Notice and prevent any further attempt by SunEdison to exercise the Ipso Facto Clause against SMP. As alleged above, without the relief requested herein, SMP will be unable to rehabilitate itself and will likely be forced into liquidation. By contrast, granting the relief requested herein does not leave SunEdison without an adequate and proper remedy. As expressly contemplated by the Settlement Agreement, if the Termination Notice is found ineffective and invalid, SunEdison will reject the SLA pursuant to 11 U.S.C. 365, subject to a determination of SMP s rights under section 365(n) as provided for under the Settlement Agreement and the other terms thereunder. Such a result also is consistent with the terms of the Stalking Horse Agreement, which required SunEdison to reject the SLA. By contrast, denial of such relief could result in an unjust windfall to SunEdison, who has reaped the benefit of ipso facto protections with respect to its own executory contracts during the pendency of its bankruptcy case, and an unjust windfall to GCL as purchaser of the Solar Materials Business, to the extent SMP is not able to retain its SLA license rights under section -19-

20 Pg 20 of (n) and thus cannot compete with GCL as a manufacturer of polysilicon using SunEdison s proprietary manufacturing technology. 59. Issuing a mandatory injunction ordering SunEdison to withdraw the Termination Notice and a permanent injunction enjoining SunEdison (including any successor to SunEdison s rights or interests under the SLA) from taking any action to enforce the Ipso Facto Clause against SMP, including any attempt to issue a subsequent termination notice pursuant to the Ipso Facto Clause, also will serve the public interest. Recognizing and enforcing SMP s rights under the SLA will further SMP s ability to rehabilitate itself, preserving jobs and benefitting SMP s creditors and the recipients of products made with SMP s polysilicon, including those creditors and recipients located in the United States, and will maintain and respect the rights of licensees of intellectual property who are parties to executory contracts with U.S. debtors. 60. Therefore, pursuant to 11 U.S.C. 105 and Rules 7001 and 7065 of the Federal Rules of Bankruptcy Procedure, SMP is entitled to a mandatory injunction ordering SunEdison to withdraw the Termination Notice and a permanent injunction enjoining SunEdison (including any successor to SunEdison s rights or interests under the SLA) from taking any action to enforce the Ipso Facto Clause against SMP, including any attempt to issue a subsequent termination notice pursuant to the Ipso Facto Clause. NOTICE OF APPLICABILITY OF FOREIGN LAW 61. Pursuant to Federal Rule of Civil Procedure 44.1, made applicable to this adversary proceeding by Rule 9019 of the Federal Rules of Bankruptcy Procedure, SMP hereby gives notice that the law of the Republic of Korea applies to and governs certain of the issues in this proceeding as set forth above. -20-

21 Pg 21 of 22 PRAYER FOR RELIEF WHEREFORE, SMP prays for relief and judgment as follows: A. As its primary relief: i. Entry of a judgment declaring that, due to the existence of the Korean Bankruptcy Proceedings, including the Korean Bankruptcy Court s entry of the Commencement Order and the resulting automatic unenforceability of the Ipso Facto Clause under applicable Korean law, the Ipso Facto Clause is unenforceable against SMP and the Termination Notice is ineffective and invalid. B. As its alternative relief: i. Entry of a judgment declaring that SunEdison s attempted termination of the SLA is null and void and the Termination Notice is ineffective and invalid under the doctrines of equitable estoppel, waiver and/or unclean hands. C. As its injunctive relief: i. A mandatory injunction ordering SunEdison to withdraw the Termination Notice; and ii. A permanent injunction enjoining SunEdison (including any successor to SunEdison s rights or interests under the SLA) from taking any action to enforce the Ipso Facto Clause against SMP, including any attempt to issue a subsequent termination notice pursuant to the Ipso Facto Clause. D. And such further or other relief as the Court deems just and proper. -21-

22 Pg 22 of 22 Dated: May 1, 2017 New York, New York CLEARY GOTTLIEB STEEN & HAMILTON LLP By: (_ ~- Lisa M. Schweitzer Jane VanLare One Liberty Plaza New York, New York T: F: Attorпeys for PlaintffSMP Ltd. -22-

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