Exhibit 10.1

EXECUTION COPY

CONVERTIBLE NOTE SUBSCRIPTION AGREEMENT

This CONVERTIBLE NOTE SUBSCRIPTION AGREEMENT (this “Agreement”) is entered into on March 18, 2022, by and among Independence Contract Drilling, Inc., a Delaware corporation (the “Issuer”), and each undersigned subscriber (each, a “Subscriber” and collectively, the “Subscribers”). Notwithstanding anything herein to the contrary, the rights and obligations of each Subscriber hereunder shall be several, and not joint, and any covenants, representations or warranties made by any Subscriber hereunder shall be deemed to be made severally and not jointly by each Subscriber hereunder. Capitalized terms not defined herein have the meanings assigned to such terms in the Indenture substantially in the form attached as Annex A hereto (the “Indenture”); and

WHEREAS, in connection with the transactions contemplated hereby, each Subscriber desires to subscribe for and purchase, severally and not jointly, senior secured convertible notes (the “Convertible Notes”) of and from the Issuer in an aggregate principal amount in accordance with a Flow of Funds Agreement, by and among the Issuer, MSD Partners, L.P., and Glendon Capital Management L.P. (the “Flow of Funds Agreement”), and the Issuer desires to issue and sell to the Subscribers $157,500,000 aggregate principal amount of the Convertible Notes in consideration of the payment of 100% of the aggregate principal amount thereof (the “Purchase Price”) by or on behalf of the Subscribers to the Issuer.

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

Section 1.         Subscription. Subject to the terms and conditions hereof, at the Closing (as defined below), each Subscriber hereby agrees, severally and not jointly, to subscribe for and purchase, and the Issuer hereby agrees to issue and sell to the Subscribers, upon the payment of the Purchase Price, Convertible Notes in an aggregate principal amount set forth opposite such Subscriber’s name on Schedule 1 hereto (such subscription and issuance, the “Subscription”). As used herein, the term “Convertible Notes” shall include the Guarantees (as defined below) thereof by the Guarantors (as defined below), unless the context requires otherwise. Notwithstanding anything to the contrary here, following the date hereof and prior to the third (3^rd) Business Day prior to the anticipated closing date of the transactions contemplated hereby (the “Closing Date”) the Subscribers shall be permitted, without the consent of (but upon prior written notice to) the Issuer, to reallocate as amongst themselves the aggregate principal amount of Convertible Notes that each will purchase from the Issuer at the Closing so long as at all such times the Subscribers have subscribed for and agreed to purchase in the aggregate $157,500,000 aggregate principal amount of Convertible Notes.

Section 2.         Closing.

(a)           The consummation of the Subscription contemplated hereby (the “Closing”) shall be contingent upon, and occur on, the Closing Date.

(b)           Upon satisfaction (or, if applicable, waiver) of the conditions set forth in this Section 2, at the Closing:

(c)           The Closing shall be subject to the satisfaction, or waiver in writing by each of the parties hereto, of the conditions that, on the Closing Date:

(d)           In addition to the conditions set forth in Section 2(c), the obligation of the Issuer to consummate the Closing shall be subject to the satisfaction or valid waiver by the Issuer of the additional conditions that, on the Closing Date:

(e)           In addition to the conditions set forth in Section 2(c), the obligation of the Subscribers to consummate the Closing shall be subject to the satisfaction or valid waiver by the Subscribers of the additional conditions that, on the Closing Date:

(1)           this Agreement;

(2)           a Voting and Support Agreement by and among the Subscribers and certain of their affiliates, William Monroe, the Company and certain of its officers and directors, dated as of the date hereof (the “Voting Agreement”);

(3)           the Intercreditor Agreement;

(4)           certain Investor Rights Agreements between the company and an affiliate of each Subscriber (the “Investor Rights Agreements”);

(5)           the Security Agreement;

(6)           a payoff letter by and among the Company and the Agent under the Term Loan (the “Payoff Letter”);

(7)           a fee letter by and among the Company and certain affiliates of the Subscribers (the “Fee Letter”); and

(8)           the Flow of Funds Agreement.

(f)            Prior to or at the Closing, the Subscribers shall deliver all such other information and shall take all such actions as is reasonably requested by the Issuer in order for the Issuer to deliver the Convertible Notes to the Subscribers or their nominees.

Section 3.         Issuer Representations and Warranties. The Issuer represents and warrants to the Subscribers, as of the date of this Agreement and as of the Closing, that:

(a)           As of the Closing Date, the shares of Common Stock issuable upon conversion of the Convertible Notes issued at the Closing as of the Closing Date at the initial Conversion Rate (as defined under the Indenture)(including subject to limitations under the Pre-Approval Conversion Ratio)(the “Initial Underlying Shares”) have been, and following the Shareholder Approval, any additional Common Stock issuable upon conversion of the Convertible Notes at the then-applicable Conversion Rate (as defined under the Indenture) (the “Additional Underlying Shares” and together with the Initial Underlying Shares, the “Underlying Shares”), and any shares of Common Stock issuable upon exercise of the Pre-Funded Warrants )(including subject to limitations on exercise for any Pre-Funded Warrants under the Pre-Approval Conversion Ratio) (the “Warrant Shares”) will be, duly authorized, and when issued on the Closing Date, upon exercise of the Pre-Funded Warrants, or upon conversion of the Convertible Notes, as the case may be, such shares of Common Stock will be validly issued, fully paid and non-assessable, free and clear of any liens or other restrictions (other than those arising under the Voting Agreement and applicable securities laws) and will not have been issued in violation of any preemptive or similar rights created under the Issuer’s Governing Documents, by any contract to which the Issuer is a party or by which it is bound, or under the laws of its jurisdiction of incorporation.

(b)           Assuming the accuracy of the representations and warranties of the Subscribers set forth in Section 4 of this Agreement, the Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including NYSE, as applicable) or other person in connection with the execution, delivery and performance of this Agreement and the Indenture, the issuance and sale of the Convertible Notes and the compliance by the Issuer and the Guarantors with all of the provisions of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein, other than (i) filings required by applicable state securities laws, (ii) those required by the SEC or NYSE (as applicable), including with respect to soliciting and obtaining stockholder approval, (iii) if applicable (including in connection with any conversion of Convertible Notes or the exercise of any Warrants), requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and (iv) the failure of which to obtain would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)           Assuming the accuracy of the Subscribers’ representations and warranties set forth in Section 4 of this Agreement, (i) no registration under the Securities Act of 1933, as amended (the “Securities Act”), is required for the offer and sale of the Convertible Notes by the Issuer to the Subscribers and the issuance of the Underlying Shares and/or Warrant Shares (if any) to the Subscribers, and the Convertible Notes and the Underlying Shares and/or Warrant Shares (if any) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws, and (ii) it is not necessary to qualify the Indenture under the Trust Indenture Act of 1939, as amended (including the rules and regulations of the Commission promulgated thereunder).

(d)           Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Convertible Notes.

(e)           The Issuer has not entered into any agreement or arrangement entitling any agent, broker, investment banker, financial advisor or other person to any broker’s or finder’s fee or any other commission or similar fee in connection with the transactions contemplated by this Agreement for which any Subscriber could become liable. No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Convertible Notes to the Subscribers. The Issuer agrees to indemnify and hold harmless each Subscriber from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of Issuer and to bear the cost of legal expenses incurred by each Subscriber in defending against any such claim.

(f)            As of their respective dates, all reports, proxies and other documents required to be filed by the Issuer with the SEC (such reports, the “SEC Reports”) complied in all material respects with the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Issuer included in the SEC Reports were prepared in accordance with generally accepted accounting principles in the United States, consistently applied, comply in all material respects with the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments and the absence of certain footnotes and other presentation items as is permissible under generally accepted accounting principles. Except as disclosed in the SEC Reports, the Issuer timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the SEC since December 31, 2018. A copy of each SEC Report is available to the Subscribers via the SEC’s EDGAR system. There are no outstanding or unresolved comments in comment letters received by the Issuer from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports.

(g)           As of the date hereof, the issued and outstanding Common Stock of the Issuer are, and as of the Closing Date, the issued and outstanding Common Stock of the Issuer will be registered pursuant to Section 12(b) of the Exchange Act, and listed for trading on the NYSE under the symbol “ICD” or on Nasdaq. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by the NYSE or the SEC, respectively, to prohibit or terminate the listing of the Common Stock on the NYSE or to deregister such shares under the Exchange Act. The Issuer has taken no action that is designed to terminate the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on the NYSE, and is in compliance in all material respects with the continued listing requirements of the NYSE. The Issuer will be in compliance with the continued listing standards of the NYSE immediately after giving effect to the Closing, and the issuance and performance of the Convertible Notes and Warrants do not require the approval of the Company’s shareholders under The New York Stock Exchange Listed Company Manual except as expressly contemplated under Section 3.33 of the Indenture and Section 3.3.6 of the Warrant Agreement.

(h)           Due Organization and Qualification; Subsidiaries.

(i)       Each Note Party and each of its Subsidiaries (1) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (2) is qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have Material Adverse Effect, and (3) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Security Documents to which it is a party and to carry out the transactions contemplated thereby.

(ii)      Set forth on Schedule 3(i)(ii) to this Agreement (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under this Agreement) is a complete and accurate description of the authorized Equity Interests of each Note Party, by class, and, as of the Closing Date, a description of the number of shares of each such class that are issued and outstanding.

(iii)     Set forth on Schedule 3(i)(iii) to this Agreement (as such Schedule may be updated from time to time to reflect changes resulting from transactions permitted under this Agreement) is a complete and accurate list of the Note Parties’ direct and indirect Subsidiaries, showing: (1) the number of shares of each class of common and preferred Equity Interests authorized for each of such Subsidiaries, and (2) the number and the percentage of the outstanding shares of each such class owned directly or indirectly by each Note Party. All of the outstanding Equity Interests of each such Subsidiary has been validly issued and is fully paid and non-assessable.

(iv)     Except as set forth on Schedule 3(i)(iv) to this Agreement, there are no subscriptions, options, warrants, or calls relating to any shares of any Note Party’s or any of its Subsidiaries’ Equity Interests, including any right of conversion or exchange under any outstanding security or other instrument. No Note Party is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Equity Interests or any security convertible into or exchangeable for any of its Equity Interests.

(i)            Due Authorization; No Conflict.

(i)       As to each Note Party, the execution, delivery, and performance by such Note Party of this Agreement and each other Note Document to which it is a party have been duly authorized by all necessary action on the part of such Note Party and is the legally valid and binding obligation of such Note Party, enforceable against such Note Party in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.

(ii)     As to each Note Party, the execution, delivery, and performance by such Note Party of this Agreement and each other Note Document to which it is a party do not and will not (1) violate any material provision of federal, state, or local law or regulation applicable to any Note Party or its Subsidiaries, the Governing Documents of any Note Party or its Subsidiaries, or any order, judgment, or decree of any court or other governmental authority binding on any Note Party or its Subsidiaries that reasonably be expected to have a Material Adverse Effect, (2) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Contract (as defined below) of any Note Party or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (3) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Note Party, other than Permitted Liens, or (4) require any approval of any holder of Equity Interests of a Note Party or any approval or consent of any Person under any material agreement of any Note Party, other than (A) consents or approvals that have been obtained and that are still in force and effect and (B) in the case of material agreements, for consents or approvals, the failure of which to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Effect.

(j)            Governmental Consents. The execution, delivery, and performance by each Note Party of the Security Documents to which such Note Party is a party and the consummation of the transactions contemplated by the Security Documents do not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any governmental authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect and except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent for filing or recordation, as of the Closing Date.

(k)           Binding Obligations; Perfected Liens.

(i)      Each Security Document has been duly executed and delivered by each Note Party that is a party thereto and is the legally valid and binding obligation of such Note Party, enforceable against such Note Party in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.

(ii)     The Security Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of itself, the Trustee and the holders of the Convertible Notes, a legal, valid, binding and enforceable security interest in the Collateral described therein and proceeds and products thereof. In the case of (i) securities represented by certificates, (x) when such certificates are delivered to the Collateral Agent or (y) when financing statements in appropriate form are filed in the offices specified on Schedule 3(l)(ii), and (ii) the other Collateral described in the Security Agreement, when financing statements in appropriate form are filed in the offices specified on Schedule 3(l)(ii) and such other filings as are specified on Schedule 11 to the Security Agreement have been completed, the Lien created by the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Note Parties in such Collateral and the proceeds and products thereof, as security for the Secured Obligations (as defined in the Security Agreement), in each case, prior and superior in right to any other Person (except, with respect to priority only, Permitted Liens which are non-consensual Permitted Liens, Liens securing Permitted Purchase Money Indebtedness, or the interests of lessors under Capital Leases and in the case of ABL Priority Collateral, subject to Liens permitted under clause (16) of the definition of “Permitted Liens” in the Indenture.

(l)            Title to Assets; No Encumbrances. Each of the Note Parties and its Subsidiaries has (i) good, sufficient and legal title to (in the case of fee interests in Real Property), (ii) valid leasehold interests in (in the case of leasehold interests in real or personal property), and (iii) good and marketable title to (in the case of all other personal property), all of their respective assets reflected in their most recent financial statements delivered pursuant to Section 3.08 of the Indenture, in each case except for assets disposed of since the date of such financial statements to the extent permitted by the Note Documents. All of such assets are free and clear of Liens except for Permitted Liens.

(m)          Litigation. There are no actions, suits, or proceedings pending or, to the knowledge of the Issuer, threatened in writing against a Note Party or any of its Subsidiaries that either individually or in the aggregate could reasonably be expected to result in a Material Adverse Effect.

(n)           Compliance with Laws. No Note Party nor any of its Subsidiaries (a) is in violation of any applicable laws, rules, regulations, executive orders, or codes (including Environmental Laws) that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.

(o)           No Material Adverse Effect. Since December 31, 2021, no event, circumstance, or change has occurred that has or could reasonably be expected to result in a Material Adverse Effect.

(p)           Solvency.

(i)             The Note Parties taken as a whole, are and, after giving effect to the transactions contemplated by this Agreement, will not be “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code).

(ii)            No transfer of property is being made by any Note Party and no obligation is being incurred by any Note Party in connection with the transactions contemplated by this Agreement, the Note Documents or the ABL Documents with the intent to hinder, delay, or defraud either present or future creditors of such Note Party.

(q)           Employee Benefits.

(i)             Except as set forth on Schedule 3(r), no Note Party, none of their Subsidiaries, nor any of their ERISA Affiliates maintains or contributes to any Pension Plan.

(ii)            Each Note Party and each of the ERISA Affiliates has complied with ERISA, the Code and all applicable laws regarding each Employee Benefit Plan, except for such compliance failures that, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(iii)           Each Employee Benefit Plan (other than a Multiemployer Plan) is, and has been, maintained in compliance with ERISA, the Code, all applicable laws and the terms of each such Employee Benefit Plan, except for such compliance failures that, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(iv)           Each Employee Benefit Plan (other than a Multiemployer Plan) that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is entitled to rely on an opinion or advisory letter provided under a volume submitted or prototype program. To the knowledge of each Note Party and the ERISA Affiliates, nothing has occurred which could reasonably be expected to prevent, or cause the loss of, such qualification.

(v)            No liability to the PBGC (other than for the payment of current premiums which are not past due) by any Note Party or ERISA Affiliate has been incurred or is reasonably expected by any Note Party or ERISA Affiliate to be incurred with respect to any Pension Plan.

(vi)           No Notification Event exists or has occurred in the past six (6) years, except for such events that either individually or in the aggregate could not reasonably be expected to result in a Material Adverse Effect.

(vii)          No Note Party or ERISA Affiliate has provided any security under Section 436 of the Code.

(r)            Environmental Laws. Each Note Party and each of its Subsidiaries (i) is in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety (to the extent such health and safety relates to exposure to hazardous or toxic substances or wastes, pollutants or contaminants), the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as they are currently being conducted and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There are no proceedings that are pending, or to the Note Parties’ knowledge, threatened, against any Note Party or any of its Subsidiaries under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed. There are no costs or liabilities associated with Environmental Laws with respect to the operations or properties of Note Party or any of its Subsidiaries (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, or any related constraints on operating activities and any potential liabilities to third parties) that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(s)           Patriot Act. To the extent applicable, each Note Party is in compliance, in all material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, and (ii) Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001, as amended) (the “Patriot Act”).

(t)            Indebtedness. Set forth on Schedule 3(u) to this Agreement is a true and complete list of all Indebtedness of each Note Party and each of its Subsidiaries outstanding immediately prior to the Closing Date that is to remain outstanding immediately after giving effect to the closing hereunder on the Closing Date and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness as of the Closing Date.

(u)           Payment of Taxes. Except for failures that could not reasonably be expected, either individually or in the aggregate to result in a Material Adverse Effect, all Tax returns and reports of each Note Party and its Subsidiaries required to be filed by any of them have been timely filed, and all Taxes shown on such Tax returns to be due and payable and all other Taxes upon a Note Party and its Subsidiaries and upon their respective assets, income, businesses and franchises that are due and payable have been paid when due and payable except those subject to a Permitted Protest. Each Note Party and each of its Subsidiaries have made adequate provision for all Taxes not yet due and payable in accordance with Section 3(o). The Issuer does not know of any proposed material Tax assessment against a Note Party or any of its Subsidiaries that is not being actively contested by such Note Party or such Subsidiary diligently, in good faith, and by appropriate proceedings; provided, that such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

(v)           Margin Stock. Neither any Note Party nor any of its Subsidiaries owns any Margin Stock or is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Notes made to the Issuer will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors. Neither any Note Party nor any of its Subsidiaries expects to acquire any Margin Stock.

(w)          Governmental Regulation. No Note Party nor any of its Subsidiaries is subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other federal or state statute or regulation which may limit its ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable. No Note Party nor any of its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered investment company” or a “principal underwriter” of a “registered investment company” as such terms are defined in the Investment Company Act of 1940.

(x)           OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. No Note Party nor any of its Subsidiaries is in violation of any Sanctions. No Note Party nor any of its Subsidiaries nor any officer or director of such Note Party or such Subsidiary nor, to the knowledge of such Note Party, any employee, agent or Affiliate of such Note Party or such Subsidiary (i) is a Sanctioned Person or a Sanctioned Entity, (ii) has any assets located in Sanctioned Entities, or (iii) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Note Parties and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Note Parties and its Subsidiaries and their respective officers and directors, and to the knowledge of each such Note Party, each employee, agent and Affiliate of each such Note Party and each such Subsidiary, is in compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. No proceeds of the Notes made hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including any Holder or other individual or entity participating in any transaction).

(y)           Employee and Labor Matters. There is (i) no unfair labor practice complaint pending or, to the knowledge of the Issuer, threatened in writing against any Note Party or its Subsidiaries before any governmental authority and no grievance or arbitration proceeding pending or threatened in writing against any Note Party or its Subsidiaries which arises out of or under any collective bargaining agreement and that could reasonably be expected to result in a material liability, (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or threatened in writing against any Note Party or its Subsidiaries that could reasonably be expected to result in a material liability, or (iii) to the knowledge of the Issuer, no union representation question existing with respect to the employees of any Note Party or its Subsidiaries and no union organizing activity taking place with respect to any of the employees of any Note Party or its Subsidiaries. None of any Note Party or its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid or unsatisfied. The hours worked and payments made to employees of each Note Party and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable legal requirements, except to the extent such violations could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All material payments due from any Note Party or its Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability on the books of the Note Parties, except where the failure to do so could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(z)            Leases. Each Note Party and its Subsidiaries enjoy peaceful and undisturbed possession under all leases material to their business and to which they are parties or under which they are operating, and, subject to Permitted Protests, all of such material leases are valid and subsisting and no material default by the applicable Note Party or its Subsidiaries exists under any of them.

(aa)          Material Contracts. The Note Parties are not in breach or in default of or under any material contract required to be filed as an exhibit under Item 601(b)(10) of Regulation S-K (“Material Contract”) which would reasonably likely result in a Material Adverse Effect and have not received any written notice of the intention of any other party thereto to terminate any Material Contract prior to the end of its current term.

(bb)        ABL Documents. As of the Closing Date, the Note Parties have delivered to Trustee and Collateral Agent and Holders a complete and correct copy of the ABL Documents (including all schedules, exhibits, amendments, supplements, modifications, assignments and all other documents delivered pursuant thereto or in connection therewith, but excluding the fee letter entered into by the ABL Agent in connection with the ABL Documents). All Obligations constitute Indebtedness entitled to the benefits of the provisions contained in the Intercreditor Agreement.

(cc)         The Issuer is not and does not expect to become a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code).

Section 4.         Subscriber Representations and Warranties. Each Subscriber, severally and not jointly, represents and warrants to the Issuer that:

(a)           Such Subscriber (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and (ii) has the requisite power and authority to enter into and perform its obligations under this Agreement.

(b)           This Agreement has been duly authorized, executed and delivered by such Subscriber, and assuming the due authorization, execution and delivery of the same by the Issuer, this Agreement constitutes the valid and legally binding obligation of such Subscriber, enforceable against such Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws now or hereafter in effect relating to creditors’ rights generally and general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.

(c)          The execution, delivery and performance of this Agreement, the purchase of the Convertible Notes and the compliance by such Subscriber with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of such Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which such Subscriber is a party or by which such Subscriber is bound or to which any of the property or assets of such Subscriber is subject; (ii) the organizational documents of such Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over such Subscriber or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to a Subscriber that would reasonably be expected to have a material adverse effect on such Subscriber’s ability to consummate the transactions contemplated hereby, including the purchase of the Convertible Notes.

(d)          Such Subscriber (i) is an institutional “accredited investor” (as defined in Rule 501(a) under the Securities Act), and (ii) is not acquiring the Convertible Notes and the Underlying Shares (if any) with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.

(e)          Such Subscriber understands that the Convertible Notes and the Underlying Shares (if any) are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Convertible Notes and the Underlying Shares (if any) have not been registered under the Securities Act. Such Subscriber understands that the Convertible Notes and the Underlying Shares (if any) may not be offered, resold, transferred, pledged or otherwise disposed of by such Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, or (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of cases (i) and (ii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any book-entry position or certificates representing such shares shall contain a legend to such effect. As a result of these transfer restrictions, such Subscriber may not be able to readily resell the Convertible Notes and the Underlying Shares (if any) and may be required to bear the financial risk of an investment in the Convertible Notes and the Underlying Shares (if any) for an indefinite period of time. Such Subscriber acknowledges and agrees that (i) the Convertible Notes and the Underlying Shares (if any) will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least six months from the Closing Date or such longer date as may be required if the Company does not satisfy the current public information requirements under Rule 144(c) and (ii) additional conditions to any such transaction may apply under Rule 144 and other applicable securities laws to the extent that such Subscriber is at such time, or has been at any time in the immediately preceding three months, an “affiliate” of the Issuer within the meaning of Rule 144. Such Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Convertible Notes and the Underlying Shares (if any).

Each book entry for the Convertible Notes and the Underlying Shares, when issued, shall contain a notation, and each certificate (if any) evidencing the such shares shall be stamped or otherwise imprinted with a legend, in substantially the following form;

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE OFFERED OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNLESS (I) A REGISTRATION STATEMENT FOR THESE SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS IN EFFECT OR (II) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.

(f)          Such Subscriber understands and agrees that such Subscriber is purchasing the Convertible Notes and the Underlying Shares (if any) directly from the Issuer. Such Subscriber further acknowledges that there have not been, and such Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to such Subscriber by the Issuer, any of its respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Agreement, and such Subscriber hereby represents and warrants that it is relying exclusively on such Subscriber’s own sources of information, investment analysis and due diligence (including professional advice such Subscriber deems appropriate) with respect to this offering of the Convertible Notes and the Underlying Shares (if any), and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Such Subscriber acknowledges that certain information provided to such Subscriber was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.

(g)          Such Subscriber is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Convertible Notes and the Underlying Shares (if any) for its own account or for an account over which such Subscriber exercises sole discretion for another qualified institutional buyer or institutional accredited investor. In making its decision to purchase the Convertible Notes and the Underlying Shares (if any), such Subscriber has relied solely upon independent investigation made by such Subscriber and the Issuer’s representations and warranties in Section 3. Such Subscriber acknowledges and agrees that such Subscriber has received such information as such Subscriber deems necessary in order to make an investment decision with respect to the Convertible Notes and the Underlying Shares (if any). Such Subscriber represents and agrees that such Subscriber and such Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as such Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Convertible Notes and the Underlying Shares (if any).

(h)          Such Subscriber is able to fend for itself in the transactions contemplated herein, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our prospective investment in the Convertible Notes and the Underlying Shares (if any) and has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment.

(i)          Such Subscriber acknowledges that the Issuer represents and warrants that the Convertible Notes and the Underlying Shares (if any) (i) were not offered by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

(j)          Such Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Convertible Notes and the Underlying Shares (if any). Such Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Convertible Notes and the Underlying Shares (if any), and such Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as such Subscriber has considered necessary to make an informed investment decision. Such Subscriber acknowledges and agrees that neither the Issuer nor any of its affiliates has provided any tax advice to such Subscriber or made any representations or warranties or guarantees to such Subscriber regarding the tax treatment of its investment in the Convertible Notes and the Underlying Shares (if any).

(k)          Such Subscriber has analyzed and considered the risks of an investment in the Convertible Notes and the Underlying Shares (if any) and determined that the Convertible Notes and the Underlying Shares (if any) are a suitable investment for such Subscriber and that such Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of such Subscriber’s investment in the Issuer. Such Subscriber acknowledges specifically that a possibility of total loss exists.

(l)          Such Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Convertible Notes and the Underlying Shares (if any) or made any findings or determination as to the fairness of this investment.

(m)          Such Subscriber is not, and is not owned or controlled by or acting on behalf of (in connection with the transactions contemplated hereby), a Sanctioned Person. Such Subscriber is not a non-U.S. shell bank or providing banking services to a non-U.S. shell bank. Such Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 and its implementing regulations (collectively, the “BSA/PATRIOT Act”), such Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Such Subscriber also represents that it maintains, to the extent required, either directly or through the use of a third-party administrator, policies and procedures reasonably designed for the screening of any investors against Sanctions-related lists of blocked or restricted persons and to ensure that the funds held by such Subscriber and used to purchase the Convertible Notes are derived from lawful activities. For purposes of this Agreement, “Sanctioned Person” means at any time any person or entity: (i) listed on any Sanctions-related list of designated or blocked or restricted persons; (ii) that is a national of, the government of, or any agency or instrumentality of the government of, or resident in, or organized under the laws of, a country or territory that is the target of comprehensive Sanctions from time to time (as of the date of this Agreement, Cuba, Iran, North Korea, Syria, the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic); or (iii) owned or controlled by or acting on behalf of any of the foregoing.

(n)          Such Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity securities of the Issuer (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

(o)          If such Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, such Subscriber represents and warrants that (i) it has not relied on the Issuer or any of its affiliates (the “Transactions Parties”) as the Plan’s fiduciary or for fiduciary or investment advice, with respect to its decision to acquire and hold the Convertible Notes and the Underlying Shares (if any), and none of the Transactions Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Convertible Notes and the Underlying Shares (if any) and (ii) none of the acquisition, holding and/or transfer or disposition of the Convertible Notes and the Underlying Shares (if any) will result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or any similar law or regulation.

(p)          Such Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 2.

(q)          No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Issuer as a result of the purchase and sale of securities hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Issuer from and after the Closing solely as a result of the purchase and sale of Notes hereunder.

Section 5.          Schedule Updates. Prior to the Closing, Issuer shall notify each Subscriber in writing of any material changes, additions, or events occurring after the date of this Agreement which require a representation and warranty of Issuer to be supplemented with a new Schedule or cause any material change in or addition to a Schedule promptly after Issuer becomes aware of the same by delivery of such new Schedule or appropriate updates to any such Schedule (each, an “Updated Disclosure Schedule”) to each Subscriber. Any Updated Disclosure Schedule shall (i) expressly state that it is being made pursuant to this Section 5, (ii) specify the representations and warranties to which it applies and (iii) describe in reasonable detail the changes, additions or events to which it relates. No Updated Disclosure Schedule delivered pursuant to this Section 5 shall be deemed to cure any breach of any representation or warranty unless the Subscribers specifically agree thereto in writing or consummate the Closing after receipt of such written notification, nor shall any such Updated Disclosure Schedule be considered to constitute or give rise to a waiver by the Subscribers of any condition set forth in this Agreement, unless the Subscribers specifically agree thereto in writing or consummate the Closing after receipt of such written notification.

Section 6.          Termination. This Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (a) upon the mutual written agreement of all parties hereto to terminate this Agreement, (b) if any of the conditions to Closing set forth in Section 2 of this Agreement are not satisfied on or prior to the Closing Date, or become incapable of being satisfied on or prior to the Closing Date, and, as a result thereof, the transactions contemplated by this Agreement are not consummated at the Closing, or (c) written notice of such termination from any party to any other party anytime on or after March 22, 2022 if the Closing has not occurred by such date and the terminating party’s breach was not the primary reason the Closing failed to occur by such date (the termination events described in clauses (a)–(c) above, collectively, the “Termination Events”); provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination or common law intentional fraud in the making of any representation or warranty hereunder, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach or fraud. Upon the occurrence of any Termination Event, except as set forth in the proviso to the first sentence of this Section 6 and with respect to Section 8 and Section 9, this Agreement shall be void and of no further effect and any portion of the Purchase Price paid by the Subscribers to the Issuer in connection herewith shall promptly (and in any event within one (1) Business Day) following the Termination Event be returned to the Subscribers.

Section 7.          Taxes. The Issuer and each Subscriber agree to file all tax returns (such tax returns to be filed on a reasonable basis or higher applicable standard) consistent with, and take no position in any audit, examination, claim or on any tax return, in either case, that is inconsistent with the following tax treatment, unless otherwise required to do so as a result of a “determination” that is final within the meaning of Section 1313(a) of the Code or a change in applicable Law: (a) that the Notes shall be treated as indebtedness for U.S. federal income and other applicable income tax purposes and the Notes shall not be treated as “contingent payment debt instruments” under Section 1.1275-4 of the Treasury Regulations (or any corresponding provision of state or local income tax law), (b) any change to the MOIC Required Level (as defined in the Indenture) shall be treated as a purchase price adjustment pursuant to Section 1.305-1(c) of the Treasury Regulations that is not subject to Section 305 of the Code and (c) all U.S. federal income, state income and franchise tax returns shall be filed in a manner consistent with clauses (a) and (b). For the avoidance of doubt, the Issuer shall not be unreasonably impeded in its ability and discretion to negotiate, compromise and/or settle any tax audit, examination claim or similar proceedings in connection with such tax treatment, and nothing herein shall obligate the Issuer to litigate such tax treatment.

Section 8.          Indemnity.

(a)          The Issuer shall, notwithstanding any termination of this Agreement, indemnify, defend and hold harmless, to the fullest extent permitted by law, each Subscriber, their respective directors, officers, partners, managers, members, employees, advisors and agents, and each person who controls a Subscriber (within the meaning of the Securities Act or the Exchange Act) and each affiliate of a Subscriber (within the meaning of Rule 405 under the Securities Act) from and against any and all losses, claims, damages, liabilities, costs and expenses (including, without limitation, any reasonable external attorneys’ fees and expenses as reasonably incurred (including, without limitation, in connection with defending or investigating any such action or claim) (collectively, “Losses”) that arise out of, relate to or are based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any form of prospectus included in any Registration Statement or in any preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or prospectus supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Issuer of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under Section 5, except to the extent, and only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding a Subscriber furnished in writing to the Issuer by or on behalf of such Subscriber expressly for use therein or such Subscriber has omitted a material fact from such information; provided, however, that the Issuer not be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in connection with any failure of the Subscriber to deliver or cause to be delivered a prospectus made available to the Subscriber by the Issuer in a timely manner, (B) as a result of offers or sales effected by or on behalf of the Subscriber by means of a freewriting prospectus (as defined in Rule 405) that was not authorized in writing by the Issuer, or (C) in connection with any offers or sales effected by or on behalf of a Subscriber in violation of Section 9(b) of this Subscription Agreement. The Issuer shall notify the Subscribers promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 9 of which the Issuer is aware.

(b)          Each Subscriber agrees, severally and not jointly, to indemnify and hold harmless the Issuer, its directors, officers, employees and agents, and each person who controls the Issuer (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Issuer against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable external attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by any untrue or alleged untrue statement of a material fact contained in the Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or prospectus supplement thereto, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information regarding a Subscriber so furnished in writing by or on behalf of such Subscriber expressly for use therein. In no event shall the liability of a Subscriber be greater in amount than the dollar amount of the net proceeds received by such Subscriber upon the sale of the Convertible Notes purchased pursuant to this Agreement and the corresponding Underlying Shares (if any) giving rise to such indemnification obligation.

(c)          Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgement a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (not to be unreasonably withheld, conditioned or delayed). An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) and any settlement pursuant hereto shall not include a statement or admission of fault or culpability on the part of such indemnified party and shall include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

(d)          The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Convertible Notes purchased pursuant to this Agreement and the corresponding Underlying Shares (if any).

(e)          If the indemnification provided under this Section 8 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8 from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 8(e) by any seller of Convertible Notes or Underlying Shares shall be limited in amount to the dollar amount of net proceeds received by such seller from the sale of such Convertible Notes or Underlying Shares pursuant to the Registration Statement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Agreement.

Section 9.          Miscellaneous.

(a)          All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, on the date of transmission to such recipient (with no mail undeliverable or other rejection notice), or (iii) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid) and, in each case, addressed to the intended recipient at its address or electronic mail address, as applicable, specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 9(a).

(b)          Each Subscriber acknowledges that the Issuer will rely on the acknowledgments, understandings, agreements, representations and warranties of such Subscriber contained in Section 4 of this Agreement. Prior to the Closing, each Subscriber agrees to promptly notify the Issuer if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of such Subscriber set forth herein are no longer accurate in all material respects. Each Subscriber acknowledges and agrees that each purchase by such Subscriber of Convertible Notes from the Issuer will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by such Subscriber as of the time of such purchase. The Issuer acknowledges that the Subscribers will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Agreement. Prior to the Closing, Issuer agrees to promptly notify the Subscribers if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of any Subscriber set forth herein are no longer accurate in all material respects.

(c)          Each of the Issuer and Subscribers is irrevocably authorized to produce this Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

(d)          The Issuer shall reimburse the reasonable and documented out-of-pocket fees and expenses of counsel for the Subscribers, regardless of whether the Closing Date occurs and/or any Convertible Notes are issued and sold hereunder. For the avoidance of doubt, other than as expressly set forth in this Agreement or otherwise agreed between Company and Subscriber or its Affiliate, the Subscribers shall pay all of their own expenses in connection with this Agreement and the transactions contemplated herein.

(e)          Neither this Agreement nor any rights that may accrue to any Subscriber hereunder (other than the Convertible Notes acquired hereunder and the corresponding Underlying Shares (if any)) may be transferred or assigned. Neither this Agreement nor any rights that may accrue to the Issuer hereunder may be transferred or assigned. Notwithstanding the foregoing, a Subscriber may assign its rights and obligations under this Agreement to one or more of its affiliates or to other investment funds or accounts managed or advised by the investment manager who acts on behalf of such Subscriber or, with the Issuer’s prior written consent, to another person, provided that (i) such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by such Subscriber, the assignee(s) shall become a Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of such Subscriber provided for herein to the extent of such assignment and (ii) no such assignment shall relieve any Subscriber of its obligations hereunder if any such assignee fails to perform such obligations unless expressly agreed to in writing by the Issuer.

(f)          All the agreements, representations and warranties made by each party hereto in this Agreement shall survive the Closing.

(g)          Each Subscriber acknowledges that subject to the conditions set forth in Section 9(s), the Issuer may file a copy of this Agreement with the Commission as an exhibit to a periodic report of the Issuer or a registration statement of the Issuer.

(h)          This Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto.

(i)          This Agreement, including the form of indenture attached hereto, constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

(j)          Except as otherwise provided herein (including the next sentence hereof), this Agreement is intended for the benefit of the parties hereto and their respective affiliates and their respective heirs, executors, administrators, successors, legal representatives, and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Except as set forth in Section 8, Section 9(b), Section 9(c), Section 9(e), Section 9(h), and this Section 9(j), this Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns, and the parties hereto acknowledge that such persons so referenced are third party beneficiaries of this Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions.

(k)          The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to seek equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that the Issuer shall be entitled to seek specific performance of the Subscribers’ obligations to fund the Purchase Price and the provisions of the Subscription Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree: (x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert that a remedy of specific enforcement pursuant to this Section 9(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.

(l)          If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

(m)        No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.

(n)         This Agreement may be executed and delivered in one or more counterparts (including by facsimile or electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

(o)         This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other state.

(p)          EACH PARTY AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

(q)          The parties agree that all disputes, legal actions, suits and proceedings arising out of or relating to this Agreement must be brought exclusively in the United States District Court for the Southern District of New York or the Supreme Court of the State of New York, in each case located in the Borough of Manhattan (collectively the “Designated Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit or proceeding with respect to this Agreement may be brought in any other forum. Each party hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the parties also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 9(a) of this Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the parties have submitted to jurisdiction as set forth above.

(r)          This Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are expressly named as parties or third party beneficiaries hereto and then only with respect to the specific obligations set forth herein with respect to such party or third party beneficiary. No past, present or future director, officer, employee, incorporator, manager, member, partner, stockholder, affiliate, agent, attorney or other representative of any party hereto or of any affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim, action, suit or other legal proceeding based on, in respect of or by reason of the transactions contemplated hereby.

(s)          The Issuer shall, by 9:00 a.m., New York City time, on the first (1st) Business Day immediately following the date of this Agreement, issue one or more press releases or file with the Commission a current report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and any other material, nonpublic information regarding the Issuer that the Issuer provided to the Subscribers on or prior to the date hereof. Upon the issuance of the Disclosure Document, to the Issuer’s knowledge, no Subscriber shall be in possession of any material, nonpublic information regarding the Issuer received from the Issuer or any of its officers, directors, or employees or agents, and the Subscribers shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with the Issuer or any of their respective affiliates in connection with the transactions contemplated hereby. Notwithstanding anything in this Agreement to the contrary, the Issuer (i) shall not publicly disclose the name of any Subscriber or any of its affiliates or advisers, or include the name of any Subscriber or any of its affiliates or advisers in any press release, investor presentations or marketing materials, without the prior written consent of such Subscriber and (ii) shall not publicly disclose the name of any Subscriber or any of its affiliates or advisers, or include the name of any Subscriber or any of its affiliates or advisers in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of such Subscriber, except as required by the federal securities law, regulatory agency or under the regulations of NYSE, as applicable, in which case the Issuer shall, to the extent permissible, provide such Subscriber with prior written notice of such disclosure permitted hereunder. The Subscribers will promptly provide any information reasonably requested by the Issuer or any of its affiliates for any required regulatory application or required filing to be made or required approval sought in connection with the transactions contemplated hereby (including filings with the Commission). Each Subscriber may disclose the name of the Issuer and/or any other parties associated with the Subscription or the transactions contemplated hereby and the terms of this Agreement, as required by federal securities laws and regulations, any regulatory agency or under the regulations of the NYSE, as applicable, or otherwise to the extent consistent with such Subscriber’s public filings and disclosures regarding similar transactions.

(t)          The obligations of each Subscriber under this Agreement are several and not joint with the obligations of any other Subscriber, and no Subscriber shall be responsible in any way for the performance of the obligations of any other Subscriber under this Agreement. The decision of each Subscriber to purchase Convertible Notes pursuant to this Agreement has been made by such Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Issuer or any of its subsidiaries which may have been made or given by any investor or by any agent or employee of any investor, and neither any Subscriber nor any of its agents or employees shall have any liability to any investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein, and no action taken by any Subscriber or investor pursuant hereto or thereto, shall be deemed to constitute any Subscriber or other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that any Subscriber or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Subscriber acknowledges that no other Subscriber has acted as agent for such Subscriber in connection with making its investment hereunder and no other Subscriber will be acting as agent of any Subscriber in connection with monitoring its investment in the Convertible Notes and the Underlying Shares (if any) or enforcing its rights under this Agreement. Each Subscriber shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.

(u)          Prior to or at the Closing, each Subscriber shall deliver to the Issuer a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.

(Signature pages follow)

IN WITNESS WHEREOF, each of the Issuer and the Subscribers has executed or caused this Agreement to be executed by its duly authorized representative as of the date first set forth above.

[Signature Page to Subscription Agreement]

[Signature Page to Subscription Agreement]

[Signature Page to Subscription Agreement]

Each Subscriber must pay the applicable Purchase Price by wire transfer of United States dollars in immediately available funds in accordance with the Flow of Funds Agreement.

Schedule 3(h)(iii)

As of the Closing Date, there are no non-Note Party subsidiaries.

Schedule 3(h)(iv)

Subscriptions, Options, Warrants, Calls

The Company has outstanding Restricted Stock Unit Awards (time based and performance based) under its 2019 Long Term Incentive Plan as follows:

The Company is permitted under the 2019 Plan to net share settle awards for withholding tax purposes but is not required to do so.

Schedule 3(q)

Employee Benefits

None.

The Company maintains a 401(k) plan and provides employee matches under such plan.

Schedule 3(t)

Permitted Indebtedness

Vehicles (Pickup Trucks) leased through Enterprise Fleet Management as such may be increased or decreased in the ordinary course of business, and equipment leases through VFI, as such may be decreased from time to time through regular payments thereunder. The following spreadsheets detail the vehicles and items of equipment leased as of 12/31/22, as broken out between short and long term liabilities on our 12/31/21 audited financial statements:

ANNEX A

FORM OF INDENTURE

Exhibit A

Legal Opinion

(See attached).

Exhibit 10.2

Independence Contract Drilling, Inc.
as the Company and issuer,

THE GUARANTORS PARTY HERETO,

as Guarantors,

and

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION

as Trustee and Collateral Agent

INDENTURE

Dated as of March 18, 2022

Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026 

TABLE OF CONTENTS

Page

INDENTURE, dated as of March 18, 2022, between Independence Contract Drilling, Inc., a Delaware corporation, as issuer (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”) and as collateral agent (in such capacity, the “Collateral Agent”).

Each party to this Indenture (as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026 (the “Notes”).

Article 1.    Definitions; Rules of Construction

Section 1.01.     Definitions.

“ABL Agent” means Wells Fargo Bank, National Association, in its capacity as administrative agent under any of the ABL Documents, or any successor or replacement administrative agent thereunder.

“ABL Credit Agreement” means the Credit Agreement, dated as of October 1, 2018, by and among the ABL Agent, the ABL Lenders, the Company as a borrower, certain of its affiliates party thereto, and the additional borrowers from time to time party thereto, as amended, supplemented or otherwise modified from time to time prior to the date hereof, as amended on the date hereof and as the same may be hereafter be amended, restated, modified, supplemented, refinanced, replaced, extended, renewed or restructured in accordance with the provisions hereof and the terms of the Intercreditor Agreement.

“ABL Documents” has the meaning provided in the Intercreditor Agreement.

“ABL Indebtedness” means Indebtedness under the ABL Documents.

“ABL Lenders” means the financial institutions party to the ABL Credit Agreement, as lenders, and each of their successors and permitted assigns.

“ABL Priority Collateral” has the meaning provided in the Intercreditor Agreement.

“Account” means an account (as that term is defined in the UCC).

“Account Debtor” means any Person who is obligated on an Account, chattel paper, or a General Intangible.

“Acquisition” means (a) the purchase or other acquisition by the Company or any of its Subsidiaries of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the Equity Interests of any other Person.

“Additional Interest” has the meaning ascribed to it in the Registration Rights Annex.

“Administrative Questionnaire” means an administrative questionnaire in a form approved by the Trustee.

“Affiliate” has the meaning set forth in Rule 144 (as may be amended from time to time).

“Alternate Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus 0.50%, (b) the Prime Rate and (c) 1.00% per annum. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.

“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Note Party or any of its Subsidiaries or Affiliates is located or is doing business.

“Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Note Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

“Applicable Premium” means an amount equal to the amount of interest which would have accrued on the outstanding Notes from the date of any acceleration of the Notes through the Maturity Date (calculated assuming such interest were Cash Interest). The Trustee shall have no obligation to calculate or verify the calculation of the Applicable Premium.

“Authentication Order” means an authentication order substantially in the form set forth in Exhibit G.

“Authorized Denomination” means, with respect to a Note, an original principal amount minimum denomination equal to $1,000 or any integral multiple of $1,000 original principal amount in excess thereof, and after the payment of PIK Interest, a principal amount minimum denomination equal to $1.00 or any integral multiple of $1.00 in excess thereof.

“Available Amount” means, at any date, an amount determined on a cumulative basis (including, for the avoidance of doubt, by deducting any negative amounts from such amount) equal to, without duplication, (a) 50% of Consolidated Net Income for each fiscal year of Company commencing with the fiscal year ending December 31, 2019 and ending prior to such date; minus (b) all amounts of the Available Amount used to make Investments pursuant to clause (19) of the definition of “Permitted Investments” after the Issue Date and prior to such date; minus (c) the amount of all Investments made pursuant to clause (20) of the definition of “Permitted Investments” after the Issue Date and prior to such date; minus (d) all amounts of the Available Amount used to make Restricted Payments pursuant to Section 3.27(C) after the Issue Date and prior to such date; minus (f) all amounts of the Available Amount used to make payments or distributions in respect of Indebtedness pursuant to Section 3.26(A) after the Issue Date and prior to such date; provided that the aggregate amount of the Available Amount shall not exceed $5,000,000 during any Measurement Period and $15,000,000 during the term of this Agreement.

“Available Tenor” means, as of any date of determination and with respect to the then current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Indenture as of such date.

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

“Benchmark” means, initially, sum of (a) Term SOFR plus (b) 0.10% (10 basis points); provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” shall mean the applicable Benchmark Replacement. Notwithstanding the foregoing, in no event may the Benchmark be less than 1.00%; provided, further, that during any Covenant Suspension, the Benchmark shall be deemed to be the Benchmark as of the date of the Covenant Suspension.

“Benchmark Determination Date” means, with respect to any Interest Period, (i) if the Benchmark is Term SOFR, the Term SOFR Determination Date and (ii) if the Benchmark is Daily Simple SOFR, the Daily Simple SOFR Determination Date.

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Required Holders for the applicable Benchmark Replacement Date:

(1) the sum of (a) Daily Simple SOFR and (b) the Benchmark Replacement Adjustment;

(2) the sum of: (a) the alternate benchmark rate that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the applicable Benchmark Replacement Adjustment; and

(3) the sum of (a) the alternate rate of interest that has been agreed by the Required Holders and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (x) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark at such time in the United States and (y) any recommendations by the Relevant Governmental Body, and (b) the related Benchmark Replacement Adjustment;

provided that if none of the foregoing Benchmark Replacements can be determined by the Required Holders prior to the Benchmark Determination Date, such Benchmark shall be replaced with the Alternate Base Rate.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the first alternative set forth below that the Required Holders in its reasonable discretion: (a) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Required Holders as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; and (b) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been agreed by the Required Holders and the Company giving due consideration to (x) any evolving or then-prevailing spread adjustment, or method for calculating or determining such spread adjustment, for the replacement for the then-current Benchmark with the applicable Unadjusted Benchmark Replacement at such time in the United States and (y) any applicable recommendations made by the Relevant Governmental Body.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including, but not limited to, changes to the definition of “Alternate Base Rate”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day”, the definition of “Interest Period”, the timing and frequency of determining rates and making payments of interest and other administrative matters) that the Required Holders in its reasonable discretion decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice; provided that the Required Holders shall use commercially reasonable efforts to take into account the Company’s input in order to satisfy any applicable requirements under proposed or final U.S. Treasury Regulations or other Internal Revenue Service guidance such that the use of Benchmark Replacement shall not result in a deemed exchange under Section 1001 of the Code.

“Benchmark Replacement Date” means:

(1) for purposes of clause (i) or (ii) of the definition of “Benchmark Transition Event,” the later of (x) the date of the public statement or publication of information referenced therein and (y) the date on which the administrator of the relevant Benchmark permanently or indefinitely ceases to provide all Available Tenors of such Benchmark; or

(2) for purposes of clause (iii) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced therein.

“Benchmark Transition Event” means with respect to any then-current Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark announcing that the administrator has ceased or will cease to provide all Available Tenors of such Benchmark permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide all Available Tenors of such Benchmark;

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide all Available Tenors of such Benchmark; or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that all Available Tenors of such Benchmark are no longer, or as of a specified future date will no longer be, representative.

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

“Borrowing Base” has the meaning provided in the ABL Credit Agreement.

“Business Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of New York.

“Calculation Agent” mean, initially, the Company, subject to replacement in accordance with Section 14.12(C). Neither the Trustee nor the Collateral Agent shall be obligated to serve as the Calculation Agent.

“CapEx Adjustment” means, with respect to any fiscal year, an amount equal to (a) an additional amount of $500,000 for each Rig above an aggregate of 17 Rigs that the Company operates during such fiscal year, plus (b) an amount equal to costs incurred to reactivate any Rig, so long as (i) the Company has a signed contract with a customer with respect to each such Rig of at least one (1) year duration providing for early termination payments consistent with past practice equal to at least the expected margin on the contract, (ii) the expected margin on such Rig contract will be equal to or exceed the reactivation Capital Expenditures subject to this CapEx Adjustment in clause (b), and (iii) the reactivation Capital Expenditures, Rig contract and the expected margin calculation are approved by the Board of Directors.

“Capital Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding, without duplication (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time, (b) expenditures made during such period to consummate one or more Permitted Acquisitions, (c) expenditures made during such period to the extent made with the identifiable proceeds of an equity investment a Note Party or any of its Subsidiaries which equity investment is made substantially contemporaneously with the making of the expenditure, and (d) expenditures during such period that, pursuant to a written agreement, are reimbursed by a third Person (excluding the Company or any of its Affiliates) within one hundred eighty (180) days of the date such expenditures are made.

“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

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

“Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.

“Cash Equivalents” means: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one (1) year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than two hundred seventy (270) days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one (1) year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or of any recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt 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 criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.

“Casualty Event” means any event that gives rise to the receipt by the Company or any of its Subsidiaries of any insurance proceeds or condemnation awards in respect of any assets or property thereof.

“CFC” means a controlled foreign corporation (as that term is defined in the Code) in which any Note Party is a “United States shareholder” within the meaning of Section 951(b) of the Code.

“Change of Control” means:

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

“Code” means Internal Revenue Code of 1986, as amended.

“Collateral” has the meaning ascribed to such term in the Security Documents.

“Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in any Note Party’s or its Subsidiaries’ books and records or Equipment, in each case, in form and substance reasonably satisfactory to the Controlling Agent (if not the Collateral Agent) or Required Holders.

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

“Common Stock” means the common stock of Company, par value $0.01 per share, at the date of this Indenture, subject to Section 5.09.

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

“Company Consulting Bank” means an independent investment bank with nationally recognized expertise in convertible debt and other hybrid securities, engaged by the Company, at the Company’s expense, to assist the Company with making any calculations when acting as Calculation Agent.

“Company Conversion Rate” means, in respect of any Qualified Merger, the greater of (a) the relevant Conversion Rate, (b) $1,000 divided by the Company Conversion VWAP, and (c) the lowest rate that would cause the MOIC Condition to be satisfied with respect to the related Qualified Merger Conversion.

“Company Conversion VWAP” means, in respect of any Qualified Merger, the average of daily VWAP over the five (5) VWAP Trading Days prior to the earlier of signing or public announcement (by any party, and whether formal or informal, including for the avoidance of doubt any media reports thereof) of a definitive agreement in respect of such Qualified Merger as calculated by the Calculation Agent.

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

“Company Persons” means any future, current or former officer, director, manager, member, member of management employee, consultant or independent contractor of the Company or any of its Subsidiary.

“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries; provided, that when the term “Consolidated” is used herein in reference to the Company and its Subsidiaries, the term “Consolidated” shall mean the Company and its Subsidiaries on a consolidated basis, with such consolidated numbers then determined on a combined basis, all in accordance with GAAP.

“Consolidated Interest Charges” means, for any period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedge Agreements or agreements governing hedging obligations, but excluding any non-cash or deferred interest plus (b) the portion of rent expense with respect to such period under Capitalized Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Company and its Subsidiaries, all as determined on a Consolidated basis in accordance with GAAP.

“Consolidated Net Income” means, for any period, the aggregate of the net income (or loss) of the Company and its Subsidiaries for such period, determined on a Consolidated basis in accordance with GAAP; provided, however, that:

“Consolidated Non-cash Charges” means, with respect to the Company and its Subsidiaries for any period, the aggregate depreciation, amortization, impairment, compensation, rent and other non-cash expenses of the Company and its Subsidiaries reducing Consolidated Net Income of such Person for such period on a Consolidated basis and otherwise determined in accordance with GAAP (including non-cash charges resulting from purchase accounting in connection with any Acquisition or Disposition that is consummated after the Issue Date), but excluding (a) any such charge which consists of or requires an accrual of, or cash reserve for, anticipated cash charges for any future period and (b) the non-cash impact of recording the change in fair value of any embedded derivatives under ASC 815 and related interpretations as a result of the terms of any agreement or instrument to which such Consolidated Non-cash Charges relate.

“Consolidated Taxes” means, with respect to the Company and its Subsidiaries on a Consolidated basis for any period, provision for taxes based on income, profits or capital, including, without limitation, state franchise and similar taxes.

“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Collateral Agent and Required Holders (it being agreed that any agreement requiring the Collateral Agent to indemnify or reimburse a bank or securities intermediary in Collateral Agent’s own capacity shall not be satisfactory to the Collateral Agent), executed and delivered among a Note Party, Controlling Agent, the Collateral Agent (if not the Controlling Agent) and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).

“Controlling Agent” means (a) until the Discharge of ABL Priority Obligations, the ABL Agent and (b) from the Discharge of ABL Priority Obligations, the Collateral Agent.

“Conversion Date” means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert such Note are satisfied, subject to Section 5.03(C).

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

“Conversion Rate” means (x) initially, 197.23866 shares of Common Stock per $1,000 principal amount of Notes and (y) upon the Company obtaining the Shareholder Approval, 221.72949 shares of Common Stock per $1,000 principal amount of Notes; in each case, subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of Business on such date.

“Conversion Share” means any share of Common Stock issued or issuable upon conversion of any Note.

“Corporate Trust Office” means the office of the Trustee at which at any particular time this Indenture shall be principally administered, which office at the date hereof is located at 8 Greenway Plaza, Suite 1100, Houston, Texas 77046, Attn: A. Hoyos (ICD) , or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the holders and the Company).

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor, provided that if the Benchmark is Term SOFR, such Benchmark should be for a Corresponding Tenor of six month’s duration.

“Daily Simple SOFR” means, for any day (a “Daily SOFR Rate Day”), a rate per annum equal to SOFR for the day (a “Daily Simple SOFR Determination Date”) at approximately 5:00 a.m., Chicago time, that is five U.S. Government Securities Business Days prior to (i) if such Daily SOFR Rate Day is a U.S. Government Securities Business Day, such Daily SOFR Rate Day or (ii) if such Daily SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such Daily SOFR Rate Day; provided that if Daily Simple SOFR as so determined would be less than 0.0%, such rate shall be deemed to be 0.0% for the purposes of this Indenture. If by 5:00 p.m. on the second U.S. Government Securities Business Day immediately following any Daily Simple SOFR Determination Date, SOFR in respect of such applicable Daily Simple SOFR Determination Date has not been published and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then “Daily Simple SOFR” for such Daily Simple SOFR Determination Date will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s website; provided that any SOFR determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three consecutive Daily SOFR Rate Days. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Company.

“Daily Simple SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.

“Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “ICD <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such VWAP Trading Day, determined by the Calculation Agent, using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session.

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

“Deposit Account” means (a) any deposit account (as that term is defined in the UCC), and (b) with respect to any Deposit Account located outside of the United States, any bank account with a deposit function.

“Discharge of ABL Priority Obligations” has the meaning provided in the Intercreditor Agreement.

“Disposition” or “Dispose” means the sale (including any sale and leaseback transaction), transfer, assignment, exclusive license, lease or other disposition or conveyance (including by way of merger, consolidation, division, liquidation or distribution) (whether in one transaction or in a series of transactions) of any property by any Person, including (a) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and (b) any sale, transfer, assignment, or other disposition of any Equity Interests of another Person, but, for the avoidance of doubt, not the issuance by such Person of its Equity Interests.

“Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a Change of Control or asset sale so long as any rights of the holders thereof upon the occurrence of a Change of Control or asset sale event shall be subject to the prior repayment in full of the Notes and all other Obligations that are accrued and payable), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date.

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

“Earn-Outs” means unsecured liabilities of a Note Party arising under an agreement to make any deferred payment as a part of the Purchase Price for a Permitted Acquisition, including performance bonuses or consulting payments in any related services, employment or similar agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted Acquisition.

“EBITDA” means, with respect to any fiscal period and with respect to the Company and its Subsidiaries determined on a Consolidated basis in accordance with GAAP:

(i)                 income tax expense, net of tax refunds,

(ii)              Consolidated Interest Charges,

(iii)            Consolidated Non-cash Charges,

(iv)             the amount of costs, expenses and fees paid to third parties during such period in connection with the transactions contemplated hereby to occur on the Issue Date and post-closing matters related thereto in an aggregate amount, during the term of this Agreement, not to exceed $10,000,000,

(v)               any premiums, expenses or charges (other than Consolidated Non-cash Charges) related to any issuance or sale of Equity Interests, Investment, Acquisition, Disposition or recapitalization permitted to be made hereunder (whether consummated or not),

(vi)             any non-cash costs or expense incurred pursuant to any management equity plan or stock option plan or other management or employee benefit plan or agreement or any stock subscription or shareholder agreement,

(vii)          the amount of any minority interest expense consisting of income of a Subsidiary attributable to minority Equity Interests of third parties in any non-Wholly Owned Subsidiary, net of any cash distributions made to such third parties in such period,

(viii)        any net after-tax extraordinary, nonrecurring or unusual losses (including cash severance costs); provided that, solely with respect to cash losses added back pursuant to this clause (viii), and if and to the extent requested by the Required Holders, the Company shall deliver to the Holders supporting documentation reasonably satisfactory to the Required Holders in respect of such cash losses,

(ix)             proceeds of business interruption insurance received in cash during such period, to the extent not already included in Consolidated Net Income, and

(x)               charges, losses or expenses to the extent indemnified, insured or reimbursed by a third party not an Affiliate of a Note Party to the extent such indemnification, insurance or reimbursement is actually received in cash for such period, minus

For the purposes of calculating EBITDA for any period of twelve consecutive months (each, a “Reference Period”), if at any time during such Reference Period (and on or after the Issue Date), any Note Party or any of its Subsidiaries shall have made a Permitted Acquisition or a Disposition permitted hereunder, EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if any such Permitted Acquisition or Disposition (and any increase or decrease in the component financial definitions used in the calculation of EBITDA attributable to any Permitted Acquisition or Disposition) occurred on the first day of such Reference Period.

“Employee Benefit Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that is or within the preceding six (6) years has been sponsored, maintained or contributed to by any Note Party or ERISA Affiliate or (b) to which any Note Party or ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability, contingent or otherwise.

“Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Note Party or any Subsidiary thereof, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Note Party or any of their respective Subsidiaries, or any of their predecessors in interest.

“Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Note Party or any Subsidiary thereof, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.

“Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.

“Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.

“Equipment” means equipment (as that term is defined in the UCC).

“Equity Interests” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), convertible debt, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.

“ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Note Party or its Subsidiaries under Section 414(b) of the Code, (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Note Party or its Subsidiaries under Section 414(c) of the Code, (c) solely for purposes of Section 302 of ERISA and Section 412 of the Code, any organization subject to ERISA that is a member of an affiliated service group of which any Note Party or any of its Subsidiaries is a member under Section 414(m) of the Code, or (d) solely for purposes of Section 302 of ERISA and Section 412 of the Code, any Person subject to ERISA that is a party to an arrangement with any Note Party or any of its Subsidiaries and whose employees are aggregated with the employees of any Note Party or its Subsidiaries under Section 414(o) of the Code.

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

“Excess Availability” has the meaning provided in the ABL Credit Agreement. as of the date of this Indenture, without giving effect to any amendments, modifications or waivers thereof after the date hereof, including with respect to the defined terms used therein.

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

“Excluded Subsidiary” means (a) any CFC or FSHCO, (b) any direct or indirect Subsidiary of a Subsidiary that is a CFC or a FSHCO or (c) any Subsidiary with respect to which, in the reasonable judgment of the Required Holders and the Company, the burden or cost (including any adverse tax consequences) of providing the guaranty shall outweigh the benefits to be obtained by the Holders therefrom; provided that, notwithstanding the foregoing, no Subsidiary that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under the ABL Credit Agreement shall be an Excluded Subsidiary.

“Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries in existence on the Issue Date as listed on Schedule 1.01 hereto, until such amounts are repaid.

“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

“Federal Funds Effective Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day for such transactions from three Federal funds brokers of recognized standing selected by the Required Holders (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).

“Fixed Charge Coverage Ratio” means, as of any date of determination and with respect to the Company and its Subsidiaries, determined on a Consolidated basis in accordance with GAAP, the ratio of (a) EBITDA for the twelve month period ending on such date, minus Unfinanced Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during the twelve month period ending on such date, minus Consolidated Taxes (and for purposes of determining compliance with Section 3.27, any Restricted Payment paid during such period) paid in cash during the twelve (12) month period ending on such date, to (b) Fixed Charges for the twelve (12) month period ending on such date.

For the purposes of calculating Fixed Charge Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Issue Date), any Note Party or any of its Subsidiaries shall have made a Permitted Acquisition or Disposition, Fixed Charges and Unfinanced Capital Expenditures for such Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to the Required Holders as if any such Permitted Acquisition or Disposition (and any increase or decrease in EBITDA and the component financial definitions used therein attributable to any Permitted Acquisition or Disposition) occurred on the first day of such Reference Period.

“Fixed Charges” means, with respect to any fiscal period and with respect to the Company and its Subsidiaries determined on a Consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Consolidated Interest Charges required to be paid (other than interest paid-in-kind, amortization of financing fees, and other non-cash Consolidated Interest Charges) during such period, plus (b) scheduled principal payments in respect of Indebtedness that are required to be paid during such period, plus (c) all amounts paid with respect to Earn-Outs during such period.

“Flow of Funds Agreement” means a pay proceeds letter, dated as of even date with this Indenture, in form and substance reasonably satisfactory to the Required Holders, executed and delivered by the Company and the Required Holders.

“Foreign Subsidiary” means any direct or indirect subsidiary of any Note Party that is organized under the laws of a jurisdiction other than the United States of America, any state thereof or the District of Columbia.

“FSHCO” means any Domestic Subsidiary substantially all of the assets, Equity Interests and, if applicable, Indebtedness in one or more Foreign Subsidiaries of the Company that are CFCs or other FSHCOs.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, including, without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession.

“General Intangible” means a general intangible (as that term is defined in the UCC).

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.

“Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means the guarantee by each Guarantor of the Company’s obligations under this Indenture, the Notes and the other Note Documents pursuant to Article 10.

“Guarantor” means each Person that becomes a Guarantor by executing an amended or supplemental indenture pursuant to Section 9.01(B) and Section 10.03 and, subject to Section 10.04, its successors and assigns of the foregoing, in each case other than an Excluded Subsidiary.

“Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

“Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.

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

“Indebtedness” as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses) and any Earn-Out or similar obligations to the extent required to be recognized as a liability on the balance sheet of such Person under GAAP, (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.

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

“Insolvency Laws” means, collectively, the Bankruptcy Code, and any other applicable state, provincial, territorial or federal bankruptcy or insolvency laws, each as now and hereafter in effect, any successors to such statutes and any other applicable insolvency or other similar law of any jurisdiction, including any law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it and including any rules and regulations pursuant thereto.

“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or Insolvency Law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.

“Intercreditor Agreement” means the intercreditor agreement, dated as of the Issue Date, by and among the Collateral Agent, the ABL Agent, the other agents party thereto (if any), and the Note Parties, as may be amended, supplemented, waived or otherwise modified from time to time. in accordance with the terms hereof and thereof

“Interest Payment Date” means, with respect to a Note, each March 31 and September 30 of each year, commencing on September 30, 2022. For the avoidance of doubt, the Maturity Date is an Interest Payment Date.

“Interest Period” shall mean the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next succeeding Interest Payment Date, with the exception that the first Interest Period shall commence on and include the Issue Date and end on and include the day immediately preceding the first scheduled Interest Payment Date (the Interest Payment Date for any Interest Period shall be the Interest Payment Date occurring on the day immediately following the last day of such Interest Period).

“Inventory” means inventory (as that term is defined in the UCC).

“Investments” means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. For purposes of covenant compliance, the amount of any outstanding Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value, or write-ups, write-downs, or write-offs of such Investment, net of any repayments thereof.

“Issue Date” means March 18, 2022.

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

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.

“Liquidity” means, as of any date of determination, the sum of (x) Excess Availability and (y) unrestricted cash and Cash Equivalents of the Note Parties that are deposited in a Deposit Account or Securities Account, as applicable, subject to a Control Agreement (to the extent required to be subject to a Control Agreement pursuant to Section 3.18 or Section 3.38) as of such date.

“Major Dilutive Issuance” means an issuance (or series of related issuances) of Equity Interests of the Company (i) in respect of which the total number of shares of Common Stock of the Company outstanding immediately following the issuance of such Equity Interests (assuming full conversion, exercise or settlement of all outstanding convertible shares, options, warrants, interests, participations, or other equivalents (regardless of how designated), including convertible debt, preferred stock, restricted stock units or stock appreciation rights required to be settled into shares of Common Stock, and the Notes, without regard to any ownership blocker or similar limit on exercise or conversion) would exceed 110% of the total number of shares of Common Stock of the Company outstanding immediately prior to such issuance (assuming full conversion, exercise or settlement of all outstanding convertible shares, options, warrants, interests, participations, or other equivalents (regardless of how designated), including convertible debt, preferred stock, restricted stock units or stock appreciation rights required to be settled into shares of Common Stock, and the Notes, without regard to any ownership blocker or similar limit on exercise or conversion, (ii) which issuance is for a purchase price per share of Common Stock less than the then-applicable Conversion Price and (iii) which issuance is for cash. For purposes of clarification, a Major Dilutive Event shall not include the issuance of shares of Common Stock in connection with any acquisition of the stock of any Person, or the assets (other than substantially all cash) of any Person, or the merger, consolidation with any Person, or exchange of Common Stock for the securities of another Person.

“Major Holder” means, at any time, any Holder who holds $25,000,000 or more in aggregate principal amount of Notes at such time.

“Major Issuance Election Notice” has the meaning set forth in Section 3.41.

“Major Issuance Notice” has the meaning set forth in Section 3.41.

“Management Incentive Plan” means the Company’s 2019 Long-Term Incentive Plan, including as such plan may be amended in 2022, subject to stockholder approval, to increase the authorized shares of Common Stock under such plan to 4,300,000 shares of Common Stock.

“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

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

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the financial condition, results of operations, properties, assets or liabilities of any Note Party and its Subsidiaries, taken as a whole, (b) a material impairment of the rights and remedies of the Trustee, the Collateral Agent or any Holder under the Note Documents (including, without limitation, the Holders’ ability to enforce the Obligations or realize upon the Collateral), or of the ability of the Note Parties, taken as a whole, to perform its obligations under the Note Documents, (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Note Parties, taken as a whole, of the Note Documents, or (d) a material adverse change in, or a material adverse effect upon, the enforceability or priority of Collateral Agent’s Liens with respect to all or a material portion of the Collateral.

“Maturity Date” means March 18, 2026.

“Maximum Credit” has the meaning provided in the ABL Credit Agreement.

“Measurement Period” means, at any date of determination, the most recently completed four (4) consecutive fiscal quarter period for which financial statements were required to have been delivered pursuant to the terms of this Agreement.

“MOIC” means, with respect to any potential Qualified Merger Conversion, an amount determined by the Calculation Agent equal to the aggregate return on a hypothetical Note with US$1,000 face amount, issued on the Issue Date, from the Issue Date through the potential Qualified Merger Conversion Date, including (x) the aggregate amount of any Cash Interest paid on such hypothetical Note from the Issue Date through the potential Qualified Merger Conversion Date, (y) the aggregate fair market value of any Conversion Consideration that would be received by the Holder of such hypothetical Note on the relevant Qualified Merger Conversion Date and (z) the aggregate fair market value of any Conversion Consideration that would be received on the relevant Qualified Merger Conversion Date by the Holder of any PIK Notes issued in respect of (or the relevant increase in value of) such hypothetical Note.

“MOIC Condition” means, with respect to any potential Qualified Merger Conversion, MOIC is greater than or equal to the MOIC Required Level.

“MOIC Required Level” means (x) prior to the Company obtaining the Shareholder Approval, US$1,450.00 or (y) after the Company obtains Shareholder Approval, US$1,350.00.

“Mortgages” means, collectively, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust encumbering the material Real Property of the Note Parties for the benefit of the Trustee, Collateral Agent, and the Holders as security for Obligations, in each case, in form and substance reasonably satisfactory to the Required Holders.

“Multiemployer Plan” means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Note Party or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability assuming a complete withdrawal from any such multiemployer plan.

“Net Cash Proceeds” means

“Note Agent” means any Registrar, Paying Agent, Collateral Agent, Conversion Agent, or Calculation Agent, unless the Company is acting as such.

“Note Documents” means, collectively, this Indenture, the Notes, the Guarantees, the Security Documents, the Intercreditor Agreement, and all other documents and instruments executed and delivered in connection herewith, any Mortgage, any copyright security agreement, any patent security agreement, any trademark security agreement, and any other instrument or agreement entered into, now or in the future, by any Note Party or any of its Subsidiaries and Trustee, Collateral Agent or any Holder in connection with this Agreement, in each case as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Note Party” means the Company and the Guarantors.

“Notes” means the Floating Rate Convertible Senior Secured PIK Toggle Notes due 2026 issued by the Company pursuant to this Indenture.

“Notes Priority Collateral” has the meaning specified therefor in the Intercreditor Agreement.

“Obligations” means any principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, penalties, fees, expenses, costs, charges, indemnifications or otherwise (including any fees, expenses or other amounts which, but for the commencement of a bankruptcy or other Insolvency Proceeding, would have accrued, whether or not a claim is allowed or allowable for such amounts in the related bankruptcy proceeding or other Insolvency Proceeding), reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and bankers’ acceptances (irrespective of whether contingent)), damages, liabilities and all other amounts owing or due under the documentation governing any Indebtedness, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time in accordance with or as permitted by the terms hereof payable.

“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice President of the Company.

“Officer’s Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the requirements of Section 14.03.

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

“Opinion of Counsel” means an opinion in writing signed by legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) who is reasonably acceptable to the Trustee, that meets the requirements of Section 14.03, subject to customary qualifications and exclusions.

“Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

“Payment Conditions” means, at the time of determination with respect to any specified transaction or payment the following:

(i)          the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less twenty five percent (25%) of the Maximum Credit and, after giving effect to the transaction or payment, on a pro forma basis using the most recent calculation of the Borrowing Base immediately prior to any such payment or transaction, the Excess Availability shall be not less than such amount; or

(ii)       both (A) if the ABL Credit Agreement is outstanding, the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than twenty percent (20%) of the Maximum Credit and, after giving effect to the transaction or payment, on a pro forma basis using the most recent calculation of the Borrowing Base immediately prior to any such payment or transaction, the Excess Availability shall be not less than such amount, and (B) as of the date of any such transaction or payment, and after giving effect thereto, on a pro forma basis, the Fixed Charge Coverage Ratio of Company and its Subsidiaries for the immediately preceding twelve (12) consecutive fiscal months ending on the last day of the applicable fiscal period prior to the date of such payment or transaction for which the Holders have received financial statements shall be at least 1.00 to 1.00; and

“PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302 of ERISA or Sections 412 or 430 of the Code sponsored, maintained, or contributed to by any Note Party or ERISA Affiliate or to which any Note Party or ERISA Affiliate has any liability, contingent or otherwise.

“Permitted Acquisition” means any Acquisition so long as:

“Permitted Dispositions” means:

“Permitted Holder” means each of MSD Partners, L.P., Glendon Capital Management LP and their respective Affiliates.

“Permitted Indebtedness” means:

“Permitted Intercompany Advances” means loans made by any Subsidiary to any Note Party, so long as the parties thereto are party to an intercompany subordination agreement in form and substance reasonably satisfactory to the Required Holders.

“Permitted Investments” means:

“Permitted Liens” means:

“Permitted Protest” means the right of any Note Party or any of its Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or taxes that are the subject of a United States federal tax lien), or rental payment; provided, that (a) a reserve with respect to such obligation is established on the Company’s or its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by the Company or its Subsidiary, as applicable, in good faith, and (c) the Required Holders are reasonably satisfied that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of Collateral Agent’s Liens.

“Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), at the time of, or within 60 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding not in excess of $15,000,000 at any one time; provided that not more than $2,500,000 of such amount may be in respect of the acquisition of Rig Fleet Equipment.

“Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.

“Physical Note” means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.

“PIK Interest” means payment of interest on the Notes through either (i) an increase in the principal amount of the outstanding Notes (including the increase of any Physical Notes on the books and records of the Registrar) or (ii) through the issuance of PIK Notes (to the extent approved by the Trustee in its sole discretion).

“Pre-Approval Conversion Ratio” means 75%.

“Pre-Funded Warrants” means the warrants issued pursuant to a warrant agreement substantially in the form set forth in Exhibit H. For purposes of clarification, Pre-Funded Warrants issued in connection with limitations under the Pre-Approval Conversion Ratio shall have the additional restrictions on conversion as set forth in Exhibit H.

“Prime Rate” means the “U.S. Prime Rate” as quoted by the print edition of The Wall Street Journal.

“Pro Rata Share” means, as of any date of determination, as to a particular Holder, the percentage obtained by dividing (i) the aggregate principal amount of the Notes then outstanding of such Holder, by (ii) principal amount of the Notes then outstanding of all Holders.

“Purchase Price” means, with respect to any Acquisition, an amount equal to the aggregate consideration, whether cash, property or securities (including the maximum amount of Earn-Outs), paid or delivered by a Note Party or one of its Subsidiaries in connection with such Acquisition (whether paid at the closing thereof or payable thereafter and whether fixed or contingent), but excluding therefrom (a) any cash of the seller and its Affiliates used to fund any portion of such consideration, and (b) any cash or Cash Equivalents acquired in connection with such Acquisition.

“Qualified Acquirer” means any entity that (i) has its common equity listed on the New York Stock Exchange, the NYSE American, Nasdaq Global Market or Nasdaq Global Select Market, or Toronto Stock Exchange, (ii) has an aggregate equity market capitalization of at least US$350,000,000.00, and (iii) has a ”public float” (as defined in Rule 12b-2 under the Securities Act) of at least US$250,000,000 in each case, as determined by the Calculation Agent based on the Last Reported Sale Price of such common equity on date of the signing of the definitive agreement in respect of the relevant Common Stock Change Event.

“Qualified Common Stock Offering” means an issuance by the Company of shares of Common Stock at a price per share at least equal to the then current Conversion Price.

“Qualified Equity Interests” means and refers to any Equity Interests issued by the Company (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.

“Qualified Merger” means a Common Stock Change Event consolidation, merger, combination or binding or statutory share exchange of the Company with a Qualified Acquirer; provided that, if such event occurs prior to Shareholder Approval, the issuance of shares of Common Stock upon conversion of Notes in connection with a Qualified Merger Conversion shall be subject to stockholder approval to the extent the conversion of Notes would exceed the number of shares of Common Stock issuable at the then-current Conversion Rate.

“Real Property” means any estates or interests in real property now owned or hereafter acquired by any Note Party or one of its Subsidiaries and the improvements thereto.

“Redemption” means the repurchase of any Note by the Company pursuant to Section 4.03.

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

“Redemption Multiplier” means, with respect to any Redemption Date, if such Redemption Date falls:

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

“Redemption Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section 4.03(D).

“Redemption Principal Amount” means the principal amount of a Note payable by the Company to redeem such Note upon its Redemption, calculated pursuant to Section 4.03(A).

“Reference Period” has the meaning set forth in the definition of “EBITDA”.

“Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness (other than Indebtedness in respect of the Obligations) so long as:

“Registration Rights Annex” means Annex A hereto.

“Registration Statement” has the meaning ascribed to it in the Registration Rights Annex.

“Regular Record Date” with respect to any Interest Payment Date, means the March 15 or September 15 (whether or not such day is a Business Day) immediately preceding the applicable March 31 or September 30 Interest Payment Date, respectively.

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York and/or (as administrator of the forward-looking term Secured Overnight Financing Rate) the CME Group Benchmark Administration Limited, as applicable, or a committee officially endorsed or convened by the Board of Governors or the Federal Reserve Bank of New York, or in each case any successor thereto.

“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.

“Required Holders” means the Holders of 66.67% of the principal amount of Notes then outstanding.

“Responsible Officer” means, (A) when used with respect to the Trustee or the Collateral Agent, as applicable, any officer of the Trustee or the Collateral Agent assigned by the Trustee or the Collateral Agent, as applicable, having direct responsibility for the administration of this Indenture; and (B) with respect to a particular corporate trust matter relating to this Indenture, any other officer to whom such matter is referred because of his or her knowledge of, and familiarity with, the particular subject.

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

“Restricted Payment” means (a) any declaration or payment of any dividend or the making of any other payment or distribution, directly or indirectly, on account of Equity Interests issued by the Company or any of its Subsidiaries (including any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of Equity Interests issued by the Company or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by the Company or any of its Subsidiaries), or (b) any purchase, redemption, making of any sinking fund or similar payment, or other acquisition or retirement for value (including in connection with any merger or consolidation involving the Company or any of its Subsidiaries) any Equity Interests issued by the Company or any of its Subsidiaries, or (c) any making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of the Company now or hereafter outstanding or (d) any amounts paid by the Company as withholding taxes in connection with net share settlements of such securities under the Management Incentive Plan or any other equity incentive plan of the Company approved by the stockholders of the Company; provided, that any payment in respect of the Notes required or permitted hereunder shall not constitute a “Restricted Payment.”

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

“Rig” means any land-based drilling and workover rig owned by any Note Party, together with all Rig Accessories that are installed on or affixed to such Rig.

“Rig Accessories” means pumps, drilling equipment, machinery, equipment, forklifts, bulldozers and other parts necessary or useful for the drilling operation of any Rig.

“Rig Fleet Equipment” means any Note Party’s Rigs and partial Rigs and any Note Party’s Equipment related to such Rigs and partial Rigs.

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

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

“Sanctioned Entity” means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.

“Sanctioned Person” means, at any time, (a) any a Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any relevant Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.

“Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) Her Majesty’s Treasury of the United Kingdom, or (e) any other Governmental Authority with jurisdiction over any Holders or any Note Party or any of their respective Subsidiaries or Affiliates.

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

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

“Securities Account” means a securities account (as that term is defined in the UCC).

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

“Security” means any Note or Conversion Share.

“Security Agreement” means that certain security agreement, dated as of the Issue Date, by and among the Company, the other grantors from time to time party thereto and the Collateral Agent, as amended, supplemented or modified from time to time.

“Security Documents” means all security agreements (including the Security Agreement), intercreditor agreements, pledge agreements, collateral assignments, collateral agency agreements, mortgages (including the Mortgages), or other grants or transfers for security executed and delivered by the Company or any Guarantor creating (or purporting to create) a Lien upon Collateral for the benefit of the Holders to secure the obligations under this Indenture, in each case, as amended, supplemented, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and the terms of this Indenture.

“Shareholder Approval” means, approval from the Company’s shareholders to (a) in accordance with Section 312.03 of The New York Stock Exchange Listed Company Manual, issue shares of Common Stock upon conversion of the Notes based on each of (i) the Conversion Rate increase to 221.72949 shares of the Company’s Common Stock per $1,000 principal amount of the Notes, as adjusted pursuant to Section 5.05, (ii) the issuance by the Company of Additional Notes, if and when issued by the Company, (iii) the conversion of all Notes (including PIK Notes) without any limitation of the Pre-Approval Conversion Ratio and (iv) the issuance of shares of Common Stock upon conversion of Notes in connection with a Qualified Merger Conversion to the extent the number of Shares issuable upon such conversion would exceed the number of shares of Common Stock issuable at the otherwise then-current Conversion Rate; and (2) amend the Company’s certificate of incorporation to increase the number of authorized shares of Common Stock to 250,000,000 shares (or such other amount as necessary to reserve for issuance upon conversion of all Notes at the lower Conversion Price, together with assumed PIK Notes prior to maturity). The Company shall notify the Trustee and the Holders in writing promptly upon receiving Shareholder Approval.

“Short-Term Treasuries” means non-callable marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within twelve (12) months from the date of acquisition thereof.

“Significant Subsidiary” means, with respect to any Person, any Subsidiary of such Person that constitutes, or any group of Subsidiaries of such Person that, in the aggregate, would constitute, a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of such Person.

“SOFR” means, a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator on the SOFR Administrator’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Required Holders in their reasonable discretion).

“Stated Interest” means interest at a rate per annum equal to the Benchmark plus (a) twelve and a half percent (12.50%) with respect to interest paid in cash (“Cash Interest”); or (b) fourteen percent (14.00%) with respect to PIK Interest; provided that, for all Interest Periods beginning following the latter of (x) the date the Company obtains Shareholder Approval and (y) September 30, 2022, the Stated Interest for PIK Interest shall be the Benchmark plus nine and a half percent (9.50%).

“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal, as applicable, was scheduled to be paid in the documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof; provided, however, that, with respect to Section 9.03, the Stated Maturity of any Existing Indebtedness shall be the Stated Maturity as of the Issue Date or a later date to the extent the documents governing such Indebtedness shall have been amended or modified to provide for such later date.

“Subscription Agreement” means each Subscription Agreement, dated as of March 18, 2022, among the Company and certain investors of the Initial Notes (the “Subscribers”).

“Subsidiary” means, with respect to any specified Person:

Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.

“Term Loan Agreement” means the Credit Agreement, dated of October 1, 2018, by and among the Company and certain of its Affiliates, U.S. Bank National Association, as agent, and the lenders party thereto from time to time.

“Term SOFR” means, for the Corresponding Tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such Corresponding Tenor comparable to the applicable Interest Period, as such rate is published by the SOFR Administrator.

“Term SOFR Determination Date” has the meaning specified in the definition of “Term SOFR Reference Rate”.

“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Date”), and for the Corresponding Tenor comparable to the applicable Interest Period, the forward-looking per annum term rate based on SOFR for such Corresponding Tenor comparable to the applicable Interest Period, as such rate appears on the SOFR Administrator’s website on such day and time. If by 5:00 pm (New York City time) on such Term SOFR Determination Date, the “Term SOFR Reference Rate” for the Corresponding Tenor has not been published by the SOFR Administrator, then the Term SOFR Reference Rate for such Term SOFR Determination Date will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which the Term SOFR Reference Rate was published by the SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Date; provided that if the Required Holders determine in good faith that Term SOFR has not been published within the five (5) Business Days preceding any applicable Term SOFR Determination Date, such Benchmark shall be replaced with the Alternate Base Rate (and the Required Holders shall provide prompt notice of such replacement to the Company; provided that Required Holders’ failure to deliver such notice shall not affect the validity of such replacement) until the earlier of (i) the first succeeding U.S. Government Securities Business Day for which Term SOFR is published by the SOFR Administrator or (ii) the Benchmark Replacement Date.

“Total Net Leverage Ratio” means as of any date of determination, the ratio of (a) (i) the aggregate principal amount of Indebtedness of the Company and its Subsidiaries on a Consolidated basis outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a Consolidated basis in accordance with GAAP minus (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Note Parties that is deposited in a Deposit Account or Securities Account, as applicable, subject to a Control Agreement as of such date, not to exceed $10,000,000, as included on the Consolidated balance sheet of the Company and its Subsidiaries as of such date to (b) EBITDA for the latest Measurement Period ending prior to such date, calculated for the Company on a Consolidated basis.

“Trading Day” means any day on which (A) trading in the Common Stock generally occurs on the principal 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 traded; and (B) there is no Market Disruption Event. If the Common Stock is not so listed or traded, then “Trading Day” means a Business Day.

“Transaction Expenses” means any fees or expenses incurred or paid by the Company or any of its Subsidiaries in connection with this Indenture, the Subscription Agreements and the Security Documents, and the transactions contemplated hereby and thereby, including any amortization of such fees and expenses in any period.

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

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

“Trigger Period” means a period (a) commencing on the first date that Excess Availability is less than $5,000,000 (the “Availability Trigger”) at any time that the Notes are outstanding and (b) ending on the earlier of the date on which (i) Excess Availability equals or exceeds the Availability Trigger for thirty (30) consecutive days, as certified by the Company to the Trustee in a certificate in form and substance reasonably satisfactory to the Required Holders and (ii) no Notes remain outstanding.

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

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

“UCC” means the Uniform Commercial Code (or any successor statute), as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue or perfection of security interests.

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the applicable Benchmark Replacement Adjustment.

“Unfinanced Capital Expenditures” means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness, the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds of any asset sale, or any insurance proceeds, and (b) that are not reimbursed by a third person (excluding any Note Party or any of its Affiliates) in the period such expenditures are made pursuant to a written agreement.

“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

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

“VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption Event; and (B) trading in the Common Stock generally occurs on the principal 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 traded. If the Common Stock is not so listed or traded, then “VWAP Trading Day” means a Business Day.

“Wholly Owned Subsidiary” of any specified Person means, (a) any corporation one hundred percent (100%) of whose Capital Stock (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable legal requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a one hundred percent Equity Interest (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case to the extent required under applicable Legal Requirements) at such time.

Section 1.03.     Rules of Construction.

For purposes of this Indenture:

(A)        “or” is not exclusive;

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

(C)        “will” expresses a command;

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

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

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

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

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

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

(J)                the term “interest,” when used with respect to a Note, includes any Additional Interest, unless the context requires otherwise or, in the case of Additional Interest, unless the terms of the Registration Rights Annex provide otherwise.

Article 2.   The Notes

Section 2.01.     Form, Dating and Denominations.

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

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

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

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

Section 2.02.     Execution, Authentication and Delivery.

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

(B)              Authentication by the Trustee and Delivery.

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

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

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

Section 2.03.     Initial Notes.

(A)              Initial Notes. On the Issue Date, there will be originally issued $157,500,000 aggregate principal amount of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial Notes.”

(B)              PIK Notes. If the Company elects to pay PIK Interest in respect of the Notes as set forth in Section 2.05 below, the Trustee shall either (i) increase the outstanding nominal amount (value) of the Notes (if the Notes are held in registered form) or (ii) (if approved by the Trustee in its sole discretion) issue additional Notes and increase the principal amount outstanding (if the Notes are held in certificated form) (the “PIK Notes”) under this Indenture having the same terms as the Notes (in each case, a “PIK Payment”). Any PIK Notes will, be considered to be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture

(C)              Additional Notes.

(i)             The Company may, at any time following the Shareholder Approval, but not on more than one occasion, issue up to $7,500,000 aggregate principal amount of additional Notes (the “Additional Notes).

(ii)            Prior to issuing any Additional Notes, the Company shall give the Holders notice of the proposed issuance of Additional Notes. Each Holder shall have five (5) Business Days following delivery of such notice to elect to purchase its Pro Rata Share of any Additional Notes. If any Holder does not elect to purchase its Pro Rata Share of Additional Notes, such unpurchased Additional Notes shall be reoffered to each Holder who elects to purchase Additional Notes, proportionally to each such Holder’s Pro Rata Shares and such Holders shall have one (1) Business Days to elect to purchase such Additional Notes. Following such period, if any Additional Notes remain unsubscribed by the Holders, the Company may sell such unsubscribed Additional Notes within a period of ten (10) Business Days to any other Person on terms and conditions no less favorable to the Company.

(iii)           All Additional Notes shall have terms identical to those of the Initial Notes; provided, that the issue price shall not be a “term” for purposes of this clause (iii).

Section 2.04.     Method of Payment.

(A)              [Reserved.]

(B)               Physical Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date, Redemption on a Redemption Date or otherwise) of, interest on, and any cash Conversion Consideration due upon conversion of, any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount of such Physical Note is at least one million dollars ($1,000,000) (or such lower amount as the Company may choose in its sole and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company (or the Paying Agent) make such payment by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular Record Date; and (y) with respect to any other payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.

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

(A)              Accrual of Interest.

(i)             Each Note will accrue Stated Interest, plus Additional Interest, if any, that may accrue pursuant to the Registration Rights Annex. Stated Interest on each Note will (1) accrue from, and including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and (2) be, subject to Sections 4.02(D), 4.03(D) and 5.02(D) (but without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date. Stated Interest, and, if applicable, Additional Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.

(ii)            The Company shall elect on each Interest Payment Date, by notice to the Trustee, whether interest for the immediately following Interest Period shall be Cash Interest or PIK Interest (and not a combination thereof); provided that (1) unless the Company receives the Shareholder Approval, the Company may only elect PIK Interest with respect to an interest payment date occurring on or prior to June 30, 2023; and (2) if the Company does not timely elect the form of interest payment, then (x) with respect to any Interest Payment Date occurring on or prior to June 30, 2023 and so long as a Covenant Suspension has not occurred, the Company will be deemed to have selected PIK Interest; and (y) with respect to any Interest Payment Date following a Covenant Suspension or occurring after June 30, 2023, the Company shall be deemed to have elected Cash Interest (and, for the avoidance of doubt, the Company’s failure to timely make any such election described in this clause (2) will not constitute a Default or Event of Default). For the avoidance of doubt, the Company may only elect Cash Interest or PIK Interest, but not a combination thereof.

(B)              Cash Interest.

(i)                All accrued and unpaid Cash Interest on the Notes for the relevant Interest Period shall be paid in cash on the related Interest Payment Date.

(C)              PIK Interest.

(i)                Any PIK Interest on the Notes will be payable to Holders by increasing the balance of such Notes on the books and records of the Registrar (or, in the Trustee’s sole discretion, by issuing PIK Notes in certificated form in an aggregate principal amount equal to the amount of PIK Interest for the applicable Interest Period) (rounded up to the nearest whole dollar), and the Trustee will, upon receipt of an Authentication Order and PIK Notes from the Company, increase the balance of the certificated Notes on the books and records of the Registrar (or, in the Trustee’s sole discretion, authenticate and deliver such PIK Notes in certificated form for original issuance) to the Holders as of the relevant record date, as shown by the records of the Register. Following an increase in the principal amount of the outstanding Notes as a result of a PIK Payment, the Notes will bear interest on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued in certificated form will be distributed to Holders, will be dated as of the applicable Interest Payment Date and will bear interest from and after such date. All Notes issued pursuant to a PIK Payment will mature on the Maturity Date and will be governed by, and subject to the terms, provisions and conditions of, the Indenture and shall have the same rights and benefits as the Notes issued on the Issue Date.

Notwithstanding anything to the contrary in this Indenture or the Notes, the payment of accrued and unpaid interest in connection with any repurchase of the Notes as described Article 4 of this Indenture and on the Maturity Date shall be made solely in cash.

(D)              Defaulted Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the due date therefor as provided in this Indenture or if any Event of Default has occurred and is continuing, then to the extent lawful, interest (“Default Interest”) will accrue on the aggregate outstanding principal amount of the Notes and all other outstanding Obligations under this Indenture and the other Note Documents at a rate per annum equal to the rate per annum at which Stated Interest accrues plus 200 basis points, from, and including, such due date or date that such Event of Default occurred (as applicable) to, but excluding, the date of payment of such Defaulted Amount and the cure or waiver of such Event of Default. The Company may pay the Default Interest to the persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date in a manner not deemed impractical for the Trustee and shall promptly mail to each Holder (with a copy to the Trustee) a notice that states the special record date, the payment date and the amount of the Default Interest to be paid. Notwithstanding the foregoing, any interest which is paid prior to the expiration of the 5-day period set forth in Section 8.01(A)(ii) shall be paid to Holders as of the record date for the Interest Payment Date for which interest has not been paid. Default Interest shall be paid exclusively in cash.

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

(F)               On or prior to each Interest Payment Date, the Company shall deliver a written notice to the Holders, the Trustee, the Paying Agent and the Conversion Agent for the succeeding Interest Period. Such notice shall include:

(i)                 whether the Company will pay Cash Interest or PIK Interest and a reasonably detailed calculation thereof; and

(ii)                any other information that may be reasonably requested by the Trustee or a Paying Agent in connection with the foregoing;

provided that if the Company does not timely elect the form of interest payment, then the Company will be deemed to have selected the interest as set forth in Section 2.05(a)(ii)(and, for the avoidance of doubt, the failure to provide such notice will not constitute a Default or Event of Default).

Section 2.06.     Registrar, Paying Agent and Conversion Agent.

(A)              Generally. The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United States where Notes may be presented for conversion (the “Conversion Agent”). The Company hereby designates the Corporate Trust Office of the Trustee as such offices. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such and will receive compensation therefor in accordance with this Indenture and other agreement to be agreed between the Trustee and the Company. For the avoidance of doubt, the Company or any of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent.

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

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

(D)              Initial Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion Agent. In acting in such capacities under this Indenture and in connection with the Notes, the Trustee in such capacities will act solely as an agent of the Company and will not thereby assume any obligations towards, or relationship of agency or trust for or with, any Holder.

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

The Company will require each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes; and (B) notify the Trustee in writing of any default by the Company in making any such payment or delivery. The Company, at any time, may, and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable, all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to clause (ix), (xi) or (xii) of Section 8.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.

Section 2.08.     Holder Lists.

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

Section 2.09.     Legends.

(A)              [Reserved].

(B)               [Reserved].

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

(i)                 each Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and

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

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

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

(F)               Restricted Stock Legend.

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

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

Section 2.10.     Transfers and Exchanges; Certain Transfer Restrictions.

(A)             Provisions Applicable to All Transfers and Exchanges.

(i)                 [Reserved].

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

(iii)               The Company, the Guarantors, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion of Notes, but the Company, the Guarantors, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of Notes, other than exchanges pursuant to Section 2.11, 2.17 or 9.05 not involving any transfer.

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

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

(vi)              [Reserved].

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

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

(ix)               [Reserved].

(B)              [Reserved].

(C)              Transfers and Exchanges of Physical Notes.

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

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

(a)               [Reserved];

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

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

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

(ii)                remove such Restricted Note Legend; or

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

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

(E)              Transfers of Notes Subject to Redemption, Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the Company, the Guarantors, the Trustee and the Registrar may refuse to register the transfer of or exchange any Note that (i) has been surrendered for conversion or (ii) has been selected for Redemption pursuant to a Redemption Notice, except to the extent that the Company fails to pay the applicable Redemption Price when due.

Section 2.11.     Exchange and Cancellation of Notes to Be Converted .

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

(B)              Cancellation of Notes that Are Converted and Notes that Are Repurchased Pursuant to a Redemption.

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

Section 2.12.     Removal of Transfer Restrictions.

Without limiting the circumstances in which a Restricted Note Legend can be removed, if any Note that bears the Restricted Note Legend is transferred pursuant to the Registration Statement, the Company will cause the Trustee to exchange that Note pursuant to Sections 2.09(C)(ii) and 2.10(D) with a Note that does not bear the Restricted Note Legend.

Section 2.13.     Replacement Notes.

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

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

Section 2.14.     [Reserved.]

Section 2.15.     Cancellation.

The Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. The Company may not originally issue new Notes to replace Notes that it has paid or that have been cancelled upon transfer, exchange, payment or conversion.

Section 2.16.     Notes Held by the Company.

Without limiting the generality of Section 2.18, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver, amendment or consent, Notes (if any) owned by the Company will be deemed not to be outstanding and any such Notes will be mandatorily retired; provided, however, that, for purposes of determining whether the Trustee or Collateral Agent is protected in relying on any such direction, waiver, amendment or consent, only Notes that a Responsible Officer of the Trustee or Collateral Agent, as applicable, actually knows are so owned will be so disregarded.

Section 2.17.     Temporary Notes.

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

Section 2.18.     Outstanding Notes.

(A)             Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated (giving effect to, and as increased by, any payment of PIK Interest made thereon by increasing the aggregate principal amount of such Notes by an amount equal to the PIK Interest payable, rounded up to the nearest whole dollar), excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee for cancellation in accordance with Section 2.15; (ii) paid in full (including upon conversion) in accordance with this Indenture; or (iii) deemed to cease to be outstanding to the extent provided in, and subject to, Section 2.16 or clause (B), (D), or (E) of this Section 2.18.

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

(C)              PIK Notes. The aggregate principal amount of outstanding Notes shall from time to time be increased, as applicable, to reflect PIK Interest (whether pursuant to the issuance of new Notes or an increase in the principal amount of existing Notes).

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

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

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

Section 2.19.     Repurchases by the Company.

Without limiting the generality of Section 2.15, the Company or its Subsidiaries may repurchase Notes in open market purchases or in privately negotiated transactions, in aggregate principal amount of up to US$500,000. Before the Company repurchases in excess of US$500,000 in principal amount of Notes in such transactions, the Company shall offer to repurchase such Notes from all Holders in proportion to each Holder’s Pro Rata Share. In connection with any such repurchase, the Company may appoint a tender agent, in which case such tender agent shall be the Paying Agent in connection with such repurchase.

Section 2.20.     CUSIP and ISIN Numbers.

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

Article 3.      Covenants

Section 3.01.     Payment on Notes.

(A)             Generally. The Company will pay or cause to be paid all the principal of, the Redemption Price for, interest on, and other amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.

(B)              Deposit of Funds. Before 10:00 A.M., New York City time, on each Redemption Date or Interest Payment Date, and on the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.

(C)              PIK Interest. PIK Interest shall be considered paid on the date due if on such date the Trustee has received a written order, to (i) increase the balance of a Physical Note on the books and records of the Registrar to reflect such PIK Interest or (ii) authenticate or increase the balance of additional Notes in respect of such PIK Interest. For the avoidance of doubt, the Trustee shall not be obligated to so increase the balance of a Physical Note or authenticate such additional Notes representing PIK Interest unless approved by the Trustee in its sole discretion.

Section 3.02.     Exchange Act Reports.

(A)             Generally. The Company will send to the Trustee copies of all reports that the Company is required to file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file or furnish the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied, confidential treatment by the SEC. Any report that the Company files with or furnishes to the SEC through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee at the time such report is so filed or furnished via the EDGAR system (or such successor). Upon the request of any Holder, the Company will provide to such Holder a copy of any report that the Company has furnished or filed pursuant to this Article 3, other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence.

(B)              Trustee’s Disclaimer. The Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor). The sending or filing of reports pursuant to Article 3 to the Trustee will be for informational purposes only, and the Trustee’s receipt of such reports will not be deemed to constitute actual or constructive notice to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively and conclusively on Officer’s Certificates). The Trustee shall have no liability or responsibility for the filing, content or timeliness if any report hereunder.

Section 3.03.     Rule 144A Information.

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

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports will not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of the Company’s covenants under this Indenture (as to which the Trustee is entitled to rely exclusively and conclusively on Officer’s Certificates).

Section 3.04.     Additional Interest.

(A)             Accrual of Additional Interest. Additional Interest will accrue on the Notes pursuant to the terms and conditions of the Registration Rights Annex and Section 3.40 hereof. In no event will Additional Interest accrue on any day on a Note at a combined rate per annum that exceeds one half of one percent (0.50%). For the avoidance of doubt, any Additional Interest that accrues on a Note will be in addition to the Stated Interest that accrues on such Note.

(B)              Notice to Trustee and Paying Agent; Trustee’s Disclaimer. If Additional Interest accrues on any Note pursuant to Section 3.03, then, no later than five (5) Business Days before each date on which such Additional Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Additional Interest on such Note pursuant to Section 3.03 on such date of payment; and (ii) the amount of such Additional Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Additional Interest is payable or the amount thereof.

Section 3.05.     Compliance and Default Certificates.

(A)             Annual Compliance Certificate. Within ninety (90) days after December 31, 2022 and each fiscal year of the Company ending thereafter, the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default has occurred and is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company is taking or proposes to take with respect thereto).

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

Section 3.06.     Stay, Extension and Usury Laws.

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

Section 3.07.     Acquisition of Notes by the Company and its Affiliates.

If the Company or any of its Subsidiaries acquires any Notes, the Company or such Subsidiary shall promptly deliver such Notes to the Trustee for cancellation. Without limiting the generality of Section 2.16 or Section 2.18, Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired will be deemed to remain outstanding (except to the extent provided in Section 2.16) until such time as such Notes are so delivered to the Trustee for cancellation. Within 5 Business Days of the cancellation of any Notes, the Trustee shall send written notice to Holders of such cancellation.

Section 3.08.     Financial Statements, Reports, Certificates.

The Company (a) will deliver to Trustee and the Holders, each of the financial statements, reports, and other items set forth on Schedule 3.08 to this Indenture no later than the times specified therein, (b) agree that no Subsidiary will have a fiscal year different from that of the Company, (c) agree to maintain a system of accounting that enables the Note Parties to produce financial statements in accordance with GAAP, and (d) agree that it will (i) keep a reporting system that shows all additions, sales, claims, returns, and allowances with respect to its and its Subsidiaries’ sales, and (ii) maintain their billing systems and practices substantially as in effect as of the Issue Date and shall only make material modifications thereto with notice to, and with the consent of, of the Required Holders.

Section 3.09.     Reporting.

The Company (a) will deliver to Trustee and Collateral Agent and each Holder each of the reports set forth on Schedule 3.09 to this Indenture at the times specified therein, and (b) agree to use commercially reasonable efforts in cooperation with the Holders to facilitate and implement a system of electronic collateral reporting in order to provide electronic reporting of each of the items set forth on such Schedule.

Section 3.10.     Existence.

Except as otherwise permitted under Section 3.23 or Section 3.24, each Note Party will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect such Person’s valid existence and good standing in its jurisdiction of organization and, except as could not reasonably be expected to result in a Material Adverse Effect, good standing with respect to all other jurisdictions in which it is qualified to do business and any rights, franchises, permits, licenses, accreditations, authorizations, or other approvals material to their businesses.

Section 3.11.     Maintenance of Properties.

Each Note Party will, and will cause each of its Subsidiaries to, maintain and preserve all of its assets that are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear, tear, casualty, and condemnation and Permitted Dispositions excepted (and except where the failure to so maintain and preserve assets could not reasonably be expected to result in a Material Adverse Effect).

Section 3.12.     Taxes.

Each Note Party will, and will cause each of its Subsidiaries to, pay in full before delinquency or before the expiration of any extension period all taxes imposed, levied, or assessed against it, or any of its assets or in respect of any of its income, businesses, or franchises, other than to the extent that the validity of such tax is the subject of a Permitted Protest.

Section 3.13.     Insurance.

Each Note Party will, and will cause each of its Subsidiaries to, at the expense of the Note Party or such Subsidiary, maintain insurance respecting each of each Note Party’s and its Subsidiaries’ assets wherever located, covering liabilities, losses or damages as are customarily insured against by other Persons engaged in same or similar businesses and similarly situated and located. All such policies of insurance shall be with financially sound and reputable insurance companies acceptable to the Required Holders and in such amounts as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated and located, including all risk physical loss or damage property insurance (including water damage, domestic transit coverage, collapse coverage, coverage of fire, and rapid means of transportation coverages) with respect to any Rig (other than an individual Rig with a book value less than $5,000,000) in an amount equal to or greater than the forced liquidation value of each Rig with a deductible not greater than $250,000 per occurrence (or, in the case of a Rig with a book value greater than $20,000,000, a deductible not greater than $750,000 per occurrence), and, in any event, in amount, adequacy, and scope reasonably satisfactory to the Required Holders. All property insurance policies are to be made payable to Collateral Agent for the benefit of Collateral Agent, the Trustee and Holders, as their interests may appear, in case of loss, pursuant to a standard lender’s loss payable endorsement with a standard non-contributory “lender” or “secured party” clause and are to contain such other provisions as the Required Holders may reasonably require to fully protect Collateral Agent’s and Holders’ interest in the Collateral and to any payments to be made under such policies. All certificates of property and general liability insurance are to be delivered to Collateral Agent, with the Collateral Agent’s loss payable and additional insured endorsements in favor of Collateral Agent, and shall provide for not less than thirty days (ten days in the case of non-payment) prior written notice to Collateral Agent of the exercise of any right of cancellation. If any Note Party or its Subsidiaries fails to maintain such insurance, the Required Holders may arrange for such insurance, but at the Company’s expense and without any responsibility on Trustee, Collateral Agent’s or any Holder’s part for obtaining or maintaining the insurance, the solvency of the insurance companies, the adequacy of the coverage, or the collection of claims. The Company shall give the Holders and Collateral Agent prompt notice of any loss exceeding $1,000,000 covered by the casualty or business interruption insurance of any Note Party or its Subsidiaries. Upon the occurrence and during the continuance of an Event of Default, Collateral Agent at the direction of the Required Holders shall have the sole right to file claims under any property and general liability insurance policies in respect of the Collateral, to receive, receipt and give acquittance for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.

Section 3.14.     Inspection.

Each Note Party will, and will cause each of its Subsidiaries to, and upon written request of any Holder of 25% of the aggregate principal amount of Notes (with notice of such written given to each other Holder of 25% of the aggregate principal amount of Notes), such Holders and each of their respective duly authorized representatives or agents to visit any of its properties and inspect any of its assets or books and records, to examine and make copies of its books and records, and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its officers and employees (provided, that an authorized representative of Company or its Subsidiary shall be allowed to be present) at such reasonable times and intervals as any Holder may designate and, so long as no Default or Event of Default has occurred and is continuing, with reasonable prior notice to the Company and during regular business hours, at the Company’s expense in accordance with the provisions of this Indenture; provided, however, that so long as no Default or Event of Default has occurred and is continuing, there shall occur no more than one visit or inspection per twelve (12) month period for all eligible Holders; and provided, further, the rights of eligible Holders hereunder shall cease at any time there are less than $25,000,000 aggregate principal amount of Notes outstanding. In connection with any written request of any Holder of 25% of the aggregate principal amount of Notes permitted above, representatives of other Holders of 25% of the aggregate principal amount of Notes shall be entitled to conduct concurrent inspections with the eligible requesting Holder.

Section 3.15.     Compliance with Laws.

Each Note Party will, and will cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules, regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and orders the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

Section 3.16.     Environmental.

Each Note Party will, and will cause each of its Subsidiaries to,

(A)        Keep any property either owned or operated by any Note Party or its Subsidiaries free of any Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens,

(B)        Comply with all Environmental Laws other than Environmental Laws the non-compliance with which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect,

(C)        Promptly notify Trustee and Collateral Agent and Holders of any release of which any Note Party has knowledge of a Hazardous Material in any reportable quantity from or onto property owned or operated by any Note Party or its Subsidiaries and take any Remedial Actions required to abate said release or otherwise to come into compliance with applicable Environmental Law, other than releases which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, and

(D)        Promptly, but in any event within ten Business Days of its receipt thereof, provide Trustee and Collateral Agent and Holders with written notice of any of the following: to the extent,in the case of clauses (ii) and (iii), any of the following could reasonably be expected to have a Material Adverse Effect: (i) notice that an Environmental Lien has been filed against any of the real or personal property of a Note Party or its Subsidiaries, (ii) commencement of any Environmental Action or written notice that an Environmental Action will be filed against a Note Party or its Subsidiaries, and (iii) written notice of a violation, citation, or other administrative order from a Governmental Authority.

Section 3.17.     Compliance with ERISA and the Code.

In addition to and without limiting the generality of Section 3.15, except as could not reasonably be expected to result in a Material Adverse Effect, the Company will: (a) comply in all respects with applicable provisions of ERISA and the Code with respect to all Employee Benefit Plans, (b) without the prior written consent of Collateral Agent (at the direction of the Required Holders), not take any action or fail to take action the result of which could result in the Company or ERISA Affiliate incurring any liability to the PBGC or to a Multiemployer Plan (other than to pay contributions or premiums payable in the ordinary course), (c) not participate in any prohibited transaction that could result in a civil penalty, excise tax, fiduciary liability or correction obligation under ERISA or the Code and (d) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under the Code (including Section 4980B of the Code). The Company shall furnish to the Holders upon the Required Holders’ reasonable written request such additional information about any Employee Benefit Plan for which the Company or ERISA Affiliate could reasonably expect to incur any material liability. With respect to each Pension Plan (other than a Multiemployer Plan) except as could not reasonably be expected to result in a Material Adverse Effect, the Company and the ERISA Affiliates shall (i) satisfy in full and in a timely manner, without incurring any late payment or underpayment charge or penalty and without giving rise to any Lien, all of the contribution and funding requirements of the Code and of ERISA, and (ii) pay, or cause to be paid, to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant to ERISA.

Section 3.18.    Further Assurances.

(A)             Each Note Party will, and will cause each of the other Note Parties to, at any time upon the reasonable request of Collateral Agent or the Required Holders, execute or deliver to Collateral Agent any and all financing statements, security agreements, pledges, assignments, opinions of counsel, and all other documents (the “Additional Documents”) that Collateral Agent (at the direction of the Required Holders) may reasonably request in form and substance reasonably satisfactory to the Required Holders, to create, perfect, and continue perfected or to better perfect Collateral Agent’s Liens in all of the assets of each of the Note Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real or personal) (subject to clause (b), other than any assets expressly excluded from the Collateral (as defined in the Security Agreement) pursuant to Section 3 of the Security Agreement), and in order to fully consummate all of the transactions contemplated hereby and under the other Note Documents. To the maximum extent permitted by applicable law, if any Company or any other Note Party refuses or fails to execute or deliver any reasonably requested Additional Documents within a reasonable period of time not to exceed fifteen days following the request to do so, Company and each other Note Party hereby authorizes Collateral Agent (at the direction of the Required Holders) to execute any such Additional Documents in the applicable Note Party’s name and authorizes Collateral Agent to file such executed Additional Documents in any appropriate filing office. In furtherance of, and not in limitation of, the foregoing, each Note Party shall take such actions as Collateral Agent or the Required Holders may reasonably request from time to time to ensure that the Obligations are guaranteed by the Guarantors and are secured by substantially all of the assets of the Note Parties, including all of the outstanding capital Equity Interests of each Subsidiary of the Company (in each case, other than with respect to any assets expressly excluded from the Collateral (as defined in the Security Agreement) pursuant to Section 3 of the Security Agreement).

(B)              If ABL Agent or any ABL Lender is granted a Lien on any asset or property that is not Collateral, the Note Parties shall cause the same to be granted to the Agent and Lenders, subject to the terms of the Intercreditor Agreement.

Section 3.19.     Location of Inventory; Chief Executive Office.

The Company will, and will cause each of its Subsidiaries to, keep (a) their Inventory only at the locations identified on Schedule 3.19 to this Indenture (other than in-transit Inventory, Inventory out for repair, and Inventory temporarily stored at a customer’s location in connection with the providing of services to such customer); provided that the Company may amend Schedule 3.19 to this Indenture so long as such amendment occurs by written notice to Trustee and Collateral Agent and the Holders not more than ten (10) days after the date on which such Inventory is moved to such new location and such new location is within the continental United States, and (b) their respective chief executive offices only at the locations identified on Schedule 7 to the Security Agreement. Each Note Party will, and will cause each of its Subsidiaries to, use their commercially reasonable efforts to obtain Collateral Access Agreements for each of the locations for which similar agreements or waivers are delivered to the ABL Agent.

Section 3.20.     OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws.

Each Note Party will, and will cause each of its Subsidiaries to, comply with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each Note Party and its Subsidiaries will implement and maintain in effect policies and procedures designed to ensure compliance by the Company and its Subsidiaries and their respective directors, officers, employees and agents with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.

Section 3.21.     Indebtedness

Each Note Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, suffer to exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness, except for Permitted Indebtedness.

Section 3.22.     Liens

Each Note Party will not, and will not permit any of its Subsidiaries to, create, incur, assume, or suffer to exist, directly or indirectly, any Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired, or any income or profits therefrom, except for Permitted Liens.

Section 3.23.     Restrictions on Mergers, Dissolution, Etc.

Each Note Party will not, and will not permit any of its Subsidiaries to,

(A)        enter into any merger, consolidation, reorganization, or recapitalization, or reclassify its Equity Interests, except for (i) any merger between Note Parties; provided, that the Company must be the surviving entity of any such merger to which it is party, (ii) any merger of a Guarantor in compliance with Section 10.04, (iii) any merger between Subsidiaries of any Note Party that are not Note Parties and (iv) a Qualified Merger that complies with Article 6;

(B)        liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except for (i) the liquidation or dissolution of non-operating Subsidiaries of a Note Party with nominal assets and nominal liabilities, (ii) the liquidation or dissolution of a Note Party (other than the Company) or any of its wholly-owned Subsidiaries so long as all of the assets (including any interest in any Equity Interests) of such liquidating or dissolving Note Party or Subsidiary are transferred to a Note Party that is not liquidating or dissolving, or (iii) the liquidation or dissolution of a Subsidiary of any Note Party that is not a Note Party (other than any such Subsidiary the Equity Interests of which (or any portion thereof) is subject to a Lien in favor of Collateral Agent) so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to a Subsidiary of a Note Party that is not liquidating or dissolving;

(C)        suspend or cease operating a substantial portion of its or their business, except as permitted pursuant to clauses (A) or (B) above or in connection with a transaction permitted under Section 3.24; or

(D)        change its classification/status for U.S. federal income tax purposes; or

(E)       file a certificate of division, adopt a plan of division or otherwise take any action to effectuate a division pursuant to Section 18-217 of the Delaware Limited Liability Company Act (or any analogous action taken pursuant to applicable law with respect to any corporation, limited liability company, partnership or other entity).

Section 3.24.     Disposal of Assets.

Other than Permitted Dispositions or transactions expressly permitted by Section 3.23 or Section 3.29, each Note Party will not, and will not permit any of its Subsidiaries to, convey, sell, lease, license, assign, transfer, or otherwise dispose of any of its or their assets.

Section 3.25.     Nature of Business.

Each Note Party will not, and will not permit any of its Subsidiaries to, make any material change in the nature of its or their business as described in Schedule 3.25 to this Indenture or acquire any properties or assets that are not reasonably related to the conduct of such business activities; provided, that the foregoing shall not prevent any Note Party and its Subsidiaries from engaging in any business that is reasonably related or ancillary to its or their business.

Section 3.26.     Prepayments and Amendments.

Each Note Party will not, and will not permit any of its Subsidiaries to,

(A)             except in connection with Refinancing Indebtedness permitted by Section 3.21, optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of any Note Party or its Subsidiaries, other than:

(i)                 the Obligations in accordance with this Indenture,

(ii)              payments in respect of the ABL Indebtedness except to the extent prohibited by the terms of the Intercreditor Agreement; and

(iii)            Permitted Intercompany Advances;

provided that the Note Parties may optionally prepay or redeem Indebtedness, in an aggregate amount not to exceed the portion, if any, of the Available Amount that Note Parties elect to use to prepay or redeem such Indebtedness, such election to be specified in a written notice of an Officer of the Company calculating in reasonable detail the amount of the Available Amount immediately prior to such election and the amount thereof to be so applied; provided, that each of the following conditions is satisfied: (i) no Event of Default has occurred or is continuing of would result therefrom, and (ii) after giving pro forma effect to such payment or redemption, (x) the Fixed Charge Coverage Ratio for the latest Measurement Period ending prior to such date shall be at least 1.10 to 1.00, and (y) the Total Net Leverage Ratio for the latest Measurement Period ending prior to such date shall be no greater than 3.00 to 1.00; or

(B)              directly or indirectly, amend, modify, or change any of the terms or provisions of:

(i) any agreement, instrument, document, indenture, or other writing evidencing or concerning Permitted Indebtedness other than (a) the Obligations in accordance with this Indenture, (b) the ABL Documents to the extent not prohibited by the Intercreditor Agreement, (c) Permitted Intercompany Advances, and (d) Indebtedness permitted under clauses (3), (5) and (6) of the definition of Permitted Indebtedness; or

(ii) the Governing Documents of any Note Party or any of its Subsidiaries if the effect thereof, either individually or in the aggregate, could reasonably be expected to be materially adverse to the interests of the Holders.

Section 3.27.     Restricted Payments; Management Fees.

Each Note Party will not, and will not permit any of its Subsidiaries to, make any Restricted Payment; provided, that so long as it is permitted by law:

(A)             each Subsidiary of a Note Party may make Restricted Payments to any Note Party;

(B)              the Note Parties may consummate repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made or deemed to be made in connection with any exercise, vesting, settlement or exchange, as applicable, of stock options, warrants, restricted stock, restricted stock units or other similar rights under the Management Incentive Plan or any other equity incentive plan of the Company approved by the stockholders of the Company, in an aggregate amount not to exceed $5,000,000 during any calendar year and $15,000,000 during the term of this Indenture; provided that such amounts available for such repurchases shall be reduced by the amount of any Restricted Payment made according to clause (D) below; provided, further that, each of the Payment Conditions shall be satisfied prior to the making of such repurchase, redemption, acquisition or retirement;

(C)              the Note Parties may make other Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Available Amount that Note Parties elect to use to make a Restricted Payment, such election to be specified in a written notice of an Officer of the Company calculating in reasonable detail the amount of the Available Amount immediately prior to such election and the amount thereof to be so applied; provided, that each of the following conditions is satisfied: (i) no Event of Default has occurred or is continuing of would result therefrom, and (ii) after giving pro forma effect to such payment, (x) the Fixed Charge Coverage Ratio for the latest Measurement Period ending prior to such date shall be at least 1.10 to 1.00, and (y) the Total Net Leverage Ratio for the latest Measurement Period ending prior to such date shall be no greater than 3.00 to 1.00; provided that, for purpose hereof the Available Amount shall be deemed reduced by the amount of any Restricted Payment made according to clause (D) below; and

(D)             any amounts paid by the Company as withholding taxes in connection with net share settlements of such securities under the Management Incentive Plan or any other equity incentive plan of the Company approved by the stockholders of the Company.

Section 3.28.     Accounting Methods.

Each Note Party will not, and will not permit any of its Subsidiaries to, modify or change its fiscal year or its method of accounting (other than as may be required to conform to GAAP).

Section 3.29.     Investments.

Each Note Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, make or acquire any Investment or incur any liabilities (including contingent obligations) for or in connection with any Investment except for Permitted Investments.

Section 3.30.     Transactions with Affiliates. 

Each Note Party will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction with any Affiliate of the Company or any of its Subsidiaries, except for:

(A)             transactions (other than the payment of management, consulting, monitoring, or advisory fees) between such Note Party or its Subsidiaries, on the one hand, and any Affiliate of such Note Party or its Subsidiaries, on the other hand, so long as such transactions are no less favorable, taken as a whole, to such Note Party or its Subsidiaries, as applicable, than would be obtained in an arm’s-length transaction with a non-Affiliate;

(B)              any indemnity provided for the benefit of directors (or comparable managers) of a Note Party or one of its Subsidiaries so long as it has been approved by such Note Party’s or such Subsidiary’s board of directors (or comparable governing body) in accordance with applicable law;

(C)              the payment of reasonable compensation, severance, or employee benefit arrangements to employees, officers, and outside directors of a Note Party or one of its Subsidiaries in the ordinary course of business and consistent with industry practice so long as it has been approved by such Note Party’s or such Subsidiary’s board of directors (or comparable governing body) in accordance with applicable law;

(D)             transactions solely among Subsidiaries of the Note Parties;

(E)              transactions permitted by Section 3.23, Section 3.27, or Section 3.29;

(F)              transactions required or permitted under the Subscription Agreement, this Indenture (including the Registration Rights Annex) and related documents; and

(G)             agreements for the non-exclusive licensing of intellectual property, or distribution of products, in each case, among the Note Parties and their Subsidiaries for the purpose of the counterparty thereof operating its business, and agreements for the assignment of intellectual property from any Note Party or any of its Subsidiaries to any Note Party.

Section 3.31.     Use of Proceeds.

Each Note Party will not, and will not permit any of its Subsidiaries to, use the proceeds made hereunder for any purpose other than (i) to pay Transaction Expenses and other fees, costs, and expenses as set forth in the Flow of Funds Agreement, including those incurred by the Holders, (ii) after application of the proceeds pursuant to clause (i), to repay, in full, the outstanding principal, accrued interest, and accrued fees and expenses owing under or in connection with existing Indebtedness under the Term Loan Agreement, and (iii) after application of the proceeds pursuant to clauses (i) and (ii), for other permitted purposes under this Indenture (including payment of obligations relating to mechanical rig net proceeds listed as Existing Indebtedness on Schedule I, permitted Capital Expenditures and Permitted Investments); provided that (x) no part of the proceeds will be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors, (y) no part of the proceeds of any Notes will be used, directly or indirectly, to make any payments to a Sanctioned Entity or a Sanctioned Person, to fund any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities or business of a Sanctioned Entity or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions by any Person, and (z) no part of the proceeds of any Notes will be used, directly or indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.

Section 3.32.     Limitation on Issuance of Equity Interests.

Except for the issuance or sale of Qualified Equity Interests by the Company, each Note Party will not, and will not permit any of its Subsidiaries to, issue or sell any of its Equity Interests.

Section 3.33.     Shareholder Approval.

The Company shall seek the Shareholder Approval, each fiscal quarter if not obtained at the first meeting or a subsequent meeting of stockholders, and the Company shall endorse such approval in the related proxy materials, to the extent such endorsement is permitted under applicable law, including fiduciary duties of directors. In the event a Qualified Merger occurs prior to the receipt of Shareholder Approval, the Company shall seek stockholder approval to the extent the conversion of Notes would exceed the number of shares of Common Stock issuable at the then-current Conversion Rate when it seeks stockholder approval of such Qualified Merger.

Section 3.34.     Employee Benefits.

The Company and each Note Party shall not and shall not permit any Subsidiary to:

(b)               terminate, or permit any ERISA Affiliate to terminate, any Pension Plan in a manner, or take any other action with respect to any Pension Plan, which could reasonably be expected to result in any liability of any Note Party or ERISA Affiliate to the PBGC;

(c)               fail to make, or permit any ERISA Affiliate to fail to make, full payment when due of all amounts which, under the provisions of any Employee Benefit Plan, agreement relating thereto or applicable law, any Note Party or ERISA Affiliate is required to pay if such failure could reasonably be expected to have a Material Adverse Effect;

(d)               permit to exist, or allow any ERISA Affiliate to permit to exist, any accumulated funding deficiency within the meaning of Section 302 of ERISA or Section 412 of the Code, whether or not waived, with respect to any Pension Plan that could reasonably be expected either individually or in the aggregate to result in a Material Adverse Effect; or

(e)               amend, or permit any ERISA Affiliate to amend, a Pension Plan resulting in a material increase in current liability such that a Note Party or ERISA Affiliate is required to provide security to such Plan under the Code.

Section 3.35.     Burdensome Agreements.

Each Note Party will not, and will not permit any of its Subsidiaries to, enter into any agreement, contract or arrangement (excluding this Indenture, the other Note Documents, the ABL Credit Agreement and the other ABL Documents) restricting any Subsidiary of any Note Party to pay or make dividends or distributions in cash or kind to such Note Party, to make loans, advances or other payments of whatsoever nature to such Note Party, or to make transfers or distributions of all or any part of its assets to such Note Party, in each case, other than (a) restrictions existing on the Issue Date identified on Schedule 3.35 (provided this Section 3.35 shall apply to any amendment or modification expanding the scope of any such restriction or condition), (b) restrictions on specific assets which assets are the subject of purchase money security interests to the extent permitted under Section 3.22, (c) customary anti-assignment provisions contained in leases and licensing agreements entered into by such Note Party or such Subsidiary in the ordinary course of its business, (d) any other provision in any agreement relating to Permitted Indebtedness that is no more restrictive or burdensome than the comparable provision in this Indenture and (e) any restriction contained in any agreement of a Person acquired in a Permitted Investment, which restriction was in existence at the time of such Permitted Investment (but not created in connection therewith or in contemplation thereof) and which restriction is not applicable to any Person or the properties or assets of any Person other than the Person or the property and assets of the Person so acquired.

Section 3.36.     Liquidity.

Note Parties will maintain Liquidity of at least $10,000,000 at all times after September 30, 2022.

Section 3.37.     Fixed Charge Coverage Ratio.

The Company will maintain a Fixed Charge Coverage Ratio of at least 1.00 to 1.00 as of the end of each Measurement Period while a Trigger Period is in effect, commencing with the most recent Measurement Period for which financial statements were, or were required to be, delivered hereunder prior to the commencement of such Trigger Period.

Section 3.38.     Formation of Subsidiaries.

(A)             Each Note Party will, (a) at the time that any Note Party forms any direct or indirect Subsidiary or acquires any direct or indirect Subsidiary after the Issue Date, or (b) at any time when any direct or indirect Subsidiary of a Note Party that was previously an Excluded Subsidiary ceases to be an Excluded Subsidiary, within fifteen (15) days of such event (or such later date as permitted by the Required Holders in their sole discretion), (i) unless such Subsidiary is an Excluded Subsidiary, cause such new Subsidiary to execute a Supplemental Indenture in the form of Exhibit E hereto pursuant to Section 8.01(B) of the Indenture to become a Guarantor, together with such other security agreements, as well as appropriate financing statements, all in form and substance reasonably satisfactory to Collateral Agent and the Required Holders (including being sufficient to grant the Collateral Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary); (ii) provide, or cause the applicable Note Party to provide, to Collateral Agent a pledge agreement (or an addendum to the Security Agreement) and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary in form and substance reasonably satisfactory to Collateral Agent and the Required Holders; and (iii) provide to Collateral Agent all other documentation, including the Governing Documents of such Subsidiary and one or more opinions of counsel reasonably satisfactory to Collateral Agent and the Required Holders, which, in its opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above. Any document, agreement, or instrument executed or issued pursuant to this Section 3.38 shall constitute a Note Document. For the avoidance of doubt, for all purposes under this Section 3.38, the formation and acquisition of a Person shall be deemed to include any formations and acquisitions by division; provided that compliance with the requirements of this Section 3.38 shall not cure any Default or Event of Default as a result of such division.

Section 3.39.     Limitation on Capital Expenditures

The Company will not make or commit to make, or permit any Subsidiary to or commit to make, any Capital Expenditures for any fiscal year of the Company ending with the last day of any fiscal year set forth below to exceed the amount set forth below opposite such fiscal year of the Company without the approval of the Required Holders:

Notwithstanding the foregoing, the Company and its Subsidiaries may make additional Capital Expenditures in any Fiscal Year to the extent that such additional Capital Expenditures are funded entirely with the proceeds of a Qualified Common Stock Offering of the Company.

Section 3.40.     Registration Rights

The Company shall comply with its obligations set forth in the Registration Rights Annex. The Company agrees and acknowledges that the Registration Rights Annex constitutes a part of the Indenture and that the terms therein are binding on the Company as if set forth in main body of the Indenture.

Section 3.41.     Preemptive Right in Major Dilutive Issuance

(A)             Subject to the terms and conditions specified in this Section 3.41, the Company hereby grants to each Major Holder the right to purchase a number of Equity Interests which the Company propose to sell and issue after the date of this Agreement in a Major Dilutive Issuance equal to such Major Holder’s Pro rata Share. Each “Major Holder’s Pro Rata Share,” for purposes of this right under Section 3.41, means (i) the total number of Equity Interests being sold and issued in a Major Dilutive Issuance multiplied by (ii) the ratio of (a) the number of shares of Common Stock owned by such Major Holder immediately prior to the issuance of Equity Interests (assuming full conversion, exercise or settlement of all outstanding convertible shares, options, warrants, interests, participations, or other equivalents (regardless of how designated), including convertible debt, preferred stock, restricted stock units or stock appreciation rights required to be settled into shares of Common Stock, and the Notes, without regard to any ownership blocker or similar limit on exercise or conversion) to (b) the total number of shares of Common Stock of the Company then outstanding immediately prior to the issuance of such Equity Interests (assuming full conversion, exercise or settlement of all outstanding convertible shares, options, warrants, interests, participations, or other equivalents (regardless of how designated), including convertible debt, preferred stock, restricted stock units or stock appreciation rights required to be settled into shares of Common Stock, and the Notes, without regard to any ownership blocker or similar limit on exercise or conversion). Any Major Holder may designate as purchaser under this Section 3.41 itself or any of its Affiliates, in such proportions as it deems appropriate in its sole discretion.

(B)              Each time the Company proposes to issue, offer or sell any Equity Interests of the Company in a Major Dilutive Issuance, the Company shall offer such Equity Interests or other securities to each Major Holder in accordance with the following provisions:

(i)                 The Company shall deliver a written notice (the “Major Issuance Notice”) to each Major Holder at least five (5) Business Days prior to the proposed Major Dilutive Issuance stating (i) its intention to issue, offer or sell such Equity Interests, (ii) the total number of such Equity Interests proposed to be issued, offered or sold, and (iii) the price and terms, if any, upon which it proposes to issue, offer or sell such Equity Interests.

(ii)              Within five (5) days after delivery of the Major Issuance Notice, such Major Holder may, by written notice to the Company (a “Major Issuance Election Notice”), indicate its interest to purchase Major Holder’s Pro Rata Share of such Equity Interests to the extent actually offered and sold by the Company for the price and upon the terms sold by the Company. To the extent the Major Holder does not indicate an interest to participate in such purchase in a Major Issuance Election Notice, the Company may proceed with the offering of such Equity Interests on terms no less favorable to the Company than those described in the Major Issuance Election Notice.

(iii)            If a Major Holder elects to purchase or obtain such Major Holder’s Pro Rata Share of such Equity Interests offered by the Company in a Major Dilutive Issuance by delivery of a Major Issuance Election Notice, then the Company shall use its commercially reasonable efforts to include the Major Holder or its designated Affiliate in the offering of such Equity Interests up to the Major Holder’s Pro Rata Share, with such participation to be on the same terms and at the same closing time. To the extent applicable securities laws would prohibit participation by the Major Holder or its designated Affiliate in such offering of Equity Interests and the Major Holder provides a binding commitment to purchase such Equity Securities concurrent with the pricing or prior to the closing of such offering, the Company shall use its commercially reasonable efforts to issue the same Equity Interests (or as substantially similar Equity Interests) in a separate offering up to the Major Holder’s Pro Rata Share as promptly as practicable thereafter.

(iv)             The Company shall not be obligated to consummate a transaction with a Major Holder under this Section 3.41 to the extent a Major Holder is prohibited from acquiring such Equity Interests under applicable law, and subject to the Company’s compliance with Section 3.41(B)(i), the Company shall not otherwise be delayed or prohibited from consummating a Major Dilutive Issuance approved by the Board of Directors. .

(C)              This Section 3.41 shall not apply to (i) any issuance of Equity Interests of the Company other than a Major Dilutive Issuance, (ii) the exercise, conversion or settlement of (x) any options or restricted stock units outstanding as of the date hereof, (y) Notes or (z) Pre-Funded Warrants, (iii) the grant, exercise or settlement of options to purchase Equity Interests, including restricted stock or restricted stock units, stock appreciation rights, or any other equity or equity-linked incentive awarded or granted pursuant to the Management Incentive Plan or any other equity incentive plan approved by the stockholders of the Company, (iv) any stock split, stock dividend or recapitalization by the Company for which an adjustment to the Conversion Rate is made hereunder, (v) the issuance of any securities that are debt securities (other than debt securities convertible into Securities), or (vi) shares of Common Stock in any registered “at-the-market” program that would, as a series of related transactions, and not in an individual transaction, would be deemed to be a Major Dilutive Issuance.

Article 4.    Repurchase and Redemption

Section 4.01.     No Sinking Fund.

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

Section 4.02.     Mandatory Offer Requirement

(A)             Mandatory Offer Requirement. On each of the dates set forth below (each a “Mandatory Offer Date”), the Company shall offer (each a “Mandatory Offer”) to repurchase the amount of Notes set forth in the table below (each a “Mandatory Offer Amount”) (such requirement, a “Mandatory Offer Requirement”). Notwithstanding the foregoing, if an event of default exists under the ABL Credit Agreement on any Mandatory Offer Date, the Company may elect not to make the applicable Mandatory Offer until such event of default under the ABL Credit Agreement is cured or otherwise ceases to exist; provided, however, that the Company’s failure to make such Mandatory Offer on such Mandatory Offer Date shall still constitute an Event of Default hereunder. The Mandatory Offer Amounts, in chronological order, shall be reduced (but not below $0) by any principal amount of Notes redeemed pursuant to Section 4.03 (if any). For the avoidance of doubt, if any Mandatory Offer Amount is reduced to $0, there shall not be any Mandatory Offer Requirement with respect to the relevant Mandatory Offer Date.

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

(C)              Procedures to Fulfill the Mandatory Offer Requirement.

(i)                 Delivery of Confirmation Request. At least thirty (30) days and not more than sixty (60) days prior to the Mandatory Offer Date, Company shall deliver to the Holders notice of a request for confirmation of their intent of whether to participate in the relevant Mandatory Offer Requirement (the “Confirmation Request”) represented substantially in the form set forth in Exhibit I.

(ii)              Delivery of Waiver or Confirmation and Re-Offer. Within ten (10) Business Days of receiving the Confirmation Request, each Holder shall notify Company in writing (the “Mandatory Offer Response”) with a copy to the Trustee, of (i) whether or not such Holder elects to participate in the relevant Mandatory Offer and (ii) if such Holder elects to participate in the Mandatory Offer, the maximum aggregate principal amount of Notes such Holder would elect to have repurchased, which amount shall (x) be an integral multiple of the Authorized Denomination and (y) not be less than such Holder’s Pro Rata Share of the relevant Mandatory Offer Amount for the respective Mandatory Offer Date (the “Maximum Offer Amount”). Any Holder that does not deliver a Mandatory Offer Response within ten (10) Business Days of receipt of the Confirmation Request will be deemed to have elected to participate in the relevant Mandatory Offer with a Maximum Offer Amount equal to the relevant Mandatory Offer Amount.

(iii)            Confirmation of Notes to be Repurchased. Upon receiving (or being deemed to have received) the relevant Mandatory Offer Response from each Holder, the Company shall calculate the principal amount of Notes to be repurchased from each Holder who has (or been deemed to have) elected to participate in the relevant Mandatory Offer (each an “Offer Electing Holder”). The aggregate principal amount of Notes to be repurchased from the Offer Electing Holder shall equal the lesser of (x) the relevant Mandatory Offer Amount and (y) the sum of the Maximum Offer Amounts for each Offer Electing Holder. That aggregate amount shall be allocated among the Offer Electing Holders (in integral multiples of the Authorized Denomination) as follows:

(1)               first, each Offer Electing Holder shall be allocated its Pro Rata Share of the Mandatory Offer Amount; and

(2)            second, if any Notes remain to be allocated, such excess shall be allocated among the Offer Electing Holders in proportion to each Offer Electing Holder’s Pro Rata Share, provided that the aggregate amount allocated to any Offer Electing Holder shall not exceed such Offer Electing Holder’s Maximum Offer Amount.

Promptly after calculating such amounts, Company shall notify each Holder and the Trustee of the amount of Notes being repurchased from such Holder in connection with the relevant Mandatory Offer.

(iv)             Reduction of Notes to Be Repurchased. On or prior to the relevant Mandatory Offer Date, each Offer Electing Holder must either: (i) deliver to the Registrar any Notes to be repurchased, duly endorsed for transfer, or (ii) in the case of Physical Notes, make a notation of the reduction of the aggregate principal amount of Notes on the form thereof, and delivery evidence to the Company and the Trustee of the same (pursuant to procedures approved by the Trustee in its discretion). For the avoidance of doubt, on the date the Mandatory Offer Price is paid, such the Notes so repurchased will no longer be “outstanding” under the Indenture for all purposes.

(D)             Payment of the Mandatory Offer Price. The Company will cause the Mandatory Offer Price for a Note (or portion thereof) to be repurchased pursuant to a Mandatory Offer to be paid to the Holder thereof on or before the later of (i) the applicable Mandatory Offer Date; and (ii) the date such Note is delivered to the Paying Agent (in the case of a Physical Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(B) on any Note to be repurchased pursuant to a Mandatory Offer must be paid pursuant to such proviso regardless of whether such Note is delivered pursuant to the first sentence of this Section 4.02(D).

(E)              Compliance with Applicable Securities Laws. To the extent applicable, the Company will comply in all material respects with all federal and state securities laws in connection with a Mandatory Offer (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Mandatory Offer in the manner set forth in this Indenture; provided, however, that, to the extent that the Company’s obligations to offer to repurchase and to repurchase Notes pursuant to this Section 4.02 conflict with any federal and/or state securities law or regulation that is applicable to the Company and enacted after the Issue Date, the Company’s compliance with such law or regulation will not be considered to be a Default of those obligations.

(F)              Additional Mandatory Offers Following Dispositions. If (x) the Company or any of its Subsidiaries Disposes of any property or assets consisting of Notes Priority Collateral or, after the Discharge of ABL Priority Obligations, ABL Priority Collateral (other than any Disposition of any property or assets permitted by clauses (1)-(9) and (11)-(15) (subject to the proviso contained therein), inclusive, of the definition of “Permitted Disposition”), or (y) any Casualty Event occurs with respect to any property or assets consisting of Notes Priority Collateral or, after the Discharge of ABL Priority Obligations, ABL Priority Collateral, which results in the realization or receipt by the Company or any of its Subsidiaries of Net Cash Proceeds, subject to the terms of the Intercreditor Agreement, there shall occur an additional Mandatory Offer Date on the date which is five (5) Business Days after the date of the realization or receipt by such Person of the Net Cash Proceeds therefrom, with a Mandatory Offer Amount equal to 100% of all such Net Cash Proceeds received therefrom.

Section 4.03.     Right of the Company to Redeem the Notes.

(A)             Right to Redeem the Notes. Subject to the terms of this Section 4.03, the Company has the right, at its election, to redeem a portion, in Authorized Denominations, of the Notes not to exceed the following amounts:

(i)                 on one or more Redemption Dates occurring after the Issue Date and on or before the six-month anniversary of the Issue Date, up to $25,000,000 aggregate principal amount of Notes; and

(ii)              on one or more Redemption Dates occurring after the six-month anniversary of the Issue Date and on or before the eighteen-month anniversary of the Issue Date, up to $25,000,000 aggregate principal amount of Notes;

in each case, for a cash purchase price equal to the relevant Redemption Price; provided that the Company may only elect to redeem Notes in accordance with this Section 4.03(A) if the aggregate Redemption Price in respect of such redemption will be paid from, and not in excess of, the aggregate cash proceeds of a Qualified Common Stock Offering. For the avoidance of doubt, the Company shall have no right to redeem the Notes after the eighteen-month anniversary of the Issue Date, except in respect of a Mandatory Offer.

(B)              Redemption Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Redemption Date (including as a result of the payment of the related Redemption Price and any related interest pursuant to the proviso to Section 4.03(D), on such Redemption Date), then (i) the Company may not call for Redemption or otherwise redeem any Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore surrendered for such Redemption to be returned to the Holders thereof.

(C)              Redemption Date. The Redemption Date for any Redemption will be the fifth Business Day after the Redemption Notice Date for such Redemption.

(D)             Redemption Price. The Redemption Price for any Notes called for Redemption is an amount equal to (x)(i) the principal amount of the Notes being redeemed, multiplied by (ii) the relevant Redemption Multiplier, if applicable, plus (y) accrued and unpaid interest on such Note, if any, to, but excluding the Redemption Date; provided, however, that if such Redemption Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(E) and such Redemption Date occurs on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will be paid, in accordance with Section 2.05(E), on the next Business Day to Holders as of the Close of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes to be redeemed from, and including, such Interest Payment Date to, but excluding, such Redemption Date. All interest for the purposes of this Section 4.03 shall be calculated as thought the Company has elected Cash Interest

(E)              Redemption Notice. To call any Notes for Redemption, the Company must (x) send to each Holder of such Notes, the Trustee and the Paying Agent a written notice of such Redemption (a “Redemption Notice”); and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing the information set forth in the Redemption Notice.

Such Redemption Notice shall be irreovacable and must state:

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

(ii)              the Redemption Date for such Redemption;

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

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

(v)               that Notes called for Redemption may not be converted before the Redemption Date (unless the Company fails to pay the Redemption Price due on such Redemption Date in full);

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

(vii)          the CUSIP and ISIN numbers, if any, of the Notes called for Redemption.

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

(F)              Selection and Conversion of Notes to Be Redeemed in Part. If less than all Notes then outstanding are called for Redemption, then the Notes to be redeemed will be selected by the Company as follows: the Trustee will select the Notes to be redeemed (in an Authorized Denomination) by lot, on a pro rata basis or in such other manner as it shall deem appropriate and fair.

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

Section 4.04.     Repurchase after Suspension

During any Covenant Suspension, any Holder shall be entitled to request that any or all of such Holders’ Notes be repurchased by the Company from such Holder’s Pro Rata Share of the money and Short-Term Treasuries held in trust by the Trustee pursuant to Section 7.03 (“Suspension Repurchase”) as follows.

(A)             Suspension Repurchase Notice. To receive payoff from the Suspension Repurchase, a Holder must send to the Company (with copy to the Trustee) a written notice requesting such Suspension Repurchase (a “Suspension Repurchase Notice”) five (5) Business Days prior to the date on which such Holder wishes to have such Suspension Repurchase (the “Suspension Repurchase Date”).

Such Suspension Repurchase Notice must state:

(i)                 the amount of Notes to be called for Suspension Repurchase, in an Authorized Denomination;

(ii)              the Suspension Repurchase Date for such Suspension Repurchase.

(B)              Delivery of Notes. Together with the Suspension Repurchase Notice, the Holder must either: (i) deliver to the Paying Agent any Notes subject to Suspension Repurchase, duly endorsed for transfer, or (ii) in the case of Physical Notes, make a notation of the reduction of the aggregate principal amount of Notes on the form thereof, and delivery evidence to the Company and the Trustee of the same (pursuant to procedures approved by the Trustee in its discretion). For the avoidance of doubt, on the date the Suspension Repurchase Price is paid, such the Notes so repurchased will no longer be “outstanding” under the Indenture for all purposes.

(C)              Payment of Suspension Repurchase Price. On or before the applicable Suspension Repurchase Date the Suspension Repurchase Notice, the Company must cause the Paying Agent to pay to such Holder, from the relevant Account, an amount equal to the aggregate principal amount of Notes being repurchased on the relevant Suspension Repurchase Date plus accrued and unpaid interest (as Cash Interest) to but excluding such Suspension Repurchase Date; provided that, if the Suspension Repurchase Date falls after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Suspension Repurchase, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) payment in respect of such Notes will not include accrued and unpaid interest on such Note to, but excluding, such Suspension Repurchase Date .

Article 5.         Conversion

Section 5.01.     Right to Convert.

(A)             Generally. Subject to the provisions of this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion Consideration.

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

(C)              When Notes May Be Converted.

(i)                 Generally. Subject to Section 5.01(C)(ii), a Holder may convert its Notes at any time following the Issue Date until the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity Date.

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

(iii)            Notice of the Occurrence of Certain Corporate Events. If the Company elects to (I) distribute, to all or substantially all holders of Common Stock, any rights, options or warrants (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Common Stock and are not exercisable until the occurrence of a triggering event, except that such rights will be deemed to be distributed under this clause (I) upon their separation from the Common Stock or upon the occurrence of such triggering event) entitling them, for a period of not more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock; or (II) distribute, to all or substantially all holders of Common Stock, assets or securities of the Company or rights to purchase the Company’s securities, then, in either case, (x) the Company will send notice of such distribution to the Holders and the Trustee at least ten (10) Scheduled Trading Days before the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant to a stockholder rights plan or the occurrence of any such triggering event under 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). If a Change of Control or a Common Stock Change Event occurs (other than a merger or other business combination transaction that is effected solely to change the Company’s jurisdiction of incorporation and that does not constitute a Change of Control), then, in each case, then, no later than the date of the signing of the definitive agreement in respect thereof, the Company will send notice to the Holders, the Trustee and the Conversion Agent of such transaction or event and no later than the effective date thereof, the Company will send notice to the Holders, the Trustee and the Conversion Agent of such effective date.

Section 5.02.     Conversion Procedures.

(A)             Generally.

(i)                 Conversion Period. A Holder may convert the Notes at any time.

(ii)              Physical Notes. To convert all or a portion of a Physical Note, the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the notice of conversion attached to such Physical Note or a facsimile of such notice of conversion; (2) deliver such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion Agent may require (a notice pursuant to the applicable procedures as set forth in (A) or a notice of conversion attached to a Physical Note as set forth in this (A), a “Notice of Conversion”).

(B)              Effect of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant to Section 5.03(B), 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).

(C)              Holder of Record of Conversion Shares. The Person in whose name any Common Stock is issuable upon conversion of any Note will be deemed to become the holder of record of such share as of the Close of Business on the Conversion Date for such conversion.

(D)             Taxes and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty due on the issue of any Common Stock upon such conversion; provided, however, that if any tax or duty is due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder will pay such tax or duty.

(E)              Conversion Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent receives any written notice of conversion with respect to a Note, then the Conversion Agent will promptly (and, in any event, no later than the Business Day following the date the Conversion Agent receives such Note or notice) notify the Company and the Trustee of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company to determine the Conversion Date for such Note.

Section 5.03.     Settlement upon Conversion.

(A)             [Reserved.]

(B)              Conversion Consideration.

(i)                 Generally. Subject to the following provisions of this Section 5.03(B) and Section 5.11 hereof the type and amount of consideration (the “Conversion Consideration”) due in respect of each US$1,000 principal amount of a Note to be converted will be (x) a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion and (y) at the Company’s election either (A) an amount of cash equal to the accrued and unpaid interest on such Note through the Conversion Date (such amount, the “Conversion Interest Amount”) or (B) a number of a number of shares of Common Stock equal to the product of (i) the quotient of the relevant Conversion Interest Amount divided by US$1,000 and (ii) Conversion Rate in effect on the Conversion Date for such conversion.

(ii)              Cash in Lieu of Fractional Shares. If the number of shares of Common Stock deliverable pursuant to Section 5.03(B) upon conversion of any Note is not a whole number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such conversion, cash in lieu of the related fractional share in an amount equal to the product of (1) such fraction and (2) the Last Reported Sale Price per Common stock on the Conversion Date for such conversion (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day).

(iii)            Conversion of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion Consideration due in respect of such conversion will be computed based on the total principal amount of Notes converted on such Conversion Date by such Holder.

(iv)             Pre-Funded Warrants in Lieu of Shares. Without limitation of Section 5.11 hereof:

(1)               if any Holder’s Notes are converted prior to the date the Company obtains the Shareholder Approval, the Company shall deliver to such Holder a number of Pre-Funded Warrants equal to the product of (x) the number of shares of Common Stock that would otherwise constitute the Conversion Consideration and (y) the Pre-Approval Conversion Ratio (rounded up to the nearest whole number), and the number of shares of Common Stock comprising the Conversion Consideration shall be proportionally reduced; and

(2)               in addition, if a Holder so elects in the relevant Notice of Conversion, with respect to all or any portion of the shares of Common Stock that would otherwise constitute the Conversion Consideration, the Company shall deliver to such Holder a number of Pre-Funded Warrants equal to such number of shares, and the number of shares of Common Stock comprising the Conversion Consideration shall be proportionally reduced (it being understood that in respect of any conversion prior to the date the Company obtains the Shareholder Approval, such specified portion may not exceed the Pre-Approval Conversion Ratio).

(C)              Delivery of the Conversion Consideration. Except as set forth in Sections 5.05(C) and 5.09, the Company will deliver the Conversion Consideration due upon the conversion of any Note to the Holder on the second (2nd) Business Day immediately after the Conversion Date for such conversion; provided, however, that if a Note is converted with a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then, solely for purposes of such conversion, (x) the Company will deliver the Conversion Consideration due upon such conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next Business Day); and (y) the Conversion Date will instead be deemed to be the second (2nd) Business Day immediately before the Maturity Date.

(D)             Deemed Payment of Principal and Interest. If a Holder converts a Note, the Company’s delivery of the Conversion Consideration due in respect of such conversion will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion Date (including in the case where a Note is converted following a Regular Record Date and prior to the corresponding Interest Payment Date).

Section 5.04.     Shares to be Fully Paid.

The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion. Each Conversion Share, if any, delivered upon conversion of any Note will be duly and validly issued, fully paid, non-assessable and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such system.

Section 5.05.     Adjustments to the Conversion Rate.

(A)             Events Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted by the Calculation Agent (and all relevant calculations and determinations shall be made by the Calculation Agent) from time to time as follows:

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

where:

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

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

where:

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

For purposes of this Section 5.05(A)(ii) and Section 5.01(C)(iii), in determining whether any rights, options or warrants entitle holders of Common Stock 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 per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash, to be determined by the Board of Directors.

(iii)            Spin-Offs and Other Distributed Property.

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

(a)       dividends, distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(i) or 5.05(A)(ii);

(b)       dividends or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iv);

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

(d)       Spin-Offs for which an adjustment to the Conversion Rate is required pursuant to Section 5.05(A)(iii)(2);

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

(f)       a distribution solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,

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

where:

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

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

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

where:

Notwithstanding anything to the contrary in this Section 5.05, if the Conversion Date for a Note to be converted occurs during the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of determining the Conversion Consideration for such conversion, such Spin-Off Valuation Period will be deemed to consist of the Trading Days occurring in the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Conversion Date.

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

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

where:

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

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

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

where:

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

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

(B)              No Adjustments Where Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section 5.05(A), the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise requiring an adjustment pursuant to Section 5.05(A) (other than a stock split or combination of the type set forth in Section 5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(v)) if each Holder participates, at the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction or event without having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product of (i) the Conversion Rate in effect on the related record date; and (ii) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such date.

(C)              [Reserved.]

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

(i)                 a Note is to be converted;

(ii)             the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section 5.05(A) has occurred on or before the Conversion Date for such conversion, but an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date;

(iii)            the Conversion Consideration due upon such conversion includes any whole share of Common Stock; and

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

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

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

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

(ii)             a Note is to be converted;

(iii)            the Conversion Date for such conversion occurs on or after such Ex-Dividend Date and on or before the related record date;

(iv)            the Conversion Consideration due upon such conversion includes any whole shares of Common Stock; and

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

then (x) such Conversion Rate adjustment will not be given effect for such conversion; (y) the shares of Common Stock issuable upon such conversion based on such unadjusted Conversion Rate will not be entitled to participate in such dividend or distribution; and (z) there will be added, to the Conversion Consideration otherwise due upon such conversion, the same kind and amount of consideration that would have been delivered in such dividend or distribution with respect to such shares of Common Stock had such shares been entitled to participate in such dividend or distribution.

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

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

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

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

(J)            Calculations. All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share of Common Stock (with 5/100,000ths rounded upward). The Company shall not be required to make an adjustment to the Conversion Rate unless the adjustment would require a change of at least one percent (1%) in the Conversion Rate. However, the Company shall carry forward any adjustments that are less than one percent (1%) of the Conversion Rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is less than one percent (1%), (i) prior to the Close of Business on the Conversion Date for any Note, (ii) on the date on which all such deferred adjustments would result in an aggregate change to the Conversion Rate of at least one percent (1%), and (iii) on the date three-months prior to the Maturity Date.

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

Section 5.06.       Voluntary Adjustments.

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

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

Section 5.07.       [Reserved]

Section 5.08.       [Reserved.]

Section 5.09.       Effect of Common Stock Change Event.

(A)          Generally. If there occurs any:

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

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

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

(iv)            other similar event,

and, as a result of which, the Common Stock is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or property, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,

(1)             from and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference Property Units; (II) and (III) for purposes of the definitions of “Change of Control,” references to “Common Stock” and the Company’s “common equity” will be deemed to refer to the common equity, if any, forming part of such Reference Property;

(2)             if such Reference Property Unit consists entirely of cash, then the Company will pay the cash due upon any conversions following the relevant Common Stock Change Event no later than the second (2nd) Business Day after the relevant Conversion Date; and

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

If the Reference Property consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration actually received, per share of Common Stock, by the holders of Common Stock. The Company will notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made.

At or before the effective time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture pursuant to Section 9.01(F), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner set forth in this Section 5.09; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.05(A) in a manner consistent with this Section 5.09; and (z) contain such other provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.09(A). If the Reference Property includes shares of stock or other securities or assets (other than cash) of a Person other than the Successor Person, then such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions, if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders.

(B)           Notice of Common Stock Change Events. The Company will provide notice of each Common Stock Change Event in the manner provided in Section 5.01(C)(iii).

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

Section 5.10.       Responsibility of Trustee and Conversion Agent

The Trustee and Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to (a) determine whether a supplemental indenture needs to be entered into or (b) determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to ‎Section 5.09 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any event referred to in such ‎Section 5.09 or to any adjustment to be made with respect thereto, but, subject to the provisions of ‎Section 12.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Company will be obligated to deliver to the Trustee and the Conversion Agent prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated by ‎Section 5.01 has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent the notices referred to in ‎Section 5.01 with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely.

Section 5.11.       Certain Limitations on Settlement.

For so long as the Common Stock is registered under the Exchange Act, a Holder shall not be entitled to receive shares of Common Stock upon conversion of any Notes to the extent to which the aggregate number of shares of Common Stock that may be acquired by such beneficial owner upon conversion of Notes shall, when added to the aggregate number of shares of Common Stock deemed beneficially owned, directly or indirectly, by such beneficial owner and each person subject to aggregation of Common Stock with such beneficial owner under Section 13 or Section 16 of the Exchange Act and the rules promulgated thereunder at such time (an “Aggregated Person”) (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on such beneficial owner’s or such person’s right to convert, exercise or purchase similar to this limitation), as determined pursuant to the rules and regulations promulgated under Section 13(d) of the Exchange Act, would exceed 9.9% (the “Restricted Ownership Percentage”) of the total issued and outstanding shares of Common Stock (the “Section 16 Conversion Blocker”); provided that any Holder shall have the right to elect for the Restricted Ownership Percentage to be 19.9% with respect to such Holder, (x) at any time, in which case, such election shall become effective sixty-one (61) days following written notice thereof to the Company or (y) in the case of a Holder acquiring Notes on the Issue Date, in the such Holder’s Subscription Agreement.

In lieu of any shares of Common Stock not delivered to a converting Holder by operation of the immediately preceding sentence, the Company shall deliver to such Holder Pre-Funded Warrants in respect of any equal number of shares of Common Stock. Such Pre-Funded Warrants shall contain substantially similar Restricted Ownership Percentage terms.

Under no circumstances shall the Trustee or the Conversion Agent have any obligation to monitor the ownership of Common Stock of any Holder or beneficial owner of the Common Stock or identify any beneficial owner of the Notes, or otherwise make any determination, monitor or otherwise take any action with respect to the restrictions set forth in this Section 5.11.

Section 5.12.      Conversion Upon Qualified Merger

Subject to the requirements and limitations of this Section 5.12, upon a Qualified Merger, the Company may elect to convert all, but not less than all, of the Notes at a Conversion Rate equal to the Company Conversion Rate on the Qualified Merger Conversion Date (a “Qualified Merger Conversion”), so long as the MOIC Condition is satisfied with respect to such potential Qualified Merger Conversion.

(A)          Prohibitions on Qualified Merger Conversions. If the principal amount of the Notes has been accelerated and such acceleration has not been rescinded on or before the Qualified Merger Conversion Date, then (i) the Company may not convert any Notes pursuant to this Section 5.12; and (ii) the Company will cause any Notes theretofore surrendered for such Qualified Merger Conversion to be returned to the Holders thereof.

(B)           Qualified Merger Conversion Date. The Conversion Date for any Qualified Merger Conversion will be date on which the relevant Qualified Merger is consummated (the “Qualified Merger Conversion Date”).

(C)           Qualified Merger Conversion Notice. In order to exercise its Qualified Merger Conversion right, at least ten (10) Business Days prior to a Qualified Merger event (the “Qualified Merger Conversion Notice Date”), the Company must (x) send to each Holder, the Trustee and the Paying Agent a written notice (a “Qualified Merger Conversion Notice”); and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website) containing the information set forth in the Qualified Merger Conversion Notice.

Such Qualified Merger Conversion Notice must state:

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

(ii)             the relevant Qualified Merger Conversion Date ;

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

(iv)            the Conversion Rate applicable to such Qualified Merger Conversion Date.

(D)           Notice of Qualified Merger Conversion Date. On the second Business Day prior to the Qualified Merger Conversion Date, the Company shall notify the Holders of such Qualified Merger Conversion Date.

(E)           Settlement of Qualified Merger Conversions. The Company shall settle any Qualified Merger Conversions in accordance with Section 5.03.

Article 6.         Successors