UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 26, 2016

 

 

SAEXPLORATION HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

 

Delaware

(State or other jurisdiction of incorporation)

001-35471

(Commission file number)

27-4867100

(IRS Employer Identification No.)

1160 Dairy Ashford Rd., Suite 160, Houston, Texas 77079

(Address of principal executive offices) (Zip Code)

(281) 258-4400

(Company’s telephone number, including area code)

 

(Former Name or Former Address, if Changed Since Last Report)

 

 

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

 

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

 

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

 

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

 

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

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

As previously announced, on June 13, 2016, SAExploration Holdings, Inc. (the “Company”) entered into a comprehensive restructuring support agreement (the “Restructuring Support Agreement”) with holders (the “Supporting Holders”) of approximately 66.67% of the par value of the Company’s 10.000% Senior Secured Notes due 2019 (the “Existing Notes”), pursuant to which the Supporting Holders and the Company agreed to enter into and implement a comprehensive restructuring of the Company’s balance sheet (the “Restructuring”).

On July 27, 2016, the Company completed its previously announced exchange offer and consent solicitation (the “Exchange Offer”) related to the Company’s Existing Notes. In the Exchange Offer, the Company offered to exchange any and all of the Existing Notes held by eligible holders for up to (i) $70,000,000 aggregate principal amount of 10.000% Senior Secured Second Lien Notes due 2019 (the “New Notes”) and (ii) 6,497,979 shares of the Company’s common stock (the “New Notes Shares”), upon the terms and subject to the conditions set forth in the Company’s Exchange Offer Memorandum and Consent Solicitation Statement and related Letter of Transmittal and Consent, each dated June 24, 2016. Concurrently with the Exchange Offer, the Company solicited consents from holders of the Existing Notes to adopt certain proposed amendments (the “Proposed Amendments”) to the Indenture under which the Existing Notes were issued (the “Existing Notes Indenture”), the existing intercreditor agreement and related collateral and security agreements relating to the Existing Notes. As previously announced, following the irrevocable receipt of the requisite consents, on June 29, 2016, the Company entered into a first supplemental indenture to the Existing Notes Indenture, an amended and restated intercreditor agreement dated as of June 29, 2016, by and among Wells Fargo Bank, National Association, as lender and collateral agent for the Existing Revolving Credit Facility, Wilmington Savings Fund Society, FSB, as trustee and collateral agent for the Existing Notes, and Delaware Trust Company, as administrative and collateral agent for the New Senior Loan Facility, which was joined by the noteholder collateral agent for the New Notes on July 27, 2016 (the “New Intercreditor Agreement”), and a first amendment to the security agreement relating to the Existing Notes, among other things. In addition, as previously announced, on June 29, 2016, (i) the Company, as borrower, and each of the Company’s domestic subsidiaries, as guarantors (the “Guarantors”), entered into a new senior secured multi-draw term loan facility (the “New Senior Loan Facility”) with the lenders, including the Supporting Holders, from time to time party thereto, and Delaware Trust Company, as collateral agent and administrative agent (the “New Senior Loan Facility Agent”) and (ii) the Company, the Guarantors and Wells Fargo Bank, National Association, as lender, entered into an amendment to the Credit and Security Agreement, dated November 6, 2014 (as amended, the “Existing Revolving Credit Facility”). For additional information on the agreements giving effect to the Proposed Amendments, refer to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on July 1, 2016.

In exchange for $138,128,000 in aggregate principal amount of Existing Notes, representing approximately 98.7% of the outstanding aggregate principal amount of the Existing Notes, validly tendered and accepted for exchange in the Exchange Offer, the Company issued (i) $69,064,000 aggregate principal amount of its New Notes and (ii) 6,410,502 New Notes Shares, after giving effect to the Reverse Stock Split described below. The Company delivered cash in lieu of any fractional shares. In addition, each participating holder received accrued and unpaid interest on its tendered Existing Notes that were accepted for exchange from their last interest payment date to, but not including, the settlement date, which was paid in the form of additional New Notes, in an aggregate amount of $7,458,912.

Indenture

The terms of the New Notes are governed by the indenture (the “Indenture”), dated as of July 27, 2016, among the Company, its domestic subsidiaries party thereto (the “Guarantors”) and Wilmington Savings Fund Society, FSB, as trustee (the “Trustee”) and noteholder collateral agent (the “Noteholder Collateral Agent”).

The New Notes will mature on September 24, 2019, provided that, if any Existing Notes remain outstanding as of 5:00 p.m. (New York City time) on March 31, 2019, then upon the affirmative vote of the holders of a majority of then-outstanding principal amount of New Notes, the maturity date of the New Notes shall become April 14, 2019. Interest is payable on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2016.

The New Notes will bear interest at a rate of 10.000% per annum payable in cash, accruing from July 27, 2016; provided, however, that for each interest payment date for the New Notes through, and including the July 15, 2017 interest payment date, the Company may, at its option, pay interest on any or all such interest payment dates in kind by the issuance of additional New Notes. Interest paid in-kind will accrue on the New Notes at a rate per annum of 11.000%, which is the cash interest rate plus 100 basis points. Any additional New Notes issued as in-kind interest will be fungible with, and will accrue interest at the same rate as, the New Notes.

 

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The New Notes are unconditionally guaranteed, jointly and severally, by all of the Company’s existing and future domestic restricted subsidiaries, except for immaterial subsidiaries and certain holding companies holding interests in controlled foreign corporations (the “New Guarantees”). The New Notes and the New Guarantees are secured on a second priority basis by liens on substantially all of the Company’s and the Guarantors’ assets, subject to certain exceptions and permitted liens, securing (i) the obligations under the Existing Revolving Credit Facility on a senior first priority basis, (ii) the New Senior Loan Facility on a junior first priority basis and (iii) the Existing Notes on a third priority basis. Further, the New Notes will be:

 

    equal in right of payment to all of the Company’s and the Guarantors’ existing and future senior indebtedness;

 

    structurally subordinated to all existing and future liabilities of any of the Company’s non-guarantor subsidiaries;

 

    senior in right of payment to all of the Company’s and the Guarantors’ future subordinated indebtedness;

 

    effectively senior to the Existing Notes and any of the Company’s and the Guarantors’ existing and future unsecured senior indebtedness, to the extent of the value of the collateral securing such indebtedness;

 

    effectively junior to the Company’s and the Guarantors’ obligations under the Existing Revolving Credit Facility and the New Senior Loan Facility, to the extent of the value of the collateral securing such indebtedness; and

 

    effectively junior to any existing and future secured indebtedness secured by assets not constituting collateral for the New Notes and the New Guarantees to the extent of the value of the collateral securing such indebtedness.

The Company has the right to redeem up to $35 million of the New Notes at a redemption price of 100% of the principal amount of the New Notes plus accrued and unpaid interest out of proceeds received from certain Alaska tax credit certificates that have been assigned to the Company, provided that the Company has first repaid in full the Existing Revolving Credit Facility and the New Senior Loan Facility and all commitments thereunder have been canceled. The Company has no other optional redemption rights.

The New Notes are subject to a make-whole provision requiring that if the New Notes are accelerated or otherwise become due and payable prior to their stated maturity due to an event of default, then an applicable premium determined in accordance with the Indenture will also be immediately due and payable, together with principal of, accrued and unpaid interest on, the New Notes.

Subject to certain exceptions, upon the occurrence of a Change of Control (as defined in the Indenture), each holder of New Notes will have the right to require the Company to purchase that holder’s New Notes for a cash price equal to 101% of the principal amounts to be purchased, plus accrued and unpaid interest to the date of purchase. Upon the occurrence of an Asset Sale (as defined in the Indenture), each holder of New Notes will have the right to require the Company to purchase that holder’s New Notes for a cash price equal to 100% of the principal amounts to be purchased, plus accrued and unpaid interest to the date of purchase, prepayment or redemption, from any proceeds from the Asset Sale in excess of $7.5 million that are not otherwise used by the Company to either reduce its debt, reinvest in assets or acquire a permitted business.

The Indenture contains various covenants that, subject to certain exceptions, limit the ability of the Company and its restricted subsidiaries to, among other things: (i) transfer or sell assets; (ii) pay dividends, redeem subordinated indebtedness or make other restricted payments; (iii) incur or guarantee additional indebtedness or, with respect to its restricted subsidiaries, issue preferred stock; (iv) create or incur liens; (v) incur dividend or other payment restrictions affecting its restricted subsidiaries; (vi) consummate a merger, consolidation or sale of all or substantially all of its or its subsidiaries’ assets; (vii) enter into transactions with affiliates; (viii) engage in business other than its current business and reasonably related extensions thereof; and (ix) take or omit to take any actions that would adversely affect or impair in any material respect the collateral securing the New Notes.

 

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The Indenture also contains other customary terms and conditions, including relating to customary events of default. If an event of default occurs and is continuing, then all outstanding New Notes either become due and payable immediately without further action or notice (in the event of a bankruptcy default), or the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding New Notes may declare the principal of, and any accrued interest on, the New Notes to be due and payable immediately (in the event of another default).

The summary of the Indenture, the New Notes, the form of which is included in the Indenture, and the New Guarantees set forth in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the text of the Indenture, a copy of which is being filed as Exhibit 4.1 hereto and is incorporated herein by reference, and the Notation of Guarantee, a copy of which is being filed as Exhibit 4.3 hereto and is incorporated herein by reference.

Additional Indebtedness Joinder and Designation

In connection with the entry into the Indenture and the issuance of the New Notes, the Trustee and Noteholder Collateral Agent entered into an Additional Indebtedness Joinder and Designation dated July 27, 2016 (the “Joinder”) with the collateral agent for the Existing Revolving Credit Facility, the collateral agent for the New Senior Loan Facility and the noteholder collateral agent for the Existing Notes. Pursuant to the Joinder, the Noteholder Collateral Agent, for and on behalf of the holders of the New Notes, agreed to become a party to, and to be subject to the terms of, the New Intercreditor Agreement and the existing parties to the New Intercreditor Agreement agreed that the New Notes and the New Guarantees shall constitute additional debt under the New Intercreditor Agreement with the relative ranking described above.

The summary of the Joinder set forth in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the text of the Joinder, a copy of which is being filed as Exhibit 4.4 hereto and is incorporated herein by reference.

Security Agreement

In connection with the issuance of the New Notes and execution of the Indenture, the Company, the Guarantors and the Noteholder Collateral Agent entered into a Security Agreement, dated as of July 27, 2016 (the “Security Agreement”), pursuant to which the Company and the Guarantors pledged substantially all of their assets to secure their obligations under the New Notes and the Indenture, subject to certain exclusions and exceptions as set forth in such agreement as well as the New Intercreditor Agreement. The New Notes and the New Guarantees are not secured by the assets of the Company’s subsidiaries that are not Guarantors.

The summary of the Security Agreement set forth in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the text of the Security Agreement, a copy of which is being filed as Exhibit 10.1 hereto and is incorporated herein by reference.

Registration Rights Agreement

On July 27, 2016, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with parties who received newly issued common stock on July 27, 2016 (the “RRA Holders”). The Registration Rights Agreement requires the Company to use its commercially reasonable efforts to prepare and file a shelf registration statement (the “Shelf Registration Statement”) registering the offering and sale on a delayed or continuous basis of all Registrable Securities (as defined in the Registration Rights Agreement), and to keep such Shelf Registration Statement effective until the earliest of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement, (ii) the date on which the Registration Rights Agreement terminates and (iii) such shorter period as the RRA Holders of at least 50% of Registrable Securities with respect to the Shelf Registration shall agree in writing

Pursuant to the Registration Rights Agreement, RRA Holders have customary underwritten offering and piggyback registration rights, subject to the limitations set forth in the Registration Rights Agreement. Under their underwritten

 

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offering rights, individual RRA Holders that together own Registrable Securities representing at least 50% of the outstanding shares of the Company’s common stock have the right to demand the Company to effectuate the distribution of any or all of their Registrable Securities by means of an underwritten offering pursuant to the Shelf Registration Statement. No individual holder may exercise this right more than two times. The Company is not obligated to effect an underwritten demand notice within 90 days of closing another underwritten offering. Under their piggyback registration rights, if at any time the Company proposes to conduct an underwritten offering for its own account, the Company must allow such RRA Holders to include a specified number of their Registrable Securities in the offering. These rights are subject to certain conditions and limitations, including certain rights to limit the number of shares to be included in an underwritten offering and the Company’s right to delay or withdraw a registration statement or an offer and sale of Registrable Securities pursuant to such registration statement (including underwritten offerings) under certain circumstances. The registration rights granted in the Registration Rights Agreement are subject to customary indemnification and contribution provisions.

The summary of the Registration Rights Agreement set forth in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the text of the Registration Rights Agreement, a copy of which is being filed as Exhibit 10.2 hereto and is incorporated herein by reference.

Warrant Agreement

On July 27, 2016, the Company entered into a warrant agreement (the “Warrant Agreement”) with Continental Stock Transfer and Trust Company, as warrant agent (the “Warrant Agent”). Pursuant to the Warrant Agreement, the Company issued two series of warrants (the “Series A Warrants” and the “Series B Warrants”, together, the “Warrants”) to the holders of the Company’s common stock as of July 26, 2016, such Warrants to expire at the close of business on July 27, 2021 (the “Expiration Date”). Following July 27, 2016, there are 154,108 Series A Warrants outstanding to purchase up to an aggregate of 154,108 shares of common stock at an initial exercise price of $10.30 per share (the “Series A Exercise Price”). Following July 27, 2016, there are 154,108 Series B Warrants outstanding to purchase up to an aggregate of 154,108 shares of common stock at an initial exercise price of $12.88 per share (the “Series B Exercise Price”). The Warrants may generally be exercised during the period commencing 30 days prior to the Expiration Date, subject to receipt by the Company of certain Alaska tax credits. Upon issuance, the shares issued under the Warrants will represent 4.5% of the outstanding shares of common stock as of July 27, 2016, subject to the issuance of (i) additional shares of common stock under a new 2016 Long-Term Incentive Plan, which, once adopted, will reserve 1,038,258 shares of common stock for issuance, and (ii) 132,093 shares of common stock to the lenders under the New Senior Loan Facility as an anti-dilution protection relative to the Warrants.

Until such time as the Warrants and the shares of common stock issuable under the Warrants are registered under the Securities Act of 1933, as amended (the “Securities Act”), they will be subject to restrictions on transfer. The Company has agreed in the Warrant Agreement to customary resale registration rights.

Adjustments . The number of shares of common stock for which a Warrant is exercisable, and the exercise price per share of such Warrant are subject to adjustment pursuant to a customary anti-dilution provision.

Reorganization Event . Upon the occurrence of certain events constituting a Fundamental Equity Change (as defined in the Warrant Agreement) or a reorganization, recapitalization, reclassification, consolidation or similar event as a result of which the common stock would be converted into, changed into or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof), each Warrant holder will have the right to receive, upon exercise of a Warrant, an amount of securities, cash or other property received in connection with such event with respect to or in exchange for the number of shares of common stock for which such Warrant is exercisable immediately prior to such event.

Net Share Settlement . No payment of cash will be required in connection with the exercise of a Warrant (a “Net Share Settlement”). In connection with such Net Share Settlement, the Company shall deliver, without any cash payment therefor, a number of shares of common stock equal to the fair value (as of the exercise date for such Warrant) of one share of common stock minus the Series A Exercise Price or Series B Exercise Price, as applicable, divided by the fair value of one share of common stock.

 

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The summary of the Warrant Agreement set forth in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the text of the Warrant Agreement, a copy of which is being filed as Exhibit 10.3 hereto and is incorporated herein by reference.

The information in Item 5.02 with respect to the Indemnification Agreements is incorporated into this Item 1.01 by reference.

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

The information in Item 1.01 is incorporated into this Item 2.03 by reference.

 

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On July 27, 2016, the Company provided notice to the Nasdaq Stock Market that, as a result of the resignation of certain directors from the Board of Directors, and the appointment of new members to the Board of Directors, as described in more detail in Item 5.02 below, the Company is currently not in compliance with the audit committee composition requirement of Nasdaq Listing Rule 5605(c)(2)(A) due to one vacancy on the Audit Committee. The Company fully expects to regain compliance with Nasdaq Rule 5605(c)(2)(A) within the cure period provided for in Nasdaq Rule 5605(c)(4)(B).

 

Item 3.02. Unregistered Sales of Equity Securities.

The information in Item 1.01 regarding the New Notes Shares and Warrants is incorporated into this Item 3.02 by reference. In addition, in connection with the entry into the New Senior Loan Facility and draws under the New Senior Loan Facility, the Company has issued 2,803,302 shares of common stock, after giving effect to the Reverse Stock Split described below, to the lenders thereunder (the “New Senior Loan Shares”), which include the Supporting Holders who participated in the Exchange Offer. These New Senior Loan Shares include shares of common stock equal to 9.4% of the Company’s outstanding stock upon consummation of the Exchange Offer issued to the initial lenders who funded the Company’s borrowings pursuant to its initial draw under the New Senior Loan Facility and additional shares of common stock equal to 18.8% of the Company’s outstanding common stock upon consummation of the Exchange Offer, or 934,432 and 1,868,870 shares, respectively, after giving effect to the Reverse Stock Split described below.

The New Notes Shares and New Senior Loan Shares collectively represent 9,213,804 shares, or 98.6% of the Company’s 9,344,325 shares of common stock outstanding as of July 27, 2016, and as a result of these issuances, subject to dilution by the issuance of (i) additional shares of common stock under a new 2016 Long-Term Incentive Plan, which, once adopted, will reserve 1,038,258 shares of common stock for issuance, (ii) approximately 308,217 shares under the Warrants, and (iii) approximately 132,093 shares issuable to the lenders under the New Senior Loan Facility as an anti-dilution protection relative to the Warrants. The New Notes Shares, the New Senior Loan Shares and the Warrants were issued upon consummation of the Exchange Offer on July 27, 2016.

The New Notes, the New Guarantees, the New Notes Shares and the New Senior Loan Shares were issued in reliance on an exemption from registration set forth in Section 4(a)(2) and/or Regulation S of the Securities Act. The Warrants were issued in a transaction not involving a sale and not required to be registered under the Securities Act.

 

Item 3.03. Material Modification to Rights of Security Holders.

The information in Item 1.01 with respect to the Joinder is incorporated into this Item 3.03 by reference.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On July 27, 2016, each of Gregory R. Monahan, Eric S. Rosenfeld, David D. Sgro and Brent Whiteley resigned from the Board of the Directors of the Company, effective upon acceptance of such resignations by the remaining directors, which occurred on July 27, 2016.

 

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Immediately following such resignation, the remaining directors of the Company’s Board of Directors filled such vacancies through the immediately effective appointment of L. Melvin Cooper, Michael Kass and Jacob Mercer as directors (the “New Directors”) of the Company.

L. Melvin Cooper currently serves as the Senior Vice President and Chief Financial Officer of Forbes Energy Services Ltd. (NASDAQ: FES) (“Forbes”), a public company in the energy services industry. Prior to joining Forbes in 2007, Mr. Cooper served in financial or operating roles of various companies involved oilfield site preparation, serving new home builders, supply chain management, and other industries. Since October 2010, Mr. Cooper has served on the Board of Directors of Flotek Industries, Inc. (NYSE: FTK), where he is a member of the Nominating and Corporate Governance, Audit, and Compensation Committees. Since August 2012, Mr. Cooper has served on the Board of Directors of Par Pacific Holdings, Inc. (NYSE: PARR), where he is a member of the Audit and Nominating and Corporate Governance Committees. Mr. Cooper received the Board Leadership Fellow certification from the National Association of Corporate Directors (“NACD”) where he is also a member of the Board of Directors of the NACD Houston/Austin/San Antonio Chapter. Mr. Cooper earned a degree in accounting from Texas A&M University-Kingsville (formerly Texas A&I) in 1975 and is a Certified Public Accountant.

Michael Kass is a Senior Research Analyst at BlueMountain Capital concentrating on stressed and distressed credit across multiple industry sectors. Previously, Mr. Kass was a co-founder and Head of Research at 3-Sigma Value Management. Prior to 3-Sigma, Mr. Kass served for several years as a Vice President in Lehman’s Global Restructuring Group, where he advised debtors, financial sponsors and GSEs in bankruptcy proceedings in sectors including aviation, media and natural resources. Prior to Lehman, Mr. Kass was an Associate at Miller Buckfire and Co., focusing on restructurings in telecom, industrials, and restaurants. He began his career at McKinsey and Co., which he joined after receiving his JD magna cum laude from Harvard Law School, his BSE in International Finance from Wharton, and his BA summa cum laude from University of Pennsylvania.

Jacob Mercer is a Senior Portfolio Manager at Whitebox Advisors. Prior to joining Whitebox, Mr. Mercer worked for Xcel Energy as Assistant Treasurer and Managing Director. Before joining Xcel Energy, he was a Senior Credit Analyst and Principal at Piper Jaffray and a Research Analyst at Voyageur Asset Management. Mr. Mercer also served as a logistics officer in the United States Army. Mr. Mercer has served on a number of boards of directors including Par Pacific (NYSE: PARR), Piceance Energy, Platinum Energy Solutions, and Ceres Global Ag (TSX: CRP). Mr. Mercer holds a BA with a double major in economics and business management from St. John’s University. He also holds the Chartered Financial Analyst (CFA) designation.

Messrs. Kass and Mercer were designated as Class B directors, and Mr. Cooper was designated as a Class C director. Messrs. Cooper and Dalton shall serve as members of the Audit Committee of the Company, Messrs. Cooper, Dalton and Mercer shall serve as members of the Compensation Committee of the Company and Messrs. Dalton, Kass and Mercer shall serve as members of the Nominating Committee of the Company. The Board of Directors determined that each of the members of the Audit Committee, the Compensation Committee and the Nominating Committee is independent under the applicable Nasdaq listing standards and that the members of the Audit Committee are independent under Rule 10A-3 of the Securities Exchange Act of 1934, as amended. With respect to director compensation for each of the New Directors, see “Item 11. Executive Compensation–Director Compensation–General” in the Company’s Form 10-K/A filed with the Securities and Exchange Commission on April 29, 2016.

In connection with the consummation of the Exchange Offer, the Company has terminated its 2013 Long-Term Incentive Plan.

On July 27, 2016, the Company entered into indemnification agreements (the “Indemnification Agreements”) with Jeff Hastings, Brian Beatty, Brent Whiteley, Mike Scott, Darin Silvernagle, Ryan Abney, Gary Dalton and each of the New Directors (each, an “Indemnitee”). The Indemnification Agreements supersede and replace the indemnification agreements previously entered into with any such individuals. The Indemnification Agreements are intended to provide indemnification rights for actions or omissions to act while the Indemnitees are or were acting as directors, officers, employees or agents of the Company (among certain other limited roles). In connection

 

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therewith, the Company will indemnify (except in certain limited circumstances) the Indemnitees against, among other things, all expenses (including attorneys’ fees), damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other), Employee Retirement Income Security Act of 1974 losses and amounts paid in settlement pursuant to (i) any threatened, asserted, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other, and whether made pursuant to federal, state or other law, and (ii) any threatened, pending or completed inquiry or investigation, whether made, instituted or conducted by or at the behest of the Company or any other person, including any federal, state or other court or governmental entity or agency and any committee or other representative of any corporate constituency, to the fullest extent permitted by applicable law. In addition, the Indemnification Agreements provide for the advancement of expenses incurred by the Indemnitees in connection with any proceeding covered by the Indemnification Agreements, provided that the Indemnitees must repay the advanced amounts if, upon conclusion of the proceeding, it is ultimately determined that the Indemnitees were not entitled to indemnification.

The summary of the Indemnification Agreements set forth in this Item 5.02 does not purport to be complete and is qualified in its entirety by reference to the text of the Form of Director and Officer Indemnification Agreement, a copy of which is being filed as Exhibit 10.4 hereto and is incorporated herein by reference.

The appointment of the New Directors, reflects an arrangement incorporated into the Restructuring Support Agreement, pursuant to which the Supporting Holders are entitled to select six of the seven members of the Board of Directors. The Restructuring Support Agreement contemplates that each of BlueMountain Capital Management, LLC (“Blue Mountain”) and Whitebox Advisors LLC (“Whitebox”) shall have the right to select one director to be nominated by the Company for so long as each of their equity holdings following the consummation of the Exchange Offer exceeds 10% of the Company’s total outstanding shares. Mr. Kass is an employee of BlueMountain and Mr. Mercer is an employee of Whitebox. Each of BlueMountain and Whitebox are Supporting Holders. Each of the Supporting Holders, including BlueMountain and Whitebox, are lenders under the Company’s New Senior Loan Facility and parties to the Registration Rights Agreement with respect to shares of common stock received in connection with the Restructuring.

The information in Item 1.01 is incorporated into this Item 5.02 by reference.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the Restructuring, on June 14, 2016, the Board of Directors authorized an amendment (the “Amendment”) to the Second Amended and Restated Certificate of Incorporation of the Company to effect a reverse stock split of the shares of common stock of the Company at a ratio of 135-to-1 (the “Reverse Stock Split”). The Amendment did not affect the number of authorized shares under the Second Amended and Restated Certificate of Incorporation. On June 15, 2016, the Amendment was approved by the written consent of the Company’s stockholders holding a majority of the outstanding shares of common stock entitled to vote as of June 15, 2016. The Amendment became effective upon filing with the Secretary of State of the State of Delaware on July 26, 2016, and is attached as Exhibit 3.1.

On July 27, 2016, the Board of Directors approved amendments to the Company’s Amended and Restated Bylaws. Among other things, including immaterial, conforming and technical changes, the new Second Amended and Restated Bylaws (the “Bylaws”):

 

    allow each of Blue Mountain and Whitebox Advisors LLC, together with their respective affiliates (each a “Principal Stockholder”), for so long as either holds at least ten percent of the Company’s outstanding common stock, to (1) nominate one director to be included in the Company’s slate of nominees and proxy materials, (2) be the sole stockholders who may remove their respective nominated director from the Board of Directors, with or without cause until the third annual meeting of stockholders following July 27, 2016, and (3) have their respective nominee director included in all committees of the Board of Directors, as long as they meet the qualifications necessary to be a member;

 

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    allow holders of a majority of the outstanding common stock to each call a special meeting in addition to the majority of the Board of Directors;

 

    except in connection with the election of any director nominated by Blue Mountain, allow for changes in voting rights for any affiliate of Blue Mountain that is not a “United States person,” as such term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, and that is managed by the Blue Mountain Stockholder (a “Non-U.S. Blue Mountain Investment Fund”) who holders greater than 10% of the total number of votes applicable to all shares of Common Stock;

 

    renounce any interest or expectancy by the Company in, or in being offered an opportunity to participate in, business opportunities that are presented to any of the Principal Stockholders, their respective affiliates, managed investment funds or portfolio companies or any of their respective officers, directors, agents, stockholders, members, partners, employees, or any director designated for nomination by the Principal Stockholders;

 

    require stockholder notices for stockholder proposals and nominations to be submitted between 60 and 90 days ahead of the first anniversary of the prior year’s annual meeting; provided, however, that if (i) the annual meeting of stockholders is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting of stockholders or (ii) no annual meeting was held during the prior year, the notice by the stockholder to be timely must be received (A) no earlier than 90 days before such annual meeting and (B) no later than the later of 60 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or public disclosure;

 

    expand the procedures and scope of required information to be submitted by stockholders in connection with stockholder proposals and nominations, including the provision of certain certifications as to a nominee’s qualifications;

 

    allow special meetings of the Board of Directors to be called on at least 24 hours notice by the chairman, president or secretary on the written request of any two directors;

 

    removed the prior indemnification provisions, which are expected to be expanded in the Third Amended and Restated Certificate of Incorporation;

 

    require directors to be elected by a majority vote unless the nominees for directors exceed the number of vacancies, in which case, a plurality vote is required to elect;

 

    in connection with expected changes in the Third Amended and Restated Certificate of Incorporation, assume the removal of classes from the Board of Directors and make all directors elected on an annual basis;

 

    allow the Company to vote stock held by it in a fiduciary capacity;

 

    require that the Principal Stockholders must consent to changes in the bylaws that would have the effect of limiting their special rights enumerated above; and

 

    adopt Delaware as the exclusive jurisdiction for certain legal proceedings.

The summary of the Bylaws set forth in this Item 5.03 does not purport to be complete and is qualified in its entirety by reference to the text of the Bylaws, a copy of which is being filed as Exhibit 3.2 hereto and is incorporated herein by reference.

 

8


Item 8.01. Other Events.

As a result of the Reverse Stock Split, every 135 shares of common stock of the Company outstanding on July 26, 2016 was converted into 1 share of common stock, with fractional shares cashed out based on the closing price per share on the effective date of the Reverse Stock Split.

A new CUSIP number has been issued for the Company’s common stock (78636X204) to distinguish stock certificates issued after the effective date of the Reverse Stock Split. The pre-split CUSIP number was 78636X105.

The common stock began trading on a split-adjusted basis on July 27, 2016 on the Nasdaq Global Market.

This report shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of any of these securities, in any jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The New Notes, New Notes Shares, New Senior Loan Shares and Warrants have not been registered under the Securities Act or any state securities laws, and unless so registered, may not be offered or sold in the United States or to U.S. persons except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This report contains “forward-looking statements” within the meaning of the U.S. federal securities laws, with respect to the Company’s financial condition, results of operations, cash flows and business, and expectations or beliefs concerning future events. These forward-looking statements can generally be identified by phrases such as “expects,” “anticipates,” “believes,” “estimates,” “intends,” “plans to,” “ought,” “could,” “will,” “should,” “likely,” “appears,” “projects,” “forecasts,” “outlook” or other similar words or phrases. There are inherent risks and uncertainties in any forward-looking statements. Although the Company believes that its expectations are reasonable, it can give no assurance that these expectations will prove to have been correct, and actual results may vary materially. Except as required by law, the Company undertakes no obligation to update, amend or clarify any forward-looking statements to reflect events, new information or otherwise. Some of the important factors that could cause actual results to differ materially from the Company’s expectations are discussed below. All written and oral forward-looking statements attributable to the Company, or persons acting on its behalf, are expressly qualified in their entirety by these cautionary statements.

You should refer to the risk factors from the Company’s Annual Report on Form 10-K for the year ended December 31, 2015, as amended by the Company’s Annual Report on Form 10-K/A filed on April 29, 2016 for specific risks which would cause actual results to be significantly different from those expressed or implied by any of the Company’s forward-looking statements. It is not possible to identify all of the risks, uncertainties and other factors that may affect future results. In light of these risks and uncertainties, the forward-looking events and circumstances discussed in this report may not occur and actual results could differ materially from those anticipated or implied in the forward-looking statements. Accordingly, readers of this report are cautioned not to place undue reliance on the forward-looking statements.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit
No.

  

Description

3.1   

Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of SAExploration

Holdings, Inc.

3.2    Second Amended and Restated Bylaws.
4.1   

Indenture, dated July 27, 2016, by and among the Company, the guarantors named therein and Wilmington

Savings Fund Society, FSB, as trustee and noteholder collateral agent.

 

9


4.2    Form of 10.000% Senior Secured Second Lien Notes due 2019 (included in Exhibit 4.1).
4.3   

Notation of Guarantee executed July 27, 2016, among SAExploration Sub, Inc.,

SAExploration, Inc., SAExploration Seismic Services (US), LLC and NES, LLC.

4.4   

Additional Indebtedness Joinder and Designation, dated as of July 27, 2016, by and among Wells Fargo

Bank, National Association, as ABL Agent, Wilmington Savings Fund Society, FSB, as Existing Noteholder

Agent, Delaware Trust Company, as Term Agent, and Wilmington Savings Fund Society, FSB, as Additional

Noteholder Agent.

10.1   

Security Agreement, dated July 27, 2016, by and among the Company, the guarantors named therein and

Wilmington Savings Fund Society, FSB, as noteholder collateral agent.

10.2   

Registration Rights Agreement, dated July 27, 2016, by and among the Company and the holders named

therein.

10.3   

Warrant Agreement, dated as of July 27, 2016 between the Company and Continental Stock Transfer &

Trust Company, as Warrant Agent.

10.4    Form of Director and Officer Indemnification Agreement.

 

10


SIGNATURE

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

 

Date: August 1, 2016     SAExploration Holdings, Inc.
    By:  

/s/ Brent Whiteley

    Name:   Brent Whiteley
    Title:   Chief Financial Officer, General Counsel and Secretary


EXHIBIT INDEX

 

Exhibit
No.

  

Description

3.1   

Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation of SAExploration

Holdings, Inc.

3.2    Second Amended and Restated Bylaws.
4.1   

Indenture, dated July 27, 2016, by and among the Company, the guarantors named therein and Wilmington

Savings Fund Society, FSB, as trustee and noteholder collateral agent.

4.2    Form of 10.000% Senior Secured Second Lien Notes due 2019 (included in Exhibit 4.1).
4.3   

Notation of Guarantee executed July 27, 2016, among SAExploration Sub, Inc.,

SAExploration, Inc., SAExploration Seismic Services (US), LLC and NES, LLC.

4.4   

Additional Indebtedness Joinder and Designation, dated as of July 27, 2016, by and among Wells Fargo

Bank, National Association, as ABL Agent, Wilmington Savings Fund Society, FSB, as Existing Noteholder

Agent, Delaware Trust Company, as Term Agent, and Wilmington Savings Fund Society, FSB, as Additional

Noteholder Agent.

10.1   

Security Agreement, dated July 27, 2016, by and among the Company, the guarantors named therein and

Wilmington Savings Fund Society, FSB, as noteholder collateral agent.

10.2   

Registration Rights Agreement, dated July 27, 2016, by and among the Company and the holders named

therein.

10.3   

Warrant Agreement, dated as of July 27, 2016 between the Company and Continental Stock Transfer &

Trust Company, as Warrant Agent.

10.4    Form of Director and Officer Indemnification Agreement.

Exhibit 3.1

CERTIFICATE OF AMENDMENT

TO THE

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SAEXPLORATION HOLDINGS, INC.

SAExploration Holdings, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify:

 

1. Article FOURTH of the Second Amended and Restated Certificate of Incorporation of the Corporation has been supplemented by the addition of the following after the third paragraph in the Article:

C. Reverse Stock Split . Upon the filing of the Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation containing this sentence (the “Effective Time”), each 135 shares of Common Stock either issued and outstanding or held by the Corporation as treasury stock immediately prior to the Effective Time, shall be combined into one (1) share of Common Stock. There shall be no fractional shares issued. A holder of record of Common Stock on the Effective Time who would otherwise be entitled to a fraction of a share of Common Stock shall be entitled to receive cash (without interest or deduction) from the Corporation’s transfer agent in lieu of such fractional share interests upon the submission of a transmission letter by a stockholder holding the shares in book-entry form and, where shares are held in certificated form, upon the surrender of the stockholder’s Old Certificates (as defined below), in an amount equal to the product obtained by multiplying (a) the closing price per share of the Common Stock as reported on the NASDAQ Global Market as of the date of the Effective Time, by (b) the fraction of one share owned by the stockholder. Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”), shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the elimination of fractional share interests as described above.

 

2. The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.

[remainder of page intentionally blank]


IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to its Second Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer, as of the 26th day of July, 2016.

 

SAEXPLORATION HOLDINGS, INC.
By:  

/s/ Brian Beatty

Name: Brian Beatty
Title: Chief Executive Officer

Exhibit 3.2

SECOND AMENDED AND RESTATED

BY-LAWS

of

SAExploration Holdings, Inc.

(A Delaware Corporation)

 

 


TABLE OF CONTENTS

 

     Page  

ARTICLE I DEFINITIONS

     1   

ARTICLE II STOCKHOLDERS

     3   

ARTICLE III DIRECTORS

     11   

ARTICLE IV COMMITTEES OF THE BOARD

     17   

ARTICLE V OFFICERS

     18   

ARTICLE VI CORPORATE OPPORTUNITY

     21   

ARTICLE VII GENERAL PROVISIONS

     21   

 

i


ARTICLE I

DEFINITIONS

As used in these By-laws, unless the context otherwise requires, the term:

1.1 “Assistant Secretary” means an Assistant Secretary of the Corporation.

1.2 “Assistant Treasurer” means an Assistant Treasurer of the Corporation.

1.3 “Blue Mountain Director” means the Director (if any) nominated by the Blue Mountain Stockholder pursuant to the proviso in Section 3.3(b).

1.4 “Blue Mountain Stockholder” means Blue Mountain Capital Management, LLC and its affiliates (which, for the avoidance of doubt, shall not include the Corporation and its other affiliates).

1.5 “Board” means the Board of Directors of the Corporation.

1.6 “By-laws” means the By-laws of the Corporation, as amended or amended and restated from time to time in accordance with the terms hereof.

1.7 “Certificate of Incorporation” means the Third Amended and Restated Certificate of Incorporation of the Corporation, as amended or amended and restated from time to time in accordance with the terms thereof.

1.8 “Chairman” means the Chairman of the Board.

1.9 “Chief Executive Officer” means the Chief Executive Officer of the Corporation.

1.10 “Chief Financial Officer” means the Chief Financial Officer of the Corporation.

1.11 “Control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.

1.12 “Controller” means the Controller of the Corporation.

1.13 “Corporation” means SAExploration Holdings, Inc.

1.14 “DGCL” means the General Corporation Law of the State of Delaware, as amended.


1.15 “Directors” means the directors of the Corporation.

1.16 “Exchange Act” means the Exchange Act of 1934, as amended.

1.17 “law” means any U.S. or non-U.S., federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a governmental authority (including any department, court, agency or official, or non-governmental self-regulatory organization, agency or authority and any political subdivision or instrumentality thereof).

1.18 “Office of the Corporation” means the executive office of the Corporation or any other offices at any other place or places where the Corporation is qualified to do business, as the Board may establish.

1.19 “President” means the President of the Corporation.

1.20 “Principal Stockholder” means the Blue Mountain Stockholder or the Whitebox Stockholder.

1.21 “Public Disclosure” of any date or other information means disclosure thereof by a press release reported by the Dow Jones News Services, Associated Press or comparable U.S. national news service or in a document publicly filed by the Corporation with the SEC pursuant to Sections 13, 14 or 15(d) of the Exchange Act.

1.22 “Secretary” means the Secretary of the Corporation.

1.23 “Securities Act” means the United States Securities Act of 1933 and the rules and regulations promulgated thereunder, as amended.

1.24 “SEC” means the Securities Exchange Commission.

1.25 “Stockholder Associated Person” means with respect to any Stockholder, (i) any other beneficial owner of stock of the Corporation that are owned by such Stockholder and (ii) any person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Stockholder or such beneficial owner (which, for the avoidance of doubt, shall not include the Corporation or its other affiliates).

1.26 “Stockholders” means the stockholders of the Corporation.

1.27 “Treasurer” means the Treasurer of the Corporation.

1.28 “Vice President” means a Vice President of the Corporation.

1.29 “Whitebox Director” means the Director (if any) nominated by the Whitebox Stockholder pursuant to the proviso in Section 3.3(b).

 

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1.30 “Whitebox Stockholder” means Whitebox Advisors LLC and its affiliates (which, for the avoidance of doubt, shall not include the Corporation and its other affiliates).

ARTICLE II

STOCKHOLDERS

2.1 Place of Meetings . Meetings of Stockholders may be held at such place or solely by means of remote communication or otherwise, as may be designated by the Board from time to time.

2.2 Annual Meeting; Stockholder Proposals .

(a) A meeting of Stockholders for the election of Directors and other business shall be held annually at such date and time as may be designated by the Board from time to time.

(b) At an annual meeting of the Stockholders, only business that has been properly brought before the Stockholder meeting in accordance with the procedures set forth in this Section 2.2 shall be conducted. To be properly brought before a meeting of Stockholders, such business must be brought before the meeting (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (A) was a Stockholder of record of the Corporation when the notice required by this Section 2.2 is delivered to the Secretary of the Corporation and at the time of the meeting, (B) is entitled to vote at the meeting and (C) complies with the notice and other provisions of this Section 2.2. Subject to Section 2.2(i), and except with respect to nominations or elections of Directors, which are governed by Section 3.3, Section 2.2(b)(ii) is the exclusive means by which a Stockholder may bring business before a meeting of Stockholders. Any business brought before a meeting in accordance with Section 2.2(b)(ii) is referred to as “Stockholder Business”.

(c) Subject to Section 2.2(i), at any annual meeting of Stockholders, all proposals of Stockholder Business must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Business”) and must otherwise be a proper matter for Stockholder action. To be timely, the Notice of Business must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary of the Corporation, by no earlier than 90 days and no later than 60 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided , however , that if (i) the annual meeting of Stockholders is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders or (ii) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (A) no earlier than 90 days before such annual meeting and (B) no later than the later of 60 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure. In no

 

3


event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of a Stockholder meeting commence a new time period (or extend any time period) for the giving of the Notice of Business.

(d) The Notice of Business must set forth:

(i) the name and record address of each Stockholder proposing Stockholder Business (the “Proponent”), as they appear on the Corporation’s books;

(ii) the name and address of any Stockholder Associated Person;

(iii) as to each Proponent and any Stockholder Associated Person, (A) the class or series and number of shares of stock directly or indirectly held of record and beneficially by the Proponent or Stockholder Associated Person, (B) the date such shares of stock were acquired, (C) a description of any agreement, arrangement or understanding, direct or indirect, with respect to such Stockholder Business between or among the Proponent, any Stockholder Associated Person or any others (including their names) acting in concert with any of the foregoing, (D) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, hedging transactions and borrowed or loaned shares) that has been entered into, directly or indirectly, as of the date of the Proponent’s notice by, or on behalf of, the Proponent or any Stockholder Associated Person, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the Proponent or any Stockholder Associated Person with respect to shares of stock of the Corporation (a “Derivative”), (E) a description in reasonable detail of any proxy (including revocable proxies), contract, arrangement, understanding or other relationship pursuant to which the Proponent or Stockholder Associated Person has a right to vote any shares of stock of the Corporation, (F) any rights to dividends on the stock of the Corporation owned beneficially by the Proponent or Stockholder Associated Person that are separated or separable from the underlying stock of the Corporation, (G) any proportionate interest in stock of the Corporation or Derivatives held, directly or indirectly, by a general or limited partnership in which the Proponent or Stockholder Associated Person is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (H) any performance-related fees (other than an asset-based fee) that the Proponent or Stockholder Associated Person is entitled to based on any increase or decrease in the value of stock of the Corporation or Derivatives thereof, if any, as of the date of such notice. The information specified in Section 2.2(d)(i) to (iii) is referred to herein as “Stockholder Information”;

(iv) a representation that each Proponent is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such Stockholder Business,

(v) a brief description of the Stockholder Business desired to be brought before the annual meeting, the text of the proposal (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend the By-laws, the language of the proposed amendment) and the reasons for conducting such Stockholder Business at the meeting;

 

4


(vi) any material interest of each Proponent and any Stockholder Associated Person in such Stockholder Business;

(vii) a representation as to whether the Proponent intends (A) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt such Shareholder Business or (B) otherwise to solicit proxies from stockholders in support of such Stockholder Business;

(viii) all other information that would be required to be filed with the Securities and Exchange Commission (“SEC”) if the Proponents or Stockholder Associated Persons were participants in a solicitation subject to Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”); and

(ix) a representation that the Proponents shall provide any other information reasonably requested by the Corporation.

(e) The Proponents shall also provide any other information reasonably requested by the Corporation within ten business days after such request.

(f) In addition, the Proponent shall affirm as true and correct the information provided to the Corporation in the Notice of Business or at the Corporation’s request pursuant to Section 2.2(e) (and shall update or supplement such information as needed so that such information shall be true and correct) as of (i) the record date for the meeting, (ii) the date that is ten calendar days before the date of the Corporation’s proxy statement released to Stockholders in connection with the previous year’s annual meeting and (iii) the date that is the later of ten business days before the meeting or any adjournment or postponement thereof. Such affirmation, update and/or supplement must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary of the Corporation, by no later than (x) five business days after the applicable date specified in clause (i) or (ii) of the foregoing sentence (in the case of the affirmation, update and/or supplement required to be made as of those dates), and (y) not later than seven business days before the date for the meeting (in the case of the affirmation, update and/or supplement required to be made as of ten business days before the meeting or any adjournment or postponement thereof).

(g) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that business was not properly brought before the meeting in accordance with the procedures set forth in this Section 2.2, and, if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

(h) If the Proponent (or a qualified representative of the Proponent) does not appear at the meeting of Stockholders to present the Stockholder Business such

 

5


business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.2, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.

(i) The notice requirements of this Section 2.2 shall be deemed satisfied with respect to Stockholder proposals that have been properly brought under Rule 14a-8 of the Exchange Act and that are included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. Further, nothing in this Section 2.2 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.

2.3 Special Meetings . Special meetings of Stockholders may be called at any time by a majority of the Board or by the Secretary at the request in writing of holders of at least a majority of the Corporation’s outstanding capital stock, which request shall state the purpose or purposes of the meeting. Business transacted at any special meeting of Stockholders shall be limited to the purposes stated in the notice.

2.4 Record Date .

(a) For the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 or less than ten days before the date of such meeting. For the purposes of determining the Stockholders entitled to express consent to corporate action in writing without a meeting, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than ten days after the date on which the record date was fixed by the Board. For the purposes of determining the Stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, exercise any rights in respect of any change, conversion or exchange of stock or take any other lawful action, unless otherwise required by the Certificate of Incorporation or applicable law, the Board may fix a record date, which record date shall not precede the date on which the resolution fixing the record date was adopted by the Board and shall not be more than 60 days prior to such action.

(b) If no such record date is fixed:

 

6


(i) The record date for determining Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;

(ii) The record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting (unless otherwise provided in the Certificate of Incorporation), when no prior action by the Board is required by applicable law, shall be the first day on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law; and when prior action by the Board is required by applicable law, the record date for determining Stockholders entitled to express consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board takes such prior action; and

(iii) When a determination of Stockholders of record entitled to notice of or to vote at any meeting of Stockholders has been made as provided in this Section 2.4, such determination shall apply to any adjournment thereof unless the Board fixes a new record date for the adjourned meeting.

2.5 Notice of Meetings of Stockholders . Whenever under the provisions of applicable law, the Certificate of Incorporation or these By-laws, Stockholders are required or permitted to take any action at a meeting, notice shall be given stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which Stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date, and, in the case of a special meeting, the purposes for which the meeting is called. Unless otherwise provided by these By-laws or applicable law, notice of any meeting shall be given, not less than ten nor more than 60 days before the date of the meeting, to each Stockholder entitled to vote at such meeting as of the record date. If mailed, such notice shall be deemed to be given when deposited in the U.S. mail, with postage prepaid, directed to the Stockholder at his or her address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to Stockholders, any notice to Stockholders may be given by electronic mail or other electronic transmission, in the manner provided in Section 232 of the DGCL. An affidavit of the Secretary, an Assistant Secretary or the transfer agent of the Corporation that the notice required by this Section 2.5 has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. Any business that might have been transacted at the meeting as originally called may be transacted at the adjourned meeting. If, however, the adjournment is for more than 30 days or, if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.

2.6 Waivers of Notice . Whenever the giving of any notice to Stockholders is required by applicable law, the Certificate of Incorporation or these By-

 

7


laws, a waiver thereof, given by the person entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance by a Stockholder at a meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened. Neither the business to be transacted at, nor the purposes of, any regular or special meeting of the Stockholders need be specified in any waiver of notice.

2.7 List of Stockholders . The Secretary shall prepare and make, at least ten days before every meeting of Stockholders, a complete, alphabetical list of the Stockholders entitled to vote at the meeting, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list may be examined by any Stockholder, at the Stockholder’s expense, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting, during ordinary business hours at the principal place of business of the Corporation or on a reasonably accessible electronic network as provided by applicable law. If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any Stockholder who is present. If the meeting is held solely by means of remote communication, the list shall also be open for inspection as provided by applicable law. Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the list of Stockholders or to vote in person or by proxy at any meeting of Stockholders.

2.8 Quorum of Stockholders; Adjournment . Except as otherwise provided by these By-laws, at each meeting of Stockholders, the presence in person or by proxy of the holders of a majority of the voting power of all outstanding shares of stock entitled to vote at the meeting of Stockholders, shall constitute a quorum for the transaction of any business at such meeting. In the absence of a quorum, the holders of a majority in voting power of the shares of stock present in person or represented by proxy at any meeting of Stockholders, including an adjourned meeting, or the person presiding over the meeting may adjourn such meeting to another time and place. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of Directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided , however , that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

2.9 Voting; Proxies . At any meeting of Stockholders, all matters other than the election of directors, except as otherwise provided by the Certificate of Incorporation, these By-laws or any applicable law, shall be decided by the affirmative vote of a majority in voting power of shares of stock present in person or represented by proxy and entitled to vote thereon. If at any time the aggregate voting rights of shares of Common Stock held by an investment entity that is not a “United States person,” as such

 

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term is defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, and that is managed by the Blue Mountain Stockholder (a “Non-U.S. Blue Mountain Investment Fund”) exceeds 10% of the total number of votes applicable to all shares of Common Stock then, except in connection with the election of any Stockholder Nominee nominated by the Blue Mountain Stockholder, each share of Common Stock held by such Non-U.S. Blue Mountain Investment Fund shall confer only a fraction of a vote, which will equal the quotient of (i) the product of (A) the aggregate voting rights of all shares of Common Stock other than shares of Common Stock held by such Non-U.S. Blue Mountain Investment Fund, plus the aggregate voting rights of all shares of Common Stock held by such Non-U.S. Blue Mountain Investment Fund, after taking into account any reduction of any voting rights of such shares of Common Stock pursuant to this Section 2.9, and (B) 0.099, and (ii) number of shares of Common Stock held by such Non-U.S. Blue Mountain Investment Fund. Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such Stockholder by proxy but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power. A Stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or by delivering a new proxy bearing a later date.

2.10 Voting Procedures and Inspectors at Meetings of Stockholders . The Board, in advance of any meeting of Stockholders, may (and, to the extent required by applicable law, shall) appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting, the person presiding at the meeting may (and, to the extent required by applicable law, shall) appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall (a) ascertain the number of shares outstanding and the voting power of each, (b) determine the shares represented at the meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and (e) certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of their duties. Unless otherwise provided by the Board, the date and time of the opening and the closing of the polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the person presiding at the meeting and shall be announced at the meeting. No ballot, proxies, votes or any revocation thereof or change thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by a Stockholder shall determine otherwise. In determining the validity and counting of proxies and ballots cast at any meeting of Stockholders, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for office at an election may serve as an inspector at such election.

 

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2.11 Conduct of Meetings; Adjournment . The Board may adopt such rules and procedures for the conduct of Stockholder meetings as it deems appropriate. At each meeting of Stockholders, the President or, in the absence of the President, the Chairman or, if the Chairman is absent, any officer of the Corporation designated by the Board (or in the absence of any such designation, the most senior Vice President present), shall preside over the meeting. Except to the extent inconsistent with the rules and procedures as adopted by the Board, the person presiding over the meeting of Stockholders shall have the right and authority to convene, adjourn and reconvene the meeting from time to time, to prescribe such additional rules and procedures and to do all such acts as, in the judgment of such person, are appropriate for the proper conduct of the meeting. Such rules and procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, (a) the establishment of an agenda or order of business for the meeting, (b) rules and procedures for maintaining order at the meeting and the safety of those present, (c) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting shall determine, (d) restrictions on entry to the meeting after the time fixed for the commencement thereof and (e) limitations on the time allotted to questions or comments by participants. The order of business at all meetings of Stockholders shall be as determined by the person presiding over the meeting. The person presiding over any meeting of Stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, may determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, he or she shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of Stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The Secretary or, in his or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. If none of the officers above designated to act as the person presiding over the meeting or as secretary of the meeting shall be present, a person presiding over the meeting or a secretary of the meeting, as the case may be, shall be designated by the Board and, if the Board has not so acted, in the case of the designation of a person to act as secretary of the meeting, designated by the person presiding over the meeting.

2.12 Written Consent of Stockholders Without a Meeting . Any action to be taken at any annual or special meeting of Stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered (by hand or by certified or registered mail, return receipt requested) to the Corporation by delivery to its registered office in the State of Delaware,

 

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its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of Stockholders are recorded. Every written consent shall bear the date of signature of each Stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this Section 2.12, written consents signed by a sufficient number of holders to take action are delivered to the Corporation as aforesaid. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by applicable law, be given to those Stockholders who have not consented in writing, and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.

ARTICLE III

DIRECTORS

3.1 General Powers . The business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these By-laws or applicable law, as it may deem proper for the conduct of its meetings and the management of the Corporation.

3.2 Number; Term of Office . The Board shall consist of not less than one (1) nor more than nine (9) members, the exact number thereof to be determined from time to time by the Board within the limits specified in this Section 3.2. Each Director shall hold office until a successor is duly elected and qualified or until the Director’s earlier death, resignation, disqualification or removal. Each Director shall be elected by the vote of the majority of the votes cast with respect to the Director at any meeting for the election of Directors at which a quorum is present; provided that if as of a date that is 14 days in advance of the date the Corporation files its definitive proxy statement (regardless of whether or not thereafter revised or supplemented) with the SEC the number of nominees exceeds the number of Directors to be elected, the Directors shall be elected by the vote of a plurality of the shares represented in person or by proxy at any such meeting and entitled to vote on the election of Directors. For purposes of this Section 3.2, a majority of the votes cast means that (a) the number of votes cast “for” a Director must exceed the number of votes cast “against” that Director and (b) abstentions and broker non-votes are not counted as votes cast. Pursuant to Section 3.5, any Director who is not so elected shall offer to tender his or her resignation to the Board. The Nominating Committee will make a recommendation to the Board on whether to accept or reject the resignation, or whether other action should be taken. The Board will act on the Committee’s recommendation and publicly disclose its decision and the rationale behind it within 90 days from the date of the certification of the election results.

 

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3.3 Nomination of Directors .

(a) Subject to Section 3.3(k), only persons who are nominated in accordance with the procedures set forth in this Section 3.3 are eligible for election as Directors.

(b) Subject to the rights of the Principal Stockholders pursuant to Section 5.3 of the Certificate of Incorporation, nominations of persons for election to the Board may only be made at a meeting properly called for the election of Directors and only (i) by or at the direction of the Board or any committee thereof or (ii) by a Stockholder who (A) was a Stockholder of record of the Corporation when the notice required by this Section 3.3 is delivered to the Secretary of the Corporation and at the time of the meeting, (B) is entitled to vote for the election of Directors at the meeting and (C) complies with the notice and other provisions of this Section 3.3; provided , that so long as any Principal Stockholder holds at least ten percent (10%) of the Corporation’s outstanding capital stock, the Corporation and the Board shall (x) include one (1) person nominated by each such Principal Stockholder in the slate of nominees recommended by the Board for election at the annual meeting or any special meeting of Stockholders at which Directors are to be elected to the Board and (y) use reasonable best efforts (which shall, to the fullest extent permitted by law, include the inclusion in any proxy statement prepared, used or delivered or publicly filed by the Corporation to solicit the vote of the Stockholders in connection with any such meeting, of the recommendation of the of the Board that the Stockholders vote in favor of the slate of Directors including such nominees) to cause the Stockholders to elect such persons nominated by a Principal Stockholder. Subject to Section 3.3(k), Section 3.3(b)(ii) is the exclusive means by which a Stockholder may nominate a person for election to the Board. Persons nominated in accordance with Section 3.3(b)(ii) are referred to as “Stockholder Nominees”. A Stockholder nominating persons for election to the Board is referred to as the “Nominating Stockholder”.

(c) Subject to Section 3.3(k), all nominations of Stockholder Nominees must be made by timely written notice given by or on behalf of a Stockholder of record of the Corporation (the “Notice of Nomination”). To be timely, the Notice of Nomination must be delivered personally or mailed to and received at the Office of the Corporation, addressed to the attention of the Secretary of the Corporation, by the following dates:

(i) in the case of the nomination of a Stockholder Nominee for election to the Board at an annual meeting of Stockholders, no earlier than 90 days and no later than 60 days before the first anniversary of the date of the prior year’s annual meeting of Stockholders; provided , however , that if (A) the annual meeting of Stockholders is advanced by more than 30 days, or delayed by more than 60 days, from the first anniversary of the prior year’s annual meeting of Stockholders or (B) no annual meeting was held during the prior year, the notice by the Stockholder to be timely must be received (1) no earlier than 90 days before such annual meeting and (2) no later than the later of 60 days before such annual meeting and the tenth day after the day on which the notice of such annual meeting was made by mail or Public Disclosure, and

 

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(ii) in the case of the nomination of a Stockholder Nominee for election to the Board at a special meeting of Stockholders, no earlier than 90 days before and no later than the later of 60 days before such special meeting and the tenth day after the day on which the notice of such special meeting was made by mail or Public Disclosure.

(d) Notwithstanding anything to the contrary, if the number of Directors to be elected to the Board at a meeting of Stockholders is increased and there is no Public Disclosure by the Corporation naming the nominees for the additional directorships at least 100 days before the first anniversary of the preceding year’s annual meeting, a Notice of Nomination shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered personally and received at the Office of the Corporation, addressed to the attention of the Secretary of the Corporation, no later than the close of business on the tenth day following the day on which such Public Disclosure is first made by the Corporation.

(e) In no event shall an adjournment, postponement or deferral, or Public Disclosure of an adjournment, postponement or deferral, of an annual or special meeting commence a new time period (or extend any time period) for the giving of the Notice of Nomination.

(f) The Notice of Nomination shall set forth:

(i) the Stockholder Information with respect to each Nominating Stockholder and Stockholder Associated Person;

(ii) a representation that each Stockholder nominating a Stockholder Nominee is a holder of record of stock of the Corporation entitled to vote at the meeting and intends to appear in person or by proxy at the meeting to propose such nomination;

(iii) all information regarding each Stockholder Nominee and Stockholder Associated Person that would be required to be disclosed in a solicitation of proxies subject to Section 14 of the Exchange Act, the written consent of each Stockholder Nominee to being named in a proxy statement as a nominee and to serve if elected and a completed signed questionnaire, representation and agreement required by Section 3.4;

(iv) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among a Nominating Stockholder, Stockholder Associated Person or their respective associates, or others acting in concert therewith, including all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the Nominating Stockholder, Stockholder Associated Person or any person acting in concert therewith, were the “registrant” for purposes of such rule and the Stockholder Nominee were a director or executive of such registrant;

 

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(v) a representation as to whether the Nominating Stockholders intends (A) to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve the nomination or (B) otherwise to solicit proxies from stockholders in support of such nomination;

(vi) all other information that would be required to be filed with the SEC if the Nominating Stockholders and Stockholder Associated Person were participants in a solicitation subject to Section 14 of the Exchange Act; and

(vii) a representation that the Nominating Stockholders shall provide any other information reasonably requested by the Corporation.

(g) The Nominating Stockholders shall also provide any other information reasonably requested by the Corporation within ten business days after such request.

(h) In addition, the Nominating Stockholder shall affirm as true and correct the information provided to the Corporation in the Notice of Nomination or at the Corporation’s request pursuant to Section 3.3(g) (and shall update or supplement such information as needed so that such information shall be true and correct) as of (i) the record date for the meeting, (ii) the date that is ten calendar days before the date of the Corporation’s proxy statement released to Stockholders in connection with the previous year’s annual meeting (in the case of an annual meeting) or 50 days before the date of the meeting (in the case of a special meeting) and (iii) the date that is ten business days before the date of the meeting or any adjournment or postponement thereof. Such affirmation, update and/or supplement must be delivered personally or mailed to, and received at the Office of the Corporation, addressed to the Secretary of the Corporation, by no later than (1) five business days after the applicable date specified in clause (i) or (ii) of the foregoing sentence (in the case of the affirmation, update and/or supplement required to be made as of those dates), and (2) not later than seven business days before the date for the meeting (in the case of the affirmation, update and/or supplement required to be made as of ten business days before the meeting or any adjournment or postponement thereof).

(i) The person presiding over the meeting shall, if the facts warrant, determine and declare to the meeting, that the nomination was not made in accordance with the procedures set forth in this Section 3.3, and, if he or she should so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.

(j) If the Stockholder (or a qualified representative of the Stockholder) does not appear at the applicable Stockholder meeting to nominate the Stockholder Nominees, such nomination shall be disregarded and such business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 3.3, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer,

 

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manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder or an electronic transmission delivered by such Stockholder to act for such Stockholder as proxy at the meeting of Stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.

(k) Nothing in this Section 3.3 shall be deemed to affect any rights of the holders of any series of preferred stock of the Corporation pursuant to any applicable provision of the Certificate of Incorporation.

3.4 Nominee Qualifications . To be eligible to be a nominee for election or reelection as a Director, the Stockholder Nominee must deliver (in accordance with the time periods prescribed for delivery of notice under Section 3.3) to the Secretary at the Office of the Corporation (a) a completed and signed written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request), (b) information as necessary to permit the Board to determine if each Stockholder Nominee (i) is independent under applicable listing standards, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Directors, (ii) qualifies as an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision), (iii) is not or has not been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended, or (iv) is not a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding within the past ten years, (c) a written representation and agreement (in the form provided by the Secretary upon written request) that such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person will act or vote as a Director on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply with such person’s fiduciary duties as a Director under applicable law, (ii) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein and (iii) will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading and other policies and guidelines of the Corporation that are applicable to Directors and (d) such person’s written consent to being named as a Stockholder Nominee and to serving as a Director if elected.

3.5 Resignation . Any Director may resign at any time by notice given in writing or by electronic transmission to the Corporation. If a Director is not elected as provided in Section 3.2, the Director shall offer to tender his or her resignation to the Board. The Nominating Committee will make a recommendation to the Board on

 

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whether to accept or reject the resignation, or whether other action should be taken. The Board will act on the Committee’s recommendation and publicly disclose its decision and the rationale behind it within 90 days from the date of the certification of the election results. The Director who tenders his or her resignation will not participate in the Board’s decision.

3.6 Regular Meetings . Regular meetings of the Board may be held without notice at such times and at such places as may be determined from time to time by the Board or its Chairman.

3.7 Special Meetings . Special meetings of the Board may be held at such times and at such places as may be determined by the Chairman or the President on at least 24 hours’ notice to each Director given by one of the means specified in Section 3.10 hereof other than by mail or on at least three days’ notice if given by mail. Special meetings shall be called by the Chairman, President or Secretary in like manner and on like notice on the written request of any two or more Directors.

3.8 Telephone Meetings . Board or Board committee meetings may be held by means of telephone conference or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation by a Director in a meeting pursuant to this Section 3.8 shall constitute presence in person at such meeting.

3.9 Adjourned Meetings . A majority of the Directors present at any meeting of the Board, including an adjourned meeting, whether or not a quorum is present, may adjourn and reconvene such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting of the Board shall be given to each Director whether or not present at the time of the adjournment, if such notice shall be given by one of the means specified in Section 3.10 hereof other than by mail, or at least three days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.

3.10 Notice Procedure . Subject to Sections 3.7 and 3.11 hereof, whenever notice is required to be given to any Director by applicable law, the Certificate of Incorporation or these By-laws, such notice shall be deemed given effectively if given in person or by telephone, mail addressed to such Director at such Director’s address as it appears on the records of the Corporation, telecopy or by other means of electronic transmission.

3.11 Waiver of Notice . Whenever the giving of any notice to Directors is required by applicable law, the Certificate of Incorporation or these By-laws, a waiver thereof, given by the Director entitled to the notice, whether before or after such notice is required, shall be deemed equivalent to notice. Attendance by a Director at a meeting shall constitute a waiver of notice of such meeting except when the Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special Board or committee meeting need be specified in any waiver of notice.

 

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3.12 Organization . At each meeting of the Board, the Chairman or, in his or her absence, another Director selected by the Board shall preside. The Secretary shall act as secretary at each meeting of the Board. If the Secretary is absent from any meeting of the Board, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person to act as secretary of the meeting.

3.13 Quorum of Directors . The presence of a majority of the Board shall be necessary and sufficient to constitute a quorum for the transaction of business at any meeting of the Board.

3.14 Action by Majority Vote . Except as otherwise expressly required by these By-laws or the Certificate of Incorporation, the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board.

3.15 Action Without Meeting . Unless otherwise restricted by these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all Directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee.

3.16 Removal of Directors by Stockholders . The entire Board or any individual Director may be removed from office with or without cause by a majority vote of the holders of the outstanding shares then entitled to vote at an election of Directors; provided , that until the third annual meeting following the date hereof, each of the Whitebox Director and the Blue Mountain Director may only be removed from office by the Principal Stockholder who nominated such director, so long as such Principal Stockholder holds at least ten percent (10%) of the Corporation’s outstanding capital stock. In case the Board or any one or more Directors is so removed, new Directors may be elected at the same time for the unexpired portion of the full term of the Director or Directors so removed.

ARTICLE IV

COMMITTEES OF THE BOARD

The Board may designate one or more committees in accordance with Section 141(c) of the DGCL, each committee to consist of two or more Directors, at least one of whom shall be the Whitebox Director and at least one of whom shall be the Blue Mountain Director (so long as the Whitebox Stockholder or the Blue Mountain Stockholder, respectively, holds at least ten percent (10%) of the Corporation’s

 

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outstanding capital stock) to the extent each such Director satisfies the qualifications required by applicable law and applicable rules of any stock exchange or securities market which the Corporation may be subject to. Unless the Board provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board provides otherwise, each committee designated by the Board may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board conducts its business pursuant to ARTICLE III.

ARTICLE V

OFFICERS

5.1 Positions; Election . The officers of the Corporation may consist of a Chairman, President, a Secretary, a Treasurer and any other officers as the Board may elect from time to time, who shall exercise such powers and perform such duties as shall be determined by the Board from time to time. Any number of offices may be held by the same person.

5.2 Term of Office . Each officer of the Corporation shall hold office until such officer’s successor is elected and qualifies or until such officer’s earlier death, resignation, disqualification or removal. Any officer may resign at any time upon written notice to the Corporation. Such resignation shall take effect at the date of receipt of such notice or at such later time as is therein specified. The resignation of an officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer may be removed at any time with or without cause by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board. The election or appointment of an officer shall not of itself create contract rights.

5.3 Chairman . The Chairman shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the Board.

5.4 Chief Executive Officer . Subject to the provisions of these By-laws and to the direction of the Board, the Chief Executive Officer shall have ultimate authority for decisions relating to the general management and control of the affairs and business of the Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated to him or her by the Board or these By-laws, all in accordance with basic policies as established by and subject to the oversight of the Board.

5.5 President . At the request of the Chief Executive Officer, or in the absence of the Chief Executive Officer, or in the event of his or her inability or refusal to

 

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act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to the restrictions of such office. The President shall have any other duties as may from time to time be assigned to the President by the Board and subject to the control of the Board in each case.

5.6 Chief Financial Officer . The Chief Financial Officer shall have general supervision, direction and control of the financial affairs of the Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated to him or her by the Board or these By-laws, all in accordance with basic policies as established by and subject to the oversight of the Board. In the absence of a named Treasurer, the Chief Financial Officer shall also have the powers and duties of the Treasurer as hereinafter set forth and shall be authorized and empowered to sign as Treasurer in any case where such officer’s signature is required.

5.7 Vice Presidents . At the request of the President or in the absence of the President, or in the event of his or her inability or refusal to act, the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon such office. Each Vice President shall perform such other duties and have such other powers as the Board from time to time may prescribe. If there be no Vice President, the Board shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of such officer to act, shall perform the duties of such office, and when so acting, shall have all the powers of and be subject to all the restrictions upon such office.

5.8 Secretary . The Secretary shall attend all meetings of the Board and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board, and shall perform such other duties as may be prescribed by the Board or the President, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board, then any Assistant Secretary shall perform such actions. If there be no Assistant Secretary, then the Board or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

5.9 Treasurer . The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and

 

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disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and the Board, at its regular meetings, or when the Board so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

5.10 Assistant Secretaries . Except as may be otherwise provided in these By-laws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.

5.11 Assistant Treasurers . Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

5.12 Controller . The Controller shall establish and maintain the accounting records of the Corporation in accordance with generally accepted accounting principles applied on a consistent basis, maintain proper internal control of the assets of the Corporation and shall perform such other duties as the Board, the President or any Vice President of the Corporation may prescribe.

5.13 Other Officers . Such other officers as the Board may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board. The Board may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

 

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ARTICLE VI

CORPORATE OPPORTUNITY

To the fullest extent permitted from time to time under the DGCL and except as may be otherwise expressly agreed in writing by the Corporation and any Principal Stockholder with respect to such Principal Stockholder, the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities, that are from time to time presented to any of the Principal Stockholders, managed investment funds or portfolio companies (other than the Corporation and its subsidiaries) or any of their respective officers, directors, agents, stockholders, members, partners, employees, or any director designated for nomination by such Principal Stockholder (collectively, the “Exempted Persons”), even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and no such person shall be liable to the Corporation or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries unless, in the case of any such person who is a director or officer of the Corporation, such business opportunity is expressly offered to such director or officer in writing solely in his or her capacity as a director or officer of the Corporation. To the fullest extent permitted by law or regulation, including the rules of any exchange on which the Corporation’s securities may be listed, any person purchasing or otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VI. Neither the alteration, amendment or repeal of this Article VI nor the adoption of any provision of the Certificate of Incorporation or these By-laws inconsistent with this Article VI shall eliminate or reduce the effect of this Article VI in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article VI, would accrue or arise, prior to such alteration, amendment, repeal or adoption. For the avoidance of doubt, each Principal Stockholder and its Exempted Persons shall have the right to, and shall have no duty (whether contractual or otherwise) not to, directly or indirectly: (A) engage in the same, similar or competing business activities or lines of business as the Corporation or its affiliates, (B) do business with any client or customer of the Corporation or its affiliates, or (C) make investments in competing businesses of the Corporation or its affiliates, and such acts shall not be deemed wrongful or improper.

ARTICLE VII

GENERAL PROVISIONS

7.1 Certificates Representing Shares . The shares of stock of the Corporation shall be represented by certificates or all of such shares shall be

 

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uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock, or a combination of both. If shares are represented by certificates (if any) such certificates shall be in the form approved by the Board. The certificates representing shares of stock of each class shall be signed by, or in the name of, the Corporation by the Chairman, the President or any Vice President, and by the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all such signatures may be facsimiles. Although any officer, transfer agent or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer agent or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if such officer, transfer agent or registrar were still such at the date of its issue. The Corporation shall refuse to register any transfer of shares of common stock of the Corporation not made in accordance with the provisions of Regulation S pursuant to registration under the Securities Act, or pursuant to an available exemption from registration.

7.2 Transfer and Registry Agents . The Corporation may from time to time maintain one or more transfer offices or agents and registry offices or agents at such place or places as may be determined from time to time by the Board.

7.3 Lost, Stolen or Destroyed Certificates . The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

7.4 Form of Records . Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be maintained on any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

7.5 Seal . The corporate seal shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

7.6 Fiscal Year . The fiscal year of the Corporation shall be determined by the Board.

7.7 Amendments . These By-laws may be amended or repealed and new By-laws may be adopted by the affirmative vote of a majority in voting power of shares of stock entitled to vote thereon. Notwithstanding the foregoing, so long as either Principal Stockholder holds at least ten percent (10%) of the Corporation’s outstanding capital stock, the consent of such Principal Stockholder shall be required for any

 

22


amendment, repeal or addition hereto that would have the effect of limiting such Principal Stockholder’s rights pursuant to Section 2.9, Section 3.3(b), Section 3.16, Article IV, Article VI or this Section 7.7.

7.8 Conflict with Applicable Law or Certificate of Incorporation . These By-laws are adopted subject to any applicable law and the Certificate of Incorporation. Whenever these By-laws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor of such law or the Certificate of Incorporation.

 

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Exhibit 4.1

 

 

 

SAEXPLORATION HOLDINGS, INC.

AND EACH OF THE GUARANTORS PARTY HERETO

10.000% SENIOR SECURED SECOND LIEN NOTES DUE 2019

 

 

INDENTURE

Dated as of July 27, 2016

 

 

WILMINGTON SAVINGS FUND SOCIETY, FSB

as Trustee and Noteholder Collateral Agent

 

 

 

 

 

 


TABLE OF CONTENTS

 

         Page  
ARTICLE 1   
DEFINITIONS AND INCORPORATION BY REFERENCE   

Section 1.01

  Definitions      1   

Section 1.02

  Other Definitions      26   

Section 1.03

  [Reserved]      27   

Section 1.04

  Rules of Construction      27   
ARTICLE 2   
THE NOTES   

Section 2.01

  Form and Dating      27   

Section 2.02

  Execution and Authentication      29   

Section 2.03

  Registrar and Paying Agent      29   

Section 2.04

  Paying Agent to Hold Money in Trust      30   

Section 2.05

  Holder Lists      30   

Section 2.06

  Transfer and Exchange      30   

Section 2.07

  Replacement Notes      39   

Section 2.08

  Outstanding Notes      39   

Section 2.09

  Treasury Notes      40   

Section 2.10

  Temporary Notes      40   

Section 2.11

  Cancellation      40   

Section 2.12

  Overdue Interest      40   

Section 2.13

  Persons Deemed Owners      41   

Section 2.14

  Interest Payment Date; Record Date      41   

Section 2.15

  PIK Interest      41   
ARTICLE 3   
REDEMPTION AND PURCHASE   

Section 3.01

  Notices to Trustee      42   

Section 3.02

  Selection of Notes to Be Redeemed      42   

Section 3.03

  Notice of Redemption      43   

Section 3.04

  Effect of Notice of Redemption      43   

Section 3.05

  Deposit of Redemption or Purchase Price      44   

Section 3.06

  Notes Redeemed or Purchased in Part      44   

Section 3.07

  Optional Redemption      44   

Section 3.08

  No Sinking Fund Payments      45   

Section 3.09

  Offer to Purchase by Application of Excess Proceeds      45   
ARTICLE 4   
COVENANTS   

Section 4.01

  Payment of Notes      47   

Section 4.02

  Maintenance of Office or Agency      48   

Section 4.03

  Corporate Existence; Insurance; Maintenance of Properties      48   

Section 4.04

  Compliance Certificate      49   

Section 4.05

  Taxes      49   

Section 4.06

  Stay, Extension and Usury Laws      49   

Section 4.07

  Restricted Payments      49   

 

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         Page  

Section 4.08

  Incurrence of Indebtedness and Issuance of Preferred Stock      53   

Section 4.09

  Liens      57   

Section 4.10

  [Reserved]      57   

Section 4.11

  Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries      57   

Section 4.12

  Transactions with Affiliates      59   

Section 4.13

  [Reserved]      60   

Section 4.14

  Business Activities      60   

Section 4.15

  Additional Note Guarantees      60   

Section 4.16

  Designation of Restricted and Unrestricted Subsidiaries      61   

Section 4.17

  Payments for Consent      62   

Section 4.18

  Reports      62   

Section 4.19

  Offer to Repurchase Upon Change of Control      63   

Section 4.20

  Asset Sales      65   
ARTICLE 5   
SUCCESSORS   

Section 5.01

  Merger, Consolidation, or Sale of Assets      67   

Section 5.02

  Successor Corporation Substituted      68   
ARTICLE 6   
DEFAULTS AND REMEDIES   

Section 6.01

  Events of Default      68   

Section 6.02

  Acceleration      70   

Section 6.03

  Other Remedies      71   

Section 6.04

  Waiver of Past Defaults      71   

Section 6.05

  Control by Majority      71   

Section 6.06

  Limitation on Suits      71   

Section 6.07

  Rights of Holders of Notes to Receive Payments      72   

Section 6.08

  Collection Suit by Trustee or Noteholder Collateral Agent      72   

Section 6.09

  Trustee May File Proofs of Claim      72   

Section 6.10

  Priorities      73   

Section 6.11

  Undertaking for Costs      73   

Section 6.12

  Applicable Premium      73   
ARTICLE 7   
TRUSTEE   

Section 7.01

  Duties of Trustee      74   

Section 7.02

  Rights of Trustee      75   

Section 7.03

  Individual Rights of Trustee      76   

Section 7.04

  Trustee’s Disclaimer      76   

Section 7.05

  Notice of Defaults      76   

Section 7.06

  [Reserved]      77   

Section 7.07

  Compensation and Indemnity      77   

Section 7.08

  Replacement of Trustee      78   

Section 7.09

  Successor Trustee by Merger, etc      78   

Section 7.10

  Eligibility; Disqualification      79   

Section 7.11

  [Reserved]      79   

Section 7.12

  Trustee in Other Capacities; Noteholder Collateral Agent and Paying Agent      79   

 

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         Page  
ARTICLE 8   
LEGAL DEFEASANCE AND COVENANT DEFEASANCE   

Section 8.01

  Option to Effect Legal Defeasance or Covenant Defeasance      79   

Section 8.02

  Legal Defeasance and Discharge      79   

Section 8.03

  Covenant Defeasance      80   

Section 8.04

  Conditions to Legal or Covenant Defeasance      80   

Section 8.05

  Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions      81   

Section 8.06

  Repayment to Company      82   

Section 8.07

  Reinstatement      82   
ARTICLE 9   
AMENDMENT, SUPPLEMENT AND WAIVER   

Section 9.01

  Without Consent of Holders of Notes      82   

Section 9.02

  With Consent of Holders of Notes      84   

Section 9.03

  [Reserved]      85   

Section 9.04

  Revocation and Effect of Consents      85   

Section 9.05

  Notation on or Exchange of Notes      85   

Section 9.06

  Trustee to Sign Amendments, etc      85   
ARTICLE 10   
SATISFACTION AND DISCHARGE   

Section 10.01

  Satisfaction and Discharge      86   

Section 10.02

  Application of Trust Money      87   
ARTICLE 11   
NOTE GUARANTEES   

Section 11.01

  Guarantee      87   

Section 11.02

  Limitation on Guarantor Liability      88   

Section 11.03

  Execution and Delivery of Guarantee      89   

Section 11.04

  Guarantors May Consolidate, etc., on Certain Terms      89   

Section 11.05

  Releases      90   
ARTICLE 12   
SECURITY   

Section 12.01

  Grant of Security Interests; Intercreditor Agreement      91   

Section 12.02

  Recording and Opinions      92   

Section 12.03

  Mortgages and Filings      94   

Section 12.04

  Advances to Subsidiaries      95   

Section 12.05

  Additional Collateral      95   

Section 12.06

  Further Assurances      96   

Section 12.07

  Release of Liens      97   

Section 12.08

  Form and Sufficiency of Release      98   

Section 12.09

  Authorization of Actions to be Taken by the Noteholder Collateral Agent Under the Security Documents      98   

Section 12.10

  Authorization of Receipt of Funds by the Trustee Under the Security Documents      99   

Section 12.11

  Replacement of Noteholder Collateral Agent      99   

 

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         Page  
ARTICLE 13   
MISCELLANEOUS   

Section 13.01

  [Reserved]      99   

Section 13.02

  Notices      99   

Section 13.03

  Communication by Holders of Notes with Other Holders of Notes      101   

Section 13.04

  Certificate and Opinion as to Conditions Precedent      101   

Section 13.05

  Statements Required in Certificate or Opinion      101   

Section 13.06

  Rules by Trustee and Agents      102   

Section 13.07

  No Personal Liability of Directors, Officers, Employees and Stockholders      102   

Section 13.08

  Governing Law      102   

Section 13.09

  No Adverse Interpretation of Other Agreements      102   

Section 13.10

  Successors      102   

Section 13.11

  Severability      102   

Section 13.12

  Counterpart Originals      102   

Section 13.13

  Table of Contents, Headings, etc      103   

Section 13.14

  Releases      103   
EXHIBITS   

Exhibit A

  FORM OF NOTE   

Exhibit B

  FORM OF CERTIFICATE OF TRANSFER   

Exhibit C

  FORM OF CERTIFICATE OF EXCHANGE   

Exhibit D

  FORM OF CERTIFICATE FROM ACQUIRING ACCREDITED INVESTOR   

Exhibit E

  FORM OF NOTATION OF GUARANTEE   

Exhibit F

  FORM OF SUPPLEMENTAL INDENTURE   

NOTE: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.

 

iv


INDENTURE, dated as of July 27, 2016 among SAExploration Holdings, Inc., a Delaware corporation (the “Company” or the “Issuer”), the Guarantors (as defined herein) and Wilmington Savings Fund Society, FSB, and any and all successors thereto, as trustee (in such capacity, the “ Trustee ”) and as Noteholder Collateral Agent (in such capacity, the “ Noteholder Collateral Agent ”).

The Company, the Guarantors, the Noteholder Collateral Agent and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined herein) of the 10.000% Senior Secured Second Lien Notes due 2019:

ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE

Section 1.01 Definitions .

Accession Agreement ” means an accession agreement, if any, to the Security Documents, in substantially the form provided therein, entered into by the Company, the holders of any Pari Passu Indebtedness and the Noteholder Collateral Agent, from time to time.

“Accredited Investor” means an “accredited investor” as defined in Rule 501(a) under the Securities Act.

Acquired Debt ” means, with respect to any specified Person:

(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person (regardless of the form of the applicable transaction by which such Person became a Subsidiary) or expressly assumed in connection with the acquisition of assets from any Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person or of such Indebtedness being incurred in connection with the acquisition of assets; and

(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

Acquired Debt shall be deemed to be incurred on the date the acquired Person becomes a Subsidiary or date of the applicable acquisition of assets.

Additional Notes ” means Notes (other than the Initial Notes and PIK Notes) originally issued after the date of this Indenture under this Indenture in accordance with Section 2.02 hereof, as part of the same class as the Initial Notes.

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent.

 

1


AI Global Note ” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that shall be issued in a denomination equal to the outstanding principal amount of the Notes initially issued to Accredited Investors.

“Alaska Tax Credit” means any tax credit or tax certificate assigned or issued to the Company or any of its affiliates in connection with the receivable due to the Company from Alaska Seismic Ventures, LLC.

Applicable Premium ” means, with respect to any Note on any Applicable Premium Date, the greater of:

 

  (1) 1.0% of the principal amount of the Note; or

 

  (2) the excess of:

 

  (a) the present value at such Applicable Premium Date of (i) the principal amount of the Note plus (ii) all required interest payments due on the Note through the Maturity Date (excluding accrued but unpaid interest to such Applicable Premium Date), computed using a discount rate equal to the Treasury Rate as of such Applicable Premium Date plus 25 basis points; over

 

  (b) the principal amount of the Note.

Calculation of the Applicable Premium is a responsibility of the Company and the Trustee shall not be responsible to calculate or verify any calculation related to the Applicable Premium.

Applicable Procedures ” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

Asset Sale ” means:

(1) the sale, lease, conveyance or other disposition of any assets by the Company or any of its Restricted Subsidiaries; provided that the sale, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole shall be governed by Section 4.19 and/or Section 5.01 and not by Section 4.20; and

(2) the issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or the sale by the Company or any of its Restricted Subsidiaries of Equity Interests in any of its Restricted Subsidiaries (other than directors’ qualifying shares or other shares required by law to be held by persons other than the Company or a Restricted Subsidiary).

Notwithstanding the preceding, none of the following items shall be deemed to be an Asset Sale:

 

  (1) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than $1.0 million;

 

2


  (2) a sale, lease, conveyance or other disposition of assets between or among the Company and/or its Restricted Subsidiaries;

 

  (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company;

 

  (4) (a) the sale, exchange, lease, conveyance or other transfer of property, products, services, equipment or accounts receivable in the ordinary course of business and of damaged, worn-out or obsolete assets in the ordinary course of business, (b) the abandonment or relinquishment of assets, the waiver of contract rights or the settlement, release or surrender of contract, tort or other claims, in each case, in the ordinary course of business or (c) dispositions pursuant to condemnation or similar involuntary dispositions;

 

  (5) the granting of Liens not prohibited by Section 4.09 and dispositions in connection with Permitted Liens;

 

  (6) dispositions of Capital Stock of Unrestricted Subsidiaries;

 

  (7) the sale, exchange, lease, conveyance or other transfer of the Receivable in a transaction the primary purpose of which is the monetization thereof; and

 

  (8) a Restricted Payment that does not violate Section 4.07 or a Permitted Investment.

Bankruptcy Code ” means Title 11 of the U.S. Code entitled “Bankruptcy” as now and hereinafter in effect, or any successor statute.

Beneficial Owner ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.

Board of Directors ” means:

 

  (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

  (2) with respect to a partnership, the board of directors of a direct or indirect general partner of the partnership;

 

  (3) with respect to a limited liability company, the direct or indirect managing member or members or any controlling committee of managing members thereof; and

 

  (4) with respect to any other Person, the board or committee of such Person serving a similar function.

 

3


Business Day ” means any day other than a Saturday, Sunday, or other day on which banking institutions in New York, New York are authorized or required by law to close.

Capital Lease Obligation ” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.

Capital Stock ” means:

 

  (1) in the case of a corporation, capital stock;

 

  (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) in the equity of such entity;

 

  (3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and

 

  (4) in the case of any other entity, any other interests or participations that confer on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing entity,

but excluding from all of the foregoing any debt securities convertible into or exchangeable for Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Cash Equivalents ” means:

 

  (1) United States dollars or any foreign currency in which the Company or any Restricted Subsidiary conducts business;

 

  (2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government ( provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;

 

  (3) certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or better or any commercial bank organized under the laws of another country that is a member of the Organisation for Economic Co-operation and Development and has total assets in excess of $500.0 million;

 

  (4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;

 

4


  (5) commercial paper having one of the two highest ratings obtainable from Moody’s or S&P and, in each case, maturing within twelve months after the date of acquisition; and

 

  (6) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.

CFC Subsidiary ” means any Subsidiary that constitutes a controlled foreign corporation within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended.

CFC Subsidiary Holding Company ” means any Subsidiary organized under the laws of the United States, any State of the United States or the District of Columbia that is (a) engaged in no material business activities other than the holding of Equity Interests and other investments in one or more CFC Subsidiaries or (b) disregarded for U.S. federal income tax purposes that owns Equity Interests or other investments in one or more CFC Subsidiaries.

Change of Control ” means the occurrence of any of the following:

 

  (1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act) other than a Permitted Holder;

 

  (2) the adoption or the approval by the holders of Capital Stock of a plan relating to the liquidation or dissolution of the Company;

 

  (3) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares; or

 

  (4) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance).

Clearstream ” means Clearstream Banking, S.A. or any successor thereto.

Collateral ” has the meaning assigned to it in the Security Documents.

Company ” means SAExploration Holdings, Inc., a Delaware corporation, until such time as another Person shall become the “Company” pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

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Consent Solicitation ” means the Consent Solicitation described in the Memorandum.

Consolidated Cash Flow ” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

 

  (1) an amount equal to (i) any extraordinary, unusual or non-recurring loss plus (ii) any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus

 

  (2) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

  (3) the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to the extent that such Fixed Charges were deducted in computing such Consolidated Net Income; plus

 

  (4) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash charges and expenses (excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charges or expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash charges or expenses were deducted in computing such Consolidated Net Income; minus

 

  (5) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,

in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation, amortization and other non-cash expenses of, a Restricted Subsidiary of the Company other than a Guarantor shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Company only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

Consolidated Net Income ” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

 

  (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

 

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  (2) the Net Income (but not loss) of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

 

  (3) the cumulative effect of a change in accounting principles shall be excluded; and

 

  (4) notwithstanding clause (1) above, the Net Income of any Unrestricted Subsidiary shall be excluded, whether or not distributed to the specified Person or one of its Subsidiaries.

Consolidated Net Tangible Assets ” means, with respect to any Person as of any date of determination, the amount which, in accordance with GAAP, would be set forth under the caption “total assets” (or any like caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries, less the sum of (1) all current liabilities and (2) goodwill and intangible assets, in each case, in accordance with GAAP as of the end of the most recent fiscal quarter for which internal financial statements are available.

Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 13.02 hereof or such other address as to which the Trustee may give notice to the Company, except as specified in Section 4.02.

Credit Agreement ” means the Existing Revolving Credit Facility and New Senior Loan Facility, providing for borrowings in an amount not to exceed the amount of Indebtedness permitted pursuant to Section 4.08(b)(1) including any related notes, guarantees, collateral documents, security documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, supplemented, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to investors) in whole or in part from time to time.

Credit Facilities ” means one or more debt facilities (including, without limitation, any Credit Agreement or Credit Agreements) or commercial paper facilities, in each case, with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.

Custodian ” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

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

Definitive Note ” means a certificated Note registered in the name of the Holder thereof (other than in the name of the Depositary or its nominee) and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Increases and Exchanges of Interests in the Global Note” attached thereto.

 

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Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

Disqualified Stock ” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature, except to the extent that such Capital Stock is solely redeemable with, or solely exchangeable for, any capital stock of such Person that is not Disqualified Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture shall be the maximum amount that the Company and its Restricted Subsidiaries would become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends on or prior to the date that is 91 days after the date on which the Notes mature.

Domestic Subsidiary ” means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia.

Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

Euroclear ” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, or any successor thereto.

Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto, and the rules and regulations of the SEC thereunder.

Exchange Offer ” means the Exchange Offer described in the Memorandum.

Excluded Property ” has the meaning assigned to it in the Security Agreement.

Existing Indebtedness ” means Indebtedness of the Company and its Subsidiaries (other than Indebtedness under any Credit Facility, the Notes and the Note Guarantees; but including the Existing Notes and the Guarantees thereof) in existence on the date of this Indenture, until such amounts are repaid.

Existing Indenture ” means the Indenture, dated as of July 2, 2014, among the Company, the Guarantors, the Existing Trustee and the Existing Noteholder Collateral Agent, pursuant to which the Existing Notes were issued, as may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time.

 

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Existing Noteholder Collateral Agent ” means Wilmington Savings Fund Society, FSB (successor to U.S. Bank, National Association), as collateral agent under the Existing Indenture, or any successor thereto.

Existing Noteholders ” means the holders of Existing Notes.

Existing Notes ” means the Company’s outstanding 10.000% Senior Secured Notes due 2019.

Existing Notes Documents ” means the Existing Notes, the Existing Indenture, the Guarantees of the Existing Notes, the Existing Notes Security Documents, and any other document or instrument executed or delivered at any time governing, or in connection with, any Existing Notes Obligations, including any intercreditor or joinder agreement among holders of Existing Notes Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time in accordance with the provisions of the Existing Indenture.

Existing Notes Obligations ” means all Obligations outstanding under the Existing Notes and the Existing Indenture and all other Existing Notes Documents, including all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Existing Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

Existing Notes Security Documents ” means, collectively, the Intercreditor Agreement and each security agreement, document or other instrument creating Liens in favor of the Existing Notes Collateral Agent as required by the Existing Indenture, in each case, as the same may be amended, amended and restated, restated, supplemented, modified, renewed, extended or refinanced from time to time.

Existing Revolving Credit Facility ” means that certain Credit and Security Agreement, dated as of November 6, 2014, by and among Wells Fargo Bank, N.A., as lender, SAExploration, Inc., as borrower, and the Company and the other guarantors party thereto, as guarantors, as amended, supplemented or otherwise modified through the date hereof.

Existing Revolving Credit Facility Agent ” means the collateral agent for the benefit of the lenders under the Existing Revolving Credit Facility and the Security Documents, together with its successors in such capacity.

“Existing Revolving Credit Facility Documents” means the Existing Revolving Credit Facility, the Existing Revolving Credit Facility Security Documents and any other document or instrument executed or delivered at any time governing, or in connection with, any Existing Revolving Credit Facility Obligations (as defined in the Security Agreement), including any intercreditor or joinder agreement among holders of Existing Revolving Credit Facility Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time in accordance with the provisions of the Existing Revolving Credit Facility.

Existing Revolving Credit Facility Security Documents ” means, collectively, the Existing Revolving Credit Facility Agreement, the Intercreditor Agreement and each document or other instrument creating Liens in favor of the Existing Revolving Credit Facility Agent as required by the Existing Revolving Credit Facility, in each case, as the same may be amended or supplemented from time to time.

 

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Existing Trustee ” means Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as trustee under the Existing Indenture, or any successor thereto.

Fair Market Value ” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Chief Financial Officer or Board of Directors of the Company (unless otherwise provided in this Indenture).

Fixed Charge Coverage Ratio ” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems Disqualified Stock or preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect (in accordance with Regulation S-X under the Securities Act) to such incurrence, assumption, Guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter period.

In addition, for purposes of calculating the Fixed Charge Coverage Ratio:

 

  (1) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the specified Person or any of its Restricted Subsidiaries, and including any related financing transactions and including increases in equity ownership of Restricted Subsidiaries of the specified Person, during the four-quarter period or subsequent to such period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, shall be given pro forma effect in accordance with Regulation S-X under the Securities Act as if they had occurred on the first day of the four-quarter reference period;

 

  (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, shall be excluded;

 

  (3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges shall not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;

 

  (4) any Person that is a Restricted Subsidiary on the Calculation Date shall be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;

 

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  (5) any Person that is not a Restricted Subsidiary on the Calculation Date shall be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and

 

  (6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months).

Fixed Charges ” means, with respect to any specified Person for any period, the sum, without duplication, of:

 

  (1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates; plus

 

  (2) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus

 

  (3) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus

 

  (4) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Restricted Subsidiary of the Company.

Foreign Subsidiary ” means any Restricted Subsidiary of the Company that is not a Domestic Subsidiary.

Foreign Subsidiary Reorganization ” means the transaction or transactions pursuant to which assets utilized primarily in the Company’s non-U.S. operations and located in non-U.S. jurisdictions or titled in the name of a foreign branch of a Domestic Subsidiary of the Company shall be transferred to one or more Foreign Subsidiaries of the Company formed or to be formed in such respective non-U.S. jurisdictions.

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

 

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Global Note Legend ” means the legend set forth in Section 2.06(f)(2) hereof, which is required to be placed on all Global Notes issued under this Indenture.

Global Notes ” means, individually and collectively, each of the Notes in global, book-entry form deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Increases and Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01 hereof.

Government Securities ” means securities that are:

 

  (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged, or

 

  (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,

which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.

Guarantee ” means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise).

Guarantors ” means (1) each Domestic Subsidiary of the Company (other than a CFC Subsidiary Holding Company) on the date of this Indenture and (2) each other Subsidiary of the Company (other than a CFC Subsidiary) that executes a Note Guarantee in accordance with the provisions of this Indenture, in each case, together with their respective successors and assigns until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture; provided , however, that for the avoidance of doubt, “Guarantors” shall not include any CFC Subsidiary or CFC Subsidiary Holding Company.

Hedging Obligations ” means, with respect to any specified Person, the obligations of such Person under:

 

  (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

 

  (2) other agreements or arrangements designed to manage interest rates or interest rate risk; and

 

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  (3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices.

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

Immaterial Subsidiary ” means, as of any date, any Restricted Subsidiary whose total assets, as of that date, are less than $100,000 and whose total revenues for the most recent 12-month period for which consolidated financial statements are available do not exceed $100,000 for such 12-month period; provided that a Restricted Subsidiary shall not be considered to be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any Indebtedness of the Company.

Indebtedness ” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

 

  (1) in respect of borrowed money;

 

  (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

 

  (3) in respect of banker’s acceptances;

 

  (4) representing Capital Lease Obligations;

 

  (5) representing the balance deferred and unpaid of the purchase price of any property or services due more than one year after such property is acquired or such services are completed; or

 

  (6) representing any Hedging Obligations,

if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

Indenture ” means this Indenture, pursuant to which the Notes shall be issued, among the Company, the Guarantors, the Trustee and the Noteholder Collateral Agent.

Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.

Initial Notes ” means the $76,522,912 aggregate principal amount of Notes issued under this Indenture on the date hereof.

 

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Insolvency or Liquidation Proceeding ” means, with respect to any Person:

 

  (1) any voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to such Person;

 

  (2) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to such Person or with respect to material portion of its assets;

 

  (3) any composition of liabilities or similar arrangement relating to such Person, whether or not under a court’s jurisdiction or supervision;

 

  (4) any liquidation, dissolution, reorganization or winding up of such Person, whether voluntary or involuntary, whether or not under a court’s jurisdiction or supervision, and whether or not involving insolvency or bankruptcy; or

 

  (5) any general assignment for the benefit of creditors or any other marshaling of assets and liabilities of such Person.

Intercreditor Agreement ” means the Amended and Restated Intercreditor Agreement, dated as of June 29, 2016, by and among the Company, SAExploration, Inc., SAExploration Sub, Inc., SAExploration Seismic Services (US), LLC, NES LLC, Wells Fargo Bank, National Association, as lender and collateral agent, Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as trustee and collateral agent for the Indenture Secured Parties (as defined therein), and Delaware Trust Company, as administrative agent and collateral agent, as the same may be supplemented, modified, amended or amended and restated from time to time.

Investments ” means, with respect to any specified Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and other advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet of such specified Person prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.07(c) hereof. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person shall be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person in an amount determined as provided in Section 4.07(c) hereof. Except as otherwise provided in this Indenture, the amount of an Investment shall be determined at the time the Investment is made and without giving effect to subsequent changes in value.

Issue Date ” means the date of this Indenture.

Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.

 

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Maturity Date ” means September 24, 2019, provided that, if any Existing Notes remain outstanding as of 5:00 p.m. (New York City time) on March 31, 2019, then upon the affirmative vote of the Holders of a majority of then-outstanding principal amount of Notes, the Maturity Date shall become April 14, 2019.

Memorandum ” means the Offer to Exchange and Consent Solicitation Statement dated June 24, 2016 of the Company, including the documents incorporated by reference therein.

Moody’s ” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.

Mortgage ” means each mortgage, deed of trust, deed to secure debt and any other document or instrument under which any Lien on real property owned by the Company or any Guarantor is granted to secure the obligations of the Company or any Guarantor under this Indenture.

Net Income ” means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:

 

  (1) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with (i) any Asset Sale or (ii) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

 

  (2) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss).

Net Proceeds ” means the aggregate cash proceeds and Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (1) the direct costs relating to such Asset Sale, including, without limitation, the amount of any Indebtedness that is secured by such assets and which is required to be repaid by the Company or Restricted Subsidiary, in connection with such transaction and legal, accounting and investment banking fees, brokers fees, sales commissions, and any relocation expenses incurred as a result of the Asset Sale and taxes paid or payable as a result of the Asset Sale after taking into account any available tax credits or deductions and any tax sharing arrangements and (2) any reserve for adjustment, indemnification, earnout or similar obligations in respect of the sale price of such asset or assets established in accordance with GAAP.

“New Senior Loan Facility” means that certain Term Loan and Security, dated as of June 29, 2016, by and among the lenders from time to time party thereto, the Company, as borrower, the guarantors listed therein, and Delaware Trust Company, as collateral agent and administrative agent.

New Senior Loan Facility Agent ” means Delaware Trust Company.

 

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New Senior Loan Shares ” means the shares of common stock of the Company issued to the lenders under the New Senior Loan Facility as part of the consideration for providing the New Senior Loan Facility.

Non-Recourse Debt ” means Indebtedness:

 

  (1) as to which neither the Company nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), or (ii) is directly or indirectly liable as a guarantor or otherwise;

 

  (2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its Stated Maturity; and

(3) as to which the lenders shall not have any recourse to the stock or assets of the Company or any of its Restricted Subsidiaries (other than Equity Interests of an Unrestricted Subsidiary).

Non-U.S. Person ” means a Person who is not a U.S. Person as defined under Regulation S of the Securities Act.

Note Guarantee ” means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant to the provisions of this Indenture.

Noteholder ” means the holders of Notes Obligations under the Indenture.

Noteholder Collateral Agent ” means Wilmington Savings Fund Society, FSB, in its capacity as collateral agent for the benefit of the Holders of Notes under the Security Documents, together with its successors in such capacity.

Notes ” means, collectively, the Notes originally issued under this Indenture as of the Issue Date, any PIK Notes to be subsequently issued as PIK Interest and any increase in the principal amount of outstanding Notes as a result of the payment of PIK Interest, and any Additional Notes subsequently issued, except if otherwise stated herein.

Notes Documents ” means the Indenture, the Notes, the Guarantees, the Security Documents and each of the other agreements, documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at any time governing, or in connection with, any Notes Obligations, including any intercreditor or joinder agreement among holders of Notes Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time in accordance with the provisions of this Indenture.

Notes Obligations ” means all Obligations outstanding under the Notes and the Indenture and all other Notes Documents, including all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

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Obligations ” means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.

Officer ” means, with respect to any Person, the Chairman of the Board, the Chairman, 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 such Person; provided that, in the case of a limited or general partnership, limited liability company or other Person that is not a corporation, the term “Officer” shall also include any of the foregoing officers of a direct or indirect general partner, managing member or other similar Person.

Officers’ Certificate ” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 13.05 hereof; provided that, if this Indenture expressly calls for an Officers’ Certificate delivered by or signed on behalf of a Person other than the Company, then such certificate shall be signed by two Officers of such Person, one of whom shall be the principal executive officer, principal financial officer, treasurer or principal accounting officer of such Person or, in the case of a limited or general partnership, limited liability company or other Person that is not a corporation, any of the foregoing Officers may be of a direct or indirect general partner, managing member or other similar Person.

Opinion of Counsel ” means an opinion from legal counsel, who may be an employee of the Company, who is reasonably acceptable to the Trustee, that meets the requirements of Section 13.05 hereof. Anything in this Indenture, the Note Guarantees or the Notes to the contrary notwithstanding, any such opinion of legal counsel may rely, as to factual matters, on a certificate of an Officer of the Company or any Guarantor or any other appropriate Person and on certificates and statements of governmental bodies and officials.

Pari Passu Indebtedness ” means any Indebtedness (1) that is permitted to be incurred under Section 4.08 and (2) that is secured by a Permitted Lien described in clause (3) of the definition of the Permitted Liens; provided that (i) it is so designated as Pari Passu Indebtedness in an Officers’ Certificate delivered to the Noteholder Collateral Agent and (ii) an authorized representative of the holders of such Indebtedness shall have executed and delivered an Accession Agreement.

Participant ” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

Permitted Business ” means any business that is the same as, or reasonably related, ancillary or complementary to, any of the businesses in which the Company or any of its Restricted Subsidiaries was engaged on the date of this Indenture, as described in the Memorandum, and any business reasonably related or complimentary thereto.

Permitted Holders ” means any of (a) Whitebox Advisors LLC, BlueMountain Capital Management, LLC, Morgan Stanley Investment Management Inc., Aristides Capital LLC, Taegean Capital Management, LLC, Amzak Capital Management, LLC, John Pecora, Jeff Hastings, Brian Beatty and Brent Whiteley, (b) any Related Party thereof and (c) any Person acting in the capacity of an underwriter or initial purchaser in connection with a public or private offering of the Capital Stock of the Company or any direct or indirect parent entity or securities convertible into or exchangeable or exercisable for such Capital Stock.

Permitted Investments ” means:

 

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  (1) any Investment in the Company or in a Restricted Subsidiary of the Company that is a Guarantor;

 

  (2) any Investment in Cash Equivalents;

 

  (3) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:

 

  (a) such Person becomes a Restricted Subsidiary of the Company and a Guarantor; or

 

  (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all or any substantial portion of its assets or of any of its business units to, or is liquidated into, the Company or a Restricted Subsidiary of the Company and a Guarantor;

 

  (4) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale (or a transaction excluded from the definition thereof) that was made pursuant to and in compliance with Section 4.20;

 

  (5) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;

 

  (6) any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (b) litigation, arbitration or other disputes.

 

  (7) Investments represented by Hedging Obligations;

 

  (8) loans or advances to employees made in the ordinary course of business of the Company or any Restricted Subsidiary of the Company in an aggregate principal amount not to exceed $1.0 million at any one time outstanding;

 

  (9) repurchases of any Notes or any Existing Notes;

 

  (10) any Investment existing on, or made pursuant to binding commitments existing on, the date of this Indenture and any Investment consisting of an extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the date of this Indenture; provided that the amount of any such Investment may be increased (a) as required by the terms of such Investment or commitment as in existence on the date of this Indenture or (b) as otherwise permitted under this Indenture;

 

  (11) advances to customers in the ordinary course of business, prepaid expenses or deposits, and performance guarantees of contracts or obligations other than Indebtedness;

 

  (12) Investments in Foreign Subsidiaries as a result of the Foreign Subsidiary Reorganization;

 

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  (13) Investments in joint ventures in aggregate amount not to exceed $5.0 million, provided each such joint venture is engaged in a Permitted Business;

 

  (14) any Investment by any Foreign Subsidiary in any other Foreign Subsidiary or any Person, if as a result the Person becomes a Foreign Subsidiary or the Person is merged or consolidated with or into a transfer or conveyance of all or substantially all of its assets to, or is liquidated into, any Foreign Subsidiary; and

 

  (15) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (15) that are at the time outstanding, not to exceed $5.0 million.

Permitted Liens ” means:

 

  (1) Liens on assets of the Company or any Guarantor securing Indebtedness and other Obligations under Credit Facilities that are permitted to be incurred by Section 4.08(b)(1);

 

  (2) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by Section 4.08(b)(4) covering only the assets constructed or acquired with or financed by such Indebtedness; provided , however such Liens are created within 180 days of the later of the acquisition, lease, completion of improvements, construction, repairs or additions or commencement of full operation of the assets or property subject to such Lien and do not encumber any other assets or property of the Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto;

 

  (3) Liens created for the benefit of (or to secure) (a) the Notes and the Note Guarantees, including any Notes (and related Note Guarantees) to be issued as PIK Interest, (b) Additional Notes and Note Guarantees related to any Additional Notes, (c) the Existing Notes and Guarantees thereof and (d) Pari Passu Indebtedness, provided that, in the case of clauses (b) or (d) at the time such Additional Notes or such Pari Passu Indebtedness is incurred and after giving pro forma effect thereto, the Secured Leverage Coverage Ratio is not greater than 3.5 to 1.0;

 

  (4) Liens in favor of the Company or the Guarantors;

 

  (5) Liens on property of a Person existing at the time such Person becomes a Subsidiary of, or is merged with or into or consolidated with, the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation of such person becoming a Subsidiary or such merger or consolidation and do not extend to any assets other than those of the Person that becomes a Subsidiary or is merged into or consolidated with the Company or the Subsidiary;

 

  (6) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to such acquisition and were not incurred in contemplation of, such acquisition;

 

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  (7) Liens to secure the performance of statutory obligations, insurance, surety or appeal bonds, workers compensation obligations, performance bonds or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations);

 

  (8) Liens existing on the date of this Indenture;

 

  (9) (a) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate actions promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; (b) bankers’ Liens, rights of setoff, Liens arising out of judgments or awards not constituting an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made; and (c) Liens on cash collateral for letters of credit or Hedging Obligations permitted by clauses (1), (9) and (11)(a), respectively, of Section 4.08(b) securing, in the case of letters of credit, an amount not to exceed the face amount of cash collateralized letters of credit for the benefit of the Company and/or the Guarantors and, in the case of Hedging Obligations, not to exceed the amount of such Hedging Obligations;

 

  (10) Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’ Liens, in each case, incurred in the ordinary course of business; Liens on property or assets under construction (and related rights) in favor of a contractor or developer arising from progress or partial payments by a third party relating to such property or assets; and Liens arising from Uniform Commercial Code (“UCC”) financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business or Liens occurring solely by the filing of a UCC statement, which filing has not been consented to by the Company or Restricted Subsidiary;

 

  (11) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or improvements or accessions that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

  (12) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture; provided , however , that:

 

  (a) the new Lien is limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Indebtedness (plus improvements and accessions to such property, or proceeds or distributions thereof); and

 

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  (b) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (i) the outstanding principal amount, or, if greater, committed amount, of the original Indebtedness and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge; and

 

  (13) any extension, renewal or replacement, in whole or in part of any Lien described above in this definition of “Permitted Liens” (other than Liens described in clause (1) of this definition of “Permitted Liens”); provided that any such extension, renewal or replacement does not extend to any additional property or assets (plus improvements, accessions, proceeds, replacements or dividends or distributions in respect thereof);

 

  (14) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness, which occurred in accordance with the provisions of this Indenture;

 

  (15) Liens incurred in the ordinary course of business of the Company or any Guarantor of the Company with respect to obligations that do not exceed $5.0 million at any one time outstanding;

 

  (16) Liens securing Indebtedness of any Foreign Subsidiary;

 

  (17) Liens on any property in favor of domestic or govern governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute, not yet due and payable; and

 

  (18) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements.

Permitted Refinancing Indebtedness ” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:

 

  (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);

 

  (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged, or has a final maturity date more than 91 days after the final maturity date of the Notes;

 

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  (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on terms, taken as a whole, at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and

 

  (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and is initially guaranteed only by (a) Persons who were obligors on or guarantors of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged or (b) a Guarantor in accordance with paragraph (10) of the definition of “Permitted Debt.”

Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

“PIK Interest” means interest paid in the form of (1) an increase in the outstanding principal amount of the Notes or (2) the issuance of PIK Notes.

“PIK Notes ” means additional Notes issued under this Indenture on the same terms as the Notes issued on the Issue Date in connection with the payment of PIK Interest.

principal amount ” means the principal amount set forth on the face of a Note certificate or, in the case of a Global Note, as such principal amount may be increased or decreased as set forth in the “Schedule of Increases and Exchanges of Interests in the Global Note” attached thereto, in all cases including any increase in the principal amount as a result of the payment of PIK Interest.

Private Placement Legend ” means the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

Receivable ” means the receivable due to the Company from Alaska Seismic Ventures, LLC and any related Alaska Tax Credit.

Redemption Date ” means the date of redemption established by the Company as set forth under Section 3.07 hereof.

Regulation S ” means Regulation S promulgated under the Securities Act.

Regulation S Global Note ” means a Regulation S Temporary Global Note or Regulation S Permanent Global Note or both, as appropriate.

Regulation S Permanent Global Note ” means a permanent Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period.

 

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Regulation S Temporary Global Note ” means a temporary Global Note substantially in the form of Exhibit A hereto and bearing the Global Note Legend, the Private Placement Legend and the legend referred to in Section 2.06(f)(3) deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially issued in reliance on Rule 903 of Regulation S.

Related Party ” means:

 

  (1) any controlling stockholder, 80% or more (based on voting power) owned Subsidiary, or immediate family member (in the case of an individual) of a Person described in clause (a) of the definition of Permitted Holder; or

 

  (2) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding an 80% or more controlling interest of which consist of any one or more Permitted Holders.

Responsible Officer ” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers, who in each case is responsible for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

Restricted Definitive Note ” means a Definitive Note bearing the Private Placement Legend.

Restricted Global Note ” means a Global Note bearing the Private Placement Legend.

Restricted Investment ” means an Investment other than a Permitted Investment.

Restricted Period ” means the 40-day “distribution compliance period” as defined in Regulation S.

Restricted Subsidiary ” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.

Restructuring Support Agreement ” means the Restructuring Support Agreement dated June 13, 2016, between the Supporting Holders and the Company, as amended.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

Rule 144A Global Note ” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that shall be issued in a denomination equal to the outstanding principal amount of the Notes initially issued to QIBs.

Rule 903 ” means Rule 903 promulgated under the Securities Act.

Rule 904 ” means Rule 904 promulgated under the Securities Act.

S&P ” means Standard & Poor’s Global Ratings or any successor to the rating agency business thereof.

 

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SEC ” means the U.S. Securities and Exchange Commission or any successor thereto.

Secured Leverage Coverage Ratio ” means, as of any date of determination, the ratio of (1) consolidated total Indebtedness of the Company and its Restricted Subsidiaries that is secured by Liens as of such date (provided that in making such calculation, the maximum amount of Indebtedness that the Company is permitted to incur under Section 4.08(b)(1) shall be deemed outstanding and secured by a Lien) to (2) the Company’s Consolidated Cash Flow for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding such date, determined on a pro forma basis to give effect to any adjustments to as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.

Securities Act ” means the U.S. Securities Act of 1933, as amended, or any successor thereto, and the rules and regulations of the SEC thereunder.

Security Agreement ” means the security agreement, dated as of the date of this Indenture, among the Noteholder Collateral Agent, the Company and the Guarantors, as it may be amended or supplemented from time to time.

Security Documents ” means, collectively, the Intercreditor Agreement, the Security Agreement, each Mortgage, each pledge agreement and each document or other instrument (other than this Indenture) creating Liens in favor of the Noteholder Collateral Agent as required by this Indenture, in each case, as the same may be amended or supplemented from time to time.

Significant Subsidiary ” means any Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Indenture.

Stated Maturity ” means, with respect to any installment of interest or principal of any Indebtedness, the date on which the payment of interest or principal is scheduled to be paid in the documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

Subsidiary ” means, with respect to any specified Person:

 

  (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers, trustees or similar persons of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

  (2) any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or controlling managing member or otherwise controls such entity.

 

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Supporting Holders ” means the Existing Noteholders who entered into the Restructuring Support Agreement with the Company.

TIA ” means the Trust Indenture Act of 1939, as amended, and the rules and regulations of the SEC thereunder.

Transactions ” means the entry into and performance of, as the case may be, all of the transactions contemplated by the Restructuring Support Agreement, summarized under “Summary of the Transactions and Purposes of the Exchange Offer and Consent Solicitation” in the Memorandum, including, without limitation, the New Senior Loan Facility, the issuance of the New Senior Loan Shares, the consummation of the Exchange Offer and Consent Solicitation, the Indenture, the Intercreditor Agreement, Security Documents, the issuance of the Notes and the shares of common stock of the Company pursuant to the Exchange Offer, and the transactions contemplated thereby.

Treasury Rate ” means, as of any Applicable Premium Date, the yield to maturity as of such Applicable Premium Date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two Business Days prior to the Applicable Premium Date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Applicable Premium Date to the Maturity Date; provided , however , that if then remaining term of the Notes to the Maturity Date is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given, and provided, further, that if the period from the Applicable Premium Date to the Maturity Date, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.

Trustee ” means Wilmington Savings Fund Society, FSB until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.

Uniform Commercial Code ” means the Uniform Commercial Code as in effect in any applicable jurisdiction from time to time.

Unrestricted Subsidiary ” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:

 

  (1) has no Indebtedness other than Non-Recourse Debt;

 

  (2) except as permitted by Section 4.12 is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;

 

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  (3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

 

  (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries.

U.S. Person ” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.

Voting Stock ” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

 

  (1) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

 

  (2) then outstanding principal amount of such Indebtedness.

Section 1.02 Other Definitions .

 

Term

   Defined in
Section
 

“Affiliate Transaction”

     4.12   

“Applicable Premium Date”

     6.02   

“Applicable Premium Event”

     6.02   

“Asset Sale Offer”

     4.20   

“Authentication Order”

     2.02   

“Calculation Date”

     1.01   

“Change of Control Offer”

     4.19   

“Change of Control Payment”

     4.19   

“Change of Control Payment Date”

     4.19   

“Control Agreement”

     12.01   

“Covenant Defeasance”

     8.03   

“DTC”

     2.03   

“Event of Default”

     6.01   

“Excess Proceeds”

     4.20   

“incur”

     4.08   

“Indemnified Party”

     7.07   

“Interest Payment Date”

     2.14   

“Legal Defeasance”

     8.02   

“Material Adverse Effect”

     4.03   

“Notes Obligations”

     12.01   

“Offer Amount”

     3.09   

 

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Term

   Defined in
Section
 

“Offer Period”

     3.09   

“Paying Agent”

     2.03   

“Payment Default”

     6.01   

“Permitted Debt”

     4.08   

“Premises”

     12.03   

“Purchase Date”

     3.09   

“Record Date”

     2.14   

“Registrar”

     2.03   

“Restricted Payments”

     4.07   

“Successor Guarantor”

     11.04   

Section 1.03 [Reserved].

Section 1.04 Rules of Construction .

Unless the context otherwise requires:

(1) a term has the meaning assigned to it;

(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

(3) “or” is not exclusive;

(4) words in the singular include the plural, and in the plural include the singular;

(5) “will” shall be interpreted to express a command;

(6) provisions apply to successive events and transactions;

(7) references to sections of or rules or regulations under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time; and

(8) references to “interest” mean the interest rate then borne by the Notes, including any overdue interest required by Section 2.12 that may accrue on the Notes.

ARTICLE 2

THE NOTES

Section 2.01 Form and Dating .

(a) General . The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes, including any PIK Notes, shall be in minimum denominations of $1.00 in principal amount and integral multiples of $1.00 in principal amount in excess thereof.

 

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The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors, the Noteholder Collateral Agent and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

The Initial Notes, any PIK Interest and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes, any PIK Interest, and any Additional Notes, provided, however, that in the event that any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such non-fungible Additional Notes shall be issued with a separate CUSIP number so that they are distinguishable from the Initial Notes.

(b) Global Notes . Notes issued in global form shall be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Increases and Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Increases and Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such aggregate principal amount of the outstanding Notes as shall be specified therein, as such aggregate principal amount may from time to time be increased to reflect the payment of PIK Interest or reduced or increased, as appropriate, to reflect exchanges, cancellations and redemptions by endorsements on the schedule attached to such Global Note. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof or by the Issuer in connection with the payment of PIK Interest.

(c) Temporary Global Notes. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as Custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereafter provided.

Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in the Regulation S Permanent Global Note pursuant to the Applicable Procedures upon receipt by the Trustee of (i) a written certificate from the Depositary, together with certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owner thereof who acquired a beneficial interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who shall take delivery of such beneficial interest in a Rule 144A Global Note or an AI Global Note, each bearing the Private Placement Legend, all as contemplated by Section 2.06(b)(2) hereof), and (ii) an Officers’ Certificate from the Company. Simultaneously with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary at the direction of the Trustee, as the case may be, in connection with the payment of PIK Interest or in connection with transfers of interest as hereinafter provided.

 

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(d) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” (or in each case any successors thereto) of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” (or in each case any successors thereto) of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Note that are held by Participants through Euroclear or Clearstream.

Section 2.02 Execution and Authentication .

At least one Officer must sign the Notes for the Company by manual or facsimile signature.

If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.

A Note shall not be valid until authenticated by the manual signature of an authorized officer of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

The Trustee shall, upon receipt of a written order of the Company signed by two Officers (an “ Authentication Order ”), authenticate Notes for original issue that may be validly issued under this Indenture, including any PIK Notes and/or Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.07 or Section 2.15 hereof.

The Trustee may, with the prior written consent of the Company (which consent shall not be unreasonably withheld), appoint an authenticating agent reasonably acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.

Section 2.03 Registrar and Paying Agent .

The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar shall keep a register of the Notes and of their transfer and exchange, including the names and addresses of the Holders and the principal amounts and interest on the Notes. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

The Company initially appoints The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes. The Company may from time to time appoint any other Person as a successor Depositary and thereupon terminate any predecessor Depositary.

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.

 

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Section 2.04 Paying Agent to Hold Money in Trust .

The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or interest on the Notes, and shall notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Guarantor) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

Section 2.05 Holder Lists .

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes, including names and addresses of Holders in the possession of any Paying Agent other than the Trustee.

Section 2.06 Transfer and Exchange .

(a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes shall be exchanged by the Company for Definitive Notes if:

(1) the Depositary notifies the Company that the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes or that it has ceased to be a clearing agency registered under the Exchange Act and, in either case, the Company fails to appoint a successor Depositary within 90 days after it obtains knowledge of such circumstances;

(2) the Company in its sole discretion notifies the Trustee in writing that the Company elects to cause the issuance of Definitive Notes; provided that in no event shall the Regulation S Temporary Global Note be exchanged for Definitive Notes prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to this Indenture and Rule 903(b)(3)(ii)(B) under the Securities Act; or

(3) there has occurred and is continuing an Event of Default with respect to the Notes and the Depositary or a Holder requests such exchange (in which case only the requested portion of the Global Note shall be exchanged).

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof; provided that the exchange of the Regulation S Temporary Global Note for the Regulation S Permanent Global Note must comply with the other applicable provisions of this Indenture, including, without limitation, Section 2.01(c), and

 

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Regulation S. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note, except as otherwise expressly provided in this Section 2.06. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Sections 2.06(b) or (c) hereof. Anything in this Indenture or the Notes to the contrary notwithstanding, no Holder shall be entitled to receive, and the Company shall not be required to issue, Definitive Notes except under the circumstances set forth in clause (1), (2) or (3) above of this Section 2.06(a).

(b) Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided , however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person and may only be made in offshore transactions within the meaning of Regulation S. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).

(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes . In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

 

  (A) both:

(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

 

  (B) both:

(1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

 

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(2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above;

provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certifications required in respect of such transfer or exchange pursuant to this Indenture or Rule 903 under the Securities Act.

Transfers and exchanges of beneficial interests in the Regulation S Temporary Global Note for beneficial interests in the Regulation S Permanent Global Note shall be made at the end of the Restricted Period in accordance with the Applicable Procedures and upon receipt of the certifications specified in Section 2.01(c).

Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g) hereof.

(3) Transfer of Beneficial Interests to Another Restricted Global Note . A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:

(A) If the transferee will take delivery in the form of a beneficial interest in the Rule 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Temporary Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transferee will take delivery in the form of a beneficial interest in the AI Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes . If in accordance with Section 2.06(a) a beneficial interest in a Restricted Global Note is to be exchanged for a Restricted Definitive Note or transferred to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof;

 

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(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such beneficial interest is being transferred to an Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) or (C) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof;

(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

(2) Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes . Notwithstanding Sections 2.06(c)(1)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the Registrar of any certifications required in respect of such transfer or exchange pursuant to this Indenture or pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.

(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

 

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(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes . If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof;

(B) if such Restricted Definitive Note is being transferred to a QIB a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such Restricted Definitive Note is being transferred to an Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) or (C) of this Section 2.06(d)(1), a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof;

(F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the Rule 144A Global Note, in the case of clause (C) above, the Regulation S Global Note, and in all other cases, the AI Global Note.

(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).

 

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(1) Restricted Definitive Notes to Restricted Definitive Notes . Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

(A) If the transfer shall be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transfer shall be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transfer shall be made pursuant to any exemption from the registration requirements of the Securities Act other than those listed in (B) or (C) of this Section 2.06(e), then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(f) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.

(1) Private Placement Legend.

(A) Each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form (except that such legend need not be borne by a Regulation S Permanent Global Note or a Definitive Note issued in exchange for an interest in a Regulation S Permanent Global Note in compliance with this Indenture):

“THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

SUBSEQUENT TO THE INITIAL ISSUANCE OF THIS CERTIFICATE, EACH HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) OR (B) IT IS NOT A “U.S. PERSON” AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH ACQUISITION IS MADE.

 

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THE HOLDER OF THIS SECURITY AGREES (1) TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT (THE “RESALE RESTRICTION TERMINATION DATE”), ONLY (A) TO THE COMPANY OR ANY OF THE COMPANY’S SUBSIDIARIES, (B) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO OFFERS AND SALES TO PERSONS WHO ARE NOT “U.S. PERSONS” THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN EACH OF THE FOREGOING CASES, TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION, AND (2) THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED, THAT THE COMPANY AND THE TRUSTEE WITH RESPECT TO THIS SECURITY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (B) AND (E), PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, OR PURSUANT TO CLAUSE (C), PRIOR TO, AND UPON COMPLETION OF, THE DISTRIBUTION COMPLIANCE PERIOD (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT), TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE CODE) OR 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 (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE PLAN ASSETS OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.”

 

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(2) Global Note Legend . Each Global Note shall bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY OR ITS NOMINEE WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

(3) Regulation S Temporary Global Note Legend . The Regulation S Temporary Global Note shall bear a Legend in substantially the following form:

THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON (AS DEFINED IN REGULATION S) EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S SECURITY SHALL NOT BE EXCHANGEABLE FOR DEFINITIVE SECURITIES THAT DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON

 

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TRANSFER UNTIL THE EXPIRATION OF THE APPLICABLE “DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF REGULATION S) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT.

(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(h) General Provisions Relating to Transfers and Exchanges.

(1) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.

(2) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange pursuant to Sections 2.10, 3.06, 3.09, 4.19, 4.20 and 9.05 hereof).

(3) The Registrar shall not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

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

(5) Neither the Registrar nor the Company shall be required:

(A) to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection;

 

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(B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or

(C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.

(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent, the Guarantors and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and premium, if any, interest, if any, on such Notes and for all other purposes, and none of the Trustee, any Guarantor, any Agent or the Company shall be affected by notice to the contrary.

(7) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof.

(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile or other electronic transmission.

(9) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine compliance as to form with the express requirements hereof.

(i) [Reserved].

Section 2.07 Replacement Notes .

If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by (i) the Trustee to protect the Trustee or (ii) the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.

Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

Section 2.08 Outstanding Notes .

The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(c) hereof.

 

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If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.

If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof) holds, on a Redemption Date or the Maturity Date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.

Section 2.09 Treasury Notes .

In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor (other than the Supporting Holders), shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.

Section 2.10 Temporary Notes .

Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.

Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.

Section 2.11 Cancellation .

The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes shall be delivered to the Company upon written request. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.

Section 2.12 Overdue Interest .

To the extent permitted by applicable law, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Code) on overdue principal, premium, if any, and interest (without regard to any applicable grace period) from time to time on demand at the rate equal to 2.00% per annum in excess of the then applicable interest rate (as set forth in the caption on the face of

 

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the form of Note attached hereto as Exhibit A) on the Notes to the extent lawful to the Persons who are Holders on a subsequent special record date, in each case consistent with Section 4.01 hereof. The Company shall notify the Trustee in writing of the amount of overdue interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such overdue interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be sent to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.

All references to “interest” in this Indenture and the Notes mean the initial interest rate borne by the Notes and, to the extent permitted by applicable law, any increases in that rate to the extent overdue interest accrues on the Notes.

Section 2.13 Persons Deemed Owners .

The Holder of a Note may be treated as its owner for all purposes. Only Holders have rights under this Indenture and the Notes.

Section 2.14 Interest Payment Date; Record Date .

Interest on outstanding Notes shall accrue at the rate of 10.000% per year, subject to Sections 2.12 and 2.15, and shall be payable quarterly in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2016 (each, an “ Interest Payment Date ”). The Company shall make each interest payment to the Holders of record on the immediately preceding January 1, April 1, July 1 and October 1, as applicable (each, a “ Record Date ”). Interest on the Notes shall accrue from the date of original issuance of the Notes or, if interest has already been paid, from the date it was most recently paid. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.

Section 2.15 PIK Interest .

(a) For each Interest Payment Date through, and including, the Interest Payment Date on July 15, 2017, the Company may, at its option, elect to pay interest on any or all such Interest Payment Dates in kind in the form of PIK Interest. PIK Interest shall accrue at a rate of 11.000% and shall accrue from the date of original issuance of the Notes or, if interest has already been paid, from the date it was most recently paid. Any PIK Notes issued as PIK Interest shall be fungible with, and shall accrue interest at the same rate as, the Initial Notes.

(b) In the event that the Company elects to pay PIK Interest, no later than two Business Days prior to the relevant Interest Payment Date, the Company shall deliver notice of such election to the Trustee and the Paying Agent (if other than the Trustee). In the absence of such election notice, interest shall be payable in cash. Beginning with the October 15, 2017 Interest Payment Date, all interest payments shall be payable in cash. PIK Interest shall be payable (i) with respect to Notes represented by one or more Global Notes by increasing the principal amount of such outstanding Global Note by an amount equal to the amount of accrued interest (rounded up to the nearest whole dollar) (or, if necessary, pursuant to the requirements of the Depositary or otherwise, by authenticating new Global Notes with such increased principal amounts) and (ii) with respect to Notes represented by Definitive Notes, by issuing the required amount of new PIK Notes represented by certificated PIK Notes (rounded up to the nearest whole dollar) in an aggregate principal amount equal to the amount of accrued interest (rounded up to the nearest whole dollar), and the Trustee shall, at the request of the Company, authenticate and deliver such PIK Notes in certificated form for original issuance to the Holders on the relevant Record Date, as shown by the records of the register of Holders.

 

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(c) Payment shall be made in such form and terms as specified in this Section 2.15 and the Company shall, and the Paying Agent may, take additional steps as is necessary to effect such payment. The Company may not issue PIK Interest in lieu of paying interest in cash if such interest is payable with respect to any principal amount that is due and payable upon redemption, repurchase or otherwise.

ARTICLE 3

REDEMPTION AND PURCHASE

Section 3.01 Notices to Trustee .

If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 15 days (or such lesser number of days as the Trustee may agree to) before a notice of redemption is to be mailed to Holders of Notes pursuant to Section 3.03, an Officers’ Certificate setting forth:

(1) the paragraph or section of this Indenture or the Notes pursuant to which the redemption shall occur;

(2) the Redemption Date;

(3) the principal amount of Notes to be redeemed; and

(4) the redemption price.

Section 3.02 Selection of Notes to Be Redeemed .

If less than all of the Notes are to be redeemed at any time, the Trustee or the Registrar shall select Notes for redemption on a pro rata basis (or, in the case of Global Notes, in such manner as the applicable Depositary may require), unless otherwise required by law or applicable stock exchange requirements (provided a Responsible Officer of the Trustee knows of the listing of the Notes on a stock exchange).

In the event of partial redemption, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption by the Trustee from the outstanding Notes not previously called for redemption.

The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in minimum amounts of $1.00 or an integral multiple of $1.00 in excess thereof; provided that any unredeemed portion of a Note redeemed in part must be an authorized denomination; and provided further that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder shall be redeemed. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

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Section 3.03 Notice of Redemption .

Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days before a Redemption Date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to the Trustee and each Holder whose Notes are to be redeemed at its registered address, except that, anything in this Indenture or the Notes to the contrary notwithstanding, redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a Covenant Defeasance or Legal Defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 10 hereof.

The notice shall identify the Notes to be redeemed and shall state:

(1) the Redemption Date;

(2) the redemption price;

(3) If the Notes are being redeemed in part, the portion of the principal amount of such Notes to be redeemed and that, after the Redemption Date upon surrender of such Notes, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;

(4) the name and address of the Paying Agent;

(5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;

(6) that, unless the Company defaults in making such redemption payment, interest on Notes or portions thereof called for redemption ceases to accrue on and after the Redemption Date;

(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and

(8) that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes.

At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however , that the Company has delivered to the Trustee, at least 45 days prior to the Redemption Date (or a shorter period as agreed to by the Trustee), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in this Section 3.03 above.

Section 3.04 Effect of Notice of Redemption .

Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes or portions thereof called for redemption become irrevocably due and payable on the Redemption Date at the redemption price. A notice of redemption may not be conditional.

 

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Section 3.05 Deposit of Redemption or Purchase Price .

No later than 12:00 p.m. (noon) New York City time on the Redemption Date or, in the event of a purchase of Notes pursuant to Sections 4.19 or 4.20 hereof, the Purchase Date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased on such date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased.

If the Company complies with the provisions of the preceding paragraph, on and after the Redemption Date or Purchase Date, as applicable, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or tendered for purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or properly tendered for purchase and not withdrawn is not so paid on the applicable Redemption Date or Purchase Date, as applicable, because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, and, to the extent permitted by applicable law, unpaid interest from the Redemption Date or Purchase Date, as applicable, to but excluding the date on which such principal and interest is paid, in each case at the rate provided in the Notes and in accordance with Section 4.01 hereof.

Section 3.06 Notes Redeemed or Purchased in Part .

Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an Authentication Order, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered, provided that such Note shall be in an authorized denomination.

Section 3.07 Optional Redemption .

(a) Except as set forth in this Section 3.07, the Notes shall not be redeemable at the option of the Company.

(b) At any time and from time to time, the Company may, at its option, redeem up to an aggregate $35 million principal amount of Notes upon not less than 30 nor (subject to the provisions of the first sentence of Section 3.03 of this Indenture) more than 60 days’ prior written notice, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the applicable Redemption Date (subject to the rights of Holders of Notes on the applicable Record Date to receive interest on the relevant Interest Payment Date), with the proceeds received by the Company in connection with Alaska Tax Credits; provided that (i) the Existing Revolving Credit Facility shall have been paid in full and all commitments thereunder have been canceled; and (ii) the New Senior Loan Facility shall have been paid in full and no further commitments thereunder remain available for borrowing.

(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.

 

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Section 3.08 No Sinking Fund Payments .

The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

Section 3.09 Offer to Purchase by Application of Excess Proceeds .

In the event that, pursuant to Section 4.20 hereof, the Company shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below and in Sections 4.20 (c), (d), (e) and (f):

(a) The applicable Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets.

(b) The Asset Sale Offer shall remain open for a period of at least 20 Business Days and not more than 30 Business Days from the date notice of such offer is sent, except in each case to the extent that a longer period is required by applicable law (in either such case, the “ Offer Period ”).

(c) No later than three Business Days after the termination of the applicable Offer Period (the “ Purchase Date ”), the Company shall apply all Excess Proceeds (after deducting from such Excess Proceeds an amount equal to all fees and expenses incurred in connection with the applicable Asset Sale Offer and the purchase, prepayment or redemption of any applicable pari passu Indebtedness), as applicable, (the “ Offer Amount ”), to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable, determined in the manner described in Section 4.20) or, if less than the applicable Offer Amount has been tendered and not withdrawn (including such pari passu Indebtedness to be repurchased), all Notes and any such pari passu Indebtedness tendered in response to the Asset Sale Offer.

(d) If the applicable Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the applicable Asset Sale Offer.

(e) Upon the commencement of an applicable Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable Holders to tender Notes pursuant to the applicable Asset Sale Offer. The notice, which shall govern the terms of the applicable Asset Sale Offer, shall state:

(1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.20 hereof and the length of time the Asset Sale Offer shall remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

(3) that any Note not tendered or accepted for payment shall continue to accrue interest;

(4) that, unless the Company defaults in making such payment, any Note or portion thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Date;

 

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(5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in minimum principal amounts of $1.00 or an integral multiple of $1.00 in principal amount in excess thereof, so long as, in the case of Notes surrendered for repurchase in part, any portion of a Note not surrendered for repurchase is an authorized denomination;

(6) that Holders electing to have Notes purchased pursuant to such Asset Sale Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business in The City of New York at least three Business Days prior to the last day of the applicable Offer Period;

(7) that Holders shall be entitled to withdraw their election if the Company, the depositary, if appointed by the Company, or the Paying Agent, as the case may be, receives, prior to the close of business in The City of New York at least three Business Days prior to the last day of the applicable Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;

(8) that, if the aggregate principal amount of Notes and other applicable pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Trustee or the Registrar shall select the Notes to be purchased on a pro rata basis (with any applicable pari passu Indebtedness) in the manner provided in Section 4.20 of this Indenture (with such adjustments as may be deemed appropriate so that only Notes in minimum denominations of $1.00 or an integral multiple of $1.00 in excess thereof, shall be purchased and so that any unrepurchased portion of a Note repurchased in part is an authorized denomination); and

(9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the applicable Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis as provided in this Section 3.09 and in Section 4.20 hereof, to the extent necessary, the Offer Amount of Notes or portions thereof duly tendered and not duly withdrawn and any applicable pari passu Indebtedness, in each case, pursuant to the applicable Asset Sale Offer or if less than the Offer Amount has been tendered, all Notes duly tendered and not duly withdrawn and all applicable pari passu Indebtedness and shall deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase (or, in the case of any Notes that are in global form, make such payment through the facilities of DTC or any other applicable Depositary), and the Trustee, upon written request from the Company, shall promptly authenticate and mail (or cause to be transferred by book entry) to each such Holder a new Note, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company (or, in the case of Global Notes, transferred by book entry) to the Holder thereof. The Company shall publicly announce the results of the applicable Asset Sale Offer on the Purchase Date.

 

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Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.05 and 3.06 hereof. For purposes of clarity, the parties hereto agree that, anything in this Indenture or the Notes to the contrary notwithstanding, interest on any Note or portion thereof accepted for repurchase by the Company pursuant to Section 3.09, 4.19 or 4.20 shall cease to accrue on and after the applicable Purchase Date unless the Company defaults in making the payment due on such Note or portion thereof, as applicable, as provided herein.

ARTICLE 4

COVENANTS

Section 4.01 Payment of Notes .

The Company shall pay or cause to be paid the principal of, premium, and interest on, the Notes on the dates and in the manner provided in this Indenture and the Notes. Principal, premium and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium and interest then due, provided that any payment of PIK Interest shall be considered paid on the date it is due if on such date (1) PIK Notes (including PIK Notes that are Global Notes) have been issued therefor, and such PIK Notes have been authenticated in accordance with the terms of this Indenture or (2) if the payment is made by increasing the principal amount of Global Notes then authenticated by the required amount. The Company shall, to the extent permitted by law, pay overdue interest, if any, in the same manner, on the dates and in the amounts set forth in the Notes and in this Indenture.

If a Holder of $10.0 million aggregate principal amount or more of Definitive Notes has given wire transfer instructions to the Company not later than 15 days prior to the applicable Interest Payment Date, the Maturity Date, Redemption Date, Purchase Date or other date on which any payment of principal, premium or interest on any Note is due, providing for payments to be made to a bank located in the United States, the Company shall pay all principal of, and cash interest and premium, on, that Holder’s Notes in accordance with those instructions; provided that payments of principal and premium, if any, shall be made only against surrender of the applicable Definitive Note. All other cash payments on the Notes shall be made at the office or agency of a Paying Agent unless the Company elects to make interest payments by check mailed to the Holders of the Notes at their addresses as set forth in the register of Holders or by wire transfer.

Anything in this Indenture, the Notes or the Note Guarantees to the contrary notwithstanding, if any Interest Payment Date, the Maturity Date, Redemption Date, or Purchase Date pursuant to Sections 3.09, 4.19 or 4.20 of this Indenture or other date on which any payment of principal, premium or interest on any Note is due is not a Business Day, then such payment need not be made on such date, but such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was originally due, and no interest or other sum shall accrue on the amount payable for the period from and after the date such payment was originally due nor shall any such delay in payment constitute a Default or Event of Default under this Indenture.

PIK Interest, if any, shall be paid in the manner provided in Section 2.15.

 

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Section 4.02 Maintenance of Office or Agency .

The Company shall maintain an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee; provided, however , that, except as otherwise required by applicable law or a court, no service of legal process may be made on the Company or any Guarantor at an office of the Trustee. Such office shall initially be at Wilmington Savings Fund Society, FSB, 500 Delaware Avenue, Wilmington, Delaware 19801, Attention: Corporate Trust.

The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.

Section 4.03 Corporate Existence; Insurance; Maintenance of Properties .

(a) Subject to Article 5 and Sections 11.04 and 11.05 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect:

(1) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary; and

(2) the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries;

provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors or an Officer of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof would not have a material adverse effect on the Company and its subsidiaries, taken as a whole (a “ Material Adverse Effect ”); provided further, that this Section 4.03 shall not prevent the sale or other disposition of any Restricted Subsidiary of the Company or any assets of the Company or of any of its Restricted Subsidiaries (whether by merger, consolidation, sale of Capital Stock or assets or otherwise) that does not violate Section 4.20 of this Indenture.

(b) The Company shall (1) cause all properties used or useful in the conduct of its business or the business of any of its Restricted Subsidiaries to be maintained and kept in good condition, repair and working order (subject to ordinary wear and tear) as, in the judgment of the Company, may be necessary so that the business of the Company and its Restricted Subsidiaries may be properly conducted; provided that this requirement shall not prevent the Company or any Restricted Subsidiary from discontinuing the use, operation or maintenance of any of such properties or disposing of any of them, if such discontinuance or disposal is, in the judgment of the Company, desirable in the conduct of the business of

 

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the Company and its Restricted Subsidiaries taken as a whole and does not violate Section 4.20 hereof; and (2) provide or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self insurance) against loss or damage, that in the reasonable good faith judgment of the Board of Directors, the Chief Executive Officer or the Chief Financial Officer of the Company is appropriate for the conduct of the business of the Company and its Subsidiaries, including, but not limited to, products liability insurance, physical damage insurance and public liability insurance, with reputable insurers and by such Restricted Subsidiaries as are then conducting business.

Section 4.04 Compliance Certificate .

(a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture and the Security Documents, and further stating, as to each such Officer signing such certificate, that to his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and the Security Documents and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture and the Security Documents (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).

(b) So long as any of the Notes are outstanding, the Company shall deliver to the Trustee, within 10 Business Days of any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

Section 4.05 Taxes .

The Company shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or other appropriate actions or if the Board of Directors or any Officer of the Company shall determine that such failure shall not have a Material Adverse Effect.

Section 4.06 Stay, Extension and Usury Laws .

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

Section 4.07 Restricted Payments .

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

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(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of the Company or any Guarantor that is contractually subordinated in right of payment to the Notes or to the Note Guarantee of such Guarantor, as the case may be (excluding any intercompany Indebtedness between or among the Company and/or any of its Restricted Subsidiaries), except a payment of regularly scheduled interest or principal at the Stated Maturity thereof; or

(4) make any Restricted Investment,

(all such payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as “ Restricted Payments ”),

unless, at the time of and after giving effect to such Restricted Payment:

(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a) hereof; and

(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), and (9) of Section 4.07(b)), is less than the sum, without duplication, of:

(A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter in which the date of this Indenture occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus

 

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(B) 100% of the aggregate net cash proceeds received by the Company or a Restricted Subsidiary since the date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus

(C) to the extent that any Unrestricted Subsidiary of the Company designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Indenture; plus

(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary or it or any other Person is merged or consolidated into the Company or a Restricted Subsidiary, or all of the assets of such Unrestricted Subsidiary or such other Person are transferred to the Company or a Restricted Subsidiary after the date of this Indenture in a transaction that complies with the provisions of this Indenture, the lesser of (i) the Fair Market Value of the aggregate amount of the Investments made by the Company and its Subsidiaries in such Subsidiary or such other Person, determined as of the date of such redesignation or such other transaction, as applicable, or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Indenture; plus

(E) 100% of any dividends received by the Company or a Restricted Subsidiary of the Company after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period.

(b) So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit:

(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend, distribution or redemption payment would have complied with the provisions of this Indenture;

(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than Disqualified Stock and other than Equity Interests issued or sold to a Subsidiary of the Company or an employee stock ownership plan, or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by Indebtedness from or guaranteed by the Company or any Restricted Subsidiary of the Company unless such loans have been repaid with cash on or prior to the date of determination) or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of the preceding paragraph;

(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee with the net cash proceeds from or in exchange for a substantially concurrent incurrence of Permitted Refinancing Indebtedness;

 

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(4) the payment of any dividend (or, in the case of any partnership, limited liability company, or other Person, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;

(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director, consultant or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement, equity incentive plan or agreement or other similar plan or agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $1.0 million in any twelve month period;

(6) the repurchase of Equity Interests deemed to occur upon the exercise of stock options or other equity awards to the extent such Equity Interests represent a portion of the exercise price of those stock options or other equity awards and any repurchase or other acquisition of Equity Interests made in lieu of or to satisfy withholding or similar taxes in connection with any exercise or exchange of stock options, warrants, equity incentives, other equity awards or other rights to acquire Equity Interests;

(7) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any preferred stock of any Restricted Subsidiary of the Company issued after the date of this Indenture in compliance with Section 4.08;

(8) payments of cash, dividends, distributions, advances or other Restricted Payments by the Company or any Restricted Subsidiary of the Company to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of warrants, stock options, awards under equity incentive plans or similar securities or (ii) the conversion or exchange of Capital Stock of any such Person or the conversion or exchange of Indebtedness of any such Person that is convertible into or exchangeable for Capital Stock of such Person; and

(9) other Restricted Payments in an aggregate amount not to exceed $5.0 million since the date of this Indenture.

In addition, the preceding provisions shall not prohibit the payment by the Company of cash in lieu of fractional shares in connection with (i) the 135-to-1 reverse stock split to be effected in connection with the Transactions (ii) or the issuance of the exchange consideration in the Exchange Offer, and any such payment shall not constitute Restricted Payments for any purpose under this Indenture.

(c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment or, in the case of a dividend or similar distribution, on the date of declaration thereof, of the assets or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section shall be determined by the Board of Directors or Chief Financial Officer of the Company. The Board of Directors’ or Chief Financial Officer’s determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds $10.0 million. For purposes of determining compliance with this Section, if a Restricted Payment meets the criteria of more

 

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than one of the types of Restricted Payments described in clauses (1) through (9) above or the first paragraph of this Section, the Company, in its sole discretion, may divide or classify and from time to time divide, re-divide, classify and reclassify such Restricted Payment among such clauses and/or first paragraph in any manner in compliance with this covenant.

Section 4.08 Incurrence of Indebtedness and Issuance of Preferred Stock .

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “ incur ”) any Indebtedness (including Acquired Debt), and the Company shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however , that the Company may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the Guarantors may incur Indebtedness (including Acquired Debt), if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

(b) The provisions of Section 4.08(a) hereof shall not prohibit the incurrence of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred stock, as applicable (collectively, “ Permitted Debt ”):

(1) the incurrence by the Company and the Guarantors of additional Indebtedness and letters of credit under Credit Facilities in an aggregate amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the greater of (a) $50.0 million, less the aggregate amount of all permanent commitment reductions with respect to any revolving credit borrowings under one or more Credit Facilities that have been made by the Company or any of its Restricted Subsidiaries since the date of this Indenture and (b) 19.0% of the Company’s Consolidated Net Tangible Assets; provided, however, that in no event shall the aggregate principal amount of Indebtedness under such Credit Facilities that is not revolving credit borrowings exceed $35.0 million;

(2) the incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;

(3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the date of this Indenture and any PIK Notes and any increases in the principal amount of outstanding Global Notes, in each case as a result of the issuance of PIK Interest and the related Note Guarantees (but not any Additional Notes for the avoidance of doubt);

(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of, or to lease property, plant, equipment or other assets (including Capital Stock) used in the business of the Company or any of its Restricted Subsidiaries, in an aggregate amount, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (4) at any time outstanding not to exceed $5.0 million;

 

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(5) Indebtedness (including Acquired Debt) of (x) the Company or any Guarantor incurred or issued to finance an acquisition of all or substantially all of the assets of another Person (whether through merger, consolidation, the direct purchase of such assets or the acquisition of Capital Stock of the person owning such assets) or (y) Persons that are acquired by the Company or a Guarantor; provided that after giving effect to the incurrence of such Indebtedness, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (5), and such acquisition, merger or consolidation (in each case with such pro forma adjustments as are contemplated by the definition of “Fixed Charge Coverage Ratio”), the Company would have been able to incur $1.00 of additional Indebtedness pursuant to the first paragraph of this Section after giving effect to the incurrence of such Indebtedness pursuant to this clause (5);

(6) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness between or among the Company and/or any of its Restricted Subsidiaries) that was permitted by this Indenture to be incurred under Section 4.08(a) hereof or clauses (2), (3), (4), (5), (6), (15) or (16) of this Section 4.08(b);

(7) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and/or any of its Restricted Subsidiaries; provided, however , that:

(A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee of such Guarantor, in the case of a Guarantor; and

(B) any (i) subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company, or (ii) sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (7);

(8) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that any:

(A) subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; or

(B) sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (8);

 

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(9) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;

(10) the Guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of Section 4.08; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Note Guarantee shall be subordinated or pari passu , as applicable, to other Indebtedness of the Guarantor to the same extent as the Indebtedness guaranteed;

(11) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, insurance contracts, self-insurance obligations, bankers’ acceptances, performance and surety bonds and other similar guarantees of obligations not constituting Indebtedness in the ordinary course of business;

(12) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days following receipt by the Company or such Restricted Subsidiary of notice or such event;

(13) any obligation arising from agreements of the Company or any Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price, earn outs, or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted Subsidiary (including, without limitation, assets acquired by a Restricted Subsidiary of the Company and any Person that, as a result of such transaction, becomes a Restricted Subsidiary of the Company) in a transaction permitted by this Indenture, provided the maximum liability in respect of all such Indebtedness incurred in connection with a disposition shall at no time exceed the gross proceeds including noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition;

(14) Indebtedness of the Company or a Restricted Subsidiary to the extent that the net proceeds thereof are promptly deposited to effect Legal Defeasance or Covenant Defeasance of the Notes or to effect satisfaction and discharge of this Indenture;

(15) the incurrence by Foreign Subsidiaries of Indebtedness in an aggregate amount at any time outstanding pursuant to this clause (15), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (15), not to exceed $8.0 million (or the equivalent thereof, measured at the time of each incurrence, in applicable foreign currency); and

(16) the incurrence by the Company or any of the Guarantors of additional Indebtedness in an aggregate amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (16), not to exceed $10.0 million.

 

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The Company shall not incur, and shall not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms; provided, however , that no Indebtedness shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured or by virtue of being secured on a junior Lien basis.

For purposes of determining compliance with this Section 4.08, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (16) appearing above in this Section 4.08(b), or is entitled to be incurred pursuant to Section 4.08(a), the Company shall be permitted to classify and divide such item of Indebtedness on the date of its incurrence, and later reclassify and redivide all or a portion of such item of Indebtedness among any one or more of such clauses and/or Section 4.08(a), in any manner that complies with this Section 4.08. Indebtedness under Credit Facilities outstanding on the date of this Indenture shall initially be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. The accrual of interest or dividends on Disqualified Stock, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Disqualified Stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.08; provided , in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges (to the extent required by the definition of such term) of the Company as accrued. For purposes of determining compliance with any U.S. dollar denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding any other provision of this Section, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. In determining the amount of Indebtedness outstanding, the outstanding amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such person or any other Person under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.

The amount of any Indebtedness outstanding as of any date shall be:

(1) the accreted value of Indebtedness, in the cause of any Indebtedness issued with original issue discount;

(2) with respect to contingent obligations, the maximum liability upon the occurrences of the contingency giving rise to the obligation;

(3) with respect to Hedging Obligations, the net amount payable, if any, by the specified Persons if such Hedging Obligations terminated at that time due to default by such Person;

(4) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(A) the Fair Market Value of such assets at the date of determination;

 

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(B) the amount of such Indebtedness of the other Person;

(5) the maximum amount the Company and its Restricted Subsidiaries would become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, in the case of any Disqualified Stock;

(6) the amount of the liability in respect thereof determined in accordance with GAAP, in the case of Indebtedness issued at a price that is less than the principal amount thereof; and

(7) the principal amount of the Indebtedness, in the case of any other Indebtedness.

Section 4.09 Liens .

The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness or trade payables on any asset or property now owned or hereafter acquired, except Permitted Liens.

Section 4.10 [Reserved].

Section 4.11 Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries .

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

(1) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries on its Capital Stock, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries;

(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or

(3) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

(b) However, the preceding restrictions shall not apply to encumbrances or restrictions existing under or by reason of:

(1) agreements governing Existing Indebtedness and any security agreements or collateral documents, including, without limitation, the Existing Revolving Credit Facility Documents and the New Senior Loan Facility, in each case, as in effect on the date of this Indenture and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture;

(2) this Indenture, the Notes, the Note Guarantees and the Security Documents, the Existing Notes Documents, and any amendments, restatements, modifications, supplements, refunding, replacements or refinancings thereof;

 

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(3) agreements or instruments (other than those referred to in the clauses (1) or (2) in this Section 4.11(b)) governing Indebtedness permitted to be incurred under the provisions of Section 4.08 and any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the restrictions therein are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in (x) this Indenture, the Notes, the Note Guarantees and the Security Documents or (y) in the case of any amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of any such agreements or instruments, the agreements or instruments governing such Indebtedness;

(4) applicable law, rule, regulation, permit or order;

(5) any agreement or instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;

(6) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;

(7) mortgage financings and other Indebtedness, in each case incurred for the purpose of financing all or any part of the purchase price of or cost of design, construction, installation or improvement of property, plant, equipment or other assets in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property that has been, is being or is to be purchased, leased, designed, constructed, installed or improved, as the case may be, of the nature described in Section 4.11(a)(3);

(8) any agreement for the sale or other disposition of a Restricted Subsidiary (including, without limitation, by merger, consolidation or sale or other disposition of Capital Stock) or any assets of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary or of such assets pending such sale or other disposition;

(9) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(10) Permitted Liens and other Liens permitted to be incurred under the provisions of Section 4.09 that limit the right to dispose of the assets subject to such Liens;

(11) provisions limiting the disposition or distribution of assets or property in joint venture agreements, partnership agreements, limited liability company agreements, merger agreements, acquisition agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements (including agreements or restrictions entered into in connection with Investments permitted by the terms of this Indenture to be made), which limitation is applicable only to the assets that are the subject of such agreements pending the disposition or transfer of such assets; provided that such disposition or transfer complies with Section 4.20;

 

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(12) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

(13) any instrument governing Indebtedness of a Foreign Subsidiary; provided that such Indebtedness was not prohibited by the terms of this Indenture.

Section 4.12 Transactions with Affiliates .

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “ Affiliate Transaction ”), unless:

(1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could reasonably be expected to have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and

(2) the Company delivers to the Trustee:

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section and that such Affiliate Transaction has been approved by a majority of the Board of Directors of the Company; and

(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of recognized standing.

(b) the following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 4.12(a):

(1) any employment agreement, employee benefit plan, equity incentive plan, employee stock ownership plan, officer or director indemnification agreement, compensation agreement or arrangement, customary benefit programs or arrangements for employees, officers or directors (including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans) or any similar agreement or arrangement entered into by the Company or any of its Restricted Subsidiaries in connection with the Transactions or in the ordinary course of business and payments pursuant thereto;

(2) payment of reasonable and customary fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of directors or officers of the Company or any of its Restricted Subsidiaries;

(3) loans or advances to employees in the ordinary course of business not to exceed $1.0 million in the aggregate at any one time outstanding;

 

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(4) transactions between or among the Company and/or its Restricted Subsidiaries;

(5) transactions with a Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

(6) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;

(7) Restricted Payments that do not violate the provisions of this Indenture described in Section 4.07 and Permitted Investments;

(8) any transactions between the Company or any Restricted Subsidiary of the Company and any Person, a director of which is also a director of the Company or a Restricted Subsidiary; provided that such director abstains from voting as a director of the Company or the Restricted Subsidiary, as applicable, in connection with the approval of the transaction; and

(9) any agreement or Transaction, or any further transactions contemplated by, or in furtherance of, the Transactions, whether considered individually or in the aggregate.

Section 4.13 [Reserved].

Section 4.14 Business Activities .

The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.

Section 4.15 Additional Note Guarantees .

If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic Subsidiary (other than an Immaterial Subsidiary or a CFC Subsidiary Holding Company) after the date of this Indenture, then the Company shall:

(1) cause that newly acquired or created Domestic Subsidiary to execute a supplemental indenture pursuant to which it shall become a Guarantor in all material respects in form and substance set forth in the Indenture;

(2) [Reserved];

(3) become a party to the Security Documents and take all other actions required by the Security Documents to grant to the Noteholder Collateral Agent for the benefit of the Holders a Lien, to the extent and in the manner required by the Security Documents, in assets that constitute Collateral pursuant to this Indenture and Security Documents;

(4) take such further action and execute and deliver such other documents as may be reasonably requested by the Trustee or Noteholder Collateral Agent to effect the foregoing; provided, that neither the Trustee nor the Noteholder Collateral Agent shall be required to make any such request; and

 

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(5) deliver an Opinion of Counsel and such other documents, as required by this Indenture, and deliver such documents to the Noteholder Collateral Agent, as required by the Security Documents.

Section 4.16 Designation of Restricted and Unrestricted Subsidiaries .

(a) The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if:

(1) the Company could make the Restricted Payment which is deemed to occur upon such designation as described in, and the amount calculated pursuant to Section 4.07 equal to the appropriate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in such Subsidiary at the time of such designation;

(2) such Restricted Subsidiary meets the definition of an “Unrestricted Subsidiary”;

(3) the designation would not constitute or cause (with or without the passage of time) a Default or Event of Default or no Default or Event of Default would be in existence immediately following such designation; and

(4) the Company delivers to the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions.

(b) If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value as of the date of such designation of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary shall be deemed to be an Investment made as of the time of the designation and shall reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of “Permitted Investments,” as determined by the Company.

(c) If, at any time, any Unrestricted Subsidiary designated as such would fail to meet the preceding requirements as an Unrestricted Subsidiary, then such Subsidiary shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.08, the Company shall be in default under Section 4.08.

(d) The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company if:

(1) the Company and its Restricted Subsidiaries could incur the Indebtedness which is deemed to be incurred upon such designation under Section 4.08, equal to the total Indebtedness of such Subsidiary calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period following such designation;

(2) the designation would not constitute or cause a Default or Event of Default; and

(3) the Company delivers to the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the preceding conditions, including the incurrence of Indebtedness under Section 4.08.

 

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Section 4.17 Payments for Consent .

The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Notes or the Security Documents unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement.

Section 4.18 Reports .

(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to the Trustee or cause the Trustee to furnish to the Holders, within the time periods specified in the SEC’s rules and regulations, including any permitted extensions thereof:

(1) all quarterly reports on Form 10-Q and annual reports on Form 10-K that would be required to be filed with the SEC on such forms if the Company were required to file such reports; and

(2) all current reports on Form 8-K that would be required to be filed with the SEC on such form if the Company were required to file such reports.

(b) All such reports shall be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K shall include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants. In addition, the Company shall (i) post the reports on its website within the time periods specified in the rules and regulations applicable to such reports, including any permitted extensions thereof and (ii) file a copy of each of the reports referenced in Section 4.18(a)(1) and (a)(2) with the SEC for public availability within the time periods specified in the rules and regulations applicable to such reports, including any permitted extensions thereof (unless the SEC will not accept such a filing), provided that the website referred to in clause (i) may be subject to a confidentiality acknowledgement and a requirement that any Person accessing such website represent that it is the Trustee, a Noteholder, a beneficial owner of Notes, a bona fide prospective investor in Notes, a securities analyst or a market maker.

(c) If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company shall nevertheless continue filing the reports specified in Section 4.18(a) with the SEC within the time periods specified in Section 4.18(a) unless the SEC will not accept such a filing. The Company shall not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company will post the reports referred to in Section 4.18(a) on its website within the time periods, including any permitted extensions thereof, that would apply if the Company were required to file those reports with the SEC. Notwithstanding anything to the contrary in the foregoing, if at any time any such reports are not filed by the Company, or are not accepted by the SEC for any reason, for inclusion on the SEC’s EDGAR service (or any successor thereto), the Company will post such reports on a website no later than the date the Company is required to provide those reports to the Trustee and the Holders of the Notes and maintain such posting for so long as any Notes remain outstanding. Access to such reports on such website may be subject to a confidentiality acknowledgment; provided, that no other

 

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conditions, including password protection, may be imposed on access to such reports other than a representation by the Person accessing such reports that it is the Trustee, a Holder, a beneficial owner of the Notes, a bona fide prospective investor, a securities analyst or a market maker.

(d) The Company shall hold a quarterly conference call for the Holders and securities analysts to discuss such financial information no later than ten business days after distribution of such financial information.

(e) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraphs shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations”, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

(f) In addition, for so long as any Notes remain outstanding, if at any time the Company is not required to file periodic reports with the SEC the reports required by this Section 4.18, the Company shall furnish to the Holders of Notes and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.

Section 4.19 Offer to Repurchase Upon Change of Control .

(a) Upon the occurrence of a Change of Control, the Company shall make an offer (a “ Change of Control Offer ”) to each Holder to repurchase all or any part (equal to a minimum principal amount of $1.00 or an integral multiple of $1.00 in principal amount in excess thereof) of that Holder’s Notes on the terms and subject to the conditions set forth in this Section 4.19. In the Change of Control Offer, the Company shall offer a payment (the “ Change of Control Payment ”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, the Company shall mail a notice to the Trustee and each Holder describing the transaction or transactions that constitute the Change of Control and stating:

(1) that the Change of Control Offer is being made pursuant to this Section 4.19 and that all Notes duly tendered for purchase shall be accepted for payment and

(2) the purchase price and the Purchase Date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”);

(3) that any Note not tendered for purchase shall continue to accrue interest;

(4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on and after the Change of Control Payment Date;

(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer the Notes by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business in The City of New York on the third Business Day preceding the Change of Control Payment Date;

 

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(6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business in The City of New York on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have the Notes purchased; and

(7) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1.00 in principal amount and integral multiples of $1.00.

The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control provisions of this Section 4.19 by virtue of such compliance.

(b) On or before the Change of Control Payment Date, the Company shall, to the extent lawful:

(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer and not withdrawn;

(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered for purchase and not withdrawn; and

(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.

(c) The Paying Agent shall promptly mail to each Holder of Notes properly tendered and not withdrawn the Change of Control Payment for such Notes (or, in the case of any Notes that are in global form, make such payment through the facilities of DTC or any other applicable Depositary), and the Company shall execute and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(d) The provisions of this Section 4.19 that require the Company to make a Change of Control Offer following a Change of Control shall be applicable whether or not any other provisions of this Indenture are applicable.

(e) The Company shall not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such third-party Change of Control Offer, or (2) notice of redemption has been given pursuant to Section 3.03

 

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hereof, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary contained in this Indenture, a Change of Control Offer may be made in advance of a Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.

Section 4.20 Asset Sales .

(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and

(2) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided, however , to the extent that any disposition in such Asset Sale was of Collateral, any consideration received is pledged as Collateral under the Security Documents promptly after receipt of such non-cash consideration by the Company or such Restricted Subsidiary, to the extent required by and, in accordance with the requirements set forth in this Indenture and the Security Documents.

For purposes of this Section 4.20(a), each of the following shall be deemed to be cash:

(A) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or, if incurred after the date of such balance sheet, as would have been shown on such consolidated balance sheet had they been incurred on or prior to its date), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets or any other Person, other than the Company or one of its Subsidiaries, pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies it against further liability;

(B) any securities, notes, or other obligations received by the Company or any of its Restricted Subsidiaries from such transferee that are, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and

(C) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.20(b).

(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply such Net Proceeds:

(1) to repay Indebtedness and other Obligations under any Credit Facility; provided that, if the Indebtedness repaid is revolving credit Indebtedness, to permanently reduce commitments with respect thereto in an amount equal to the principal amount so repaid;

(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business or one or more Persons primarily engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Permitted Business or Person, as the case may be, is or becomes a Restricted Subsidiary of the Company;

 

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(3) to make a capital expenditure; or

(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided that the assets (including Voting Stock) acquired with the Net Proceeds of a disposition of Collateral are pledged as Collateral under the Security Documents promptly after receipt of such assets by the Company or one of its Restricted Subsidiaries, to the extent required by and in accordance with the Security Documents.

Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may apply the Net Proceeds to temporarily reduce revolving credit borrowings (without reducing the commitment thereunder) or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture.

Any Net Proceeds from Asset Sales that are not applied or invested as provided above in this Section 4.20(b) shall constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company shall, within five days thereof, make an offer (an “ Asset Sale Offer ”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum amount of principal of, and premium, if any, and interest, if any, on, the Notes and such other pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Excess Proceeds (after deducting therefrom all fees and expenses incurred in connection therewith).

(c) The offer price for the Notes in any Asset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and shall be payable in cash.

(d) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture.

(e) If the sum of the aggregate amount of principal of, premium, if any, and interest, on the Notes and other pari passu Indebtedness tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds (after deducting from such Excess Proceeds the aggregate amount of all fees and expenses incurred in connection with such Asset Sale Offer and the purchase, prepayment or redemption of any such pari passu Indebtedness), the Trustee or the Registrar shall select the Notes to be purchased on a pro rata basis with any such pari passu Indebtedness (except that any Notes represented in global form shall be selected by such method as DTC or the applicable Depositary, as the case may be, or its nominee may require), based on the amounts tendered or required to be prepaid or redeemed (including, amounts required to be paid in respect of principal, premium, if any, interest, if any), with such adjustments as may be deemed appropriate so that Notes are repurchased in denominations of $1.00 or an integral multiple of $1.00 in principal amount in excess thereof and so that any such pari passu Indebtedness issued in specified authorized denominations is only repurchased in such authorized denominations or so that any unrepurchased portion of a Note or such pari passu Indebtedness that is repurchased in part is an authorized denomination. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.

 

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(f) The Company shall not and shall not permit any of its Restricted Subsidiaries to, enter into or suffer to exist any agreement (other than any agreement governing Credit Facilities for Indebtedness permitted to be incurred pursuant to clause (1) of the second paragraph of Section 4.08 that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer.

(g) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes and any pari passu Indebtedness pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.

ARTICLE 5

SUCCESSORS

Section 5.01 Merger, Consolidation, or Sale of Assets .

(a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:

(1) either: (A) the Company is the surviving corporation; or (B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

(2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance, lease or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, delivers to the Trustee an Opinion of Counsel required by this Indenture, including an opinion as to the enforceability of the supplemental indenture and by amendment, supplement or other instrument joins the Security Documents in form and substance reasonably required by the Security Documents and takes all other actions required by the Security Documents to grant to the Noteholder Collateral Agent for the benefit of the Holders of the Notes, to the extent and subject to the exceptions provided in the Security Documents and this Indenture, a Lien in assets that constitute Collateral pursuant to this Indenture and the Security Documents;

(3) immediately after such transaction, no Default or Event of Default exists;

(4) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.08(a) hereof or (b) have a Fixed Charge Coverage Ratio equal to or greater than the actual Fixed Charge Coverage Ratio for the Company for such four-quarter period; and

 

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(5) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided that in giving an Opinion of Counsel, counsel may rely on an Officers’ Certificate as to any matters of fact.

(b) In addition, the Company shall not, directly or indirectly, lease all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to any other Person, except as otherwise provided for in Section 5.01(a).

(c) This Section 5.01 shall not apply to any sale, assignment, transfer or conveyance, lease or other disposition of assets between or among the Company and/or its Restricted Subsidiaries.

(d) Section 5.01(a)(3) and Section 5.01(a)(4) shall not apply to (x) any merger or consolidation of the Company with or into one of its Restricted Subsidiaries for any purpose or (y) with or into an Affiliate solely for the purpose of reincorporation the Company in another jurisdiction.

Section 5.02 Successor Corporation Substituted .

Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the Company shall be automatically released from its obligations under this Indenture, the Notes and the Security Documents and the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture, the Notes and the Note Guarantees referring to the “Company” shall refer instead to the successor Person and not to the predecessor Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and therein; provided, however , that, in the case of a lease of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, the predecessor Company shall not be released from its obligations to pay the principal of and premium and interest on the Notes.

ARTICLE 6

DEFAULTS AND REMEDIES

Section 6.01 Events of Default .

Each of the following is an “ Event of Default ”:

(1) default for 30 days in the payment when due of interest, if any, with respect to the Notes;

(2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;

(3) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 3.09, 4.19, 4.20 or 5.01 hereof;

 

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(4) failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in this Indenture or the Security Documents;

(5) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or Guarantee exists, on, or is created after, the date of this Indenture, if that default:

(A) is caused by a failure to pay principal of, or interest, if any, or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “ Payment Default ”); or

(B) results in the acceleration of such Indebtedness prior to its express maturity,

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $5.0 million or more; provided that if, prior to any acceleration of the Notes, (i) any such Payment Default is cured or waived, (ii) any such acceleration is rescinded or (iii) such Indebtedness is repaid, all Defaults and Events of Default under this Indenture resulting therefrom (but not any acceleration of the Notes) shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree of any court of competent jurisdiction;

(6) failure by the Company or any of its Restricted Subsidiaries to pay final, unappealable judgments entered by a court or courts of competent jurisdiction aggregating in excess of $5.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;

(7) except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding of any court of competent jurisdiction to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms its obligations under its Note Guarantee;

(8) breach by the Company or any of its Restricted Subsidiaries of any representation or warranty or agreement in the Security Documents that has a material adverse effect on the Holders of the Notes or on the Collateral (and the failure to cure such breach for 60 days) or the repudiation by the Company or any of its Restricted Subsidiaries of any of their obligations under the Security Documents;

(9) the Liens created by the Security Documents shall at any time not constitute a valid and perfected Lien on any material portion of the Collateral intended to be covered thereby (to the extent perfection by filing, registration, recordation or possession is required by this Indenture or the Security Documents), or, except for expiration in accordance with its terms or amendment, modification, waiver, termination or release in accordance with the terms of this Indenture or the applicable Security Document, any of the Security Documents shall for whatever reason be terminated or cease to be in full force and effect (in each case, except in accordance with the terms thereof or of this Indenture) or any material provisions of the Security Documents shall be unenforceable against the Company or any of its Restricted Subsidiaries that is a party thereto, if any such case, such default continues for 60 days after notice, or the enforceability of the Security Documents shall be contested by the Company or any Guarantor;

 

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(10) the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of applicable Bankruptcy Code:

(A) commences a voluntary case;

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

(C) consents to the appointment of a custodian of it or for all or substantially all of its property;

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

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

(11) a court of competent jurisdiction enters an order or decree under any Bankruptcy Code that:

(A) is for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;

(B) appoints a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or of any of its Restricted Subsidiaries that is a Significant Subsidiary or of any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or

(C) orders the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;

and the order or decree remains unstayed and in effect for 90 consecutive days.

Section 6.02 Acceleration .

(1) In the case of an Event of Default specified in clause (10) or (11) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee, by written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Trustee and the Company, may declare all the Notes to be due and payable immediately.

 

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Section 6.03 Other Remedies .

If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

Section 6.04 Waiver of Past Defaults .

Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences hereunder, if the rescission would not conflict with any judgment or decree, except a continuing Default or Event of Default in the payment of interest, including premium, if any, on, or the principal of, the Notes, premium, if any, or interest on, the Notes (including in connection with an offer to purchase pursuant to Sections 4.19 or 4.20 of this Indenture). Upon any such waiver, such Default or Event of Default shall cease to exist, and any Event of Default arising from any such Default shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

Section 6.05 Control by Majority .

Subject to Section 7.02(f), Holders of a majority in aggregate principal amount of the then outstanding Notes shall have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, except as otherwise provided in this Indenture.

Section 6.06 Limitation on Suits .

Except to enforce the right to receive payment of principal, premium, if any, or interest, if any, when due, no Holder of a Note may pursue any remedy with respect to this Indenture or the Notes unless:

(1) such Holder has previously given the Trustee written notice that an Event of Default is continuing;

(2) Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;

(3) such holders have offered and, if requested, provided to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense;

(4) the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and

(5) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.

 

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A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.

Section 6.07 Rights of Holders of Notes to Receive Payment .

Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase pursuant to Sections 4.19 or 4.20 of this Indenture), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder; provided that a Holder shall not have the right to institute any such suit for the enforcement of payment if and to the extent that the institution or prosecution thereof or the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver or loss of the Lien of this Indenture upon any property subject to such Lien.

Section 6.08 Collection Suit by Trustee or Noteholder Collateral Agent .

If an Event of Default specified in Sections 6.01(1) or (2) hereof occurs and is continuing, the Trustee or the Noteholder Collateral Agent may recover judgment (a) in its own name, and (b)(1) in the case of the Trustee, as trustee of an express trust or (2) in the case of the Noteholder Collateral Agent, as Noteholder Collateral Agent on behalf of the Holders, in each case against the Company for the whole amount of principal of, premium, if any, and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent permitted by applicable law, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, disbursements and advances of the Trustee, the Noteholder Collateral Agent and their respective agents and counsel. Any amounts recovered by the Noteholder Collateral Agent shall be promptly paid by it to the Trustee.

Section 6.09 Trustee May File Proofs of Claim .

The Trustee shall be authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee or the Noteholder Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Noteholder Collateral Agent and their respective agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee or the Noteholder Collateral Agent, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Noteholder Collateral Agent or their respective agents and counsel, and any other amounts due the Trustee or the Noteholder Collateral Agent under the Security Documents and Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee or the Noteholder Collateral Agent, as the case may be, to vote in respect of the claim of any Holder in any such proceeding.

 

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Section 6.10 Priorities .

If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:

First : to the Trustee, the Noteholder Collateral Agent, the Paying Agent and the Registrar for amounts due under Section 7.07 hereof, including payment of all reasonable compensation and expenses incurred, and all reasonable disbursements and advances made, by the Trustee or the Noteholder Collateral Agent, as the case may be, and the costs and expenses of collection;

Second : to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, interest, if any, respectively; and

Third : to the Company or to such party as a court of competent jurisdiction shall direct.

The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.

Section 6.11 Undertaking for Costs .

In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee or the Noteholder Collateral Agent, as the case may be, for any action taken or omitted by it as a Trustee or the Noteholder Collateral Agent, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee or the Noteholder Collateral Agent, as the case may be, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.

Section 6.12 Applicable Premium .

(1) In the event that (i) the Company’s obligations under this Indenture cease to be of effect as a result of satisfaction or discharge pursuant to Article 10 of this Indenture or (ii) any acceleration of the Notes occurs (and is not rescinded) or the Notes otherwise become due and payable prior to their Maturity Date as a result of an Event of Default (including, without limitation, an Event of Default specified in clause (10) or (11) of Section 6.01) (any such event, an “Applicable Premium Event,” and the date of any such Applicable Premium Event, an “Applicable Premium Date”), a payment in an amount equal to the Applicable Premium shall be immediately due and payable (subject to rescission, in the event that the underlying acceleration is rescinded), unless waived by the Holders of a majority of then-outstanding principal amount of the Notes, on the principal amount so accelerated or that has become or is declared to be immediately due and payable, and such Applicable Premium shall constitute part of the obligations in respect of such acceleration or other declaration. The Applicable Premium shall be payable along with the principal of, and any accrued and unpaid interest on, the Notes payable as a result of such Applicable Premium Event.

 

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(2) The Applicable Premium provided for in Section 6.12(1) shall be paid in view of the impracticality and extreme difficulty of ascertaining actual damages and by mutual agreement of the Company and the Holders of the Notes as to a reasonable calculation of each Holder’s lost profits as a result thereof. Any Applicable Premium payable shall be presumed to be the liquidated damages sustained by each Holder as the result of an Applicable Premium Event, and the Company agrees that it is reasonable under the circumstances currently existing.

(3) The Company expressly waives (to the fullest extent it may lawfully do so) the provisions of any present or future statute or law that prohibits or may prohibit the collection of the Applicable Premium in connection with any such acceleration or declaration.

(4) The Company expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Applicable Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Applicable Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Holders and the Company giving specific consideration in connection with the issuance of the Notes for such agreement to pay the Applicable Premium; and (D) the Company shall be estopped following the issuance of the Notes from claiming differently than as agreed to in this Section 6.12(3) and Section 6.12(4). The Company expressly acknowledges that its agreement to pay the Applicable Premium to Holders, if required by this Section 6.12, is a material inducement to Holders’ purchase of the Notes. The Applicable Premium shall constitute part of the Holders’ claim in respect of the Notes in the event of a bankruptcy or liquidation, and such claim shall be allowed against the debtors without the need to file a proof of claim.

ARTICLE 7

TRUSTEE

Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Article 7.

Section 7.01 Duties of Trustee .

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

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

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

(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture but need not confirm or investigate the accuracy of mathematical calculation or other facts stated therein.

 

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

(1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;

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

(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

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

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

(f) Subject to this Section 7.01, the Trustee shall not be liable for the failure to perform its duties and obligations hereunder to the extent such failure is directly caused by the failure of the Company to perform its obligations hereunder.

Section 7.02 Rights of Trustee .

(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, request, direction, consent, order, bond, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.

(b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon.

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

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.

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

 

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(f) Subject to the provisions of Section 7.01(a) of this Indenture, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee satisfactory indemnify or security against any losses, liabilities, costs and expenses that are incurred by it in compliance with such request or direction.

(g) The right of the Trustee or an Agent to perform any discretionary act enumerated in this Indenture shall not be construed as a duty.

(h) Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee, the Noteholder Collateral Agent or an Agent be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage, as the case may be, of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether or not foreseeable, even if the Trustee, the Noteholder Collateral Agent or Agent, as the case may be, has been advised of the likelihood of such loss or damage and regardless of the form of action in which such damages are sought.

Section 7.03 Individual Rights of Trustee .

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest within the meaning of TIA Section 310(b), (other than a conflicting interest arising under the provisions of subparagraph (1) of TIA Section 310(b) (including, for the avoidance of doubt, subclauses (1)(A), (B) and (C) and the proviso to such subparagraph (1)) it must (x) eliminate such conflict within 90 days, (y) if this Indenture has become qualified under the TIA, apply to the SEC for permission to continue as the Trustee, or (z) resign. (For purposes of clarity, the parties hereto agree that no “conflicting interest” shall arise under TIA Section 310(b) because the Trustee is trustee under another Indenture under which the Company or any Guarantor is an obligor.) Any Agent may do the same (subject to the above limitations and exclusions) with like rights and duties. The Trustee is also subject to Sections 7.10 hereof.

Section 7.04 Trustee’s Disclaimer .

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Security Documents or the Notes, it shall not be accountable for any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.

Section 7.05 Notice of Defaults .

If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs or if discovered later than 90 days, promptly after such discovery. The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has received written notice of such Default or Event of Default at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. Receipt of information contained in any report or other document furnished under Section 4.18 of this Indenture shall not be deemed notification of any Default or Event of Default.

 

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Section 7.06 [Reserved] .

Section 7.07 Compensation and Indemnity .

(a) The Company shall pay to the Trustee, Noteholder Collateral Agent, Paying Agent and Registrar (each, an “ Indemnified Party ”) reasonable compensation for its acceptance of this Indenture and the Security Documents and services hereunder and thereunder as agreed to in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a Trustee of an express trust. The Company shall reimburse each Indemnified Party promptly upon request for all reasonable disbursements, advances and expenses incurred or made by such Indemnified Party in addition to the compensation for its services. Such expenses may include the reasonable compensation, disbursements, costs and expenses of the Indemnified Party’s agents and counsel.

(b) The Company and the Guarantors shall indemnify each Indemnified Party and their respective employees, officers, directors and agents for, and hold them harmless against, any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture or the Security Documents, including the costs and expenses (including reasonable compensation and disbursement of its agents and counsel) of enforcing this Indenture or the Security Documents against the Company and the Guarantors (including this Section 7.07) and defending itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection with the exercise or performance of any of such Indemnified Party’s powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to such party’s negligence or bad faith or willful misconduct. Each Indemnified Party shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Indemnified Party to so notify the Company shall not relieve the Company or any of the Guarantors of their Obligations hereunder or under the Security Documents. The Company or such Guarantor shall defend the claim and the applicable Indemnified Party shall cooperate in the defense. Each Indemnified Party may have separate legal counsel and the Company shall pay the reasonable fees and disbursements of such legal counsel; provided that, anything herein to the contrary notwithstanding, neither the Company nor any Guarantor shall be required to pay the fees and expenses of more than one firm of legal counsel for all of the Indemnified Parties in connection with any proceeding or related proceedings, which legal counsel shall be selected by the Trustee. Neither the Company nor any Guarantor need pay for any settlement made without the Company’s consent, which consent shall not be unreasonably withheld.

(c) The obligations of the Company and the Guarantors under this Section 7.07 shall survive the defeasance, satisfaction or discharge of this Indenture and the termination of the Security Documents or any earlier resignation or removal of the Trustee.

(d) To secure the Company’s and the Guarantors’ payment Obligations in this Section 7.07, the Trustee and the Noteholder Collateral Agent shall have a Lien prior to the Notes on all money, Collateral or property held or collected by the Trustee, in its capacity as Trustee, or the Noteholder Collateral Agent in its capacity as Noteholder Collateral Agent, except, in the case of the Trustee, such funds that are held in trust to pay principal, premium, if any, interest, if any, on particular Notes pursuant to Article 8 or 10 hereof. Such Lien shall survive the satisfaction and discharge of this Indenture.

(e) When an Indemnified Party incurs expenses or renders services after an Event of Default specified in Section 6.01(10) or (11) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Code.

 

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Section 7.08 Replacement of Trustee .

(a) A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.

(b) The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if:

(1) the Trustee fails to comply with Section 7.10 hereof;

(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Code;

(3) a custodian or public officer takes charge of the Trustee or its property; or

(4) the Trustee becomes incapable of acting.

(c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

(d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

(f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company’s Obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.

Section 7.09 Successor Trustee by Merger, etc .

If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or entity, the successor corporation or entity without any further act shall be the successor Trustee.

 

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Section 7.10 Eligibility; Disqualification .

There shall at all times be a Trustee hereunder that is a corporation or entity organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most recent published annual report of condition.

Section 7.11 [Reserved] .

Section 7.12 Trustee in Other Capacities; Noteholder Collateral Agent and Paying Agent .

References to the Trustee in Sections 7.01(b), (c)(2), (d), (e) and (f), 7.02, 7.03, 7.04, 7.07, and 7.08 shall be understood to include the Trustee when acting in its other capacities under this Indenture, including, without limitation, as Paying Agent and Noteholder Collateral Agent. Without limiting the foregoing, and for the avoidance of doubt, such Sections shall be read to apply to the Noteholder Collateral Agent and the Security Documents, mutatis mutandis, in addition to this Indenture. The privileges, rights, indemnities, immunities and exculpatory provisions contained in this Indenture shall apply to the Trustee, whenever it is acting under the Notes Documents.

ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE

Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance .

The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the applicable conditions set forth below in this Article 8.

Section 8.02 Legal Defeasance and Discharge .

Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company and each of the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Note Guarantees), this Indenture and the Security Documents and all of the obligations with respect to their Note Guarantees on the date the conditions set forth below are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) of this Section 8.02, and to have satisfied all their other obligations under such Notes, the Note Guarantees, the Security Documents and this Indenture (and the Trustee and the Noteholder Collateral Agent, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:

(1) the rights of Holders of outstanding Notes to receive cash payments in respect of the principal of, or interest or premium on such Notes when such payments are due, but solely from the trust referred to in Section 8.05 hereof; provided, that the Company shall no longer be entitled to pay interest in the form of PIK Interest;

 

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(2) the Company’s obligations with respect to the Notes under Sections 2.06, 2.07, 2.10 and 4.02 hereof;

(3) the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;

(4) the rights, powers, trusts, duties and immunities of the Trustee under this Indenture, and the Company’s and the Guarantors’ obligations in connection therewith; and

(5) this Article 8.

Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.

Section 8.03 Covenant Defeasance .

Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under Sections 3.09, 4.03, and 4.05 and Sections 4.07 through and including 4.20 hereof, and Section 5.01 hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such Sections, but shall continue to be deemed “outstanding” for all other purposes hereunder. For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Sections, whether directly or indirectly, by reason of any reference elsewhere herein to any such Sections or by reason of any reference in any such Sections to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof or otherwise constitute a default under this Indenture, but, except as specified above and in the immediately following sentence, the remainder of this Indenture and such Notes and Note Guarantees shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(3), (4), (5), (6), (7), (8) and (9) hereof shall not constitute Events of Default.

Section 8.04 Conditions to Legal or Covenant Defeasance .

In order to exercise either Legal Defeasance or Covenant Defeasance under either Sections 8.02 or 8.03 hereof:

(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, or interest, if any, and premium, if any, on, the outstanding Notes on the stated dates for payment thereof or on the applicable Redemption Date, as the case may be, and the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular Redemption Date;

 

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(2) in the case of Legal Defeasance, the Company must deliver to the Trustee an Opinion of Counsel confirming that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;

(3) in the case of Covenant Defeasance, the Company must deliver to the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

(4) no Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);

(6) the Company must deliver to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and

(7) the Company must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel (which counsel may rely on an Officers’ Certificate as to matters of fact), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.

Upon any Legal Defeasance or Covenant Defeasance, all of the Collateral shall be released from all Liens arising under the Security Documents and this Indenture and the Security Documents shall automatically terminate.

Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions .

Subject to Section 8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “ Trustee ”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.

Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.

Section 8.06 Repayment to Company .

Subject to applicable abandoned property laws, any money deposited (whether under this Article 8, Section 4.01 or any other provision of this Indenture or any of the Security Documents) with the Trustee or any Paying Agent, or then held by the Company or any of its Subsidiaries, in trust for the payment of the principal of, premium, if any, or interest, if any, on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company or any of its Subsidiaries) shall be discharged from such trust; and the Holder of such Note shall thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or any of its Subsidiaries as trustee thereof, shall thereupon cease; provided, however , that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times or The Wall Street Journal, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company.

Section 8.07 Reinstatement .

If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Sections 8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ Obligations under this Indenture and the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Sections 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money and Government Securities in accordance with Sections 8.02 or 8.03 hereof, as the case may be; provided, however , that, if the Company or any Guarantor makes any payment of principal of, premium, if any, interest, if any, on, any Note following the reinstatement of its obligations, the Company or such Guarantor, as applicable, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER

Section 9.01 Without Consent of Holders of Notes .

Notwithstanding Section 9.02 of this Indenture, without the consent of any Holder of Notes, the Company, the Guarantors and the Trustee and, if any amendment or supplement relates to any Security Document, the Noteholder Collateral Agent, may amend or supplement this Indenture, the Notes, the Note Guarantees, and the Security Documents:

 

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(1) to cure any ambiguity, defect or inconsistency;

(2) to provide for uncertificated Notes in addition to or in place of certificated Notes;

(3) to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of Notes and Note Guarantees in the case of a merger or consolidation or sale, lease or other transfer of all or substantially all of the Company’s or such Guarantor’s assets, as applicable;

(4) to make any change that would provide any additional rights or benefits to the Holders of Notes or that does not adversely affect the legal rights under this Indenture of any such Holder in any material respect;

(5) to comply with the requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA, if applicable;

(6) to conform the text of this Indenture, the Security Documents, the Notes or the Note Guarantees to any provision appearing under the caption “Description of Notes” in the Memorandum to the extent that such provision in such Description of Notes was intended to be a substantially verbatim recitation of a provision of this Indenture, the Security Documents, the Notes or the Note Guarantees, which intent may be evidenced by an Officers’ Certificate to that effect delivered to the Trustee;

(7) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date of this Indenture;

(8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes;

(9) to secure the Notes or the Note Guarantees pursuant to the requirements of Section 4.09 hereof or otherwise, including, without limitation, entering into any amendment or waiver, or entering into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional assets or property to become Collateral for the benefit of the Holders of Notes, or as required by applicable laws to give effect to, or protect any security interest for the benefit of the Holders of Notes, in any property or assets so that the security interests therein comply with applicable laws;

(10) to add any additional guarantees of the Notes or to evidence the release of any Guarantor from its Note Guarantee and such Guarantor’s obligations under this Indenture and the Security Documents and the release of such Guarantor’s Collateral from the Liens arising under this Indenture and the Security Documents, in each case as provided in this Indenture and the Security Documents;

(11) to evidence or provide for the acceptance of appointment under this Indenture of a successor trustee or a successor Noteholder Collateral Agent;

(12) to enter into additional or supplemental Security Documents for the benefit of the Holders of the Notes; or

 

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(13) to make, complete or confirm any grant of Collateral permitted or required by this Indenture or any of the Security Documents or any release of Collateral when permitted or required by this Indenture or the Security Documents.

Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amendment or supplement to this Indenture, the Notes, the Note Guarantees, or the Security Documents, and upon receipt by the Trustee of the documents described in Section 7.02(b) hereof, the Trustee and, if applicable, the Noteholder Collateral Agent shall join with the Company and the Guarantors in the execution of any such amendment or supplement authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amendment or supplement that affects its own rights, duties or immunities under this Indenture or otherwise.

Section 9.02 With Consent of Holders of Notes .

Except as provided in Section 9.01 and in the next two succeeding paragraphs of this Section 9.02, this Indenture, the Notes, the Note Guarantees, or the Security Documents may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes), and any existing Default or Event of Default or compliance with any provision of this Indenture, the Notes or the Note Guarantees or the Security Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Section 2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.

Without the consent of each Holder of Notes affected, an amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):

(1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;

(2) reduce the principal of or change the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption of the Notes (except provisions relating to minimum notice of redemption or Sections 3.09, 4.19 and 4.20 hereof);

(3) reduce the rate of or change the time for payment of interest, including default interest, on any Note;

(4) waive a Default or Event of Default in the payment of principal of, or interest, or premium, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);

(5) make any Note payable in money other than that stated in the Notes;

(6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of, or interest, if any, or premium, on the Notes;

 

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(7) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.19 or 4.20 hereof);

(8) release any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this Indenture; or

(9) make any change in the preceding amendment and waiver provisions.

In addition, any amendment to, or waiver of, the provisions of this Indenture or any Security Documents that has the effect of releasing all or substantially all of the Collateral from the Liens securing the Notes shall require the consent of the holders of at least 66-2/3% in aggregate principal amount of the Notes then outstanding.

Section 9.03 [Reserved].

Section 9.04 Revocation and Effect of Consents .

Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.

The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date.

Section 9.05 Notation on or Exchange of Notes .

The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.

Failure to make the appropriate notation or issue new Notes shall not affect the validity and effect of such amendment, supplement or waiver.

Section 9.06 Trustee to Sign Amendments, etc .

The Trustee and, if required by this Article 9, the Noteholder Collateral Agent shall sign any amendment or supplement to this Indenture, the Notes, the Note Guarantees, or the Security Documents authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee or Noteholder Collateral Agent, as applicable. The Company may not sign an amendment or supplement to this Indenture, the Notes, the Note Guarantees, or the Security Documents until the Board of Directors of the Company approves it. In executing any amendment or supplement to this Indenture, the Notes, the Note Guarantees, or the Security Documents, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 13.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture.

 

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ARTICLE 10

SATISFACTION AND DISCHARGE

Section 10.01 Satisfaction and Discharge .

This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued hereunder, when:

(1) either:

(A) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or

(B) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or shall become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as shall be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium and accrued interest to the date of maturity or redemption, as the case may be;

(2) no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit) and the deposit shall not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;

(3) the Company or any Guarantor has paid or caused to be paid all other sums payable by it under this Indenture; and

(4) the Company has delivered irrevocable written instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the Redemption Date, as the case may be.

In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel (which counsel may rely on an Officers’ Certificate as to matters of fact) to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.

Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section 10.01, the provisions of Sections 10.02 and 8.06 hereof shall survive. In addition, nothing in this Section 10.01 shall be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.

 

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Upon any such satisfaction and discharge, all of the Collateral shall be released from all Liens arising under the Security Documents and this Indenture and the Security Documents shall automatically terminate.

Section 10.02 Application of Trust Money .

Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 10.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 10.01 hereof by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s Obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money and Government Securities in accordance with Section 10.01 hereof; provided that if the Company or any Guarantor has made any payment of principal of, premium, if any, or interest, if any, on, any Notes because of the reinstatement of its obligations, the Company or such Guarantor, as applicable, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent; and provided, further, that no Default or Event of Default under or as a result of any of the provisions of this Indenture that have been so revived or reinstated shall be deemed to have occurred during the 90 days immediately following the date of such reinstatement.

ARTICLE 11

NOTE GUARANTEES

Section 11.01 Guarantee .

(a) Subject to this Article 11, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees, and each Restricted Subsidiary who hereafter becomes a Guarantor shall jointly and severally, fully and unconditionally guarantee, on a senior basis and a secured basis (subject to the terms of the Security Documents) to the extent of the Collateral pledged by such Guarantor as set forth in Article 12 and the Security Documents, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and the Noteholder Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes, the Security Documents or the Obligations of the Company hereunder or thereunder, that:

(1) the principal of, premium, if any, and interest on, the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and, to the extent permitted by applicable law, interest on the Notes, if any, and all other Obligations of the Company to the Holders or the Trustee and the Noteholder Collateral Agent hereunder or thereunder or under any Security Document shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(2) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

 

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Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. The Guarantors agree that this is a guarantee of payment and not a guarantee of collection.

(b) Each Guarantor hereby agrees, to the extent permitted by applicable law, that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes, any Security Document or this Indenture, the absence of any action to enforce the same, any change in the time, manner or place or payment of, or in any other term of, all or any of the Company’s obligations under this Indenture or any other amendment or waiver of or any consent to any departure from the Notes, this Indenture or any Security Document or any other agreement or instrument relating thereto, any pledge, exchange, release or non-perfection or loss of priority of any Collateral, any release or amendment of the Note Guarantee of any other Guarantor, any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect of the Notes, this Indenture or any Security Document, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee shall not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture.

(c) If any Holder, the Noteholder Collateral Agent or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee, the Noteholder Collateral Agent or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

(d) Each Guarantor agrees that it shall not be entitled to enforce any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby. Each Guarantor further agrees, to the extent permitted by applicable law, that, as between the Guarantors, on the one hand, and the Holders, the Noteholder Collateral Agent and the Trustee, on the other hand, (1) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.

Section 11.02 Limitation on Guarantor Liability .

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state or other law to the extent applicable to any Note Guarantee or Guarantor. To effectuate the foregoing intention, the Trustee, the Noteholder

 

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Collateral Agent, the Holders and the Guarantors hereby irrevocably agree that the Obligations of such Guarantor under this Indenture, the Note Guarantees and the Security Documents shall be limited to the maximum amount that shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under this Article 11, result in the Obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

Section 11.03 Execution and Delivery of Guarantee .

To evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto shall be signed by an Officer of such Guarantor (by manual or facsimile signature) and endorsed on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers.

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

If an Officer of a Guarantor whose signature is on this Indenture or the Note Guarantee no longer holds such office at the time the Trustee authenticates the Note on which such Note Guarantee is endorsed, the Note Guarantee shall be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.

In the event that the Company or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary (other than an Immaterial Subsidiary or a CFC Subsidiary Holding Company) after the Issue Date, the Company shall, if required by Section 4.15 hereof, cause such Domestic Subsidiary to comply with the provisions of Section 4.15 hereof and this Article 11, to the extent applicable; provided that the Company shall not be required to cause any such new Domestic Subsidiary to execute a notation of its Guarantee on any Notes that were issued prior to the time that such Domestic Subsidiary became a Guarantor.

Section 11.04 Guarantors May Consolidate, etc., on Certain Terms .

Except as otherwise provided in Section 11.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless:

(1) immediately after giving effect to that transaction, no Default or Event of Default exists; and

(2) either (A) (i) the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger (the “ Successor Guarantor ”), if other than such Guarantor, unconditionally assumes all the obligations of such Guarantor under its Note Guarantee, this Indenture and the Security Documents pursuant to a supplemental indenture to this Indenture and appropriate amendments to the Security Documents; (ii) the Successor Guarantor causes such amendments, supplements or other instruments to be

 

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executed, delivered, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Liens under the applicable Security Documents on the Collateral owned by or transferred to the Successor Guarantor, together with such financing statements (or other filings) as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement or other filings or registrations under the Uniform Commercial Code, filings or registrations under any other registries or the applicable law of any other relevant jurisdiction; (iii) the Collateral owned by or transferred to the Successor Guarantor shall: (1) continue to constitute Collateral under this Indenture and the applicable Security Documents, (2) be subject to Liens in favor of the Noteholder Collateral Agent for the benefit of the secured parties and (3) not be subject to any Lien other than Permitted Liens; and (iv) the property and assets of the Person which is merged or consolidated with or into the Successor Guarantor, to the extent that they are property or assets of the types which would constitute Collateral under the applicable Security Documents, shall be treated as after-acquired property and the Successor Guarantor shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Liens under the applicable Security Documents all in the manner and to the extent required in this Indenture and the Security Documents; or (B) the Net Proceeds, if any, of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture and the Security Documents,

provided , however , that the transfer, sale or other disposition of all or substantially all of the assets of, directly or indirectly, the Guarantors as a whole shall also be governed by Article 5 and may be subject to Section 4.19 hereof.

In case of any such consolidation, merger, sale or conveyance and, if the Successor Person was not immediately prior to such transaction a Guarantor, upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the predecessor Guarantor’s obligations under the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the predecessor Guarantor, such successor Person shall succeed to and be substituted for the predecessor Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee (it being understood and agreed that such successor Person need not execute a notation of its Guarantee on Notes issued prior to the time that it became a Guarantor). All the Note Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Except as set forth in Articles 4 and 5, and notwithstanding clauses (1) and (2) of this Section 11.04, nothing contained in this Indenture or in any of the Notes or the Security Documents shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.

Section 11.05 Releases .

The Note Guarantee of a Guarantor shall be released:

(1) in connection with any sale or other disposition of all or substantially all of the assets of such Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.20 hereof;

 

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(2) in connection with any sale or other disposition of all of the Capital Stock of such Guarantor owned by the Company or any of its Restricted Subsidiaries to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary of the Company, if the sale or other disposition does not violate Section 4.20 hereof and the Guarantor ceases to be a Restricted Subsidiary of the Company as a result of the sale or other disposition;

(3) if the Company designates any Restricted Subsidiary that is a Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture;

(4) upon Legal Defeasance or Covenant Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in accordance with Article 10 hereof; or

(5) upon the liquidation or dissolution of such Guarantor provided no Default or Event of Default has occurred and is continuing.

If the Note Guarantee of a Guarantor is released, then such Guarantor shall automatically be released from all of its Obligations under this Indenture and the Security Documents and all Collateral of such Guarantor shall be released from any Liens arising under this Indenture or the Security Documents. Any Guarantor not released from its Obligations under its Note Guarantee as provided in this Section 11.05 shall, subject to Section 11.02, remain liable for the full amount of principal of and interest, if any, and premium, if any, on the Notes and for the other Obligations of any Guarantor under this Indenture as provided in this Article 11.

ARTICLE 12

SECURITY

Section 12.01 Grant of Security Interests; Intercreditor Agreement.

(a) The Company and the Guarantors:

(1) shall grant a security interest or mortgage lien, as applicable, in the Collateral as set forth in the Security Documents to the Noteholder Collateral Agent for the benefit of the Holders, the Trustee and the Noteholder Collateral Agent to secure the due and punctual payment of the Notes Obligations (as defined in the Security Agreement) and the performance of all other Obligations of the Company and the Guarantors to the Holders, the Noteholder Collateral Agent and the Trustee under the Notes Documents (as defined in the Security Agreement), subject to the terms of the Intercreditor Agreement, this Indenture and any other Permitted Liens;

(2) hereby covenant (A) to perform and observe their obligations under the Security Documents and (B) take any and all commercially reasonable actions (including without limitation the covenants set forth in the Security Documents and in this Article) required to cause the Security Documents to create and maintain, as security for the Obligations contained in the Notes Documents, valid and enforceable and (in the case of security interests on personal property) perfected, in each case except as expressly provided herein or therein, security interests or mortgage liens, as applicable, in and on all the Collateral, in favor of the Noteholder Collateral Agent, superior to and prior to the rights of all third Persons except for Permitted Liens and so long as the Intercreditor Agreement is in full force and effect except as otherwise provided in the Intercreditor Agreement and as may otherwise be limited by the terms of the Security Documents; and

 

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(3) shall do or cause to be done, at their sole cost and expense, all such actions and things as may be required by the provisions of the Security Documents, to confirm to the Noteholder Collateral Agent the security interests in the Collateral contemplated hereby and by the Security Documents, as from time to time constituted, so as to render the same available for the security and benefit of the Notes Documents according to the intent and purpose herein and therein expressed.

(b) Each Holder, by its acceptance of a Note:

(1) appoints the Noteholder Collateral Agent to act as its agent (and by its signature below, the Noteholder Collateral Agent accepts such appointment);

(2) consents and agrees to the terms of each of the Security Documents, as the same may be in effect or may be amended, restated, supplemented or otherwise modified from time to time in accordance with their respective terms, and authorizes and directs the Noteholder Collateral Agent to enter into the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith; and

(3) appoints, authorizes and, upon the Company’s request, directs the Noteholder Collateral Agent to enter into on the date of this Indenture the Intercreditor Agreement.

In connection with entering into any Control Agreement (as defined in the Security Agreement) pursuant to clause (2) of the preceding sentence, the Noteholder Collateral Agent shall be entitled to receive and rely on, an Officers’ Certificate and an Opinion of Counsel pursuant to Sections 13.04 and 13.05 that the entry into such Control Agreement complies with the conditions relating thereto contained in this Indenture or in the Security Agreement, as applicable.

(c) This Article 12, the Security Agreement and the other Security Documents (other than the Intercreditor Agreement) shall be subject to the terms, limitations and conditions set forth in the Intercreditor Agreement. Notwithstanding anything herein to the contrary and subject to the terms of the Intercreditor Agreement, any requirement in this Indenture for the delivery of possession or control to the Noteholder Collateral Agent of such Collateral shall be deemed to have been satisfied as set forth in Section 2.4 of the Security Agreement.

(d) Subject to the terms of the Security Documents and this Indenture, the Trustee shall determine and shall direct the Noteholder Collateral Agent as to the circumstances and manner in which the Collateral shall be disposed of and how remedies against Collateral are to be exercised during the continuance of an Event of Default, including, but not limited to, the determination of whether to release all or any portion of the Collateral from the Liens created by the Security Documents and whether to foreclose on the Collateral following a Default or Event of Default; provided that the foregoing shall not prevent the Company or any of its Subsidiaries from disposing of Collateral as expressly permitted under the provisions of this Indenture and the Security Documents.

Section 12.02 Recording and Opinions.

(a) The Company shall, in accordance with and subject to the terms of the Security Documents, and shall cause each of the Guarantors to, at their sole cost and expense, file UCC-1 financing statements in the applicable filing office naming the Company or a Guarantor, as applicable, as

 

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debtor in order to perfect the security interest granted by them or under the Security Documents in the Collateral of the Company and the Guarantors and deliver to the Noteholder Collateral Agent the certificates representing the Pledged Securities (as defined in the Security Agreement), and take or cause to be taken, in accordance with the Security Documents, all commercially reasonable action required to perfect (except as expressly provided in the Security Documents), maintain (with the priority required under the Security Documents), preserve and protect the security interests or mortgage liens, as applicable, in the Collateral granted by the Security Documents, including, in the case of personal property, (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the Noteholder Collateral Agent, and the Trustee under the Notes Documents in the Collateral pursuant to the terms of the Security Documents, and (ii) the delivery of the certificates, if any, evidencing any certificated securities pledged under the Security Documents, duly endorsed in blank or accompanied by undated stock powers or other instruments of transfer executed in blank. The Company and the Guarantors shall, in accordance with the Security Documents, from time to time promptly pay all financing and continuation statement recording and/or filing fees, charges and recording and similar taxes relating to the Notes Documents and any amendments hereto or thereto and any other instruments of further assurance required pursuant thereto. Neither the Company nor any Guarantor shall take any action, or omit to take any action, which action or omission would adversely affect or impair in any material respect the security interests in the Collateral granted by the Company and the Guarantors for the benefit of the Noteholder Collateral Agent, the Trustee or the Holders except as expressly set forth in the Notes Documents. Neither the Trustee nor the Noteholder Collateral Agent shall have any duty to see to any perfection of such security interest in the Collateral, including the recording or filing of any document or in confirming or maintaining the perfection of any such liens.

(b) If property of a type constituting Collateral is acquired by the Company or any Guarantor that is not automatically subject to a perfected (to the extent required by the Security Agreement) security interest or mortgage lien, as applicable, under the Security Documents or a Restricted Subsidiary of the Company becomes a new Guarantor, then the Company or such Guarantor, as applicable, shall, as soon as reasonably practicable after such property’s acquisition or such Subsidiary becoming a Guarantor,

(1) grant Liens on such property (or, in the case of a new Guarantor, all of its assets constituting the type that is Collateral) in favor of the Noteholder Collateral Agent for the benefit of the Holders of the Notes (and, to the extent such grant would require the execution and delivery of a Security Document), the Company or such Guarantor shall, if such property is personal property, execute and deliver such Security Document on substantially the same terms as the Security Document covering personal property, Collateral owned by the Company or a Guarantor on the Issue Date (but with such changes therein as may be necessary or appropriate to conform to local law or practice), including execution of a supplement to the Security Agreement and, if such property is real property, execute a new Mortgage or an amendment to an existing Mortgage granting a mortgage lien on such property as required by Section 12.03 hereof);

(2) deliver any certificates (including in the case of real property title insurance) and other documentation in respect thereof as required by the Security Documents and, in the case of real property, Section 12.03 of this Indenture; and

(3) in the case of personal property, cause the security interest granted in such Security Document to be perfected to the same extent and with the same priority as the Liens (subject to Permitted Liens) granted on Collateral owned by the Company or a Guarantor on the Issue Date are perfected (including, with respect to Equity Interests of a Subsidiary or intercompany debt, perfection by control to the extent required by the applicable Security Document, and in the case of real property, cause the new Mortgage or amendment to the existing Mortgage, as applicable, to be filed or recorded as required by Section 12.03 hereof).

 

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(c) The Company shall furnish to the Trustee and the Noteholder Collateral Agent (if other than the Trustee), on or within one month of December 31 of each year, commencing December 31, 2016, an Opinion of Counsel with respect to Collateral as defined in the Security Agreement that constitutes property covered by Article 9 of the UCC and as to which perfection may be accomplished by possession, control or filing of a financial statement under Article 9 of the UCC either (1) stating that, in the opinion of such counsel, all action necessary and required under the Security Documents to perfect or continue the perfection of the security interests created by the Security Agreement in such Article 9 Collateral has been taken and reciting the details of such action or referring to prior Opinions of Counsel in which such details are given or (2) stating that, in the Opinion of such Counsel, no such action is necessary to perfect or continue the perfection of any security interest created under the Security Agreement. Such opinion may be subject to the limitations and assumptions of any prior opinion (including the opinions delivered on the Issue Date in connection with the offering of the Notes) to the extent such limitations and assumptions are applicable and other customary assumptions and limitations.

Section 12.03 Mortgages and Filings.

Neither the Company nor any of the Guarantors owns any real property in fee simple on the Issue Date. If any real property having a Fair Market Value of more than $5.0 million shall be acquired by the Company or a Guarantor after the Issue Date that is not Excluded Property (as defined in the Security Agreement) (individually and collectively, the “ Premises ”), the Company shall use commercially reasonable efforts to deliver to the Noteholder Collateral Agent within 90 days of the Issue Date, or with respect to the Premises acquired after the Issue Date, within 120 days of the date of acquisition of such Premises or, in the case of any Premises located outside of the United States of America, within such period of time (which may be longer than 120 days after the date of acquisition of such Premises), as may be reasonably necessary to obtain and deliver the following documents, (subject to the terms of the Intercreditor Agreement):

(a) fully executed counterparts of Mortgages, duly executed by the Company or a Guarantor, as applicable, together with evidence of the completion (or satisfactory arrangements for the completion), of all recordings and filings of such Mortgage and any financing statements as may be necessary to create a valid, recorded Lien in favor of the Noteholder Collateral Agent (subject to no liens other than Permitted Liens) against the properties purported to be covered thereby;

(b) mortgagee’s title insurance policies in favor of the Noteholder Collateral Agent, as mortgagee for the ratable benefit of the Noteholder Collateral Agent and the Holders in an amount equal to the Fair Market Value of the Premises, insuring that title to such Premises is indefeasible and that the interests created by the Mortgage constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens (including any defects or encumbrances that do not in the aggregate materially adversely affect the value of said Premises or materially adversely impair their use in the operation of the Premises), together with such endorsements, coinsurance and reinsurance, as the Company determines are customary and shall be accompanied by evidence of the payment in full of all premiums thereon;

(c) with respect to each of the Premises, the most recent survey of such Premises, together with either (i) an updated survey certification in favor of the Noteholder Collateral Agent from the applicable surveyor stating that, based on a visual inspection of the Premises and the knowledge of the surveyor, there has been no change in the facts depicted in the survey or (ii) an affidavit from the Company or a Guarantor, as applicable, stating that there has been no change, sufficient for the title insurance company to remove all standard survey exceptions and issue the endorsements to the title insurance policies;

 

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(d) a flood zone certification respecting the Premises, if applicable;

(e) an opinion from local counsel in each state where a Premises is located and covering customary local counsel matters with respect to the Mortgage;

(f) copies of all real property leases in which the Company or a Guarantor, as applicable, holds the lessor’s interest or other real property agreements relating to possessory interests, if any, in each case that the Board of Directors or an Officer of the Company determines, in the exercise of its reasonable discretion, are material with respect to the Company and its Restricted Subsidiaries considered as a whole;

(g) copies certified by the Secretary, Assistant Secretary or other Officer of the Company or a Guarantor, as applicable, of (i) all organizational documents of the Company or a Guarantor, as applicable, and (ii) documents, evidencing the corporate authority of the Company or a Guarantor, as applicable, to enter into the Mortgage;

(h) evidence that the Company or a Guarantor, as applicable, has made all notifications, registrations and filings, to the extent that applicable laws, including without limitation environmental, health and safety laws, require such notifications, registrations and filings in connection with the Mortgage or, with respect to Premises acquired after the Issue Date, the acquisition of the Premises;

(i) evidence of casualty and property insurance as required by the applicable Mortgage;

(j) evidence that all applicable mortgage or transfer taxes and filing or recording fees relating to the granting or recording of the applicable Mortgage required hereunder have been paid in full; and

(k) an Officers’ Certificate reasonably certifying that all items in this Section 12.03 have been delivered.

Section 12.04 Advances to Subsidiaries.

If the Company or any Restricted Subsidiary makes any loans or other advances to Restricted Subsidiaries after the Issue Date, then such loans or other advances will either (1) be evidenced by intercompany notes in favor of the Company or such Restricted Subsidiary and shall be pledged pursuant to the Security Documents as Collateral to secure the Notes, or (2) the Company shall not, and shall cause the applicable Restricted Subsidiary not to, pledge or deliver any such intercompany note as security for Indebtedness to any other party. Any such intercompany note shall be payable upon demand. If the Restricted Subsidiary is not a party to the Intercompany Subordinated Note (as defined in the Security Agreement), such Restricted Subsidiary shall, within 30 days of making such loan or advance, execute and deliver to the Noteholder Collateral Agent a joinder to the Intercompany Subordinated Note in the form attached as Exhibit 3 to the Security Agreement.

Section 12.05 Additional Collateral.

If property of a type constituting Collateral is acquired by the Company or a Guarantor that is not automatically subject to a perfected security interest under the Security Documents or a Restricted Subsidiary becomes a Guarantor, then the Company and such Guarantor, as applicable, shall, as soon as reasonably practicable after such property’s acquisition or such Subsidiary becoming a Guarantor:

 

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(a) grant Liens on such property (or, in the case of a new Guarantor, all of its assets constituting the type that is Collateral) in favor of the Noteholder Collateral Agent for the benefit of the Holders of Notes (and, to the extent such grant would require the execution and delivery of a Security Document, the Company or such Guarantor shall execute and deliver such Security Document on substantially the same terms as the Security Documents covering Collateral owned by the Company or a Guarantor on the Issue Date including, with respect to personal property, execution of a supplement to the Security Agreement and, with respect to fee-owned real property having a Fair Market Value in excess of $5.0 million, execution of a new mortgage or an amendment to an existing mortgage);

(b) deliver certain certificates in respect thereof as required by the Security Documents and, in the case of real property located in the United States, a title insurance policy relating to any mortgage therein; and

(c) to the extent required by the Security Documents, cause the Lien granted in such Security Document to be duly perfected to the same extent and with the same priority as the Liens (subject to Permitted Liens) granted on Collateral owned by the Company or a Guarantor on the Issue Date are perfected (including, with respect to Equity Interests of a Subsidiary or intercompany debt, perfection by control to the extent required by the applicable Security Document and, to the extent applicable to assets and property not constituting Excluded Property, taking such action as may be required under the terms of such Security Document to be taken under the laws of any applicable foreign jurisdiction to create, perfect and maintain the requisite priority of such Lien under such laws, including, to the extent so required, entering into security documentation governed by foreign law).

In addition, to the extent any disposition of assets or property in an Asset Sale is of Collateral, any non-cash consideration received by the Company or any Restricted Subsidiary shall be pledged as Collateral under the Security Documents as soon as reasonably practicable after such sale, in accordance with the requirements set forth in the Security Documents.

Notwithstanding the foregoing, the Board of Directors of the Company and the Guarantors shall have discretion to determine not to obtain or perfect a security interest in non-U.S. assets or property under the circumstances described in Section 3.7 of the Security Agreement.

Section 12.06 Further Assurances.

(a) Neither the Company nor any Guarantor shall enter into any agreement that requires the proceeds received from any sale of Collateral to be applied to repay, redeem, defease or otherwise acquire or retire any Indebtedness of any Person, other than as permitted or required by this Indenture or the Security Documents (including, without limitation, the Intercreditor Agreement).

(b) Subject to the terms of the Intercreditor Agreement, neither the Company nor any Guarantor shall take or omit to take any action which would adversely affect or impair in any material respect the Liens in favor of the Noteholder Collateral Agent with respect to the Collateral, except as otherwise permitted or required by the Security Documents or this Indenture.

(c) The Company shall, and shall cause each Guarantor to, at their sole cost and expense, (i) execute and deliver all such agreements and instruments and take all further action as the Noteholder Collateral Agent may reasonably request to more fully or accurately describe the property intended to be Collateral or the obligations intended to be secured by the Security Documents; and (ii) file any such notice filings or other agreements or instruments as may be reasonably necessary or desirable under applicable law to perfect the Liens created by the Security Documents.

 

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Section 12.07 Release of Liens .

(a) Subject to the terms of the Notes Documents and the Intercreditor Agreement, the Company and the Guarantors shall be entitled to releases of assets included in the Collateral from the Liens securing the Notes Obligations under the Notes Documents under any one or more of the following circumstances and such Liens on such assets shall automatically, without the need for any further action by any Person, be released, terminated and discharged:

(1) with respect to any asset constituting Collateral, if such Collateral is sold or otherwise disposed of (including by way of merger or consolidation, among other things) in accordance with the terms of Section 4.20 and the Security Documents and the Company has delivered to the Noteholder Collateral Agent an Officers’ Certificate certifying to such effect; provided (a) any cash received from a disposition of Collateral shall be required to be deposited in a deposit account controlled by the Company and held as Collateral subject to the Liens created by the applicable Security Documents pending its application or use in compliance with Section 4.20 hereof and, from such deposit account, the Company or any Restricted Subsidiary may withdraw funds to deploy the proceeds of an Asset Sale in compliance with Section 4.20 hereof; and (b) that to the extent that any disposition in such Asset Sale was of Collateral, the non-cash consideration received shall, to the extent required by the Security Documents, be pledged as Collateral under the Security Documents as soon as reasonably practicable after such sale, in accordance with the requirements set forth in this Indenture and the Security Documents;

(2) if any Guarantor is released from its Note Guarantee in accordance with the terms of this Indenture (including by virtue of such Guarantor ceasing to be a Restricted Subsidiary), that Guarantor’s assets shall also be released from the Liens securing its Note Guarantee and its other Obligations under this Indenture, its Note Guarantees and the Security Documents.

(3) if required in accordance with the terms of the Intercreditor Agreement or any Security Document;

(4) upon Legal Defeasance or Covenant Defeasance pursuant to Article 8 hereof or satisfaction and discharge pursuant to Article 10 hereof;

(5) if such property or assets become Excluded Property;

(6) with the consent of the Holders of Notes of the requisite percentage of outstanding Notes in accordance with Article 9 of this Indenture; or

(7) subject to the terms and conditions of the Intercreditor Agreement, if, in connection with the exercise of the Existing Revolving Credit Facility Agent’s remedies in respect of any Collateral, the Existing Revolving Credit Facility Agent, on behalf of any holders of ABL Obligations (as defined in the Intercreditor Agreement), releases any of its Liens on any part of the Collateral, then the Liens, if any, of the Noteholder Collateral Agent for the benefit of the Holders of the Notes on the Collateral sold or disposed of in connection with such exercise will automatically, unconditionally and simultaneously be released; and, in such event, the Noteholder Collateral Agent, on behalf of itself and the Holders of the Notes, at the Company’s expense, promptly shall execute and deliver to the Existing Revolving Credit Facility Agent such

 

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termination statement, releases and other documents as the Existing Revolving Credit Facility Agent may request in writing to effectively confirm such release, provided that at any time at which the ABL Obligations have been discharged in full, references in this clause (7) to the Existing Revolving Credit Facility Agent shall be replaced with references to the New Senior Loan Facility Agent and references to the Existing Revolving Credit Facility Obligations shall be replaced with references to the Term Obligations (as defined in the Intercreditor Agreement).

(b) Subject to the terms of the Intercreditor Agreement, upon receipt of any necessary or proper instruments of termination, satisfaction or release prepared by the Company or the Guarantors, as the case may be, the Noteholder Collateral Agent and, if applicable, the Trustee, shall execute, deliver or acknowledge such instruments or releases to evidence the release of any Collateral permitted to be released pursuant to this Indenture or the Security Documents, including the Intercreditor Agreement; provided that (except for dispositions excluded from the definition of the term “Asset Sale”) the Company or the applicable Guarantor, as the case may be, executes and delivers an Officers’ Certificate to the Noteholder Collateral Agent certifying that the release of such Collateral is permitted under the terms of this Indenture and that all conditions precedent to such release have been satisfied.

(c) The release of any Collateral from the terms of the Security Documents pursuant to this Section 12.07 shall not be deemed to impair the Collateral under the Notes Documents in contravention of the provisions thereof and hereof.

Section 12.08 Form and Sufficiency of Release.

In the event that the Company or any Guarantor has sold, exchanged, or otherwise disposed of or proposes to sell, exchange or otherwise dispose of any portion of the Collateral that may be sold, exchanged or otherwise disposed of by the Company or any Guarantor to any Person other than the Company or a Guarantor in accordance with the Notes Documents, and the Company or any Guarantor requests in writing that the Noteholder Collateral Agent and, if applicable, the Trustee furnish a written disclaimer, release or quit-claim of any interest in such property under the Notes Documents, the Noteholder Collateral Agent and, if applicable, the Trustee shall execute, acknowledge and deliver to the Company or such Guarantor (in proper form prepared by the Company or such Guarantor) such an instrument promptly after satisfaction of the conditions set forth herein for delivery of any such release. Notwithstanding the preceding sentence, all purchasers and grantees of any property or rights purporting to be released herefrom shall be entitled to rely upon any release executed by the Noteholder Collateral Agent hereunder as sufficient for the purpose of the Notes Documents and as constituting a good and valid release of the property therein described from the Lien of the Notes Documents.

Section 12.09 Authorization of Actions to be Taken by the Noteholder Collateral Agent Under the Security Documents.

Subject to the provisions of the applicable Security Documents, the Trustee and each Holder, by acceptance of any Notes, agrees that (a) the Noteholder Collateral Agent shall execute and deliver the Security Documents, and all agreements, documents and instruments incidental thereto, and act in accordance with the terms thereof, (b) the Noteholder Collateral Agent may, in its sole discretion and without the consent of the Trustee or the Holders, take all actions it deems necessary or appropriate in order to (i) preserve the Collateral or rights under the Security Documents and (ii) collect and receive any and all amounts payable in respect of the Obligations of the Company and the Guarantors hereunder and under the Notes Documents and (c) the Noteholder Collateral Agent shall have power to institute and to maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any act that may be unlawful or in violation of the Notes Documents, and such suits and proceedings as the Noteholder Collateral Agent may deem expedient to preserve or protect its interests and the

 

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interests of the Holders in the Collateral (including the power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest thereunder or be prejudicial to the interests of the Noteholder Collateral Agent, the Holders or the Trustee). Notwithstanding the foregoing, the Noteholder Collateral Agent may, at the expense of the Company, request the direction of the Holders with respect to any such actions and upon receipt of the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, shall take such actions; provided that all actions so taken shall, at all times, be in conformity with the requirements of the Intercreditor Agreement, if applicable.

Section 12.10 Authorization of Receipt of Funds by the Trustee Under the Security Documents.

The Noteholder Collateral Agent is authorized to receive any funds for the benefit of itself, the Trustee and the Holders distributed under the Security Documents and to the extent not prohibited under the Intercreditor Agreement for turnover to the Trustee to make further distributions of such funds to itself, the Trustee and the Holders in accordance with the provisions of Section 6.10 and the other provisions of this Indenture.

Section 12.11 Replacement of Noteholder Collateral Agent.

A resignation or removal of the Noteholder Collateral Agent and appointment of a successor Noteholder Collateral Agent shall be effected pursuant to the terms of the Security Agreement, this Section 12.11 and Section 7.08 (as applied pursuant to Section 7.12).

Subject to the appointment and acceptance of a successor Noteholder Collateral Agent as provided below, the Noteholder Collateral Agent may resign at any time by giving notice thereof to the Company, the Guarantors, the Trustee and the Holders or be removed in accordance with the terms of this Indenture. Upon such resignation or removal, the Company shall appoint a successor Noteholder Collateral Agent. Upon acceptance by a successor Noteholder Collateral Agent of an appointment to serve as Noteholder Collateral Agent hereunder and under the Notes Documents, such successor Noteholder Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, duties and obligations of the retiring Noteholder Collateral Agent without further act. Any successor to Wilmington Savings Fund Society, FSB by merger or acquisition of stock or acquisition of the corporate trust business shall continue to be Noteholder Collateral Agent hereunder without further act on the part of the parties hereto, unless such successor resigns as provided above.

Section 12.12 Conflicting Provisions . Notwithstanding any other provision hereof to the contrary, with respect to Foreign Located Assets and Foreign Equity (each as defined in the Security Agreement), in the event of any conflict or inconsistency between this Agreement and Article III of the Security Agreement, the provisions of Article III of the Security Agreement shall control.

ARTICLE 13

MISCELLANEOUS

Section 13.01 [Reserved].

Section 13.02 Notices .

Any notice or communication by the Company, any Guarantor, the Noteholder Collateral Agent or the Trustee to the others is duly given if in writing and delivered in person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier providing for next day business delivery, to the others’ address:

 

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If to the Company and/or any Guarantor:

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas 77079

Attention: Chief Financial Officer

with a copy to (which shall not constitute notice):

Strasburger & Price, L.L.P.

909 Fannin Street, Suite 2300

Houston, Texas 77010

Attention: Garney Griggs, Esq.

If to the Trustee or Noteholder Collateral Agent:

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attention: Corporate Trust

Reference: SAExploration Holdings, Inc. 10.000% Senior Secured Second Lien Notes Due 2019

Facsimile: 302-421-9137

with a copy to (which shall not constitute notice):

Morrison & Foerster LLP

250 West 55 th Street

New York, NY 10019-9601

Attention: Jonathan I. Levine, Esq.

The Company, any Guarantor, the Noteholder Collateral Agent or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.

All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

Any notice or communication to a Holder may be delivered by hand, email or fax (if such Holder has provided an email address or fax number), or mailed by first class mail, or by overnight air courier providing for next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.

If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.

 

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If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.

Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), pursuant to the customary procedures of such Depositary.

A copy of this Indenture and the Security Documents may be requested from the Company in writing by a Holder for no charge.

Section 13.03 Communication by Holders of Notes with Other Holders of Notes .

Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture, the Note Guarantee, any Security Document or the Notes. The Company, the Trustee, the Noteholder Collateral Agent, the Registrar and anyone else shall have the protection of TIA § 312(c).

Section 13.04 Certificate and Opinion as to Conditions Precedent .

Upon any request or application by the Company to the Trustee or the Noteholder Collateral Agent, as the case may be, to take any action under this Indenture or any Security Document, the Company shall furnish to the Trustee or the Noteholder Collateral Agent, as the case may be, evidence of compliance with the conditions precedent, if any, provided for in this Indenture or any Security Document (including any covenants compliance with which constitutes a condition precedent), to include:

(1) an Officers’ Certificate (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of the signers, all conditions precedent, provided for in this Indenture or any Security Document relating to the proposed action have been satisfied; and

(2) an Opinion of Counsel (which must include the statements set forth in Section 13.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent have been satisfied.

Section 13.05 Statements Required in Certificate or Opinion .

Each certificate or opinion with respect to compliance with a condition provided for in this Indenture or any Security Document must include:

(1) a statement that the Person making such certificate or opinion has read such condition;

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

(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such condition has been satisfied; and

(4) a statement as to whether or not, in the opinion of such Person, such condition has been satisfied.

 

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Section 13.06 Rules by Trustee and Agents .

The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.

Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders .

No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any Obligations of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or the Security Documents or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

Section 13.08 Governing Law .

This Indenture, the Notes and the Note Guarantees shall be governed by and construed in accordance with the laws of the State of New York.

Section 13.09 No Adverse Interpretation of Other Agreements .

To the extent permitted by applicable law, this Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 13.10 Successors .

All agreements of the Company in this Indenture and the Notes shall bind its successors to the extent provided in this Indenture. All agreements of the Trustee and the Noteholder Collateral Agent in this Indenture shall bind their successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 11.05 hereof.

Section 13.11 Severability .

In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 13.12 Counterpart Originals.

The parties may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together represent the same agreement. This Indenture may be executed in multiple counterparts, which when taken together, shall constitute one instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

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Section 13.13 Table of Contents, Headings, etc.

The Table of Contents and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.

Section 13.14 Releases.

If any provision of this Indenture provides that, upon the occurrence of specified events or the satisfaction of specified conditions, any Collateral shall be released or the Company or any Guarantor shall be released from its obligations under this Indenture, any Security Document, any Note or any Note Guarantee, then the Trustee and the Noteholder Collateral Agent shall execute and deliver (in each case at the expense and request of the Company), such instruments, agreements, releases, termination statements, certificates and other documents as the Company shall reasonably request in order to effect or evidence such release.

[Signatures on following page]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

SAEXPLORATION HOLDINGS, INC. , as Issuer
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION SUB, INC. , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION, INC. , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
NES, LLC , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION SEISMIC SERVICES (US) LLC , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary


WILMINGTON SAVINGS FUND SOCIETY, FSB , as Trustee
By:  

/s/ Michael G. Oller, Jr.

  Name: Michael G. Oller, Jr.
  Title: Vice President
WILMINGTON SAVINGS FUND SOCIETY, FSB , as Noteholder Collateral Agent
By:  

/s/ Michael G. Oller, Jr.

  Name: Michael G. Oller, Jr.
  Title: Vice President


EXHIBIT A

 

 

[For Global Notes Only] [THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY OR ITS NOMINEE WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

[For Temporary Regulation S Notes:] [THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON (AS DEFINED IN REGULATION S) EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S SECURITY SHALL NOT BE EXCHANGEABLE FOR DEFINITIVE SECURITIES THAT DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER UNTIL THE EXPIRATION OF THE APPLICABLE “DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF REGULATION S) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT.]

THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

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SUBSEQUENT TO THE INITIAL ISSUANCE OF THIS CERTIFICATE, EACH HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”)) OR (B) IT IS NOT A “U.S. PERSON” AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH ACQUISITION IS MADE.

THE HOLDER OF THIS SECURITY AGREES (1) TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT (THE “RESALE RESTRICTION TERMINATION DATE”), ONLY (A) TO THE COMPANY OR ANY OF THE COMPANY’S SUBSIDIARIES, (B) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO OFFERS AND SALES TO PERSONS WHO ARE NOT “U.S. PERSONS” THAT OCCUR OUTSIDE THE UNITED STATES IN ACCORDANCE WITH REGULATION S AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN EACH OF THE FOREGOING CASES, TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND, IN EACH CASE, IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER APPLICABLE JURISDICTION, AND (2) THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED, THAT THE COMPANY AND THE TRUSTEE WITH RESPECT TO THIS SECURITY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (B) AND (E), PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, OR PURSUANT TO CLAUSE (C), PRIOR TO, AND UPON COMPLETION OF, THE DISTRIBUTION COMPLIANCE PERIOD (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT), TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE REVERSE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.

THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE

 

A-2


CODE) OR 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 (“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE PLAN ASSETS OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.

 

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[Face of Note]

CUSIP

144A: 78636X AD7

Reg S: U7787T AB3

AI: 78636X AE5

10.000% Senior Secured Second Lien Notes due 2019

 

No.             $                     

SAEXPLORATION HOLDINGS, INC.

promises to pay to CEDE & CO. or registered assigns,

the principal sum of                                                                                                             DOLLARS [or such other amount as shall be specified on the Schedule of Increases and Exchanges of Interests in the Global Note attached hereto]* on the Maturity Date.

The Maturity Date shall be September 24, 2019, provided that, if any Existing Notes remain outstanding as of 5:00 p.m. (New York City time) on March 31, 2019, then upon the affirmative vote of the Holders of a majority of then-outstanding principal amount of Notes, the Maturity Date shall become April 14, 2019.

Interest Payment Dates: January 15, April 15, July 15 and October 15, commencing on October 15, 2016.

Record Dates: January 1, April 1, July 1 and October 1

Dated:                      , 2016

 

SAEXPLORATION HOLDINGS, INC.
By:  

 

  Name:
  Title:

 

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This is one of the Notes referred to

in the within-mentioned Indenture:

 

WILMINGTON SAVINGS FUND SOCIETY, FSB,
as Trustee
By:  

 

  Authorized Signatory

Dated:

 

* Applicable only to Global Notes

 

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[Back of Note]

10.000% Senior Secured Second Lien Notes due 2019

Capitalized terms used herein and not defined herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) I NTEREST . SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), shall pay interest on the principal amount of this Note at a rate of 10.000% per annum, from July 27, 2016 until the Maturity Date, provided that PIK Interest, if any, shall accrue at a rate of 11.000% per annum. The Company shall pay interest quarterly in arrears on January 15, April 15, July 15 and October 15 of each year (each, an “ Interest Payment Date ”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from the date of issuance; provided that if there is no existing default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof (each, a “ Record Date ”) and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be October 15, 2016.

For each Interest Payment Date through, and including, the Interest Payment Date on July 15, 2017, the Company may, at its option, elect to pay interest on any or all such Interest Payment Dates in kind in the form of PIK Interest. Any PIK Notes issued as PIK Interest shall be fungible with, and shall accrue interest at the same rate as, the Initial Notes.

To the extent permitted by applicable law, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Code) on overdue principal, premium, if any, and interest (without regard to any applicable grace period), from time to time on demand at a rate equal to 2.00% per annum in excess of the interest rate set forth in the caption on the face of this Note to the extent lawful to the Person who is the Holder of this Note on a subsequent special record date, all as provided in the Indenture. All reference to “interest” in this Note and the Indenture mean the initial interest rate borne by the Notes and, to the extent permitted by applicable law, any increases in that rate to the extent overdue interest accrues on the Notes (unless the Indenture states otherwise). Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. Anything in this Note, the Note Guarantees or the Indenture to the contrary notwithstanding, if any Interest Payment Date, the Maturity Date, Redemption Date, Purchase Date pursuant to Sections 3.09, 4.19 or 4.20 of the Indenture or other date on which any payment of principal, premium, if any, interest, if any, on this Note is due is not a Business Day, then such payment need not be made on such date, but such payment may be made on the next succeeding Business Day with the same force and effect as if made on the date such payment was originally due, and no interest or other sum shall accrue on the amount payable for the period from and after the date such payment was originally due nor shall any such delay in payment constitute a Default or Event of Default under the Indenture.

(2) M ETHOD OF P AYMENT . The Company shall pay interest on this Note to the Person who is the registered Holder of this Note at the close of business on January 1, April 1, July 1 or October 1, as the case may be, next preceding the applicable Interest Payment Date, even if this Note is transferred or exchanged after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to default and overdue interest. The Company shall pay or cause to be paid the principal of, premium, and interest on, the Notes on the dates and in the manner provided in the Indenture and this Note.

 

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Principal, premium and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium and interest then due, provided that any payment of PIK Interest shall be considered paid on the date it is due if on such date (1) PIK Notes (including PIK Notes that are Global Notes) have been issued therefor, and such PIK Notes have been authenticated in accordance with the terms of the Indenture or (2) if the payment is made by increasing the principal amount of Global Notes then authenticated by the required amount. The Company shall, to the extent permitted by law, pay overdue interest, if any, in the same manner, on the dates and in the amounts set forth in this Note and in the Indenture.

The Notes shall be payable as to principal, premium, if any, interest, if any, at the office or agency of a Paying Agent maintained for such purpose, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders or by wire transfer; provided that (1) payment by wire transfer of immediately available funds shall be required with respect to principal of and interest and premium on, all Global Notes (unless otherwise required by the applicable Depositary). In addition, if a Holder of $10.0 million aggregate principal amount or more of Definitive Notes has given wire transfer instructions to the Company not later than 15 days prior to the applicable Interest Payment Date, the Maturity Date, Redemption Date, Purchase Date or other date on which any payment of principal, premium or interest on any Note is due, providing for payments to be made to a bank located in the United States, the Company shall pay all principal of, and interest and premium, if any, on, that Holder’s Notes in accordance with those instructions; provided that payments of principal and premium, if any, shall be made only against surrender of the applicable Definitive Note.

Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. The principal of the Notes shall be payable only upon surrender of any Note at the specified offices of the Paying Agent. If the due date for payment of the principal in respect of any Note is not a Business Day at the place in which it is presented for payment, the Holder thereof shall not be entitled to payment of the amount due until the next succeeding Business Day at such place.

PIK Interest shall be payable (i) with respect to Notes represented by one or more Global Notes by increasing the principal amount of such outstanding Global Note by an amount equal to the amount of accrued interest (rounded up to the nearest whole dollar) (or, if necessary, pursuant to the requirements of the Depositary or otherwise, to authenticate new Global Notes with such increased principal amounts) and (ii) with respect to Notes represented by Definitive Notes, by issuing the required amount of new PIK Notes represented by certificated PIK Notes (rounded up to the nearest whole dollar) in an aggregate principal amount equal to the amount of accrued interest (rounded up to the nearest whole dollar), and the Trustee shall, at the request of the Company, authenticate and deliver such PIK Notes in certificated form for original issuance to the Holders on the relevant Record Date, as shown by the records of the register of Holders.

(3) P AYING A GENT AND R EGISTRAR . Initially, Wilmington Savings Fund Society, FSB, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity; provided no Event of Default is continuing.

 

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(4) I NDENTURE AND S ECURITY D OCUMENTS . The Company issued the Notes under an Indenture dated as of July 27, 2016 (the “ Indenture ”) among the Company, the Guarantors, the Noteholder Collateral Agent and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder. Holders are entitled to the benefits of the Security Documents.

(5) R ANKING . This Note shall constitute a senior obligation of the Company and the Obligation of the Company under the Indenture and this Note shall be secured pursuant to the Security Documents and shall be subject to the Intercreditor Agreement from and after such time as the Noteholder Collateral Agent and any other parties thereto shall have entered into the Intercreditor Agreement.

(6) O PTIONAL R EDEMPTION . The Notes are subject to redemption at the option of the Company as provided in Article 3 of the Indenture.

(7) N O S INKING F UND P AYMENTS . The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.

(8) R EPURCHASE AT THE O PTION OF H OLDER .

(a) Upon the occurrence of a Change of Control, the Company shall be required, on the terms and subject to the conditions set forth in the Indenture, to make an offer (a “ Change of Control Offer ”) to all Holders of Notes to repurchase all or any part (equal to minimum amounts of $1.00 in principal amount and integral multiples of $1.00 in principal amount in excess thereof) of each Holder’s Notes. In the Change of Control Offer, the Company shall offer a payment (the “ Change of Control Payment ”) in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) In connection with the consummation of one or more Asset Sales, when the aggregate amount of Excess Proceeds exceeds $7.5 million, the Company shall be required, on the terms and subject to the conditions set forth in the Indenture, to make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem the maximum amount of principal of, and premium, if any, and interest, if any, on, the Notes and such other pari passu Indebtedness that may be purchased, prepaid or redeemed out of the Excess Proceeds (after deducting therefrom all fees and expenses incurred in connection therewith). The offer price for the Notes in any Asset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant Record Date to receive interest due on the relevant Interest Payment Date, and shall be payable in cash.

(9) N OTICE OF R EDEMPTION . Notice of redemption shall be mailed by or on behalf of the Company at least 30 days but not more than 60 days before the Redemption Date to the Trustee and each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is

 

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issued in connection with a Covenant Defeasance or Legal Defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to Articles 8 or 10 thereof. Notes and portions of Notes selected shall be in minimum amounts of $1.00 and integral multiples of $1.00 in excess thereof; provided that any unredeemed portion of a Note redeemed in part must be an authorized denomination; and provided further that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder shall be redeemed.

(10) D ENOMINATIONS , T RANSFER , E XCHANGE . The Notes are in registered form without coupons in minimum denominations of $1.00 in principal amount and integral multiples of $1.00 in principal amount in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before the day of any selection of Notes to be redeemed or during the period between a Record Date and the corresponding Interest Payment Date.

No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange pursuant to Sections 2.10, 3.06, 3.09, 4.19, 4.20 and 9.05 of the Indenture).

(11) P ERSONS D EEMED O WNERS . The registered Holder of a Note may be treated as its owner for all purposes. Only Holders have rights under the Indenture and the Notes.

(12) A MENDMENT , S UPPLEMENT AND W AIVER . Subject to certain exceptions, the Indenture, the Notes, the Note Guarantees and Security Documents may be amended or supplemented with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture, the Notes, the Note Guarantees or the Security Documents may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes, the Note Guarantees and the Security Documents may be amended or supplemented to cure any ambiguity, defect or inconsistency and to effect certain other changes as set forth in the Indenture.

(13) D EFAULTS AND R EMEDIES . In the case of an Event of Default specified in clause (10) or (11) of Section 6.01 hereof, all outstanding Notes shall become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee, by written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Trustee and the Company, may declare all the Notes to be due and payable immediately.

Holders may not enforce the Indenture, Security Documents or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. Holders of a majority in aggregate principal amount of the then outstanding Notes by

 

A-9


written notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default or Event of Default and its consequences hereunder, if the rescission would not conflict with any judgment or decree, except a continuing Default or Event of Default in the payment of interest, premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, within 10 Business Days of any Officer of the Company becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.

(14) T RUSTEE D EALINGS WITH C OMPANY . The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

(15) N O R ECOURSE A GAINST O THERS . No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any Obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or the Security Documents or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

(16) A UTHENTICATION . This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(17) A BBREVIATIONS . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(18) CUSIP N UMBERS . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.

(19) G OVERNING L AW . THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas, 77079

Attention: Chief Financial Officer

 

A-10


A SSIGNMENT F ORM

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:                                                                                                                                       

                                                                          (Insert assignee’s legal name)

 

 

(Insert assignee’s soc. sec. or tax I.D. no.)

 

 

 

 

 

 

 

 

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                                                                                                                                  to transfer this Note on the books of the Company. The agent may substitute another to act for him.

Date:                     

Your Signature:                                                                   

(Sign exactly as your name appears on the face of this

Note)

Signature Guarantee*:                                                  

 

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-11


Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Sections 4.19 or 4.20 of the Indenture, check the appropriate box below:

 

¨ Section 4.19       ¨ Section 4.20

If you want to elect to have only part of the Note purchased by the Company pursuant to Sections 4.19 or 4.20 of the Indenture, state the amount you elect to have purchased (must be a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof, and the portion, if any, of this Note that is not being tendered for purchase must be in a principal amount of $1.00 or an integral multiple of $1.00 in excess thereof):

$                     

Date:                     

Your Signature:                                                                   

(Sign exactly as your name appears on the face of this

Note)

Tax Identification No.:                                                        

Signature Guarantee*:                                                  

* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-12


S CHEDULE OF I NCREASES AND E XCHANGES OF I NTERESTS IN THE G LOBAL N OTE *

The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:

 

Date of Exchange

   Amount of
decrease in
Principal Amount
of
this Global Note
   Amount of
increase in
Principal Amount
of
this Global Note
   Principal Amount
of this Global Note
following such
decrease
or increase
   Signature of
authorized officer
of Trustee or
Custodian

 

 

* This schedule should be included only if the Note is issued in global form .

 

A-13


EXHIBIT B

FORM OF CERTIFICATE OF TRANSFER

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas 77079

Attention: Chief Financial Officer

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attn: Corporate Trust

Re: 10.000% Senior Secured Second Lien Notes due 2019

Reference is hereby made to the Indenture, dated as of July 27, 2016 (the “ Indenture ”), among SAExploration Holdings, Inc., as issuer (the “ Company ”), the Guarantors party thereto and Wilmington Savings Fund Society, FSB, as Trustee or Noteholder Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

            , (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $            in such Note[s] or interests (the “ Transfer ”), to             (the “ Transferee ”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1. ¨ Check if Transferee will take delivery of a beneficial interest in the Rule 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A . The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Rule 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2. ¨ Check if Transferee will take delivery of a beneficial interest in the Regulation S Temporary Global Note, the Regulation S Permanent Global Note or a Restricted Definitive Note pursuant to Regulation S . The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States, as defined in Regulation S under the Securities Act, and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of

 

B-1


Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person, as defined in Regulation S under the Securities Act, or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Permanent Global Note, the Regulation S Temporary Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

3. ¨ Check and complete if Transferee will take delivery of a beneficial interest in the AI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S . The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a) ¨ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

or

(b) ¨ such Transfer is being effected to the Company or a subsidiary thereof;

or

(c) ¨ such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

or

(d) ¨ such Transfer is being effected to an Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation or general advertising within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Note and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), reasonably satisfactory to the Trustee that such transfer is being made in accordance with all applicable securities laws of the United States and all other applicable jurisdictions. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the AI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

B-2


 

  [Insert Name of Transferor]
By:  

 

  Name:
  Title:

Dated:                     

 

B-3


ANNEX A TO CERTIFICATE OF TRANSFER

 

  1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

 

  (a) ¨ a beneficial interest in the:

 

  (i) ¨ Rule 144A Global Note (CUSIP             ), or

 

  (ii) ¨ Regulation S Global Note (CUSIP             ), or

 

  (iii) ¨ AI Global Note (CUSIP             ); or

 

  (b) ¨ a Restricted Definitive Note.

 

  2. After the Transfer the Transferee will hold:

[CHECK ONE of (a), (b) or (c)]

 

  (a) ¨ a beneficial interest in the:

 

  (i) ¨ Rule 144A Global Note (CUSIP             ), or

 

  (ii) ¨ Regulation S Global Note (CUSIP             ), or

 

  (iii) ¨ AI Global Note (CUSIP             ), or

 

  (b) ¨ a Restricted Definitive Note; or

 

  (c) ¨ an Unrestricted Definitive Note.

in accordance with the terms of the Indenture.

 

B-4


EXHIBIT C

FORM OF CERTIFICATE OF EXCHANGE

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas, 77079

Attention: Chief Financial Officer

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attn: Corporate Trust

Re: 10.000% Senior Secured Second Lien Notes due 2019

(CUSIP             )

Reference is hereby made to the Indenture, dated as of July 27, 2016 (the “ Indenture ”), among SAExploration Holdings, Inc., as issuer (the “ Company ”), the Guarantors party thereto and Wilmington Savings Fund Society, FSB as Trustee and Noteholder Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

            , (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $            in such Note[s] or interests (the “ Exchange ”). In connection with the Exchange, the Owner hereby certifies that:

1. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a) ¨ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued shall continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act of 1933, as amended (the “ Securities Act ”).

(b) ¨ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ Rule 144A Global Note, ¨ Regulation S Global Note, or ¨ AI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the applicable Restricted Global Note and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued shall be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

C-1


 

  [Insert Name of Transferor]
By:  

 

  Name:
  Title:

Dated:                     

 

C-2


EXHIBIT D

FORM OF CERTIFICATE FROM

ACQUIRING ACCREDITED INVESTOR

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas, 77079

Attention: Chief Financial Officer

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attn: Corporate Trust

Re: 10.000% Senior Secured Second Lien Notes due 2019

Reference is hereby made to the Indenture, dated as of July 27, 2016 (the “ Indenture ”), among SAExploration Holdings, Inc., as issuer (the “ Company ”), the Guarantors party thereto and Wilmington Savings Fund Society, FSB, as Trustee and Noteholder Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $            aggregate principal amount of:

(a) ¨ a beneficial interest in a Global Note, or

(b) ¨ a Definitive Note,

we confirm that:

1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we shall do so only (a) to the Company or any of its subsidiaries, (b) for so long as the Notes are eligible for resale pursuant to Rule 144A, to a person we reasonably believe is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act (“QIB”) that purchases for its own account or for the account of a QIB to which notice is given that the transfer is being made in reliance on Rule 144A under the Securities Act, (c) pursuant to offers and sales to persons who are not “U.S. persons” that occur outside the United States in accordance with Regulation S and in accordance with the laws applicable to it in the jurisdiction in which such purchase is made, (d) pursuant to a registration statement that has been declared effective under the Securities Act or (e) pursuant to any other available exemption from the registration requirements of the Securities Act.

3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we shall be required to furnish to you, the Registrar and the Company such certifications, legal opinions and other information as you, the Registrar and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us shall bear a legend to the foregoing effect and to the effect set forth in Section 2 above.

 

D-1


4. We are an “accredited investor” (as defined in Rule 501 of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an “accredited investor” as defined above) as to each of which we exercise sole investment discretion.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

 

  [Insert Name of Accredited Investor]
By:  

 

  Name:
  Title:

Dated:                     

 

D-2


EXHIBIT E

FORM OF NOTATION OF GUARANTEE

For value received, each Guarantor (which term includes any successor to such Guarantor under the Indenture referred to below) has, jointly and severally, fully and unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of July 27, 2016 (the “ Indenture ”) among SAExploration Holdings, Inc., (the “ Company ”), the Guarantors party thereto and Wilmington Savings Fund Society, FSB, as trustee, and the Noteholder Collateral Agent (the “ Trustee ”) (a) the due and punctual payment of the principal of, premium, if any, and interest, if any, on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest, to the extent permitted by applicable law, on overdue principal of and overdue interest on the Notes, if any, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture, and the limitations thereon, are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

This Note Guarantee shall be governed by and construed in accordance with the law of the State of New York.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

[ Signature Page Follows ]

 

E-1


SAEXPLORATION SUB, INC. , as a Guarantor
By:  

 

Name:
Title:
SAEXPLORATION, INC. , as a Guarantor
By:  

 

Name:
Title:
NES, LLC , as a Guarantor
By:  

 

Name:
Title:
SAEXPLORATION SEISMIC SERVICES (US), LLC , as a Guarantor
By:  

 

Name:
Title:

 

E-2


EXHIBIT F

FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS

S UPPLEMENTAL I NDENTURE (this “ Supplemental Indenture ”), dated as of             , 20    , among             (the “ Guaranteeing Subsidiary ”), a subsidiary of SAExploration Holdings, Inc. (or its permitted successor), a Delaware corporation (the “ Company ”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wilmington Savings Fund Society, FSB, as trustee, and Noteholder Collateral Agent under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of July 27, 2016 providing for the issuance of 10.000% Senior Secured Second Lien Notes due 2019 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall fully and unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Guarantee ”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes and the Noteholder Collateral Agent as follows:

1. C APITALIZED T ERMS . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. A GREEMENT TO G UARANTEE . The Guaranteeing Subsidiary hereby agrees to provide a full and unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof, and subject to the limitations therein.

3. N O R ECOURSE A GAINST O THERS . No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, the Indenture, the Note Guarantees or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

4. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

5. C OUNTERPARTS . This Supplemental Indenture may be executed in multiple counterparts, which when taken together, shall constitute one instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

F-1


6. E FFECT OF H EADINGS . The Section headings herein are for convenience only and shall not affect the construction hereof.

7. T HE T RUSTEE . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.

 

F-2


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

Dated:             , 20    

 

SAEXPLORATION HOLDINGS, INC.
By:  

 

  Name:
  Title:
[G UARANTEEING S UBSIDIARY ]
By:  

 

  Name:
  Title:
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE
By:  

 

  Authorized Signatory
WILMINGTON SAVINGS FUND SOCIETY, FSB, AS NOTEHOLDER COLLATERAL AGENT
By:  

 

  Authorized Signatory

 

F-3

Exhibit 4.3

NOTATION OF GUARANTEE

For value received, each Guarantor (which term includes any successor to such Guarantor under the Indenture referred to below) has, jointly and severally, fully and unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of July 27, 2016 (the “ Indenture ”) among SAExploration Holdings, Inc., (the “ Company ”), the Guarantors party thereto and Wilmington Savings Fund Society, FSB, as trustee, and the Noteholder Collateral Agent (the “ Trustee ”) (a) the due and punctual payment of the principal of, premium, if any, and interest, if any, on, the Notes, whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest, to the extent permitted by applicable law, on overdue principal of and overdue interest on the Notes, if any, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture, and the limitations thereon, are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

This Note Guarantee shall be governed by and construed in accordance with the law of the State of New York.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

[ Signature Page Follows ]


SAEXPLORATION SUB, INC. , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION, INC. , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION SEISMIC SERVICES (US), LLC , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
NES, LLC , as a Guarantor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary

[Signature Page to Notation of Guarantee]

Exhibit 4.4

ADDITIONAL INDEBTEDNESS JOINDER AND DESIGNATION

ADDITIONAL INDEBTEDNESS JOINDER AND DESIGNATION, dated as of July 27, 2016 (this “ Joinder ”), by and among Wells Fargo Bank, National Association, as ABL Agent (“ ABL Agent ”), Wilmington Savings Fund Society, FSB, as Existing Noteholder Agent (“ Existing Noteholder Agent ”), Delaware Trust Company, as Term Agent (“ Term Agent ”), and the Additional Noteholder Agent (as defined below) and any successors or assigns thereof, to the Amended and Restated Intercreditor Agreement dated as of June 29, 2016 (as amended, supplemented, waived or otherwise modified from time to time, the “ Intercreditor Agreement ”) among the ABL Agent, Existing Noteholder Agent, Term Agent, and the other parties party thereto from time to time. Capitalized terms used herein and not otherwise defined herein shall have the meaning specified in the Intercreditor Agreement.

Reference is made to that certain Indenture, dated as of July 27, 2016 (the “ Indenture ”), among SAExploration Holdings, Inc., as issuer, each of the guarantors party thereto, and Wilmington Savings Fund Society, FSB, as trustee and notes collateral agent (in such capacities, the “ Additional Noteholder Agent ”).

Section 10.5 of the Intercreditor Agreement permits the Representatives to designate Additional Debt under the Intercreditor Agreement.

Accordingly, the Additional Noteholder Agent, for itself and on behalf of the Additional Indenture Secured Parties, hereby agrees with the ABL Agent, Existing Noteholder Agent and Term Agent as follows:

Section 1. Designation of Additional Indebtedness . The Representatives hereby designate such Additional Indebtedness as Additional Indenture Obligations under the Intercreditor Agreement.

Section 2. Agreement to be Bound . The Additional Noteholder Agent, for itself and on behalf of the Additional Indenture Secured Parties, hereby agrees to be bound by the terms and provisions of the Intercreditor Agreement and shall, as of the date hereof with respect to the Additional Indenture Obligations incurred or to be incurred under the Indenture referred to above, be deemed to be a party to the Intercreditor Agreement.

Section 2. Notices . Notices and other communications provided for under the Intercreditor Agreement to be provided to the Additional Noteholder Agent shall be sent to the address set forth below its name on the signature page hereto (until notice of a change thereof is delivered as provided in Section 10.9 of the Intercreditor Agreement).

Section 3. Miscellaneous . THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

[S IGNATURES F OLLOW ]


IN WITNESS WHEREOF, the parties hereto have executed this Joinder to Intercreditor Agreement as of the date first written above.

 

WILMINGTON SAVINGS FUND SOCIETY, FSB, as Additional Noteholder Agent for and on behalf of the Additional Indenture Secured Parties
By:  

/s/ Geoffrey Lewis

  Name: Geoffrey Lewis
  Title:   Vice President
Address for Notices:
Wilmington Savings Fund Society, FSB
500 Delaware Avenue
Wilmington, Delaware 19801
Attention: Corporate Trust

Reference: SAExploration Holdings, Inc.

10.000% Senior Secured Second Lien Notes due 2019

Facsimile: (302) 421-9137

With a copy to (which shall not constitute notice):

 

Morrison & Foerster LLP

250 West 55 th Street

New York, New York 10019

Attention: Jonathan I. Levine

Facsimile: (212) 468-7900

[Signature Page to Joinder to Intercreditor Agreement]


ABL AGENT:     WELLS FARGO BANK, NATIONAL
ASSOCIATION, as ABL Agent
    By:  

/s/ Michael White

      Name: Michael White
      Title: Vice President
EXISTING NOTEHOLDER AGENT:     WILMINGTON SAVINGS FUND SOCIETY,
FSB, as Existing Noteholder Agent for and on
behalf of the Existing Indenture Secured Parties
    By:  

/s/ Geoffrey Lewis

      Name: Geoffrey Lewis
      Title: Vice President
TERM AGENT:     DELAWARE TRUST COMPANY, as Term
Agent
    By:  

/s/ Alan R. Halpern

      Name: Alan R. Halpern
      Title: Vice President

[Signature Page to Joinder to Intercreditor Agreement]

Exhibit 10.1

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AT ANY TIME THAT THE INTERCREDITOR AGREEMENT SHALL BE IN FULL FORCE AND EFFECT, THE LIENS AND SECURITY INTERESTS GRANTED TO THE NOTEHOLDER COLLATERAL AGENT (AS DEFINED BELOW) PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY NOTEHOLDER COLLATERAL AGENT HEREUNDER, SHALL BE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT (AS DEFINED BELOW). IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THE TERMS OF THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.

 

 

 

SECURITY AGREEMENT

by

SAEXPLORATION HOLDINGS, INC.,

and

EACH OF THE SUBSIDIARIES OF

SAEXPLORATION HOLDINGS, INC. PARTY HERETO,

as Pledgors,

and

WILMINGTON SAVINGS FUND SOCIETY, FSB

as Noteholder Collateral Agent

Dated as of July 27, 2016

 

 

 


ARTICLE I   DEFINITIONS AND INTERPRETATION      2   

Section 1.1

 

Definitions

     2   

Section 1.2

 

Interpretation

     15   

Section 1.3

 

Resolution of Drafting Ambiguities

     16   

Section 1.4

 

Perfection Certificate

     16   
ARTICLE II   GRANT OF SECURITY AND SECURED OBLIGATIONS      16   

Section 2.1

 

Grant of Security Interest

     16   

Section 2.2

 

Filings

     18   

Section 2.3

 

Intercreditor Agreement

     18   

Section 2.4

 

Possession or Control of Collateral

     19   
ARTICLE III   PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; USE OF COLLATERAL      19   

Section 3.1

 

Delivery of Certificated Securities Collateral

     19   

Section 3.2

 

Perfection of Uncertificated Securities Collateral

     20   

Section 3.3

 

Financing Statements and Other Filings; Maintenance of Perfected Security Interest

     20   

Section 3.4

 

Other Actions

     21   

Section 3.5

 

Joinder of Additional Pledgors

     26   

Section 3.6

 

Supplements; Further Assurances

     26   

Section 3.7

 

Perfection under Foreign Law

     27   

Section 3.8

 

Post-Closing Obligations

     28   
ARTICLE IV   REPRESENTATIONS, WARRANTIES AND COVENANTS      28   

Section 4.1

 

Title

     28   

Section 4.2

 

Validity of Security Interest

     28   

Section 4.3

 

Pledgor Defense of Claims; Transferability of Collateral

     29   

Section 4.4

 

Other Financing Statements

     29   

Section 4.5

 

Chief Executive Office; Change of Name; Jurisdiction of Organization, etc

     29   

Section 4.6

 

Location of Inventory and Equipment

     31   

Section 4.7

 

Corporate Names; Prior Transactions

     31   

Section 4.8

 

Due Authorization and Issuance

     31   

Section 4.9

 

Consents, etc

     31   

Section 4.10

 

Collateral

     32   

Section 4.11

 

Intellectual Property

     32   

Section 4.12

 

Insurance

     34   

Section 4.13

 

Payment of Taxes; Compliance with Legal Requirements; Contesting Liens; Charges

     35   

Section 4.14

 

Books and Records; Other Information

     35   
ARTICLE V   CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL      36   

Section 5.1

 

Pledge of Additional Securities Collateral

     36   

Section 5.2

 

Voting Rights; Distributions; etc

     36   

Section 5.3

 

Default

     37   

 

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Section 5.4

 

Certain Agreements of Pledgors as Issuers and Holders of Equity Interests

     37   
ARTICLE VI   CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL      38   

Section 6.1

 

Grant of License

     38   

Section 6.2

 

Registration

     38   

Section 6.3

 

Protection of Noteholder Collateral Agent’s Security

     38   

Section 6.4

 

After-Acquired Property

     41   

Section 6.5

 

Litigation

     41   

Section 6.6

 

Intent-to-Use Trademark and Service Mark Applications

     42   

Section 6.7

 

Foreign Intellectual Property Collateral

     42   
ARTICLE VII   CERTAIN PROVISIONS CONCERNING ACCOUNTS      42   

Section 7.1

 

Special Representation and Warranties

     42   

Section 7.2

 

Maintenance of Records

     43   

Section 7.3

 

Legend

     43   

Section 7.4

 

Modification of Terms, etc

     43   

Section 7.5

 

Collection

     44   
ARTICLE VIII   TRANSFERS      44   

Section 8.1

 

Transfers of Collateral

     44   
ARTICLE IX   REMEDIES      44   

Section 9.1

 

Remedies

     44   

Section 9.2

 

Notice of Sale

     46   

Section 9.3

 

Waiver of Notice and Claims; Other Waivers; Marshalling

     46   

Section 9.4

 

Standards for Exercising Rights and Remedies

     47   

Section 9.5

 

No Waiver; Cumulative Remedies

     49   

Section 9.6

 

Certain Additional Actions Regarding Intellectual Property

     49   
ARTICLE X   PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS; APPLICATION OF PROCEEDS      50   

Section 10.1

 

Proceeds of Casualty Events and Collateral Dispositions

     50   

Section 10.2

 

Application of Proceeds

     50   
ARTICLE XI   MISCELLANEOUS      50   

Section 11.1

 

Concerning Noteholder Collateral Agent

     50   

Section 11.2

 

Noteholder Collateral Agent May Perform; Noteholder Collateral Agent Appointed Attorney-in-Fact

     51   

 

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Section 11.3

 

Continuing Security Interest; Assignment

     52   

Section 11.4

 

Release; Retention in Satisfaction; Etc

     52   

Section 11.5

 

Costs and Expenses

     53   

Section 11.6

 

Modification in Writing

     53   

Section 11.7

 

Notices

     54   

Section 11.8

 

Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial

     54   

Section 11.9

 

Severability of Provisions

     55   

Section 11.10

 

Execution in Counterparts

     55   

Section 11.11

 

Business Days

     56   

Section 11.12

 

Waiver of Stay

     56   

Section 11.13

 

No Credit for Payment of Taxes or Imposition

     56   

Section 11.14

 

No Claims Against Noteholder Collateral Agent

     56   

Section 11.15

 

No Release

     57   

Section 11.16

 

Overdue Amounts

     57   

Section 11.17

 

Obligations Absolute

     57   

EXHIBITS

 

Exhibit 1   

Form of Issuer’s Acknowledgement

Exhibit 2   

Form of Pledge Amendment

Exhibit 3   

Form of Joinder Agreement

Exhibit 4   

Form of Securities Account Control Agreement

Exhibit 5   

Form of Deposit Account Control Agreement

Exhibit 6   

Form of Copyright Security Agreement

Exhibit 7   

Form of Patent Security Agreement

Exhibit 8   

Form of Trademark Security Agreement

Exhibit 9   

Form of Perfection Certificate

Exhibit 10   

Form of Perfection Certificate Supplement

 

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SECURITY AGREEMENT

SECURITY AGREEMENT dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, this “ Agreement ”) by and among SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), the subsidiaries of the Company from time to time party hereto (such parties, the “ Guarantors ”), (the Company, together with the Guarantors, as pledgors, assignors and debtors hereunder and together with any successors, the “ Pledgors ,” and each, a “ Pledgor ”), and Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent (in such capacity and together with any successors in such capacity, the “ Noteholder Collateral Agent ”) for the Secured Parties. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Indenture (as hereinafter defined).

R E C I T A L S :

A. The Company, as issuer, the Guarantors party thereto, the Noteholder Collateral Agent and Wilmington Savings Fund Society, FSB, as trustee thereunder (the “ Trustee ”) have entered into the Indenture, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Indenture ”), pursuant to which the Company shall issue the 10.000% senior secured second lien notes due 2019.

B. The Guarantors have, pursuant to the Indenture, unconditionally guaranteed the Notes Obligations.

C. Each Pledgor will obtain benefits from the Indenture and the other Notes Documents and, accordingly, desires to execute this Agreement to induce (a) the Holders to purchase the Notes pursuant to the Indenture and the other Notes Documents and (b) the Noteholder Collateral Agent and the Trustee to enter into the Indenture and the other Notes Documents.

D. The Pledgors have granted and may, in the future, grant to the ABL Agent for the benefit of the lenders under the ABL Agreement, the Term Agent for the benefit of the lenders under the Term Credit Agreement and/or the Existing Noteholder Collateral Agent for the benfit of the noteholders under the Existing Indenture, a security interest in the Collateral (it being understood that the relative rights and priorities of the grantees in respect of the Collateral shall be governed by the Intercreditor Agreement).

E. Each Pledgor is, or as to Collateral acquired by such Pledgor after the date hereof, will be, the legal and/or beneficial owner of the Collateral pledged by it hereunder.

F. This Agreement is given by each Pledgor in favor of the Noteholder Collateral Agent for the benefit of the Secured Parties to secure the payment and performance of all of the Notes Obligations.


A G R E E M E N T :

NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Noteholder Collateral Agent hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.1 Definitions . (a) Unless otherwise defined herein or in the Indenture, capitalized terms used herein that are defined in the UCC have the meanings assigned to them in the UCC.

(b) Terms used but not otherwise defined herein that are defined in the Indenture have the meanings given to them in the Indenture. In addition, the following terms shall have the following meanings:

ABL Agent ” means the collateral agent for the benefit of the ABL Claimholders, together with its successors in that capacity.

ABL Claimholders ” means, at any time of determination, collectively, (a) the ABL Agent, (b) the lenders under the ABL Credit Agreement at such time, (c) the issuing bank or banks of letters of credit or similar instruments under the ABL Credit Agreement, (d) each other person to whom any of the Obligations under the ABL Credit Agreement is owed at such time and (e) the successors, replacements and assigns of each of the foregoing.

ABL Credit Agreement ” means that certain Credit Agreement, dated as of November 6, 2014, by and among SAExploration, Inc., the Company, certain subsidiaries of the Company, as guarantors, and the ABL Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time).

ABL Loan Documents ” has the meaning assigned to such term in the Intercreditor Agreement.

ABL Security Documents ” has the meaning assigned to such term in the Intercreditor Agreement.

Additional Pledged Interests ” means, collectively, with respect to each Pledgor, (a) all options, warrants, rights, agreements, additional membership, partnership or other Equity Interests of whatever class of any issuer of Initial Pledged Interests or any interest in any such issuer, together with all rights, privileges, authority and powers of such Pledgor relating to such interests in each such issuer or under any Organizational Document of any such issuer, and the certificates, instruments and agreements representing such membership, partnership or other Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other Equity Interests from time to time acquired by such Pledgor in any manner and (b) all membership, partnership or other Equity Interests, as applicable, of each limited liability company, partnership or other entity (other than a corporation) hereafter acquired or formed by such Pledgor and all options, warrants,

 

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rights, agreements, additional membership, partnership or other Equity Interests of whatever class of such limited liability company, partnership or other entity, together with all rights, privileges, authority and powers of such Pledgor relating to such interests or under any Organizational Document of any such issuer, and the certificates, instruments and agreements representing such membership, partnership or other Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other Equity Interests, from time to time acquired by such Pledgor in any manner.

Additional Pledged Shares ” means, collectively, with respect to each Pledgor, (a) all options, warrants, rights, Equity Interests, agreements, additional shares of capital stock of whatever class of any issuer of the Initial Pledged Shares or any other equity interest in any such issuer, together with all rights, privileges, authority and powers of such Pledgor relating to such interests issued by any such issuer under any Organizational Document of any such issuer, and the certificates, instruments and agreements representing such interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such interests, from time to time acquired by such Pledgor in any manner and (b) all the issued and outstanding shares of capital stock of each corporation hereafter acquired or formed by such Pledgor and all options, warrants, rights, agreements or additional shares of capital stock of whatever class of such corporation, together with all rights, privileges, authority and powers of such Pledgor relating to such shares or under any Organizational Document of such corporation, and the certificates, instruments and agreements representing such shares and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such shares, from time to time acquired by such Pledgor in any manner.

Agents ” means the Existing Noteholder Collateral Agent, the Existing Trustee, the ABL Agent, the Term Agent, the Noteholder Collateral Agent and the Trustee; and “ Agent ” means any of them.

Agreement ” has the meaning assigned to such term in the preamble hereof.

Attorney Costs ” shall mean and include all reasonable fees and disbursements of any law firm or other external counsel.

Bailee Letter ” has the meaning assigned to such term in Section 3.4(i) .

Casualty Event ” means any loss of title (other than through a consensual disposition of such Property in accordance with this Agreement) or any loss of or damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property of any Pledgor. “Casualty Event” includes any taking of all or any part of any Real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, or any settlement in lieu thereof.

CFC Subsidiary ” means any Subsidiary that constitutes a controlled foreign corporation within the meaning of Section 957 of the Internal Revenue Code of 1986, as amended.

 

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CFC Subsidiary Holding Company ” means any Subsidiary organized under the laws of the United States, any State of the United States or the District of Columbia that is (a) engaged in no material business activities other than the holding of Equity Interests and other investments in one or more CFC Subsidiaries or (b) disregarded for U.S. federal income tax purposes that owns Equity Interests or other investments in one or more CFC Subsidiaries.

Charges ” means any and all property and other taxes, assessments and special assessments, levies, fees and all other governmental charges imposed upon or assessed against, and all claims (including any landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s, suppliers’ and warehousemen’s Liens and other charges arising by operation of law) against, all or any portion of the Collateral.

Collateral ” has the meaning assigned to such term in Section 2.1 .

Collateral Account ” means any collateral account or sub-account established by the Noteholder Collateral Agent for the purpose of serving as a collateral account under this Agreement and all property from time to time on deposit in the Collateral Account.

Commercial Motor Vehicles ” means motor vehicles used primarily for commercial purposes.

Commodity Account Control Agreement ” means a commodity account control agreement in a form that is reasonably satisfactory to the Noteholder Collateral Agent.

Company ” has the meaning assigned to such term in the preamble hereof.

Computer Hardware and Software ” means all rights (including rights as licensee and lessee) with respect to (a) computer and other electronic data processing hardware, including all integrated computer systems, central processing units, memory units, display terminals, computer elements, card readers, tape drives, hard and soft disc drives, cables, electrical supply hardware, generators, power equalizers, accessories, peripheral devices and other related computer hardware; (b) all software, all software programs and all databases designed for use on the computers and electronic data processing hardware described in clause (a) above, including all operating system software, utilities and application programs in any form (service code and object code in magnetic tape, disc or hard copy format or any other listings whatsoever); (c) any firmware associated with any of the foregoing; (d) any documentation for hardware, software and firmware described in clauses (a), (b) and (c) above, including flow charts, logic diagrams, manuals, specifications, training materials, charts and pseudo codes; and all rights with respect thereto, including any and all licenses, options, warrants, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications, and any substitutions, replacements, additions, new versions or model conversions of any of the foregoing.

Contracts ” means, collectively, with respect to each Pledgor, all contracts, agreements and grants (in each case, whether written or oral, or third party or intercompany), to which such Pledgor is a party, and all assignments, amendments, restatements, supplements, extensions, renewals, replacements or modifications thereof.

 

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Control ” means (a) in the case of each Deposit Account, “control,” as such term is defined in Section 9-104 of the UCC, and (b) in the case of any Security Entitlement, “control,” as such term is defined in Section 8-106 of the UCC and (c) in the case of any Commodity Contract, “control,” as such term is defined in Section 9-106 of the UCC.

Control Agreements ” means, collectively, the Deposit Account Control Agreement(s), the Securities Account Control Agreement(s) and the Commodity Account Control Agreement(s).

Copyright Security Agreement ” means an agreement substantially in the form of Exhibit 6 hereto.

Copyrights ” means, collectively, all works of authorship (whether or not protected by statutory or common law copyright, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished) and all copyright registrations and applications, together with any and all (a) tangible embodiments of any of the foregoing, (b) rights and privileges arising under applicable Legal Requirements with respect to the use of such copyrights, (c) reissues, renewals, continuations, modifications, and extensions thereof and derivative works, (d) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and payments for past, present or future infringements thereof, (e) rights corresponding thereto throughout the world and (f) rights to sue for past, present or future infringements thereof.

Deposit Account Control Agreement ” means an agreement substantially in the form of Exhibit 5 hereto among the applicable Pledgor, the relevant depository bank, the Noteholder Collateral Agent, the ABL Agent (if applicable), the Term Agent (if applicable) and the Existing Noteholder Collateral Agent (if applicable) as such form may be modified to reflect any changes that may be reasonably required by a new depository bank (or substituted by an agreement based on a form provided by the applicable depository bank); provided that any such changes or any such other agreement shall not be materially worse for the Secured Parties, when taken as a whole, than such terms as are set out in the agreement set forth on Exhibit 5 .

Deposit Accounts ” means, collectively, with respect to each Pledgor, (a) all “deposit accounts” as such term is defined in the UCC, each Collateral Account and all accounts and sub-accounts relating to any of the foregoing accounts and (b) all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (a) of this definition.

Distributions ” means, collectively, with respect to each Pledgor, all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in exchange for any or all of the Pledged Securities or Intercompany Notes.

Equity Interest ” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests

 

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(however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), joint venture interests, or if such Person is a limited liability company, membership interests and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of Property of, such partnership, whether outstanding on the date hereof or issued on or after the date hereof, but excluding debt securities convertible or exchangeable into such equity.

Excluded Accounts ” means, as to any Pledgor, all Deposit Accounts used solely for (i) payroll and/or accrued employee benefits or (ii) employee benefit plans.

Excluded Property ” means:

(1) all of any Pledgor’s right, title and interest in any leasehold or other nonfee simple interest in any Real Property of such Pledgor (whether leased or otherwise held on the date hereof or leased or otherwise acquired after the date hereof);

(2) any permit or lease or license or any contractual obligation entered into by any Pledgor (A) that prohibits or requires the consent of any Person other than the Company or any of its Affiliates as a condition to the creation by any Pledgor of a Lien on any right, title or interest in such permit, lease, license or contractual agreement or any Capital Stock or equivalent related thereto or (B) to the extent that any Legal Requirement applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Legal Requirement;

(3) all foreign intellectual property and any “intent-to-use” trademark applications prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law;

(4) fixed or capital assets owned by any Pledgor that are subject to a purchase money Lien or a capital lease if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits or requires the consent of any Person other than the Company or any of its Affiliates as a condition to the creation of any other Lien on such equipment;

(5) motor vehicles subject to certificates of title (except to the extent perfection can be obtained by the filing of UCC financing statements);

(6) cash collateral for letters of credit or Hedging Obligations permitted by clauses (1), (9), and (11) of Section 4.08(b) of the Indenture securing, in the case of letters of credit, an amount not to exceed the face amount of cash collateralized letters of credit for the benefit of any of the Pledgors and, in the case of Hedging Obligations, not to exceed the amount of such Hedging Obligations;

 

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(7) (a) the Equity Interests in the Kuukpik Joint Venture, (b) any interest in any Equity Interest that is not directly owned by any Pledgor and (c) any interest in any Equity Interests of any other joint venture, partnership or other entity that is existing (A) on the date hereof or (B) from and after the date hereof if such joint venture, partnership or other entity is not a Subsidiary of a Pledgor, in each case if and for so long as the grant of a Lien with respect thereto is not permitted by the other partner, joint venture or joint venture partner, as applicable, and the applicable Pledgor has used commercially reasonable efforts to obtain the right to grant a lien in such joint venture, partnership or other entity;

(8) Equity Interests in excess of 65% of all outstanding voting Equity Interests of any Foreign Subsidiary or CFC Subsidiary Holding Company;

(9) any Collateral that has been released in accordance with the Intercreditor Agreement and the ABL Security Documents or the Term Security Documents if the ABL Obligations (as defined in the Intercreditor Agreement) have been discharged in full;

(10) [ Reserved ];

(11) the Excluded Accounts;

(12) any property or assets owned at any time or from time to time by any Foreign Subsidiary; and

(13) any asset or property (i) with a Fair Market Value of less than $20.0 million or (ii) constituting Equity Interests in a Foreign Subsidiary, in each case as to which the Board of Directors determines in good faith that the costs of obtaining or perfecting such a security interest are excessive in relation to the practical benefit to the holders of the notes of the security afforded thereby (based on the Fair Market Value of such asset or property) (it being understood that such determination in respect of assets described in clauses (i) and (ii) shall only apply with respect to actions required to create or perfect a security interest in the Collateral under the laws of any non-U.S. jurisdiction);

provided that notwithstanding anything to the contrary contained in clauses (1) through (13) above to the contrary, (a) Excluded Property shall not include any Proceeds of Property described in clauses (1) through (13) above (unless such proceeds are also described in such clauses), and (b) subject to the provisions of the Intercreditor Agreement, no property or assets that are subject to a Lien securing ABL Obligations, Term Obligations and/or Existing Indenture Obligations shall constitute Excluded Property so long as such Lien remains in effect; provided, further, that at such time as any of the foregoing Property no longer constitutes Excluded Property, such Property shall immediately constitute Collateral and a Lien on and security interest in and to all of the right, title and interest of the applicable Pledgor in, to and under such Property shall immediately attach thereto.

Existing Indenture ” means the Indenture, dated as of July 2, 2014, among the Company, the Guarantors, the Existing Trustee and the Existing Noteholder Collateral Agent, pursuant to which the Existing Notes were issued, as may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time.

 

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Existing Indenture Obligations ” means all the Obligations payable by any pledgor to any secured party under the Existing Notes, the Existing Indenture and any other Existing Notes Documents, including all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Existing Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

Existing Noteholder Collateral Agent ” means Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as collateral agent under the Existing Indenture.

Existing Notes ” means the Company’s outstanding 10.000% Senior Secured Notes due 2019.

Existing Notes Documents ” means the Existing Notes, the Existing Indenture, the Guarantees of the Existing Notes, the security documents related thereto and each of the other documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at any time governing, or in connection with, any Existing Indenture Obligations, including any intercreditor or joinder agreement among holders of Existing Indenture Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time in accordance with the provisions of the Existing Indenture.

Existing Trustee ” means Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as trustee under the Existing Indenture.

Financial Officer ” of any Person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such Person, or any officer with an equivalent position performing duties normally attributable to any of the foregoing.

Foreign Equity ” has the meaning assigned to such term in Section 3.7 .

Foreign Jurisdiction ” has the meaning assigned to such term in Section 3.7 .

Foreign Located Assets ” has the meaning assigned to such term in Section 3.7 .

Foreign Perfection ” has the meaning assigned to such term in Section 3.7 .

Foreign Subsidiary Property ” means any asset or property of the nature described in paragraph (12) of the definition of Excluded Property, including any such assets or properties that (a) become Reorganization Assets or (b) are designated as Reorganization Assets so long as such assets or properties become Reorganization Assets within 180 days of such designation.

General Intangibles ” means, collectively, with respect to each Pledgor, all “general intangibles,” as such term is defined in the UCC, now owned or hereafter acquired by such Pledgor and, in any event, shall include (a) all of such Pledgor’s rights, title and interest in, to

 

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and under all insurance policies and coverages and Contracts, (b) all of such Pledgor’s interest in know-how and warranties relating to any of the Collateral or any Mortgaged Property, (c) any and all other rights, claims, choses-in-action and causes of action of such Pledgor against any other Person and the benefits of any and all collateral or other security given by any other Person in connection therewith, (d) all guarantees, endorsements and indemnifications on, or of, any of the Collateral or any Mortgaged Property, (e) all of Pledgor’s interest in lists, books, records, correspondence, ledgers, printouts, files (whether in printed form or stored electronically), tapes and other papers or materials containing information relating to any of the Collateral or any Mortgaged Property, including all customer or tenant lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, appraisals, recorded knowledge, surveys, studies, engineering reports, test reports, manuals, standards, processing standards, performance standards, catalogs, research data, computer and automatic machinery software and programs and the like, field repair data, accounting information pertaining to such Pledgor’s operations or any of the Collateral or any Mortgaged Property and all media in which or on which any of the information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data, (f) all licenses, consents, permits, variances, certifications, authorizations and approvals, however characterized, of any Governmental Authority (or any Person acting on behalf of a Governmental Authority) now or hereafter acquired or held by such Pledgor pertaining to operations now or hereafter conducted by such Pledgor or any of the Collateral or any Mortgaged Property, including building permits, certificates of occupancy, environmental certificates, industrial permits or licenses and certificates of operation, and (g) all rights to reserves, payment intangibles, deferred payments, deposits, refunds, indemnification of claims to the extent the foregoing relate to any Collateral or any Mortgaged Property and claims for tax or other refunds against any Governmental Authority relating to any Collateral or any Mortgaged Property.

Goodwill ” means, collectively, with respect to each Pledgor, the goodwill connected with such Pledgor’s business including (a) all goodwill connected with the use of and symbolized by any Intellectual Property Collateral in which such Pledgor has any interest, (b) all of Pledgor’s interest in know-how, trade secrets, customer and supplier lists, proprietary information, inventions, methods, plans, policies, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, catalogs, confidential information and the right to limit the use or disclosure thereof by any Person, pricing and cost information, business and marketing plans and proposals, consulting agreements, engineering contracts and such other assets which relate to such goodwill and (c) all product lines of such Pledgor’s business.

Governmental Authority ” means any federal, state, local or foreign (whether civil, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality or regulatory body or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Guarantors ” has the meaning assigned to such term in the preamble hereof.

Indenture ” has the meaning assigned to such term in the recitals hereof.

 

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Initial Pledged Interests ” means, with respect to each Pledgor, all membership, partnership or other Equity Interests (other than in a corporation), as applicable, in each issuer described on Schedule 11 to the Perfection Certificate together with all rights, privileges, authority and powers of such Pledgor in and to each such issuer or under any Organizational Document of each such issuer, and the certificates, instruments and agreements representing such membership, partnership or other Equity Interests and any and all interests of such Pledgor in the entries on the books of any financial intermediary pertaining to such membership, partnership or other Equity Interests.

Initial Pledged Shares ” means, collectively, with respect to each Pledgor, the issued and outstanding shares of capital stock in each issuer that is a corporation described on Schedule 11 to the Perfection Certificate together with all rights, privileges, authority and powers of such Pledgor relating to such shares of capital stock in each such issuer or under any Organizational Document of each such issuer, and the certificates, instruments and agreements representing such shares of capital stock and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to the Initial Pledged Shares.

Instruments ” means, collectively, with respect to each Pledgor, all “instruments,” as such term is defined in Article 9, rather than Article 3, of the UCC, and shall include all promissory notes, drafts, bills of exchange or acceptances.

Intellectual Property Collateral ” means, collectively, all (i) Patents, Trademarks, Copyrights and Trade Secrets now owned or hereafter created or acquired by or assigned to such Pledgor, including, without limitation, the Patents, Trademarks (including Internet domain names) and Copyrights that are Registered and listed on Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate, (ii) License Agreements to which any Pledgor is now or hereafter becomes a party or beneficiary, including, without limitation, the License Agreements listed on Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate and (iii) Goodwill.

Intercompany Canadian Note ” means the Promissory Note dated December 5, 2012, issued by SAExploration (Canada) Ltd. to SAExploration, Inc. in the original principal amount of U.S. $50,000,000, as the same may be amended, restated, supplemented or otherwise modified from time to time.

Intercompany Notes ” means the Intercompany Canadian Note, the Intercompany Subordinated Note and any other intercompany notes now owned or hereafter acquired by any of the Pledgors and all certificates, instruments or agreements evidencing the Intercompany Notes and such other intercompany notes, and all assignments, amendments, amendments and restatements, supplements, extensions, renewals, replacements or modifications thereof.

Intercompany Subordinated Note ” means the Second Amended and Restated Global Intercompany Subordinated Note, dated June 29, 2016, issued by the Pledgors and each of their direct Subsidiaries, evidencing the intercompany Indebtedness among them from time to time and at any time outstanding, as the same may be amended, restated, supplemented or otherwise modified from time to time.

Intercreditor Agreement ” has the meaning ascribed thereto in the Indenture.

 

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Investment Property ” means any Security, whether certificated or uncertificated, Security Entitlement, Securities Account, Commodity Contract or Commodity Account, excluding, however, the Securities Collateral.

Joinder Agreement ” means an agreement substantially in the form of Exhibit 3 hereto.

Legal Requirements ” means, as to any Person, the Organizational Documents of such Person, and any governmental treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, Order or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

License Agreements ” means, collectively, all agreements, permits, consents, orders, franchises and covenants not to sue relating to the license, development, use or disclosure of any Patent, Trademark, Copyright or Trade Secret, together with any and all (a) renewals, extensions, supplements and continuations thereof, (b) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements or violations thereof, (c) rights to sue for past, present or future infringements or violations thereof and (d) other rights to use, exploit or practice any or all of the Patents, Trademarks, Copyrights or Trade Secrets.

Mortgaged Property ” means each Real Property subject to a Mortgage (if any).

Notes Documents ” means the Indenture, the Notes, the Note Guarantees and any other guarantees of the Notes, the Security Documents, and each of the other documents and instruments executed pursuant thereto, and any other document or instrument executed or delivered at any time governing, or in connection with, any Notes Obligations, including any intercreditor or joinder agreement among holders of Notes Obligations to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed, extended or refinanced from time to time in accordance with the provisions of the Indenture.

Noteholder Collateral Agent ” has the meaning assigned to such term in the preamble hereof.

Notes ” means, collectively, the Notes originally issued under the Indenture as of the Issue Date, any PIK Notes to be subsequently issued as PIK Interest and any increase in the principal amount of outstanding Notes as a result of the payment of PIK Interest, and any Additional Notes subsequently issued, except if otherwise stated herein.

Notes Obligations ” means all the Obligations payable by any Pledgor to any Secured Party under the Notes, the Indenture and any other Notes Documents, including all interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Notes Document, whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.

 

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

Organizational Documents ” means, with respect to any Person, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person (and, where applicable, the equityholders or shareholders registry of such Person), (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person, (e) in any other case, the functional equivalent of the foregoing, and (f) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such Person.

Patent Security Agreement ” means an agreement substantially in the form of Exhibit 7 hereto.

Patents ” means, collectively, all patents, patent applications, utility models and statutory invention registrations (whether established or registered or recorded in the United States or any other country or any political subdivision thereof), together with any and all (a) rights and privileges arising under applicable Legal Requirements with respect to the use of any patents, (b) inventions and improvements described and charged therein, (c) reissues, divisions, continuations, renewals, extensions, modifications and continuations-in-part thereof, (d) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (e) rights corresponding thereto throughout the world and (f) rights to sue for past, present or future infringements thereof.

Perfection Certificate ” means the perfection certificate dated as of the date hereof, executed and delivered by each Pledgor party thereto in favor of the Noteholder Collateral Agent for the benefit of the Secured Parties, and each other Perfection Certificate (which shall be in the form of Exhibit 9 hereto and reasonably acceptable to the Noteholder Collateral Agent) and any supplement thereto executed and delivered by the applicable Pledgor in favor of the Noteholder Collateral Agent for the benefit of the Secured Parties contemporaneously with the execution and delivery of each Joinder Agreement executed in accordance with Section 3.5 , in each case, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time by a Perfection Certificate Supplement or otherwise in accordance with the Indenture.

Perfection Certificate Supplement ” means a perfection certificate supplement in the form of Exhibit 10 hereto or any other form approved by the Noteholder Collateral Agent.

Pledge Amendment ” has the meaning assigned to such term in Section 5.1 .

Pledged Interests ” means, collectively, the Initial Pledged Interests and the Additional Pledged Interests.

Pledged Securities ” means, collectively, the Pledged Interests, the Pledged Shares and the Successor Interests, provided that the term does not include any Excluded Property.

 

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Pledged Shares ” means, collectively, the Initial Pledged Shares and the Additional Pledged Shares.

Pledgor ” has the meaning assigned to such term in the preamble hereof.

Pledgor Foreign Property ” means any asset or property of the nature described in paragraph (13) of the definition of Excluded Property.

Property ” means any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any other Person owned by the Person in question and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, cash, securities, accounts, revenues and contract rights.

Real Property ” means all right, title and interest (including any leasehold, fee, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures, and other Property and rights incidental to the ownership, lease or operation thereof.

Related Person ” means, with respect to any Person, (a) each Affiliate of such Person and each of the officers, directors, partners, trustees, employees, affiliates, shareholders, Advisors, agents, attorneys-in-fact and Controlling Persons of each of the foregoing, and (b) if such Person is an Agent, each other Person designated, nominated or otherwise mandated by or assisting such Agent in accordance with the applicable provisions of the relevant Loan Documents (as such term is defined in the Intercreditor Agreement).

Registered ” means issued by, registered with, renewed by or the subject of a pending application before any Governmental Authority or Internet domain name registrar.

Reorganization Assets ” has the meaning assigned to such term in Section 3.7 .

Secured Party ” means, collectively, the Noteholder Collateral Agent, the Trustee and the Holders and any other Person to which Notes Obligations are owed.

Securities Account Control Agreement ” means an agreement substantially in the form of Exhibit 4 hereto among the applicable Pledgor, the relevant securities intermediary, the Noteholder Collateral Agent, the ABL Agent (if applicable), the Term Agent (if applicable), and the Existing Noteholder Collateral Agent (if applicable) as such form may be modified to reflect any changes that may be reasonably required by a new securities intermediary (or substituted by an agreement based on a form provided by the applicable securities intermediary); provided that any such changes or any such other agreement shall not be materially worse for the Secured Parties, when taken as a whole, than such terms as are set out in the agreement set forth on Exhibit 4 .

Securities Collateral ” means, collectively, the Pledged Securities, the Intercompany Notes and the Distributions, but not including any Excluded Property.

 

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Senior Obligations Payment Date ” has the meaning assigned to such term in the Intercreditor Agreement.

Senior Representative ” has the meaning assigned to such term in the Intercreditor Agreement.

Specified Movable Property ” means the assets or properties of any Pledgor that are currently located in a Foreign Jurisdiction or hereafter are moved to a Foreign Jurisdiction, in each case that are under either an export or import or similar license or permit that requires such assets or property to leave such Foreign Jurisdiction no more than six months from the date they became situated in such Foreign Jurisdiction.

Successor Interests ” means, collectively, with respect to each Pledgor, all shares of each class of the capital stock of the successor corporation or interests or certificates of the successor limited liability company, partnership or other entity owned by such Pledgor (unless such successor is such Pledgor itself) formed by or resulting from any consolidation or merger in which any Person listed on Schedule 1(a) to the Perfection Certificate is not the surviving entity.

Term Agent ” means the collateral agent for the benefit of the Term Claimholders, together with its successors in that capacity.

Term Claimholders ” means, at any time of determination, collectively, (a) the Term Agent, (b) the lenders under the Term Credit Agreement at such time, (c) each other person to whom any of the Obligations under the Term Credit Agreement is owed at such time and (e) the successors, replacements and assigns of each of the foregoing.

Term Credit Agreement ” means that certain Term Loan and Security Agreement, dated as of June 29, 2016, by and among the Company, SAExploration, Inc. and certain other subsidiaries of the Company, as guarantors, and the Term Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time).

Term Loan Documents ” has the meaning assigned to such term in the Intercreditor Agreement.

Term Security Documents ” has the meaning assigned to such term in the Intercreditor Agreement.

Trade Secrets ” means, collectively, (a) all know-how, trade secrets and confidential or proprietary information, including customer and supplier lists, proprietary information, inventions, methods, plans, policies, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, catalogs, pricing and cost information and business and marketing plans and proposals, (b) all registrations and applications for registrations for any of the foregoing, (c) all tangible embodiments of any of the foregoing, (d) the right to limit the use or disclosure of any of the foregoing by any Person, (e) all rights and privileges arising under applicable Legal Requirements with respect to the use of any such information, (f) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements or misappropriations thereof, (g) rights corresponding thereto throughout the world and (h) rights to sue for past, present or future infringements thereof.

 

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Trademark Security Agreement ” means an agreement substantially in the form of Exhibit 8 hereto.

Trademarks ” means, collectively, all trademarks, service marks, slogans, logos, certification marks, trade dress, uniform resource locations (URL’s), domain names, corporate names and trade names, whether registered or unregistered, and all registrations and applications for the foregoing (whether statutory or common law and whether established or registered in the United States or any other country or any political subdivision thereof), together with any and all (a) rights and privileges arising under applicable Legal Requirements with respect to the use of any trademarks, (b) goodwill associated therewith or symbolized thereby, (c) reissues, continuations, extensions and renewals thereof, (d) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (e) rights corresponding thereto throughout the world and (f) rights to sue for past, present or future infringements thereof.

Transferable Record ” has the meaning assigned to that term in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction.

UCC ” means the Uniform Commercial Code as in effect on the date hereof in the State of New York; provided, however , that to the extent that, by reason of mandatory provisions of applicable Legal Requirements, any or all of the attachment, perfection or priority of the Noteholder Collateral Agent’s and the other Secured Parties’ security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “ UCC ” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions relating to such provisions.

United States ” means the United States of America.

Section 1.2 Interpretation . The rules of interpretation specified in the Indenture shall be applicable to this Agreement. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The words “asset” and “Property” shall be construed to have the same meaning and effect. The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any Notes Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in any Notes Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, unless otherwise indicated, (e) each

 

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term used herein and stated to have the meaning assigned to such term in the Intercreditor Agreement shall be disregarded at any time that the Intercreditor Agreement is not in full force and effect, and (f) any reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing or interpreting or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.

Section 1.3 Resolution of Drafting Ambiguities . Each Pledgor acknowledges and agrees that it was represented by counsel in connection with the execution and delivery hereof, that it and its counsel reviewed and participated in the preparation and negotiation hereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Noteholder Collateral Agent) shall not be employed in the interpretation hereof.

Section 1.4 Perfection Certificate . Each of the Persons from time to time party hereto agrees that the Perfection Certificate and all descriptions of Collateral, schedules, amendments and supplements thereto, as amended from time to time, are and shall at all times remain a part of this Agreement.

ARTICLE II

GRANT OF SECURITY AND SECURED OBLIGATIONS

Section 2.1 Grant of Security Interest . As collateral security for the prompt and complete payment and performance in full of all the Notes Obligations, each Pledgor hereby pledges, hypothecates and grants to the Noteholder Collateral Agent for the benefit of the Secured Parties, a Lien on and security interest in and to all of the right, title and interest of such Pledgor in, to and under the following property, wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the “ Collateral ”):

(a) all Accounts;

(b) all cash and Cash Equivalents;

(c) all Chattel Paper;

(d) all Collateral Accounts;

(e) all Commercial Tort Claims, including those of any Pledgor described on Schedule 15 to the Perfection Certificate;

(f) all Computer Hardware and Software;

(g) all Deposit Accounts;

(h) all Documents;

(i) all Equipment (including Commercial Motor Vehicles) and Fixtures;

 

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(j) all General Intangibles;

(k) all Goods;

(l) all Instruments;

(m) all Intellectual Property Collateral;

(n) all Inventory;

(o) all Investment Property;

(p) all Letters of Credit and Letter-of-Credit Rights (whether or not the Letter of Credit is evidenced by a writing);

(q) all Securities Collateral;

(r) all Supporting Obligations;

(s) all books and records pertaining to the Collateral;

(t) to the extent not covered by clauses (a) through (s) of this sentence, all choses in action and all other personal property of such Pledgor, whether tangible or intangible; and

(u) all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with respect to any of the foregoing.

Notwithstanding anything to the contrary contained in clauses (a) through (u) above or in any other provision of any Notes Document, (i) the security interest created by this Agreement shall not extend to, and the term “Collateral” shall not include, any Excluded Property other than Pledgor Foreign Property (but shall include the Proceeds and products of Excluded Property and each other item set forth in clause (u) above with respect to Excluded Property, in each case, to the extent that such Proceeds, products and other items do not themselves constitute Excluded Property), (ii) the Pledgors shall from time to time at the request of the Noteholder Collateral Agent give written notice to the Noteholder Collateral Agent identifying in reasonable detail any Excluded Property and shall provide to the Noteholder Collateral Agent such other information regarding the Excluded Property as the Noteholder Collateral Agent may reasonably request, (iii) [reserved], (iv) the obligations (if any) of the Pledgors to perfect the security interest granted hereunder in any Collateral consisting of Foreign Located Assets and Foreign Equity under the laws of any jurisdiction outside of the United States shall be determined under Section 3.7 of this Agreement, and (v) from and after the Issue Date, no Pledgor shall permit to become effective in any document creating, governing or providing for any permit, lease or license, a provision that would prohibit the creation of a Lien on such permit, lease or license in favor of the Noteholder Collateral Agent unless (x) no Event of Default has occurred and is continuing and (y) such Pledgor believes, in its reasonable judgment, that such prohibition is usual and customary in transactions of such type or such prohibition is imposed by applicable Legal Requirements.

 

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Section 2.2 Filings . (a) Each Pledgor hereby irrevocably authorizes the Noteholder Collateral Agent at any time and from time to time to file or record in any relevant jurisdiction any financing statements (including fixture filings), continuation statements and amendments thereto and other filing or recording documents or instruments with respect to any Collateral in such form and in such offices as the Noteholder Collateral Agent determines to perfect the security interest of the Noteholder Collateral Agent under this Agreement. Each Pledgor agrees to provide all information requested by the Noteholder Collateral Agent with respect to any such filing or recording promptly upon request. Such financing statements, continuation statements and amendments may describe the Collateral in the same manner as described herein or may contain a description of Collateral that describes such property in any other manner as the Noteholder Collateral Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection or priority of the security interest in the Collateral, including, describing such property as “all assets whether now owned or hereafter acquired”, “all personal property whether now owned or hereafter acquired” or words of similar import (regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC).

(b) Each Pledgor hereby further authorizes the Noteholder Collateral Agent to file and/or record with the United States Patent and Trademark Office, the United States Copyright Office, any applicable successor office and any other similar office or Governmental Authority in the United States, as applicable, this Agreement, the Copyright Security Agreement, the Patent Security Agreement, the Trademark Security Agreement, and any other documents determined by the Noteholder Collateral Agent in its sole discretion to be necessary, advisable or prudent for the purpose of recording, perfecting, confirming, continuing, enforcing or protecting the pledge and security interest granted by such Pledgor hereunder or the priority thereof, with or without the signature of such Pledgor, and naming such Pledgor, as debtor, and the Noteholder Collateral Agent, as secured party.

Section 2.3 Intercreditor Agreement . Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Noteholder Collateral Agent pursuant to this Agreement and the exercise of any right or remedy by the Noteholder Collateral Agent or any other Secured Party hereunder (including under Article IX hereof) shall be subject to the terms of the Intercreditor Agreement from and after the date on which the Intercreditor Agreement shall be executed by all parties thereto or, if an effective date is specified therein, the effective date of the Intercreditor Agreement, and for so long as the Intercreditor Agreement remains in full force and effect. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, then for so long as the Intercreditor Agreement remains in full force and effect, the terms of the Intercreditor Agreement shall govern and control. The security interest granted hereunder to the Noteholder Collateral Agent shall be for the first priority benefit of the Holders of the Notes, subject to the terms of the Intercreditor Agreement for so long as the Intercreditor Agreement remains in full force and effect. Notwithstanding any other provision hereof to the contrary, in the event of any conflict or inconsistency between this Agreement and the Indenture, the provisions of the Indenture shall control (except as otherwise provided by Section 12.12 of the Indenture), unless the controlling provisions of the Indenture and this Agreement are inconsistent with the Intercreditor Agreement, in which case the Intercreditor Agreement shall control.

 

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Section 2.4 Possession or Control of Collateral . Notwithstanding anything herein to the contrary and subject to the terms of the Intercreditor Agreement, prior to the Senior Obligations Payment Date and for so long as the Intercreditor Agreement and Senior Documents (as such term is defined in the Intercreditor Agreement) shall require the delivery of possession or control to the Senior Representative of any Collateral, any covenant hereunder requiring (or any representation or warranty hereunder to the extent that it would have the effect of requiring) the delivery of possession or control to the Noteholder Collateral Agent of such Collateral shall be deemed to have been satisfied (or, in the case of any representation and warranty, shall be deemed to be true) if, prior to the applicable Senior Obligations Payment Date, possession or control of such Collateral shall have been delivered to the Senior Representative.

ARTICLE III

PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;

USE OF COLLATERAL

Section 3.1 Delivery of Certificated Securities Collateral . Each Pledgor represents and warrants that all certificates, agreements or instruments representing or evidencing the Securities Collateral in existence on the date hereof have been delivered to the Noteholder Collateral Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that the Noteholder Collateral Agent has a valid and enforceable perfected first priority security interest (subject to the terms of the Intercreditor Agreement) therein and in the Securities Collateral under applicable Legal Requirements in the United States and, with respect to any certificates delivered to the Noteholder Collateral Agent representing or evidencing the Securities Collateral, such Pledgor shall take, and shall cause the issuer to take, such action as the Noteholder Collateral Agent deems to be necessary, advisable or prudent to ensure that such certificates shall constitute Securities (as defined in Article 8 of the UCC). Each Pledgor hereby agrees that all certificates, agreements or instruments representing or evidencing Securities Collateral acquired by such Pledgor after the date hereof shall (other than Pledged Securities evidencing Foreign Equity, which shall be perfected in any Foreign Jurisdiction in accordance with Section 3.7 hereof) promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) upon receipt thereof by such Pledgor be delivered to and held by or on behalf of the Noteholder Collateral Agent pursuant hereto and such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) upon receipt thereof take, and shall cause the issuer to take, such action as the Noteholder Collateral Agent deems to be necessary, advisable or prudent to ensure that such certificates shall constitute Securities (as defined in Article 8 of the UCC). All certificated Securities Collateral shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Noteholder Collateral Agent. Subject to the terms of the Intercreditor Agreement, the Noteholder Collateral Agent shall have the right, at any time upon the occurrence and during the continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in the name of the Noteholder Collateral Agent or any of its nominees or endorse for negotiation any or all of the Securities Collateral, without any indication that such Securities Collateral is subject to the security interest hereunder. In addition, the Noteholder Collateral

 

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Agent shall have the right, at any time, to exchange certificates representing or evidencing Securities Collateral for certificates of smaller or larger denominations, including for the purpose of evidencing a pledge of Equity Interests representing 65% or less of all outstanding voting Equity Interests of any Foreign Subsidiary.

Section 3.2 Perfection of Uncertificated Securities Collateral . Each Pledgor represents and warrants that the Noteholder Collateral Agent has a valid and enforceable perfected first priority security interest (subject to the terms of the Intercreditor Agreement) in all uncertificated Pledged Securities pledged by it hereunder that are in existence on the date hereof. Each Pledgor shall ensure that the issuer of any membership, partnership or other Equity Interests constituting uncertificated Pledged Securities does not issue any certificate representing such interest or take any step to ‘opt in’ or have such uncertificated Pledged Securities treated as “securities” within the meaning of Section 8-102(a)(15) of the UCC without the prior written consent of the Noteholder Collateral Agent. Each Pledgor hereby agrees that if any issuer of Pledged Securities is organized in a jurisdiction that does not permit the use of certificates to evidence equity ownership or any of the Pledged Securities are at any time not evidenced by certificates of ownership, then each applicable Pledgor shall, if the Noteholder Collateral Agent deems it necessary, advisable or prudent to perfect a first priority security interest (subject to the terms of the Intercreditor Agreement) in such Pledged Securities under any applicable Legal Requirements in the United States (it being agreed that Noteholder Collateral Agent may rely solely on advice of counsel in making such determination), (i) cause such pledge to be recorded on the equityholder register or the books of the issuer, (ii) cause the issuer to execute and deliver to the Noteholder Collateral Agent an acknowledgment of the pledge of such Pledged Securities substantially in the form of Exhibit 1 hereto or such other form reasonably acceptable to the Noteholder Collateral Agent, and, with respect to any such issuer that is not a Foreign Subsidiary, execute any customary pledge forms or other documents that the Noteholder Collateral Agent deems to be necessary, advisable or prudent to complete the pledge and give the Noteholder Collateral Agent the right to transfer such Pledged Securities under the terms hereof and, upon the Noteholder Collateral Agent’s request, provide to the Noteholder Collateral Agent an Opinion of Counsel, in form and substance reasonably satisfactory to the Noteholder Collateral Agent, confirming such pledge and perfection thereof under applicable Legal Requirements in the United States, and (iii) subject to the terms of the Intercreditor Agreement, cause such Pledged Securities to become certificated and delivered to the Noteholder Collateral Agent in accordance with, and take such other action contemplated by, the provisions of Section 3.1 .

Section 3.3 Financing Statements and Other Filings; Maintenance of Perfected Security Interest . Each Pledgor represents and warrants that the only filings, registrations and recordings necessary under any applicable Legal Requirements in the United States to perfect the security interest granted by each Pledgor to the Noteholder Collateral Agent in respect of the Collateral are listed on Schedule 7 to the Perfection Certificate. All such filings, registrations and recordings have been delivered to the Noteholder Collateral Agent in completed and, to the extent necessary, advisable or prudent, duly executed form for filing in each applicable governmental, municipal or other office specified on Schedule 7 to the Perfection Certificate. Each Pledgor agrees that at the sole cost and expense of the Pledgors, (i) such Pledgor will maintain the security interest created by this Agreement in the Collateral as a valid and enforceable perfected first priority security interest (subject to Permitted Liens and the

 

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Intercreditor Agreement) and shall defend such security interest against the claims and demands of all Persons, (ii) such Pledgor shall furnish to the Noteholder Collateral Agent from time to time statements and schedules further identifying and describing the Collateral as required by Section 3.7 or by the applicable provisions of Legal Requirements in the United States, and such other reports in connection with the Collateral as the Noteholder Collateral Agent may reasonably request, all in reasonable detail and (iii) at any time and from time to time, upon the written request of the Noteholder Collateral Agent, such Pledgor shall promptly (and in any event within ten Business Days (or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) and duly execute and deliver, and file and have recorded, such further instruments and documents and take such further action as the Noteholder Collateral Agent may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and the rights and powers herein granted, including the filing of any financing statements and amendments thereof, continuation statements and other documents (including this Agreement) under the UCC (or other similar laws) in effect in any jurisdiction in the United States or as otherwise required by Section 3.7 , with respect to the security interest created hereby and the execution and delivery of Control Agreements, all in form reasonably satisfactory to the Noteholder Collateral Agent and in such offices (including the United States Patent and Trademark Office and the United States Copyright Office) wherever required by or applicable under applicable Legal Requirements in the United States or as otherwise required by Section 3.7 to perfect (to the extent a security interest in such Collateral may be so perfected under applicable Legal Requirements in the United States or as otherwise required by Section 3.7 ), continue and maintain a valid, enforceable, first priority security interest (subject to Permitted Liens and the Intercreditor Agreement) in the Collateral as provided herein and to preserve the other rights and interests granted to the Noteholder Collateral Agent hereunder, as against third parties, with respect to the Collateral.

Section 3.4 Other Actions . Subject in each case to the Intercreditor Agreement, in order to further ensure the attachment, perfection and priority of, and the ability of the Noteholder Collateral Agent to enforce, the Noteholder Collateral Agent’s security interest in the Collateral under applicable Legal Requirements in the United States, each Pledgor represents and warrants and covenants as follows, in each case at such Pledgor’s own expense, to take the following actions with respect to the following Collateral:

(a) Instruments and Tangible Chattel Paper . As of the date hereof, each Pledgor hereby represents and warrants that (i) no amounts individually or in the aggregate in excess of $200,000 (other than checks and payment instructions received and collected in the ordinary course of business) payable under or in connection with any of the Collateral are evidenced by any Instrument or Tangible Chattel Paper other than such Instruments and Tangible Chattel Paper listed on Schedule 12 to the Perfection Certificate, (ii) each Intercompany Note in existence on the date hereof has been properly assigned and delivered to the Noteholder Collateral Agent by the Pledgor or Pledgors to which such Intercompany Note was issued, accompanied by an endorsement of such Intercompany Note in the form attached thereto duly executed in blank by each such Pledgor or Pledgors, and (iii) each such Instrument and each such item of Tangible Chattel Paper individually or in the aggregate in excess of $200,000 has been properly endorsed, assigned and delivered to the Noteholder Collateral Agent, accompanied by instruments of transfer or assignment duly executed in blank. If any amount individually or in the aggregate in excess of $200,000 then payable under or in connection with any of the

 

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Collateral shall be evidenced by any Instrument or Tangible Chattel Paper, the Pledgor acquiring such Instrument or Tangible Chattel Paper shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion), endorse, assign and deliver the same to the Noteholder Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Noteholder Collateral Agent may from time to time specify.

(b) Deposit Accounts . Each Pledgor hereby represents and warrants that (i) as of the date hereof, such Pledgor has neither opened nor maintains any Deposit Accounts other than the accounts listed on Schedule 16(a) to the Perfection Certificate with the respective banks referred to therein, (ii) such Pledgor and each applicable bank has executed and delivered, or to the extent it has not already done so on the date hereof, shall execute and deliver within thirty (30) days of the date hereof, a Control Agreement in such form as shall be satisfactory to the Noteholder Collateral Agent with respect to each Deposit Account of such Pledgor listed on Schedule 16(a) to the Perfection Certificate other than (a) Excluded Accounts, (b) bank accounts in jurisdictions outside of the United States, except as required under Section 3.7 as to which each Pledgor shall have 180 days from the date hereof to execute and deliver a Control Agreement or such other applicable documentation, or (c) any Deposit Account with an average daily balance of less than $100,000, individually, and $200,000 in the aggregate measured on a trailing thirty day basis, and (iii) the Noteholder Collateral Agent has or, to the extent that such Pledgor enters into the applicable Control Agreement after the date hereof, will have a valid and enforceable perfected first priority security interest (subject to the Intercreditor Agreement and Permitted Liens) in each such Deposit Account by Control. No Pledgor shall hereafter establish and maintain any Deposit Account with respect to which such Pledgor is required to enter into a Control Agreement hereunder or under the Indenture unless (A) the applicable Pledgor shall have given the Noteholder Collateral Agent at least 15 days’ prior written notice of its intention to establish such new Deposit Account with a bank, and (B) such bank and such Pledgor shall have duly executed and delivered to the Noteholder Collateral Agent a Deposit Account Control Agreement (or an amendment to an existing Deposit Account Control Agreement) with respect to such Deposit Account. The provisions of this Section 3.4(b) shall not apply to any Excluded Accounts or any other Excluded Property. No Pledgor has granted or shall grant Control of any Deposit Account to any Person other than the Noteholder Collateral Agent and, prior to the Senior Obligations Payment Date and to the extent required under the Intercreditor Agreement, the Senior Represenative.

(c) Securities Accounts; Commodity Accounts . Each Pledgor hereby represents and warrants that (i) as of the date hereof, it has neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed on Schedule 16 to the Perfection Certificate (if any), (ii) such Pledgor and each applicable Securities Intermediary or Commodity Intermediary (if any) has executed and delivered, or to the extent it has not already done so on the date hereof, shall execute and deliver within thirty (30) days of the date hereof, a Securities Account Control Agreement or Commodity Account Control Agreement, as applicable, for each Securities Account or Commodity Account of such Pledgor listed on Schedule 16(b) to the Perfection Certificate (if any), other than any such Securities Account or Commodity Account with an average daily balance of less than $100,000, individually, or $200,000 in the aggregate measured on a trailing thirty day basis, (iii) the Noteholder Collateral Agent has, or, to the extent that such Pledgor enters into the applicable Control Agreement after the date hereof, will have, a

 

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valid and enforceable perfected first priority security interest (subject to the Intercreditor Agreement and Permitted Liens) in each such Securities Account and Commodity Account by Control, and (iv) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed on Schedule 16 of the Perfection Certificate or in respect of which the Noteholder Collateral Agent has Control.

(d) Investment Property . If any Pledgor shall at any time acquire any certificated securities constituting Investment Property, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security, (i) endorse, assign and deliver the same to the Noteholder Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Noteholder Collateral Agent or (ii) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Noteholder Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security notify the Noteholder Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Noteholder Collateral Agent, either (i) cause the issuer to agree to comply with Entitlement Orders or other instructions from the Noteholder Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (ii) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Noteholder Collateral Agent has Control or (iii) arrange for the Noteholder Collateral Agent to become the registered owner of the securities. The Pledgors shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary unless (1) the applicable Pledgor shall have given the Noteholder Collateral Agent at least 15 days’ (or such shorter period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, (2) such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Noteholder Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be. The Noteholder Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any withdrawal or dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing or, after giving effect to any such withdrawal or dealing rights, would occur. The provisions of this Section 3.4(d) shall not apply to any Financial Assets credited to a Securities Account for which the Noteholder Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any Person other than the Noteholder Collateral Agent and, prior to the Senior Obligations Payment Date and to the extent required under the Intercreditor Agreement, the Senior Representative, and each Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder

 

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Collateral Agent in its sole discretion) notify the Noteholder Collateral Agent if any issuer of Pledged Interests takes any action to have any Pledged Interests issued by it treated as Securities under Article 8 of the UCC and such Pledgor shall take all steps deemed necessary, advisable or prudent by the Noteholder Collateral Agent in order to grant Control of such Pledged Interests in favor of the Noteholder Collateral Agent. As between the Noteholder Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Noteholder Collateral Agent, the ABL Agent, the Term Agent, the Additional Noteholder Agent (if applicable), a Securities Intermediary, Commodity Intermediary, any Pledgor or any other Person; provided , however , that nothing contained in this Section 3.4(d) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other Person under any Control Agreement or under applicable Legal Requirements. Each Pledgor shall promptly pay all Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Noteholder Collateral Agent may, after providing written notice thereof to the Pledgors, do so for the account of such Pledgor, and the Pledgors shall promptly reimburse and indemnify the Noteholder Collateral Agent in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture from all costs and expenses incurred by the Noteholder Collateral Agent under this Section 3.4(d) .

(e) Electronic Chattel Paper and Transferable Records. If any amount, individually or in the aggregate, in excess of $200,000 or payable under or in connection with any of the Collateral is evidenced by any Electronic Chattel Paper or any Transferable Record, the Pledgor acquiring such Electronic Chattel Paper or Transferable Record shall promptly and in any event within ten (10) days of the acquisition thereof (or such later date as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) notify the Noteholder Collateral Agent in writing thereof and shall take such action as the Noteholder Collateral Agent may reasonably request to vest in the Noteholder Collateral Agent control under Section 9-105 of the UCC of such Electronic Chattel Paper or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such Transferable Record. The Noteholder Collateral Agent agrees with such Pledgor that the Noteholder Collateral Agent will arrange, pursuant to procedures satisfactory to the Noteholder Collateral Agent and so long as such procedures will not result in the Noteholder Collateral Agent’s loss of control, for the Pledgor to make alterations to the Electronic Chattel Paper or Transferable Record permitted under Section 9-105 of the UCC or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after giving effect to any such alterations.

(f) Letter-of-Credit Rights. If any Pledgor is at any time a beneficiary under a Letter of Credit now or hereafter issued in favor of such Pledgor having a face amount in excess of $300,000, individually or in the aggregate, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder

 

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Collateral Agent in its sole discretion) after becoming a beneficiary thereunder (or such later date as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) notify the Noteholder Collateral Agent thereof and such Pledgor shall, at the request of the Noteholder Collateral Agent, pursuant to an agreement in form and substance reasonably satisfactory to the Noteholder Collateral Agent, either (i) arrange for the issuer and any confirmer or other nominated Person of such Letter of Credit to consent to an assignment to the Noteholder Collateral Agent of the proceeds of any drawing under such Letter of Credit or (ii) arrange for the Noteholder Collateral Agent to become the transferee beneficiary of such Letter of Credit, with the Noteholder Collateral Agent agreeing, in each case, that the proceeds of any drawing under such Letter of Credit are to be applied as provided in this Agreement or the Intercreditor Agreement.

(g) Commercial Tort Claims . As of the date hereof, each Pledgor hereby represents and warrants that it holds no Commercial Tort Claims having a book value or a Fair Market Value, individually or in the aggregate, for all such Commercial Tort Claims in excess of $300,000 other than those listed on Schedule 15 to the Perfection Certificate. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim having a book value or a Fair Market Value, individually or in the aggregate, in excess of $300,000, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such Commercial Tort Claim notify the Noteholder Collateral Agent in writing signed by such Pledgor of the brief details thereof and grant to the Noteholder Collateral Agent in such writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Noteholder Collateral Agent.

(h) Reserved .

(i) Collateral in the Possession of a Third Party . If any Equipment or Inventory (other than Equipment or Inventory leased to a customer in the ordinary course of business) is in possession or control of any third party, including any warehouseman, landlord, lessor, bailee or agent, in any case for more than 3 months, the Pledgors shall notify the Noteholder Collateral Agent thereof and notify the third party of the Noteholder Collateral Agent’s security interest therein and use best efforts to obtain an acknowledgment (a “ Bailee Letter ”) from such third party that such party (i) is holding the Equipment and Inventory for the benefit of the Noteholder Collateral Agent, (ii) waives all right, title and interest in such Equipment and/or Inventory, and (iii) will comply with instructions from the Noteholder Collateral Agent with respect to such Collateral, without further consent of any Pledgors; provided , that , the foregoing requirements shall not apply to Equipment or Inventory in the possession or control of any third party to the extent that the book value or Fair Market Value of such Equipment or Inventory (in each case, that is not in transit in the ordinary course of business) is less than $500,000 in the aggregate at any time. Notwithstanding anything contained herein, if any such Bailee Letter is obtained under the ABL Credit Agreement in favor of the ABL Agent, under the Term Credit Agreement in favor of the Term Agent and/or the under the Additional Indenture (if applicable) in favor of the Additional Noteholder Agent with respect to any location for which the Noteholder Collateral Agent has not received such Bailee Letter, the applicable Pledgor shall obtain and deliver a Bailee Letter to the Noteholder Collateral Agent concurrently with delivery to such other Agent of such Bailee Letter under the ABL Credit Agreement, the Term Credit Agreement or the Additional Indenture, if applicable.

 

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Section 3.5 Joinder of Additional Pledgors . The Pledgors shall cause each Subsidiary of the Company that, from time to time, after the date hereof shall be required to pledge any assets to the Noteholder Collateral Agent for the benefit of the Secured Parties pursuant to the Indenture, to execute and deliver to the Noteholder Collateral Agent (i) a Joinder Agreement substantially in the form of Exhibit 3 hereto, (ii) a Perfection Certificate, in each case, within 30 days after the date on which it was acquired or created (or such later date as may be agreed by the Noteholder Collateral Agent in its sole discretion) and (iii) such other documentation in connection therewith as the Noteholder Collateral Agent shall request, and upon such execution and delivery, such Subsidiary shall constitute a “Guarantor” and a “Pledgor” for all purposes hereunder with the same force and effect as if originally named as a Guarantor and Pledgor herein. The execution and delivery of such Joinder Agreement shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of, or failure to add, any new Guarantor or new Pledgor as a party to this Agreement or any other Notes Document.

Section 3.6 Supplements; Further Assurances . Subject to Section 3.7 , each Pledgor shall take such further actions, and execute and deliver to the Noteholder Collateral Agent such additional assignments, agreements, supplements, powers and instruments, as the Noteholder Collateral Agent may deem necessary, advisable or prudent, wherever required by applicable Legal Requirements, in order to perfect, preserve and protect the security interest and the priority thereof in the Collateral as provided herein, subject to the Intercreditor Agreement, and the rights and interests granted to the Noteholder Collateral Agent hereunder, to carry into effect the purposes hereof or better to assure and confirm unto the Noteholder Collateral Agent the Collateral or permit the Noteholder Collateral Agent, subject to the terms of the Intercreditor Agreement, to exercise and enforce its rights, powers and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, each Pledgor shall make, execute, endorse, acknowledge, file or refile and/or deliver to the Noteholder Collateral Agent from time to time upon reasonable request such lists, descriptions and designations of the Collateral, copies of warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices, schedules, confirmatory assignments, supplements, additional security agreements, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments as the Noteholder Collateral Agent shall reasonably request. If an Event of Default has occurred and is continuing, the Noteholder Collateral Agent may, subject to the terms of the Intercreditor Agreement, institute and maintain, in its own name or in the name of any Pledgor, such suits and proceedings as the Noteholder Collateral Agent may be advised by counsel shall be necessary, advisable or prudent to prevent any impairment of the security interest in the Collateral or the perfection or priority thereof. Subject to the Intercreditor Agreement, if (x) an Event of Default has occurred and is continuing or (y) a landlord of any Pledgor shall provide notice of default under or termination of any lease to which a Pledgor is a party, such Pledgor shall use commercially reasonable efforts to cause such landlord to agree (in a writing addressed to the Noteholder Collateral Agent) to extend the time period provided by such landlord for the removal of Collateral from the leased premises for a period, and otherwise on terms and conditions, reasonably satisfactory to the Noteholder Collateral Agent; provided that, in connection therewith, no Pledgor shall agree, directly or

 

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indirectly, with any landlord to abandon any Collateral or waive or limit such Pledgor’s rights in any Collateral. All of the foregoing shall be at the sole cost and expense of the Pledgors and shall be paid in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture.

Section 3.7 Perfection under Foreign Law . (a) Notwithstanding any other provisions of this Article III with respect to (a) the assets or properties of any Pledgor that are located in a non-U.S. jurisdiction (a “ Foreign Jurisdiction ”) or hereafter are moved to a Foreign Jurisdiction (any assets or properties so located or moved being “ Foreign Located Assets ”), and (b) Equity Interests in any Foreign Subsidiary that are owned by any Pledgor (such Equity Interests that do not constitute Excluded Property being “ Foreign Equity ”), but subject to the Intercreditor Agreement, no Pledgor shall be required to take any action to create or perfect any security interest in or Lien on the Foreign Located Assets or the Foreign Equity under the law of any Foreign Jurisdiction (“ Foreign Perfection ”), except as provided in this Section 3.7 .

(b) Subject to the Intercreditor Agreement, no Pledgor shall be required to take any action to establish Foreign Perfection with respect to (i) any Specified Movable Property, (ii) any Foreign Located Asset or Foreign Equity prior to the date that is 30 days after the date hereof (or, if any such asset or property becomes a Foreign Located Asset or Foreign Equity after the date hereof, 180 days after the date on which such asset or property becomes a Foreign Located Asset or Foreign Equity) or (iii) any Foreign Located Asset or Foreign Equity (A) that the Board of Directors has determined to be Pledgor Foreign Property and (B) as to which such Pledgor has notified the Noteholder Collateral Agent thereof in writing within 30 days after the date hereof (or, if any such asset or property becomes a Foreign Located Asset or Foreign Equity after the date hereof, 180 days after the date on which such asset or property becomes a Foreign Located Asset or Foreign Equity).

(c) In determining whether any Foreign Located Assets are Excluded Property, Fair Market Value shall be determined as of the date of valuation thereof.

(d) To the extent that any Foreign Located Asset or any Foreign Equity does not constitute Excluded Property and is not Specified Movable Property, the Pledgor shall diligently pursue such actions as are necessary to establish and thereafter maintain Foreign Perfection under the laws of the Foreign Jurisdiction with respect to such Foreign Located Asset and Foreign Equity to the extent the laws of the Foreign Jurisdiction so permit (or as the Noteholder Collateral Agent may request) as soon as reasonably practicable following:

(i) in the case of any Foreign Located Asset or Foreign Equity as to which clause (b)(iii)(B) above applies, the 180 th day after the date hereof; and

(ii) in the case of any other Foreign Located Asset or Foreign Equity as to which clause (b)(iii) above does not apply, the 30 th day after the date hereof (or, in the case of any asset or property that becomes a Foreign Located Asset or Foreign Equity after the date hereof, the 180 th day after such asset or properly becomes a Foreign Located Asset or Foreign Equity).

(e) Upon the Noteholder Collateral Agent’s request, in connection with any actions specified in clause (c) above, the applicable Pledgor shall provide to the Noteholder Collateral

 

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Agent an Opinion of Counsel, in form and substance satisfactory to the Noteholder Collateral Agent, confirming the Foreign Perfection under applicable Legal Requirements in the applicable Foreign Jurisdiction.

Section 3.8 Post-Closing Obligations . Each of the Pledgors shall satisfy the requirements set forth in Schedule 3.8 hereto on or before the date specified for such requirement or such later date to be determined by the Noteholder Collateral Agent in its sole discretion.

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

Each Pledgor represents, warrants and covenants as follows (it being acknowledged and agreed that each reference in the representations and warranties of this Article IV to a Schedule of the Perfection Certificate, shall be taken as a reference to such Schedule as contained in the most recently updated or supplemented Perfection Certificate in effect at the time such representation and warranty is made):

Section 4.1 Title . Except for the security interest in the Collateral granted to the Noteholder Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement and Permitted Liens, such Pledgor owns the Collateral (or either owns or has a license to, in the case of Intellectual Property Collateral) and, as to Collateral acquired by it from time to time after the date hereof, will own (or either own or have a License to, in the case of Intellectual Property Collateral) the rights in each item of Collateral pledged by it hereunder free and clear of any and all Liens or claims of others (other than Permitted Liens). Such Pledgor has not filed, nor authorized any third party to file a financing statement or other public notice with respect to all or any part of the Collateral on file or of record in any public office, except such as have been filed in favor of the Noteholder Collateral Agent pursuant to this Agreement, filed in favor of the holder of a Permitted Lien, permitted by the Indenture or financing statements or public notices relating to the termination statements listed on Schedule 9(a) to the Perfection Certificate. No Person other than the Noteholder Collateral Agent and, to the extent required under the Intercreditor Agreement, prior to the ABL Obligations Payment Date (as defined in the Intercreditor Agreement) the ABL Agent, prior to the Term Obligations Payment Date (as defined in the Intercreditor Agreement) the Term Agent, and prior to the Existing Indenture Obligations Payment Date (as defined in the Intercreditor Agreement) the Existing Noteholder Collateral Agent, has, or will have, control or possession of all or any part of the Collateral, except to the extent not prohibited by the Notes Documents.

Section 4.2 Validity of Security Interest . The security interest in and Lien on the Collateral granted to the Noteholder Collateral Agent for the benefit of the Secured Parties hereunder constitutes (a) a legal and valid security interest in all the Collateral securing the payment and performance of the Notes Obligations under applicable Legal Requirements in the United States, and (b) (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, subject to the filings and other actions described on Schedule 7 to the Perfection Certificate, a valid and enforceable perfected first priority security interest (subject to Permitted Liens and the Intercreditor Agreement) in all such Collateral under applicable Legal Requirements in the United States to the extent required by this

 

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Agreement and (ii) with respect to certificated Securities Collateral, Instruments, Tangible Chattel Paper, Deposit Accounts, Securities Accounts, Commodities Accounts, certificated Investment Property, Electronic Chattel Paper, Transferable Records and Letter-of-Credit Rights, subject to the deliveries contemplated pursuant to Section 3.1 and Section 3.4 and the filings contemplated pursuant to Section 3.3 , a valid and enforceable perfected first priority security interest (with respect to the perfected first priority security interest contemplated by Section 3.3 , subject to the Intercreditor Agreement and Permitted Liens) in all such Collateral under applicable Legal Requirements in the United States to the extent required by this Agreement. The security interest and Lien granted to the Noteholder Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement in and on the Collateral will at all times constitute a valid and enforceable perfected, continuing first priority security interest therein under applicable Legal Requirements in the United States to the extent required by this Agreement, subject only to clause (b) of the preceding sentence, Permitted Liens and the Intercreditor Agreement.

Section 4.3 Pledgor Defense of Claims; Transferability of Collateral . Each Pledgor shall, at its own cost and expense, defend title to the Collateral pledged by it hereunder and the security interest therein granted to the Noteholder Collateral Agent and the priority thereof required hereunder against all claims and demands of all Persons, at its own cost and expense, at any time claiming any interest therein adverse to the Noteholder Collateral Agent or any other Secured Party. Other than as contemplated by this Agreement or in the Intercreditor Agreement, there is no agreement that, to the knowledge of such Pledgor, restricts the transferability of any material portion of the Collateral or impairs or conflicts in any material respect with such Pledgor’s obligations or the rights of the Noteholder Collateral Agent hereunder, and no Pledgor shall enter into any such agreement or take any other action that would have any such effect.

Section 4.4 Other Financing Statements . No Pledgor has filed, nor authorized any third party to file (nor will there be) any valid or effective financing statement (or similar statement or instrument of registration under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Collateral under applicable Legal Requirements in the United States, other than financing statements and other statements and instruments filed in favor of the Noteholder Collateral Agent, or relating to Permitted Liens, or as otherwise permitted by the Indenture or the Intercreditor Agreement or financing statements or public notices relating to the termination statements listed on Schedule 9(a) to the Perfection Certificate. Prior to the payment in full of the Notes Obligations, no Pledgor shall execute, authorize or permit to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) relating to any Collateral, except financing statements and other statements and instruments filed or to be filed in respect of and covering the security interests granted by such Pledgor in favor of the Noteholder Collateral Agent, or any holder of Permitted Liens, or as otherwise permitted by the Indenture or the Intercreditor Agreement.

Section 4.5 Chief Executive Office; Change of Name; Jurisdiction of Organization, etc . (a) The exact legal name, jurisdiction of organization, organizational identification number and tax identification number, if any, of each Pledgor is set forth on Schedule 1(a) to the Perfection Certificate, and the chief executive office of each Pledgor is set forth on Schedule 2(a) to the Perfection Certificate.

 

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(b) No Pledgor shall effect any change (i) in any Pledgor’s legal name, (ii) in the location of any Pledgor’s chief executive office, (iii) in any Pledgor’s type of organization, (iv) in any Pledgor’s Federal Taxpayer Identification Number or organizational identification number, if any (except as may be required by applicable Legal Requirements, in which case, Company shall promptly notify the Noteholder Collateral Agent of such change), or (v) in any Pledgor’s jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), until (A) it shall have given the Noteholder Collateral Agent and the Trustee not less than 10 Business Days’ prior written notice (in the form of an officers’ certificate), of its intention so to do, clearly describing such change and providing such other information in connection therewith as the Noteholder Collateral Agent or the Trustee may request and (B) it shall have taken all action satisfactory to the Noteholder Collateral Agent to maintain the validity, enforceability, perfection and priority of the security interest of the Noteholder Collateral Agent for the benefit of the Secured Parties in the Collateral under applicable Legal Requirements in the United States and otherwise to the extent required by Section 3.7 , if applicable. Each Pledgor shall promptly provide the Noteholder Collateral Agent with certified Organizational Documents reflecting any of the changes described in the preceding sentence. Each Pledgor as to which any such change shall occur shall promptly notify the Noteholder Collateral Agent in writing of any change in the location of any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which Collateral is located (including the establishment of any such new office or any such facility), other than changes in the locations of Equipment in the ordinary course of business or changes in location to a Mortgaged Property or a leased Property subject to a landlord access agreement in favor of the Noteholder Collateral Agent. The Noteholder Collateral Agent may rely on advice of counsel as to whether any or all UCC financing statements of the Pledgors need to be amended as a result of the changes described in this Section 4.5(b) .

(c) If any Pledgor does not have an organizational identification number or tax identification number and later obtains one, such Pledgor shall within ten Business Days (or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) notify the Noteholder Collateral Agent in writing of such organizational identification number or tax identification number, as the case may be.

(d) Concurrently with the delivery of annual reports pursuant to Section 4.18(a)(1) of the Indenture, each Pledgor shall deliver to Noteholder Collateral Agent a Perfection Certificate Supplement and a certificate of a Financial Officer of Company certifying that all UCC financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a sufficient description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction in the United States and otherwise to the extent required by Section 3.7 necessary to protect and perfect the security interests and Liens under the Security Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).

(e) If any Pledgor fails to provide information to the Noteholder Collateral Agent about such changes on a timely basis, the Noteholder Collateral Agent shall not be liable or responsible to any party for any failure to maintain a valid, enforceable, and perfected security

 

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interest with the priority required hereunder in such Pledgor’s property constituting Collateral, for which the Noteholder Collateral Agent needed to have information relating to such changes. The Noteholder Collateral Agent shall have no duty to inquire about any such change if no Pledgor informs the Noteholder Collateral Agent of any such change, the parties acknowledging and agreeing that it would not be feasible or practical for the Noteholder Collateral Agent to search for information on such changes if such information is not provided by any of the Pledgors.

Section 4.6 Location of Inventory and Equipment . As of the date hereof, all Equipment (including Commercial Motor Vehicles) and Inventory (if any) of each Pledgor is located at its chief executive office, such other location of such Pledgor (if any) listed on Schedules 2(c) and 2(d) to the Perfection Certificate, on project sites, or in transit to and from or being staged for delivery to project sites, where such Equipment (including Commercial Motor Vehicles) and Inventory (if any) may be used from time to time in the ordinary course of business. Each Pledgor will (a) provide the Noteholder Collateral Agent with not less than 15 days’ prior written notice of its intention to move any Equipment (including Commercial Motor Vehicles) or Inventory valued in excess of $500,000 or the equivalent from any such location to another location, and will provide the Noteholder Collateral Agent with such other information in connection with such new location as the Noteholder Collateral Agent may request for purposes of maintaining the perfection and priority of the security interest of the Noteholder Collateral Agent in such Equipment (including Commercial Motor Vehicles) and Inventory under applicable Legal Requirements in the United States, and (b) subject to Section 3.7 , take all other actions requested by the Noteholder Collateral Agent to maintain the perfection and priority of the security interest of the Noteholder Collateral Agent in such Equipment (including Commercial Motor Vehicles) and Inventory for the benefit of the Secured Parties.

Section 4.7 Corporate Names; Prior Transactions . No Pledgor has, during the past five years, been known by or used any other corporate or fictitious name or been party to any merger or consolidation, or acquired all or substantially all of the assets of any Person, in each case other than as set forth on Schedules 1(b) and 1(c) to the Perfection Certificate.

Section 4.8 Due Authorization and Issuance . All of the Initial Pledged Shares have been, and to the extent any Additional Pledged Shares are hereafter issued, such Pledged Shares will be, upon such issuance, duly authorized, validly issued and fully paid and non-assessable. All of the Initial Pledged Interests have been fully paid for, and there is no amount or other obligation owing by any Pledgor to any issuer of the Initial Pledged Interests in exchange for or in connection with the issuance of the Initial Pledged Interests or any Pledgor’s status as a partner or a member of any issuer of the Initial Pledged Interests.

Section 4.9 Consents, etc . Subject to the terms of the Intercreditor Agreement, no consent of any party (including, without limitation, equity holders or creditors of such Pledgor) and no consent, authorization, approval, license or other action by, and no notice to or filing with, any Governmental Authority or regulatory body or other Person is required (a) for the exercise by the Noteholder Collateral Agent of the voting or other rights provided for in this Agreement or (b) for the exercise by the Noteholder Collateral Agent of any remedies it may have in respect of the Collateral pursuant to this Agreement, except as may be provided by the Intercreditor Agreement. If the Noteholder Collateral Agent desires to exercise any remedies,

 

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voting or consensual rights or attorney-in-fact powers set forth in this Agreement and determines it necessary to obtain any approvals or consents of any Governmental Authority or any other Person therefor, then, upon the request of the Noteholder Collateral Agent, each Pledgor agrees to use its best efforts to assist and aid the Noteholder Collateral Agent to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers.

Section 4.10 Collateral . All information set forth herein, including the schedules annexed hereto, and all information contained in any documents, schedules and lists heretofore delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in connection with this Agreement, in each case, relating to the Collateral, is accurate and complete in all material respects.

Section 4.11 Intellectual Property . (a) To the knowledge of each Pledgor, the operation of such Pledgor’s business as currently conducted or as contemplated to be conducted and the use of the Intellectual Property Collateral in connection therewith does not conflict with, infringe, misappropriate, dilute, misuse or otherwise violate the intellectual property rights of any third party.

(b) Such Pledgor is licensed to use or is the exclusive owner of all right, title and interest in and to the Intellectual Property Collateral, and is entitled to use all Intellectual Property Collateral subject only to the terms of the License Agreements.

(c) The Intellectual Property Collateral set forth on Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate includes all of the following that are owned by such Pledgor (or in the case of License Agreements, to which such Pledgor is a party) as of the date hereof: Patents that are Registered, Trademarks that are Registered and for which registration has been applied, Copyrights that are Registered and License Agreements. As indicated in Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate, as of the date hereof, the Pledgors own no Patents, whether Registered or not Registered, or rights to any applications therefor or any License Agreement with respect to any of the foregoing.

(d) The Intellectual Property Collateral is subsisting and has not been adjudged invalid or unenforceable in whole or part, and to the best of each Pledgor’s knowledge, is valid and enforceable. No Pledgor is aware of any uses of any item of Intellectual Property Collateral that could be expected to lead to such item becoming invalid or unenforceable.

(e) Such Pledgor has made or performed all filings, recordings and other acts and has paid all required fees and taxes to maintain and protect its interest in each and every item of Intellectual Property Collateral which such Pledgor, in its reasonable business judgment, considers material to its business in full force and effect in such jurisdictions as such Pledgor has determined in its sole discretion are material to such Pledgor’s business, and to protect and maintain its interest therein including, without limitation, recordations of any of its interests in the Patents and Trademarks with the United States Patent and Trademark Office and in corresponding national and international patent and trademark offices, and recordation of any of its interests in the Copyrights with the United States Copyright Office and in corresponding national and international copyright offices. Such Pledgor has used proper statutory notice in connection with its use of each Patent, Trademark and Copyright in the Intellectual Property Collateral.

 

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(f) No claim, action, suit, investigation, litigation or proceeding has been asserted or is pending or threatened against any Pledgor (i) based upon or challenging or seeking to deny or restrict such Pledgor’s rights in or use of any of the Intellectual Property Collateral, (ii) alleging that such Pledgor’s rights in or use of the Intellectual Property Collateral or that any services provided by, processes used by, or products manufactured or sold by, such Pledgor, infringe, misappropriate, dilute, misuse or otherwise violate any patent, trademark, copyright or any other proprietary right of any third party, or (iii) alleging that the Intellectual Property Collateral is being licensed or sublicensed in violation or contravention of the terms of any license or other agreement. To the knowledge of each Pledgor, no Person is engaging in any activity that infringes, misappropriates, dilutes, misuses or otherwise violates the Intellectual Property Collateral or such Pledgor’s rights in or use thereof. Except as set forth on Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate, such Pledgor has not granted any license, release, covenant not to sue, non-assertion assurance, or other right to any Person with respect to any part of the Intellectual Property Collateral. The consummation of the transactions contemplated by the Notes Documents will not result in the termination or impairment of any of the Intellectual Property Collateral.

(g) With respect to each License Agreement: (i) such License Agreement is valid and binding and in full force and effect and represents the entire agreement between the respective parties thereto with respect to the subject matter thereof; (ii) such License Agreement will not cease to be valid and binding and in full force and effect on terms identical to those currently in effect as a result of the rights and interest granted herein, nor will the grant of such rights and interest constitute a breach or default under such License Agreement or otherwise give any party thereto a right to terminate such License Agreement; (iii) such Pledgor has not received any notice of termination or cancellation under such License Agreement; (iv) such Pledgor has not received any notice of a breach or default under such License Agreement, which breach or default has not been cured; (v) such Pledgor has not granted to any other third party any rights, adverse or otherwise, under such License Agreement; and (vi) neither such Pledgor nor any other party to such License Agreement is in breach or default thereof in any material respect, and no event has occurred that, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under such License Agreement.

(h) To each Pledgor’s knowledge, (i) none of the Trade Secrets of such Pledgor has been used, divulged, disclosed or appropriated to the detriment of such Pledgor for the benefit of any other Person other than such Pledgor; (ii) no employee, independent contractor or agent of such Pledgor has misappropriated any trade secrets of any other Person in the course of the performance of his or her duties as an employee, independent contractor or agent of such Pledgor; and (iii) no employee, independent contractor or agent of such Pledgor is in default or breach of any term of any employment agreement, non-disclosure agreement, assignment of inventions agreement or similar agreement or contract relating in any way to the protection, ownership, development, use or transfer of such Pledgor’s Intellectual Property Collateral.

(i) No Pledgor or Intellectual Property Collateral is subject to any outstanding consent, settlement, agreement, decree, order, injunction, judgment or ruling restricting the use of any Intellectual Property Collateral or that would impair the validity or enforceability of such Intellectual Property Collateral.

 

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Section 4.12 Insurance . (a) Each Pledgor shall keep its insurable property insured at all times by financially sound and reputable insurers, and maintain such other insurance, to such extent and against such risks as is customary with companies in the same or similar businesses operating in the same or similar locations, including insurance with respect to Mortgaged Properties (if any) and other properties material to the business of the Company and its Subsidiaries against such casualties and contingencies and of such types and in such amounts with such deductibles as is customary in the case of similar businesses operating in the same or similar locations, including, to the extent applicable to such Pledgor’s business, (i) physical hazard insurance on an “all risk” basis, (ii) commercial general liability against claims for bodily injury, death or property damage covering any and all insurable claims, (iii) explosion insurance in respect of any boilers, machinery or similar apparatus constituting Collateral, (iv) business interruption insurance, (v) worker’s compensation insurance and such other insurance as may be required by any Legal Requirement and (vi) such other insurance against risks as the Noteholder Collateral Agent may from time to time require acting upon the instructions of the percentage of Holders required under the Indenture (in each case, such policies to be in such form as may be reasonably satisfactory to the Noteholder Collateral Agent); provided that with respect to physical hazard insurance, (x) neither the Noteholder Collateral Agent nor the applicable Pledgor shall agree to the adjustment of any claim in excess of $500,000 thereunder without the consent of the other (such consent not to be unreasonably conditioned, withheld or delayed), and (y) no consent of any Pledgor or any of such Pledgor’s Subsidiaries shall be required during the existence of an Event of Default.

(b) The Pledgors shall provide that no cancellation, material reduction in amount or material change in any insurance coverage required under Section 4.12(a) shall be effective until at least 30 days after receipt by the Noteholder Collateral Agent of written notice thereof.

(c) All such insurance required under Section 4.12(a) shall (i) name the Noteholder Collateral Agent as mortgagee (in the case of property insurance on any real property owned by the applicable Pledgor), additional insured on behalf of the Secured Parties (in the case of liability insurance), or lender’s loss payee (in the case of property insurance on any of the Collateral), as applicable, (ii) contain customary lender’s loss payable endorsements, and (iii) be satisfactory in all other material respects to the Noteholder Collateral Agent.

(d) No Pledgor that is an owner of any Mortgaged Property (if any) shall take any action that is reasonably likely to be the basis for termination, revocation or denial of any insurance coverage required to be maintained under such Pledgor’s respective Mortgage (if any) or that could reasonably be the basis for a defense to any claim under any insurance policy maintained in respect of the premises, and each Pledgor shall otherwise comply in all material respects with all insurance requirements in respect of the premises; provided , however , that each Pledgor may, at its own expense and after written notice to the Noteholder Collateral Agent, (i) contest the applicability or enforceability of any such insurance requirements by appropriate legal proceedings, the prosecution of which does not constitute a basis for cancellation or revocation of any insurance coverage required under this Section 4.12 or (ii) cause the insurance policy containing any such insurance requirement to be replaced by a new policy complying with the provisions of this Section 4.12 .

 

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(e) In the event that the proceeds of any insurance claim are paid after the Noteholder Collateral Agent has exercised its right to foreclose after an Event of Default, subject to the terms of the Intercreditor Agreement, such Net Cash Proceeds shall be paid to the Noteholder Collateral Agent to satisfy any deficiency remaining after such foreclosure. The Noteholder Collateral Agent shall retain its interest in the insurance policies and coverages required to be maintained pursuant to the Indenture during any redemption period.

Section 4.13 Payment of Taxes; Compliance with Legal Requirements; Contesting Liens; Charges . Each Pledgor may at its own expense contest the validity, amount or applicability of any Charges so long as the contest thereof shall be conducted in accordance with, and not prohibited pursuant to the provisions of, the Indenture. Notwithstanding the foregoing sentence, (a) no contest of any such obligation may be pursued by such Pledgor if such contest could reasonably be expected to expose the Noteholder Collateral Agent or any other Secured Party to (i) any possible criminal liability or (ii) any additional civil liability for failure to comply with such obligations unless such Pledgor shall have furnished a bond or other security therefor satisfactory to the Noteholder Collateral Agent, or such Secured Party, as the case may be, and (b) if at any time payment or performance of any obligation contested by such Pledgor pursuant to this Section 4.13 shall become reasonably necessary to prevent the imposition of remedies because of non-payment, such Pledgor shall pay or perform the same in sufficient time to prevent the imposition of remedies in respect of such default or prospective default.

Section 4.14 Books and Records; Other Information . (a) Each Pledgor shall, at any and all times, within a reasonable time after written request by the Noteholder Collateral Agent, furnish or cause to be furnished to the Noteholder Collateral Agent, in such manner and in such detail as may be reasonably requested by the Noteholder Collateral Agent, additional information with respect to the Collateral.

(b) Each Pledgor will permit any representatives designated by the Noteholder Collateral Agent or any other Secured Party to visit and inspect the financial records and the property of such Pledgor and to make extracts from and copies of such financial records, and permit any representatives designated by the Noteholder Collateral Agent to discuss the affairs, finances, accounts and condition of any Pledgor with the officers and employees thereof and advisors therefor (including independent accountants) at such reasonable times during normal business hours and as often as may be reasonably requested, upon reasonable advance notice to such Pledgor; provided that if a Default has occurred and is continuing, (i) the representatives of the Noteholder Collateral Agent or any other Secured Party may do any of the foregoing at the expense of the Pledgors at any time during normal business hours and without advance notice to any Pledgor and (ii) the Noteholder Collateral Agent shall have the right, but not the obligation, to access any Mortgaged Property to undertake any Response that the Noteholder Collateral Agent in its discretion deems appropriate at the cost and expense of the Pledgors. The Pledgors shall jointly and severally bear all reasonable and properly documented out-of-pocket costs and expenses of the Noteholder Collateral Agent in connection with any such visit or inspection.

 

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ARTICLE V

CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL

Section 5.1 Pledge of Additional Securities Collateral . Each Pledgor shall, upon obtaining any Pledged Securities constituting Collateral or Intercompany Notes of any Person, accept the same in trust for the benefit of the Noteholder Collateral Agent and promptly, and in any event within ten Business Days (or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) thereafter, deliver to the Noteholder Collateral Agent a pledge amendment, duly executed by such Pledgor, in substantially the form of Exhibit 2 hereto (each, a “ Pledge Amendment ”), and the certificates and other documents required under Section 3.1 and Section 3.4(a) in respect of such additional Pledged Securities or Intercompany Notes that are to be pledged pursuant to this Agreement, and confirming the grant of the Lien created hereby in respect of such additional Pledged Securities or Intercompany Notes. Each Pledgor hereby authorizes the Noteholder Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Securities or Intercompany Notes listed on any Pledge Amendment delivered to the Noteholder Collateral Agent shall for all purposes hereunder be considered Collateral.

Section 5.2 Voting Rights; Distributions; etc . (a) Subject to the terms of the Intercreditor Agreement, so long as no Event of Default shall have occurred and be continuing:

(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Securities Collateral or any part thereof for any purpose not inconsistent with the terms or purposes hereof, the other Notes Documents or any other document evidencing the Notes Obligations; provided, however, that no Pledgor shall in any event exercise such rights in any manner that is prohibited by the Indenture or other Notes Documents.

(ii) Each Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien hereof, any and all Distributions, but only if and to the extent made in accordance with the provisions of the Indenture; provided, however , that any and all such Distributions consisting of rights or interests in the form of Pledged Securities or Intercompany Notes shall promptly, and in any event within 2 Business Days after receipt thereof, be delivered to the Noteholder Collateral Agent to hold as Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the Noteholder Collateral Agent, be segregated from the other property or funds of such Pledgor and be forthwith delivered to the Noteholder Collateral Agent as Collateral in the same form as so received (with any necessary, advisable or reasonably requested endorsement).

(b) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of any Event of Default, the Noteholder Collateral Agent may implement either or both of the following remedies (subject, in each case, to the terms of the Intercreditor Agreement):

(i) all rights of each Pledgor to exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 5.2(a)(i) shall cease, and all such rights shall thereupon become vested in the Noteholder Collateral Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights; and

 

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(ii) all rights of each Pledgor to receive Distributions that it would otherwise be authorized to receive and retain pursuant to Section 5.2(a)(ii) without further action shall cease and all such rights shall thereupon become vested in the Noteholder Collateral Agent, which shall thereupon have the sole right to receive and hold as Collateral such Distributions.

(c) Subject to the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of any Event of Default, each Pledgor shall, at its sole cost and expense, from time to time execute and deliver to the Noteholder Collateral Agent appropriate instruments as the Noteholder Collateral Agent may request in order to permit the Noteholder Collateral Agent to exercise the voting and other rights which it may be entitled to exercise pursuant to Section 5.2(b)(ii) and to receive all Distributions which it may be entitled to receive under Section 5.2(b)(ii) . If the Noteholder Collateral Agent exercises its right to vote any of such Pledged Securities, each Pledgor hereby appoints the Noteholder Collateral Agent such Pledgor’s true and lawful attorney-in-fact and irrevocable proxy to vote such Pledged Securities in any manner the Noteholder Collateral Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders, partners or members, as the case may be. The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable.

(d) Subject to the terms of the Intercreditor Agreement, all Distributions that are received by any Pledgor contrary to the provisions of Section 5.2(b)(ii) shall be received in trust for the benefit of the Noteholder Collateral Agent, shall be segregated from the other funds of such Pledgor and shall immediately be paid over to the Noteholder Collateral Agent as Collateral in the same form as so received (with any necessary, advisable or reasonably requested endorsement).

Section 5.3 Default . No Pledgor is in default or violation under any agreement to which such Pledgor is a party relating to the Pledged Securities pledged by it (including with respect to the payment of any portion of any mandatory capital contribution, if any, required to be made thereunder). No Securities Collateral pledged by such Pledgor is subject to any defense, offset or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any Person with respect thereto, and as of the date hereof, there are no certificates, instruments, documents or other writings (other than the Organizational Documents of such Pledgor and certificates, if any, delivered to the Noteholder Collateral Agent or, prior to the discharge of the various Classes of Obligations (as such terms are defined in the Intercreditor Agreement) and to the extent required by the Intercreditor Agreement, one or more other Agents) which evidence any Pledged Securities of such Pledgor.

Section 5.4 Certain Agreements of Pledgors as Issuers and Holders of Equity Interests . (a) In the case of each Pledgor that is an issuer of Securities Collateral, such Pledgor agrees to be bound by the terms of this Agreement relating to the Securities Collateral issued by it and will comply with such terms insofar as such terms are applicable to it.

(b) In the case of each Pledgor that is a partner, member or holder of any Equity Interests in a partnership, limited liability company or other entity, such Pledgor hereby consents

 

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to the extent required by the applicable Organizational Documents of such Pledgor to the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Interests owned by such other Pledgor in such partnership, limited liability company or other entity and, upon the occurrence and during the continuance of an Event of Default, to the transfer of such Pledged Interests to the Noteholder Collateral Agent or its nominee and to the substitution of the Noteholder Collateral Agent or its nominee as a substituted partner, member or holder of Equity Interests in such partnership, limited liability company or other entity with all the rights, powers and duties of a general partner, limited partner, member or holder of Equity Interests, as the case may be; provided , that prior to the applicable Senior Obligations Payment Date and to the extent required by the Intercreditor Agreement, the requirements for delivery under this paragraph shall be deemed to have been satisfied by the transfer of such Pledged Interests to the Senior Representative or its nominee and to the substitution of the Senior Representative or its nominee as a substituted partner, member or holder of Equity Interests in such partnership, limited liability company or other entity with all the rights, powers and duties of a general partner, limited partner, member or holder of Equity Interests.

ARTICLE VI

CERTAIN PROVISIONS CONCERNING INTELLECTUAL

PROPERTY COLLATERAL

Section 6.1 Grant of License . For the purpose of enabling the Noteholder Collateral Agent, during the continuance of an Event of Default, to exercise rights and remedies under Article IX at such time as the Noteholder Collateral Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Pledgor hereby grants to the Noteholder Collateral Agent, to the extent licensable, an irrevocable, non-exclusive worldwide license (subject to the terms of the Intercreditor Agreement) (exercisable without payment of royalty or other compensation to such Pledgor) to use, assign, license sublicense or otherwise dispose of the Intellectual Property Collateral now owned or hereafter acquired by such Pledgor, wherever the same may be located. Such license shall include access to all media in which any of the Intellectual Property Collateral may be recorded or stored and to all computer programs used for the compilation or printout hereof.

Section 6.2 Registration . Except pursuant to licenses and other agreements entered into by any Pledgor in the ordinary course of business, on and as of the date hereof (i) each Pledgor owns and/or possesses the right to use, and has done nothing to authorize or enable any other Person to use, any Copyright, Patent or Trademark listed on Schedules 14(a) , 14(b) , and 14(c) , to the Perfection Certificate, and (ii) to the knowledge of such Pledgor, all registrations with the United States Patent and Trademark Office listed on Schedules 14(a) , 14(b) , and 14(c) to the Perfection Certificate are valid and in full force and effect.

Section 6.3 Protection of Noteholder Collateral Agent’s Security . (a) With respect to each item of its Intellectual Property Collateral, each Pledgor agrees, on a continuing basis, to take, at its sole cost and expense, all necessary steps, including, without limitation, in the United States Patent and Trademark Office, the United States Copyright Office and any other Governmental Authority in the United States, to (i) maintain the validity and enforceability of such Intellectual Property Collateral and maintain such Intellectual Property Collateral in full

 

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force and effect, and (ii) pursue the registration and maintenance of each Patent, Trademark, or Copyright registration or application, now or hereafter included in such Intellectual Property Collateral of such Pledgor, including, without limitation, the payment of required fees and taxes, the filing of responses to office actions issued by the United States Patent and Trademark Office, the United States Copyright Office or other Governmental Authorities in the United States, the filing of applications for renewal or extension, the filing of affidavits under Sections 8 and 15 of the U.S. Trademark Act, the filing of divisional, continuation, continuation-in-part, reissue and renewal applications or extensions, the payment of maintenance fees and the participation in interference, reexamination, opposition, cancellation, infringement and misappropriation proceedings. No Pledgor shall, without the written consent of the Noteholder Collateral Agent, discontinue use of or otherwise abandon any Intellectual Property Collateral in the United States, or abandon any right to file an application in the United States for any Patent, Trademark, or Copyright, unless such Pledgor shall have previously determined that such use or the pursuit or maintenance of such Intellectual Property Collateral is no longer desirable in the conduct of such Pledgor’s business and that the loss thereof would not be reasonably likely to materially adversely affect the operation of such Pledgor’s business, in which case, such Pledgor will give prompt notice of any such abandonment to the Noteholder Collateral Agent.

(b) Each Pledgor agrees, on a continuing basis, promptly (and in any event within ten Business Days) to notify the Noteholder Collateral Agent in writing if such Pledgor becomes aware (i) that any item of the Intellectual Property Collateral may have become abandoned, placed in the public domain, invalid or unenforceable, or of any adverse determination or development regarding such Pledgor’s ownership of any of the Intellectual Property Collateral or its right to register the same or to keep and maintain and enforce the same, or (ii) of any adverse determination or the institution of any proceeding (including, without limitation, the institution of any proceeding in the United States Patent and Trademark Office or any court) regarding any item of the Intellectual Property Collateral.

(c) In the event that any Pledgor becomes aware that any item of the Intellectual Property Collateral is being infringed or misappropriated by a third party, such Pledgor shall promptly (and in any event within ten Business Days) notify the Noteholder Collateral Agent in writing and shall take such actions, at its expense, as such Pledgor or the Noteholder Collateral Agent, subject to the terms of the Intercreditor Agreement, deems reasonable and appropriate under the circumstances to protect or enforce such Intellectual Property Collateral, including, without limitation, suing for infringement or misappropriation and for an injunction against such infringement or misappropriation. Without limiting the foregoing, upon such Pledgor obtaining knowledge thereof, such Pledgor shall promptly (and in any event within ten Business Days) notify the Noteholder Collateral Agent in writing of any event that may be reasonably expected to materially and adversely affect the value or utility of any item of Intellectual Property Collateral, the ability of such Pledgor or the Noteholder Collateral Agent to dispose of such Intellectual Property Collateral or any portion thereof or the rights and remedies of the Noteholder Collateral Agent in relation thereto, including a levy or written threat of levy or any legal process against such Intellectual Property Collateral or any portion thereof.

(d) Each Pledgor agrees, on a continuing basis, to use proper statutory notice as required by law in connection with its use of each item of its Intellectual Property Collateral. No Pledgor shall do or permit any act or knowingly omit to do any act whereby any of its

 

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Intellectual Property Collateral may lapse or become invalid or unenforceable or placed in the public domain. No Pledgor will settle or compromise any pending or future litigation or administrative proceeding (other than office actions) with respect to any material Intellectual Property Collateral without the prior written consent of the Noteholder Collateral Agent (at the direction of the requisite percentage of Holders of Notes), which shall not be unreasonably withheld or delayed.

(e) Each Pledgor agrees, on a continuing basis, to take all steps which it or the Noteholder Collateral Agent deems reasonable and appropriate under the circumstances to preserve and protect each item of its Intellectual Property Collateral, including, without limitation, maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks, consistent with the quality of the products and services as of the date hereof, and taking all steps necessary to ensure that all licensed users of any of the Trademarks use such consistent standards of quality.

(f) No Pledgor shall (i) license any Intellectual Property Collateral other than pursuant to License Agreements entered into by such Pledgor in, or incidental to, the ordinary course of its business, or (ii) amend or permit the amendment of any License Agreement in a manner that materially and adversely affects the right to receive payments thereunder, or in any manner that would materially impair the value of any Intellectual Property Collateral or the Lien on and security interest in the Intellectual Property Collateral intended to be granted to the Noteholder Collateral Agent for the benefit of the Secured Parties, in the case of each of (i) and (ii), without the consent of the Noteholder Collateral Agent (at the direction of the requisite percentage of Holders of Notes), which shall not be unreasonably withheld or delayed.

(g) Each Pledgor agrees, on a continuing basis, to diligently keep adequate records respecting the Intellectual Property Collateral and furnish to the Noteholder Collateral Agent from time to time upon the Noteholder Collateral Agent’s request therefor reasonably detailed statements and amended schedules further identifying and describing the Intellectual Property Collateral and such other materials evidencing or reports pertaining to the Intellectual Property Collateral as the Noteholder Collateral Agent may from time to time request.

(h) During the continuance of an Event of Default, within ten Business Days (or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after written notice from the Noteholder Collateral Agent to any Pledgor, such Pledgor shall make available to the Noteholder Collateral Agent, to the extent within such Pledgor’s power and authority and subject to the Intercreditor Agreement, such personnel in such Pledgor’s employ on the date of such Event of Default as the Noteholder Collateral Agent may designate, by name, title or job responsibility, to permit such Pledgor to continue, directly or indirectly, to produce, advertise and sell the products and services sold or delivered by such Pledgor under or in connection with the Intellectual Property Collateral, and each Pledgor shall use commercially reasonable efforts to ensure that such Persons shall be available to perform their prior functions on the Noteholder Collateral Agent’s behalf if compensated at such Pledgor’s expense on a per diem, pro rata basis consistent with the salary and benefits structure applicable to each as of the date of such Event of Default.

 

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(i) With respect to its Intellectual Property Collateral, each Pledgor agrees to execute or otherwise authenticate, as applicable, the Copyright Security Agreement (promptly after such Pledgor shall at any time become the owner of any Copyright), the Patent Security Agreement (promptly after such Pledgor shall at any time become the owner of any Patent) and the Trademark Security Agreement in substantially the forms set forth in Exhibits 6 , 7 and 8 hereto, respectively, or otherwise in form and substance satisfactory to the Noteholder Collateral Agent, for recording the security interest granted hereunder to the Noteholder Collateral Agent in such Intellectual Property Collateral with the United States Patent and Trademark Office, the United States Copyright Office and any other Governmental Authorities necessary to perfect the security interest hereunder in such Intellectual Property Collateral under applicable Legal Requirements in the United States.

Section 6.4 After-Acquired Property . If any Pledgor shall, at any time before the payment in full of the Notes Obligations, (a) obtain any rights to any additional Intellectual Property Collateral or (b) become entitled to the benefit of any additional Intellectual Property Collateral or any renewal or extension thereof, including any reissue, division, continuation, or continuation-in-part of any Intellectual Property Collateral, or any improvement on any Intellectual Property Collateral, the provisions of this Agreement shall automatically apply thereto and any such item enumerated in clause (a) or (b) of this Section 6.4 with respect to such Pledgor shall automatically constitute Intellectual Property Collateral if such item would have constituted Intellectual Property Collateral at the time of execution hereof and be subject to the Lien and security interest created by this Agreement without further action by any party (excluding any Intellectual Property Collateral that constitutes Excluded Property). Each Pledgor shall promptly (i) provide to the Noteholder Collateral Agent written notice of any of the foregoing and (ii) confirm the attachment of the Lien and security interest created by this Agreement to any rights described in clauses (a) and (b) of the immediately preceding sentence of this Section 6.4 by execution of an instrument in form reasonably acceptable to the Noteholder Collateral Agent and the filing of any instruments or statements as shall be deemed necessary, advisable or prudent by the Noteholder Collateral Agent to preserve, protect or perfect the Noteholder Collateral Agent’s security interest or the priority thereof in such Intellectual Property Collateral to the extent such security interest in such Intellectual Property Collateral may be perfected under applicable Legal Requirements in the United States. Further, each Pledgor authorizes the Noteholder Collateral Agent to modify this Agreement by amending Schedules 14(a) , (b)  and (c)  to the Perfection Certificate to include any Intellectual Property Collateral acquired or arising after the date hereof of such Pledgor.

Section 6.5 Litigation . Unless there shall occur and be continuing any Event of Default, each Pledgor shall have the right to commence and prosecute in its own name, as the party in interest, for its own benefit and at the sole cost and expense of the Pledgors, such applications for protection of the Intellectual Property Collateral and such suits, proceedings or other actions to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value or other damage as such Pledgor shall determine in its exercise of prudent business judgment to be necessary, advisable or prudent to protect the Intellectual Property Collateral. Upon the occurrence and during the continuance of any Event of Default, the Noteholder Collateral Agent shall, subject to the terms of the Intercreditor Agreement, have the right but shall in no way be obligated to file applications for protection of the Intellectual Property Collateral and/or bring suit in the name of any Pledgor, the Noteholder Collateral Agent or the

 

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Secured Parties to enforce the Intellectual Property Collateral and any license thereunder. In the event of such suit, each Pledgor shall, at the reasonable request of the Noteholder Collateral Agent, do any and all lawful acts and execute any and all documents requested by the Noteholder Collateral Agent in aid of such enforcement and the Pledgors shall promptly reimburse and indemnify the Noteholder Collateral Agent in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture for all costs and expenses incurred by the Noteholder Collateral Agent in the exercise of its rights under this Section 6.5 . In the event that the Noteholder Collateral Agent shall elect not to bring such suit to enforce the Intellectual Property Collateral, each Pledgor agrees, at the reasonable request of the Noteholder Collateral Agent, to take all actions necessary, advisable or prudent, whether by suit, proceeding or other action, to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value of or other damage to any of the Intellectual Property Collateral by others and for that purpose agrees to diligently maintain any suit, proceeding or other action against any Person so infringing as the Noteholder Collateral Agent (at direction of the requisite percentage of Holders of Notes) shall determine to be necessary to prevent such infringement.

Section 6.6 Intent-to-Use Trademark and Service Mark Applications . In connection with any United States intent-to-use trademark or service mark applications whether listed on Schedules 14(a) , 14(b) , or 14(c) to the Perfection Certificate or otherwise, the Pledgors shall file a bona fide statement of use and shall take such other actions or steps as shall be required by the United States Patent and Trademark Office, to entitle such application to registration within 10 Business Days following the date of first use in commerce of the mark that is the subject of such application. Upon acceptance of such bona fide statement of use by the United States Patent and Trademark Office, such application shall automatically become subject to the security interest granted herein. The Pledgors shall execute any further documents and instruments as the Noteholder Collateral Agent may deem necessary, advisable or prudent to confirm, implement, or enforce the Noteholder Collateral Agent’s security interest in such applications. If the Pledgors fail to execute such further documents and instruments within ten Business Days (or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after presentment, then after the occurrence and during the continuance of an Event of Default, the Noteholder Collateral Agent may, in the name of, and on behalf of, the Pledgors, execute such documents and instruments and make appropriate disposition of same, and the Pledgors hereby irrevocably appoint the Noteholder Collateral Agent as their lawful attorney-in-fact with full power to do so. The foregoing power of attorney is coupled with an interest and such appointment shall be irrevocable for the term hereof.

Section 6.7 Foreign Intellectual Property Collateral . Notwithstanding anything contained herein or in any Notes Document, no Pledgor shall be required to take any actions to perfect the security interest in any foreign Intellectual Property Collateral owned by a Pledgor, other than the filing of UCC-1 financing statements.

ARTICLE VII

CERTAIN PROVISIONS CONCERNING ACCOUNTS

Section 7.1 Special Representation and Warranties . As of the time when each of its Accounts arises, each Pledgor shall be deemed to have represented and warranted that such

 

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Account and all records, papers and documents relating thereto (i) are genuine and correct and in all material respects what they purport to be, (ii) to the Pledgor’s knowledge, represent the legal, valid and binding obligation of the account debtor, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by equitable principles relating to enforceability, evidencing indebtedness unpaid and owed by such account debtor, arising out of the performance of labor or services or the sale, lease, license, assignment or other disposition and delivery of the goods or other property listed therein or out of an advance or a loan, (iii) will, in the case of an Account, except for the original or duplicate original invoice evidencing such purchaser’s account and any master service or other agreement related thereto, be the only original writing evidencing and embodying such obligation of the account debtor named therein and (iv) are in all material respects in compliance and conform with all applicable Legal Requirements in the United States.

Section 7.2 Maintenance of Records . Each Pledgor shall keep and maintain at its own cost and expense complete records of each Account, in a manner consistent with prudent business practices, including records of all payments received, all credits granted thereon, all merchandise returned and all other documentation relating thereto. Each Pledgor shall, subject to the terms of the Intercreditor Agreement and at such Pledgor’s sole cost and expense, upon the Noteholder Collateral Agent’s demand made at any time after the occurrence and during the continuance of any Event of Default, deliver all tangible evidence of Accounts, including all documents evidencing Accounts and any books and records relating thereto to the Noteholder Collateral Agent or to its representatives (copies of which evidence and books and records may be retained by such Pledgor). Upon the occurrence and during the continuance of any Event of Default, the Noteholder Collateral Agent may transfer a full and complete copy of any Pledgor’s books, records, credit information, reports, memoranda and all other writings relating to the Accounts to and for the use by any Person that has acquired or is contemplating acquisition of an interest in the Accounts or the Noteholder Collateral Agent’s security interest therein without the consent of any Pledgor.

Section 7.3 Legend . At any time that an Event of Default has occurred and is continuing and at the request of the Noteholder Collateral Agent and in form and manner satisfactory to the Noteholder Collateral Agent, each Pledgor shall legend the Accounts and the other books, records and documents of such Pledgor evidencing or pertaining to the Accounts with an appropriate reference to the fact that the Accounts have been assigned to the Noteholder Collateral Agent for the benefit of the Secured Parties and that the Noteholder Collateral Agent has a security interest therein.

Section 7.4 Modification of Terms, etc . No Pledgor shall (i) rescind or cancel any obligations evidenced by any Account or modify any term thereof or make any adjustment with respect thereto except in the ordinary course of business in a manner consistent with prudent business practices, or (ii) extend or renew any such obligations except in the ordinary course of business consistent with prudent business practices, or (iii) compromise or settle any dispute, claim, suit or legal proceeding relating thereto or sell any Account or interest therein except in the ordinary course of business in a manner consistent with prudent business practices, without (in the case of each of (i), (ii) and (iii)) the prior written consent of the Noteholder Collateral Agent. Each Pledgor shall timely fulfill all obligations on its part to be fulfilled under or in connection with the Accounts owned by such Pledgor.

 

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Section 7.5 Collection . Each Pledgor shall cause to be collected from the account debtor of each of the Accounts, as and when due in the ordinary course of business and consistent with prudent business practices (including Accounts that are delinquent, such Accounts to be collected in accordance with generally accepted commercial collection procedures), any and all amounts owing under or on account of such Account, and apply forthwith upon receipt thereof all such amounts as are so collected to the outstanding balance of such Account, except that any Pledgor may, with respect to an Account, allow in the ordinary course of business (i) a refund or credit due as a result of returned or damaged or defective merchandise and (ii) such extensions of time to pay amounts due in respect of Accounts and such other modifications of payment terms or settlements in respect of Accounts as shall be commercially reasonable in the circumstances, all in accordance with such Pledgor’s ordinary course of business consistent with its collection practices as in effect from time to time. The costs and expenses (including Attorney Costs) of collection, in any case, whether incurred by any Pledgor, the Noteholder Collateral Agent or any Secured Party, shall be paid by the Pledgors in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture.

ARTICLE VIII

TRANSFERS

Section 8.1 Transfers of Collateral . No Pledgor shall (a) sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the Collateral pledged by it hereunder except to the extent not prohibited by and otherwise subject to the requirements of this Agreement or the Indenture or (b) create or permit to exist any Lien upon or with respect to any of the Collateral pledged by it hereunder other than Permitted Liens.

ARTICLE IX

REMEDIES

Section 9.1 Remedies . Upon the occurrence and during the continuance of any Event of Default, the Noteholder Collateral Agent may from time to time, subject to the terms of the Intercreditor Agreement, exercise in respect of the Collateral, in addition to the other rights and remedies provided for herein or otherwise available to it, the following remedies:

(a) Personally, or by agents or attorneys, immediately take possession of the Collateral or any part thereof, from any Pledgor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon any Pledgor’s premises where any of the Collateral is located, remove such Collateral, remain present at such premises to receive copies of all communications and remittances relating to the Collateral and use in connection with such removal and possession any and all services, supplies, aids and other facilities of any Pledgor;

(b) Demand, sue for, collect or receive any money or property at any time payable or receivable in respect of the Collateral including instructing the obligor or obligors on any agreement, instrument or other obligation constituting part of the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the

 

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Noteholder Collateral Agent, and in connection with any of the foregoing, compromise, settle, extend the time for payment and make other modifications with respect thereto; provided, however , that in the event that any such payments are made directly to any Pledgor, prior to receipt by any such obligor of such instruction, such Pledgor shall segregate all amounts received pursuant thereto in trust for the benefit of the Noteholder Collateral Agent and shall promptly but in no event later than 3 Business Days after receipt thereof (or such later date as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) pay such amounts to the Noteholder Collateral Agent;

(c) Sell, assign, grant a license to use or otherwise liquidate, or direct any Pledgor to sell, assign, grant a license to use or otherwise liquidate, any and all investments made in whole or in part with the Collateral or any part thereof, and take possession of the proceeds of any such sale, assignment, license or liquidation;

(d) Take possession of the Collateral or any part thereof, by directing any Pledgor in writing to deliver the same to the Noteholder Collateral Agent at any place or places so designated by the Noteholder Collateral Agent, in which event such Pledgor shall at its own expense: (i) forthwith cause the same to be moved to the place or places designated by the Noteholder Collateral Agent and therewith delivered to the Noteholder Collateral Agent, (ii) store and keep any Collateral so delivered to the Noteholder Collateral Agent at such place or places pending further action by the Noteholder Collateral Agent and (iii) while the Collateral shall be so stored and kept, provide such security and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition. Each Pledgor’s obligation to deliver the Collateral as contemplated in this Section 9.1(d) is of the essence hereof. Upon application to a court of equity having jurisdiction, the Noteholder Collateral Agent shall be entitled to a decree requiring specific performance by any Pledgor of such obligation;

(e) Withdraw all moneys, instruments, securities and other property in any bank, financial securities, deposit or other account of any Pledgor constituting Collateral for application to the Notes Obligations as provided in Article X ;

(f) Retain and apply the Distributions to the Notes Obligations as provided in Article X ;

(g) Exercise any and all rights as beneficial and legal owner of the Collateral, including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Collateral; and

(h) Exercise all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and the Noteholder Collateral Agent may also in its sole discretion, without notice except as specified in Section 9.2 , sell, assign, transfer or grant a license to use the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Noteholder Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Noteholder Collateral Agent may deem commercially reasonable. The Noteholder Collateral Agent or any other Secured Party or any of their respective Affiliates may be the purchaser, licensee, assignee or recipient of any or all of the

 

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Collateral at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold, assigned or licensed at such sale, to use and apply any of the Notes Obligations owed to such Person as a credit on account of the purchase price of any Collateral payable by such Person at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the property sold, assigned or licensed absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest extent permitted by applicable Legal Requirements, all rights of redemption, stay and/or appraisal that it now has or may at any time in the future have under any Legal Requirement now existing or hereafter enacted. The Noteholder Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Noteholder Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Pledgor hereby waives, to the fullest extent permitted by applicable Legal Requirements, any claims against the Noteholder Collateral Agent arising by reason of the fact that the price at which any Collateral may have been sold, assigned or licensed at such a private sale was less than the price which might have been obtained at a public sale, even if the Noteholder Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree.

(i) By accepting the benefits of this Agreement and each other Notes Document, the Secured Parties expressly acknowledge and agree that any action taken by the Noteholder Collateral Agent under this Agreement and each other Notes Document may be enforced only by the action of the Noteholder Collateral Agent acting upon the instructions of the percentage of Holders required under the Indenture and that no other Secured Party shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may, subject to the terms of the Intercreditor Agreement, be exercised by the Noteholder Collateral Agent for the benefit of the Secured Parties upon the terms of the Notes Documents. Furthermore, each Pledgor agrees to, upon the occurrence and continuance of an Event of Default, use its commercially reasonable efforts to assist the Noteholder Collateral Agent in obtaining any approvals or assignments or licenses from any relevant Governmental Authority that may be necessary or desirable for the exercise of the rights and, remedies of the Noteholder Collateral Agent with respect to the Collateral.

Section 9.2 Notice of Sale . Each Pledgor acknowledges and agrees that, to the extent notice of sale or other disposition of Collateral shall be required by any Legal Requirement, ten (10) Business Days prior notice to such Pledgor of the time and place of any public sale or of the time after which any private sale or other intended disposition is to take place shall be commercially reasonable notification of such matters, unless the Collateral is perishable or threatens to decline speedily in value (in which case no such prior notice shall be required) or is of a type customarily sold on a recognized market (in which case no such prior notice shall be required). No notification need be given to any Pledgor if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition.

Section 9.3 Waiver of Notice and Claims; Other Waivers; Marshaling . (a) Each Pledgor hereby waives, to the fullest extent permitted by applicable Legal Requirements, notice

 

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of judicial hearing in connection with the Noteholder Collateral Agent’s taking possession or the Noteholder Collateral Agent’s disposition of any of the Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any such right which such Pledgor would otherwise have under any Legal Requirement, and each Pledgor hereby further waives, to the fullest extent permitted by applicable Legal Requirements (i) all damages occasioned by such taking of possession, (ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Noteholder Collateral Agent’s rights hereunder and (iii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable Legal Requirements. The Noteholder Collateral Agent shall not be liable for any incorrect or improper payment made pursuant to this Article IX except to the extent resulting solely from the Noteholder Collateral Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and nonappealable judgment. Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in equity or otherwise against such Pledgor and against any and all Persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through or under such Pledgor.

(b) Except as set forth in Section 9.2 , each Pledgor hereby waives demand, notice, protest, notice of acceptance of this Agreement, notice of the issuance of Notes, Collateral received or delivered or any other action taken in reliance hereon and all other demands and notices of any description.

(c) The Noteholder Collateral Agent shall not be required to marshal any present or future collateral security (including the Collateral) for, or other assurances of payment of, the Notes Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order. To the maximum extent permitted by applicable Legal Requirements, each Pledgor hereby agrees that it will not invoke any Legal Requirement relating to the marshaling of collateral and hereby irrevocably waives the benefits of all such Legal Requirements.

Section 9.4 Standards for Exercising Rights and Remedies . (a) To the extent that applicable Legal Requirements impose duties on the Noteholder Collateral Agent to exercise remedies in a commercially reasonable manner, each Pledgor acknowledges and agrees that it is not commercially unreasonable for the Noteholder Collateral Agent (i) to fail to incur expenses deemed significant by the Noteholder Collateral Agent to prepare Collateral for disposition or otherwise to fail to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or to fail to obtain consents for Governmental Authorities or third parties for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against account debtors or other Persons obligated on Collateral or to fail to remove Liens or encumbrances on or any adverse claims against Collateral, (iv) to exercise collection remedies against account debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same

 

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business as any Pledgor, for expressions of interest in acquiring all or any portion of the Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim or modify disposition warranties, (xi) to purchase insurance or credit enhancements to insure the Noteholder Collateral Agent against risks of loss, collection or disposition of Collateral or to provide to the Noteholder Collateral Agent a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Noteholder Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Noteholder Collateral Agent in the collection or disposition of any of the Collateral. The Pledgors acknowledge that the purpose of this Section 9.4 is to provide non-exhaustive indications of what actions or omissions by the Noteholder Collateral Agent would fulfill the Noteholder Collateral Agent’s duties under the UCC or other Legal Requirement of the State of New York or any other relevant jurisdiction in the Noteholder Collateral Agent’s exercise of remedies against the Collateral and that other actions or omissions by the Noteholder Collateral Agent shall not be deemed to fail to fulfill such duties solely on account of not being indicated in this Section 9.4 . Without limiting the foregoing, nothing contained in this Section 9.4 shall be construed to grant any rights to any Pledgor or to impose any duties on the Noteholder Collateral Agent that would not have been granted or imposed by this Agreement or by applicable Legal Requirements in the absence of this Section 9.4 .

(b) Each Pledgor recognizes that, by reason of certain prohibitions contained in Legal Requirements, the Noteholder Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who meet the requirements of a Governmental Authority. Each Pledgor acknowledges that any such sales may be at prices and on terms less favorable to the Noteholder Collateral Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such restricted sale shall be deemed to have been made in a commercially reasonable manner and that, except as may be required by applicable Legal Requirements, the Noteholder Collateral Agent shall have no obligation to engage in public sales.

(c) Each Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “ Securities Act ”), and applicable state securities laws, the Noteholder Collateral Agent may be compelled, with respect to any sale or disposition of all or any part of the Securities Collateral and Investment Property, to limit purchasers to Persons who will agree, among other things, to acquire such Securities Collateral or Investment Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Noteholder Collateral Agent than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Noteholder Collateral Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Securities Collateral or Investment Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would agree to do so.

 

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(d) Subject to the terms of the Intercreditor Agreement, if the Noteholder Collateral Agent determines to exercise its right to sell any or all of the Securities Collateral or Investment Property, then upon written request from the Noteholder Collateral Agent, the applicable Pledgor shall, and shall cause each issuer of Securities Collateral and Investment Property to be sold hereunder to, from time to time furnish to the Noteholder Collateral Agent all such information as the Noteholder Collateral Agent may request in order to determine the number and nature or interest, of securities or other instruments included in the Securities Collateral or Investment Property which may be sold by the Noteholder Collateral Agent as exempt transactions under the Securities Act and the rules of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.

(e) Each Pledgor further agrees that a breach of any of the covenants contained in this Section 9.4 will cause irreparable injury to the Noteholder Collateral Agent and the other Secured Parties, that the Noteholder Collateral Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 9.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants.

Section 9.5 No Waiver; Cumulative Remedies . (a) No failure on the part of the Noteholder Collateral Agent to exercise, no course of dealing with respect to, and no delay on the part of the Noteholder Collateral Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy; nor shall the Noteholder Collateral Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. Subject to the terms of (and to the extent not inconsistent with) the Intercreditor Agreement, all rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by applicable Legal Requirements, in equity or otherwise.

(b) Subject to the terms of the Intercreditor Agreement, in the event that the Noteholder Collateral Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Noteholder Collateral Agent, then and in every such case, the Pledgors, the Noteholder Collateral Agent and each other Secured Party shall be restored to their respective former positions and rights hereunder with respect to the Collateral, and all rights, remedies and powers of the Noteholder Collateral Agent and the other Secured Parties shall continue as if no such proceeding had been instituted.

Section 9.6 Certain Additional Actions Regarding Intellectual Property . If any Event of Default shall have occurred and be continuing, subject to the terms of the Intercreditor Agreement, upon the written demand of the Noteholder Collateral Agent, each Pledgor shall, subject to the terms of the Intercreditor Agreement, execute and deliver to the Noteholder

 

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Collateral Agent an assignment or assignments of the Intellectual Property Collateral that is Registered or such other documents as are necessary, advisable or prudent to carry out the intent and purposes hereof.

ARTICLE X

PROCEEDS OF CASUALTY EVENTS AND COLLATERAL DISPOSITIONS;

APPLICATION OF PROCEEDS

Section 10.1 Proceeds of Casualty Events and Collateral Dispositions . Subject to the terms of the Intercreditor Agreement, the Pledgors shall take all actions required by the Indenture with respect to any Net Cash Proceeds of any Casualty Event or from the sale or disposition of any Collateral.

Section 10.2 Application of Proceeds . The proceeds received by the Noteholder Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Noteholder Collateral Agent of its remedies shall be applied, together with any other sums then held by the Noteholder Collateral Agent pursuant to this Agreement, in accordance with the Intercreditor Agreement and the Indenture.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Concerning Noteholder Collateral Agent . (a) The Noteholder Collateral Agent has been appointed as “Noteholder Collateral Agent” pursuant to the Indenture and as “Additional Noteholder Collateral Agent” pursuant to the Intercreditor Agreement. The actions of the Noteholder Collateral Agent hereunder are subject to the terms of the Indenture and the Intercreditor Agreement. The actions of the Noteholder Collateral Agent hereunder are subject to the terms of the Indenture and the Intercreditor Agreement. The Noteholder Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Collateral), in accordance with this Agreement, the Indenture, and the Intercreditor Agreement. Each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Noteholder Collateral Agent for the benefit of the Secured Parties in accordance with the terms of this Agreement. The Noteholder Collateral Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. The Noteholder Collateral Agent may resign and a successor Noteholder Collateral Agent may be appointed in the manner provided in the Indenture. Upon the acceptance of any appointment as the Noteholder Collateral Agent by a successor Noteholder Collateral Agent, that successor Noteholder Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Noteholder Collateral Agent under this Agreement, and the retiring Noteholder Collateral Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Noteholder Collateral Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Noteholder Collateral Agent.

 

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(b) Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Noteholder Collateral Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. The Noteholder Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession from time to time if such Collateral is accorded treatment substantially equivalent to that which the Noteholder Collateral Agent, in its individual capacity, accords its own property consisting of similar instruments or interests; provided that neither the Noteholder Collateral Agent nor any of the other Secured Parties nor any of their respective directors, officers, employees or agents shall have responsibility for (x) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Noteholder Collateral Agent or any other Secured Party has or is deemed to have knowledge of such matters, (y) failing to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so, or (z) failing to take any necessary steps to preserve rights against any Person with respect to any Collateral.

(c) The Noteholder Collateral Agent shall be entitled to rely upon the instructions of the percentage of Holders required under the Indenture in requesting or requiring the performance of certain actions or the delivery of certain information for any actions to be performed or information to be delivered at the request of, or to the extent required by, the Noteholder Collateral Agent hereunder. The Noteholder Collateral Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.

(d) If any item of Collateral also constitutes collateral granted to the Noteholder Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such Collateral, the Noteholder Collateral Agent, in its sole discretion, shall determine which provisions shall control, except that, to the extent that any such conflict shall be governed by the Intercreditor Agreement, the Intercreditor Agreement shall control.

(e) In addition to the foregoing rights, the Noteholder Collateral Agent shall have the rights, protections and immunities given to it as Noteholder Collateral Agent under the Indenture, and such are incorporated by reference herein, mutatis mutandis .

Section 11.2 Noteholder Collateral Agent May Perform; Noteholder Collateral Agent Appointed Attorney-in-Fact . Subject to the terms of the Intercreditor Agreement, if any Pledgor shall fail to perform any covenants contained in this Agreement (including such Pledgor’s covenants to (i) pay the premiums in respect of all required insurance policies hereunder, (ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any obligations of such

 

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Pledgor under any Collateral) or if any representation or warranty on the part of any Pledgor contained herein shall be breached, the Noteholder Collateral Agent may (but shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend funds for such purpose; provided , however , that the Noteholder Collateral Agent shall in no event be bound to inquire into the validity of any Charges, lien, imposition or other obligation which such Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest in accordance with the provisions of Section 4.13 . Any and all amounts so expended by the Noteholder Collateral Agent shall be paid by the Pledgors in accordance with the provisions of Section 11.4(a) hereof and Section 7.07 of the Indenture. Neither the provisions of this Section 11.2 nor any action taken by the Noteholder Collateral Agent pursuant to the provisions of this Section 11.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any breach of representation or warranty from constituting an Event of Default. Subject to the terms of the Intercreditor Agreement, each Pledgor hereby appoints the Noteholder Collateral Agent its attorney-in-fact, with full power and authority in the place and stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time after the occurrence and during the continuation of an Event of Default, in the Noteholder Collateral Agent’s discretion to take any action and to execute any instrument consistent with the terms of the Indenture, this Agreement and the other Notes Documents which the Noteholder Collateral Agent may deem necessary, advisable or prudent to accomplish the purposes hereof. The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.

Section 11.3 Continuing Security Interest; Assignment . This Agreement shall create a continuing security interest in the Collateral and shall (i) be binding upon the Pledgors, their respective successors and assigns and (ii) inure, together with the rights and remedies of the Noteholder Collateral Agent hereunder, to the benefit of the Noteholder Collateral Agent and the other Secured Parties and each of their respective successors, transferees and assignees (including permitted assignees pursuant to Section 11.04 of the Indenture). No other Persons (including any other creditor of any Pledgor) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Secured Party may assign or otherwise transfer any obligations held by it secured by this Agreement to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party, herein or otherwise, subject however, to the provisions of the Indenture and the Intercreditor Agreement.

Section 11.4 Release; Retention in Satisfaction; Etc . (a) Collateral hereunder shall be released if and to the extent so provided in Sections 12.07 and 12.08 of the Indenture or upon the transfer or sale of any asset or property (other than transfers or sales to the Company or any Guarantor) theretofore included in Collateral to the extent permitted under Sections 3.7 or 8.1 of this Agreement, or as otherwise permitted in the Intercreditor Agreement.

(b) Except as may be expressly applicable pursuant to Section 9-620 of the UCC, no action taken or omission to act by the Noteholder Collateral Agent or the Holders hereunder or under the Indenture or the other Security Documents shall be deemed to constitute a retention of the Collateral in satisfaction of the Notes Obligations or otherwise to be in full satisfaction of the Note Obligations, and the Notes Obligations shall remain in full force and effect until the

 

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Noteholder Collateral Agent and the Holders shall have applied payments (including, without limitation, collections from Collateral) towards the Notes Obligations in the full amount then outstanding.

(c) Upon such release or any release of Collateral or any part thereof in accordance with the provisions of the Notes Documents, the Noteholder Collateral Agent shall, subject to the terms of the Intercreditor Agreement, upon the request and at the sole cost and expense of the Pledgors and promptly after the Noteholder Collateral Agent’s receipt of such request, (i) assign, transfer and deliver to Pledgors, against receipt and without recourse to or warranty by the Noteholder Collateral Agent except as to the fact that the Noteholder Collateral Agent has not encumbered the released assets except in accordance with the Security Documents, such of the Collateral or any part thereof to be released (in the case of a release) as may be in possession of the Noteholder Collateral Agent and as shall not have been sold or otherwise applied pursuant to the terms hereof, the Indenture, or any other Security Document, and (ii) execute documents and instruments prepared by the Pledgors and acceptable to the Noteholder Collateral Agent (including UCC-3 termination financing statements or releases) acknowledging the release of such Collateral.

Section 11.5 Costs and Expenses . Any action taken by any Pledgor under or with respect to any Notes Document, even if required under any Notes Document or at the request of the Noteholder Collateral Agent, shall be at the expense of such Pledgor, and neither the Noteholder Collateral Agent nor any other Secured Party shall be required under any Notes Document to reimburse any Pledgor therefor except as expressly provided therein. In addition, each Pledgor agrees to pay or reimburse upon demand (a) the Noteholder Collateral Agent and each Related Person thereof for all reasonable out of pocket costs and expenses incurred by each of them, in connection with the investigation, development, preparation, negotiation, syndication, execution, interpretation or administration of, any modification of any term of or termination of, any Notes Document, any commitment or proposal letter therefor, any other document prepared in connection therewith or the consummation and administration of any transaction contemplated therein, in each case including Attorney Costs to the Noteholder Collateral Agent, (b) the Noteholder Collateral Agent and each Related Person thereof for all reasonable costs and expenses incurred by each of them in connection with internal audit reviews, field examinations and examinations of Collateral (which shall be reimbursed, in addition to the out of pocket costs and expenses of such examiners, at the per diem rate per individual charged by the Noteholder Collateral Agent for its examiners) and (c) the Noteholder Collateral Agent and each Related Person thereof for all costs and expenses incurred by each of them in connection with (i) any refinancing or restructuring of the Notes Obligations in the nature of a “work out,” (ii) the enforcement or preservation of any right or remedy under any Notes Document, any Notes Obligation, with respect to the Collateral or any other related right or remedy or (iii) the commencement, defense, conduct of, intervention in, or the taking of any other action with respect to, any proceeding (including any bankruptcy or insolvency proceeding) related to any Pledgor, Notes Document, or Notes Obligation (or the response to and preparation for any subpoena or request for document production relating thereto), including Attorney Costs.

Section 11.6 Modification in Writing . Subject to any additional restrictions in the Intercreditor Agreement, no amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor therefrom, shall be

 

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effective unless the same shall be made in accordance with the terms of the Indenture and unless in writing and signed by the Noteholder Collateral Agent. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by any Pledgor from the terms of any provision hereof shall, in each case, be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances. This Section 11.6 shall not limit the provisions set forth in Section 7.07 of the Indenture.

Section 11.7 Notices . Unless otherwise provided herein or in the Indenture, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Indenture, as to any Pledgor, addressed to it at the address of the Company set forth in the Indenture and as to the Noteholder Collateral Agent, addressed to it at the address set forth in the Indenture, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.7 .

Section 11.8 Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial . (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE UCC PROVIDES THAT PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH CASE THE LAWS OF SUCH JURISDICTION SHALL GOVERN WITH RESPECT TO THE PERFECTION OF THE SECURITY INTEREST IN, OR THE REMEDIES WITH RESPECT TO, SUCH PARTICULAR COLLATERAL.

(b) EACH PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY NOTES DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RESULTING THEREFROM, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE LEGAL REQUIREMENTS. NOTHING IN THIS AGREEMENT OR ANY OTHER NOTES DOCUMENT OR OTHERWISE SHALL AFFECT ANY RIGHT THAT THE NOTEHOLDER COLLATERAL AGENT, ANY OTHER AGENT,

 

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OR ANY OTHER SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTES DOCUMENT AGAINST ANY PLEDGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) EACH PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER NOTES DOCUMENT IN ANY COURT REFERRED TO IN SECTION 11.8(b) . EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY NOTES DOCUMENT, IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN FACSIMILE TRANSMISSION OR ELECTRONIC MEANS) IN SECTION 11.7 . NOTHING IN THIS AGREEMENT OR ANY OTHER NOTES DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LEGAL REQUIREMENTS.

(e) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTES DOCUMENT, THE TRANSACTIONS OR THE OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.8 .

Section 11.9 Severability of Provisions . Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 11.10 Execution in Counterparts . This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered

 

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shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 11.11 Business Days . In the event any time period or any date provided in this Agreement ends or falls on a day other than a Business Day, then such time period shall be deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and performance herein may be made on such Business Day, with the same force and effect as if made on such other day.

Section 11.12 Waiver of Stay . Each Pledgor covenants that in the event that such Pledgor or any property or assets of such Pledgor shall hereafter become the subject of a voluntary or involuntary proceeding under the Bankruptcy Code or such Pledgor shall otherwise be a party to any federal or state bankruptcy, insolvency, moratorium or similar proceeding to which the provisions relating to the automatic stay under Section 362 of the Bankruptcy Code or any similar provision in any such Legal Requirement is applicable, then, in any such case, whether or not the Noteholder Collateral Agent has commenced foreclosure proceedings under this Agreement, such Pledgor shall not, and each Pledgor hereby expressly waives its right to (to the extent it may lawfully do so) at any time insist upon, plead or in any manner whatsoever, claim or take the benefit or advantage of any such automatic stay or such similar provision as it relates to the exercise of any of the rights and remedies (including any foreclosure proceedings) available to the Noteholder Collateral Agent as provided in this Agreement, in any other Security Document or any other document evidencing the Notes Obligations, provided however that, for the avoidance of doubt, any such rights and remedies shall remain subject to the terms of the Intercreditor Agreement. Each Pledgor further covenants that it will not hinder, delay or impede the execution of any power granted herein to the Noteholder Collateral Agent, but will suffer and permit the execution of every such power as though no law relating to any stay or similar provision had been enacted.

Section 11.13 No Credit for Payment of Taxes or Imposition . No Pledgor shall be entitled to any credit against the principal, premium, if any, or interest payable under the Indenture, and such Pledgor shall not be entitled to any credit against any other sums which may become payable under the terms thereof or hereof, by reason of the payment of any Charge on the Collateral or any part thereof.

Section 11.14 No Claims Against Noteholder Collateral Agent . Nothing contained in this Agreement shall constitute any consent or request by the Noteholder Collateral Agent, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Collateral or any part thereof, nor as giving any Pledgor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Noteholder Collateral Agent in respect thereof or any claim that any Lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.

 

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Section 11.15 No Release . Nothing set forth in this Agreement or any other Notes Document, nor the exercise by the Noteholder Collateral Agent of any of the rights or remedies hereunder, shall relieve any Pledgor from the performance of any term, covenant, condition or agreement on such Pledgor’s part to be performed or observed under or in respect of any of the Collateral or from any liability to any Person under or in respect of any of the Collateral or shall impose any obligation on the Noteholder Collateral Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Pledgor’s part to be so performed or observed or shall impose any liability on the Noteholder Collateral Agent or any other Secured Party for any act or omission on the part of such Pledgor relating thereto or for any breach of any representation or warranty on the part of such Pledgor referred to in this Agreement, the Indenture or the other Notes Documents, or under or in respect of the Collateral or made in connection herewith or therewith. The obligations of each Pledgor contained in this Section 11.15 shall survive the termination and release of the Liens hereunder and the discharge of such Pledgor’s other obligations under this Agreement, the Indenture and the other Notes Documents. Anything herein to the contrary notwithstanding, neither the Noteholder Collateral Agent nor any other Secured Party shall have any obligation or liability under any contracts, agreements and other documents included in the Collateral by reason of this Agreement, nor shall the Noteholder Collateral Agent or any other Secured Party be obligated to perform any of the obligations or duties of any Pledgor thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Collateral hereunder.

Section 11.16 Overdue Amounts . Until paid, all amounts due and payable under this Agreement shall constitute Notes Obligations and shall bear interest, whether before or after judgment, as set forth in Section 2.12 of the Indenture as if such amounts constituted overdue principal thereunder.

Section 11.17 Obligations Absolute . Subject to the terms of the Intercreditor Agreement, all obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of:

(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any other Pledgor;

(b) any lack of validity or enforceability of any Notes Document, or any other agreement or instrument relating thereto against any other Pledgor;

(c) any change in the time, manner or place of payment of, or in any other term of, all or any of the Notes Obligations, or any other amendment or waiver of or any consent to any departure from any Notes Document or any other agreement or instrument relating thereto;

(d) any pledge, exchange, release or non-perfection or loss of priority of any other collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Notes Obligations;

(e) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect hereof, or any Notes Document; or

(f) any other circumstances which might otherwise constitute a defense available to, or a discharge of, any Pledgor.

 

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IN WITNESS WHEREOF, the Pledgors and the Noteholder Collateral Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.

 

SAEXPLORATION HOLDINGS, INC., as a Pledgor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION SUB, INC., as a Pledgor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION, INC., as a Pledgor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
SAEXPLORATION SEISMIC SERVICES (US), LLC, as a Pledgor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary
NES, LLC, as a Pledgor
By:  

/s/ Brent Whiteley

  Name: Brent Whiteley
  Title: Chief Financial Officer, General Counsel and Secretary

[Signature Page to Security Agreement]


WILMINGTON SAVINGS FUND SOCIETY, FSB

as Noteholder Collateral Agent

By:  

/s/ Geoffrey Lewis

  Name:  Geoffrey Lewis
  Title:    Vice President

 

- 2 -


Schedule 3.8

Post-Closing Obligations

Issuer shall satisfy the requirements and/or provide to the Noteholder Collateral Agent each of the documents, instruments, agreements and information set forth on this Schedule 3.8, on or before the date specified for such requirement on this Schedule or such later date to be determined by the Noteholder Collateral Agent in its reasonable discretion, each of which shall be completed or provided in form and substance reasonably satisfactory to the Noteholder Collateral Agent:

1. Not later than August 15, 2016, Issuer shall cause to be delivered to the Noteholder Collateral Agent (i) certificates of insurance naming the Noteholder Collateral Agent as mortgagee, additional insured, or lender’s loss payee and (ii) lender’s loss payable endorsements, in each case as required by the terms of Section 4.12 of this Agreement.

2. As soon as reasonably practicable and in accordance with the Intercreditor Agreement, each of the Issuer and the Guarantors shall obtain Control Agreements from each bank maintaining a Deposit Account, including HSBC USA, N.A. and Wells Fargo Bank, N.A., for such Issuer and/or Guarantor as required by Section 3.7(b) of this Agreement.

3. As soon as reasonably practicable after the Issue Date, Issuer shall deliver to the Noteholder Collateral Agent (i) a signed preferred ship mortgage for any federally registered vessel in form and substance reasonably acceptable to the Noteholder Collateral Agent and shall cause each such preferred ship mortgage to be filed with the appropriate Governmental Authority, and (ii) an Opinion of Counsel from maritime counsel, in form and substance reasonably satisfactory to the Noteholder Collateral Agent, confirming the attachment and perfection of the Noteholder Collateral Agent’s security interest in such federally registered vessel under applicable Legal Requirements.

4. Within 10 Business Days of the Issue Date, Issuer shall deliver to the Noteholder Collateral Agent executed trademark and copyright security agreements in favor of the Noteholder Collateral Agent for the Trademarks and Copyrights identified on Schedules 14(b) and 14(c) to the Perfection Certificate, respectively, in proper form for filing with the United States Patent and Trademark Office and United States Copyright Office, as applicable.

5. Upon written request by the Noteholder Collateral Agent (at the written direction of the Holders of a majority of then-outstanding principal amount of Notes), the Noteholder Collateral Agent shall have received within 45 Business Days of such written request, in form, scope and substance reasonably satisfactory to the Noteholder Collateral Agent, a legal opinion of Alaskan counsel to the Noteholder Collateral Agent.


EXHIBIT 1

[FORM OF]

ISSUER’S ACKNOWLEDGMENT

The undersigned hereby (i) acknowledges receipt of a copy of that certain security agreement, dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), made by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and the subsidiaries of the Company from time to time party thereto (such parties, the “ Guarantors ”); (the Company, together with the Guarantors, as pledgors, assignors and debtors, and together with any successors, the “ Pledgors ,” and each, a “ Pledgor ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the “ Noteholder Collateral Agent ”), (ii) agrees promptly to note on its books the security interests granted to the Noteholder Collateral Agent under the Security Agreement, (iii) agrees that it will comply with all instructions of the Noteholder Collateral Agent or its nominee with respect to the applicable Securities Collateral without further consent by the applicable Pledgor, (iv) agrees not to take any action to have any of the applicable Securities Collateral issued by it treated as Securities under Article 8 of the UCC without the Noteholder Collateral Agent’s prior written consent (v) to the maximum extent permitted by law, agrees that the “issuer’s jurisdiction” (as defined in Section 8-110 of the UCC) is the State of New York, U.S.A., (vi) agrees promptly to notify the Noteholder Collateral Agent upon obtaining knowledge of any interest in favor of any Person in the applicable Securities Collateral that is adverse to the interest of the Noteholder Collateral Agent therein and (vii) waives any right or requirement at any time hereafter to receive a copy of the Security Agreement in connection with the registration of any Securities Collateral thereunder in the name of the Noteholder Collateral Agent or its nominee or, after the occurrence and during the continuation of an Event of Default, the exercise of voting rights by the Noteholder Collateral Agent or its nominee.

 

[                                         ]

By:

Name:

Title:

 

 

Issuer’s Acknowledgment


EXHIBIT 2

[FORM OF]

PLEDGE AMENDMENT

This Pledge Amendment, dated as of             ,         (the “ Pledge Amendment ”) is delivered pursuant to Section 5.1 of that certain Security Agreement, dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), made by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and the subsidiaries of the Company from time to time party thereto (such parties, the “ Guarantors ”), (the Company, together with the Guarantors, as pledgors, assignors and debtors and together with any successors, the “ Pledgors ,” and each, a “ Pledgor ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the “ Noteholder Collateral Agent ”). The undersigned hereby agrees that this Pledge Amendment may be attached to the Security Agreement and that the Pledged Securities and/or Intercompany Notes listed on this Pledge Amendment shall be deemed to be and shall become part of the Collateral and shall secure all Notes Obligations.

 

[                                         ]

By:

Name:

Title:

 

AGREED TO AND ACCEPTED:

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Noteholder Collateral Agent

By:

 

 

  Name:
  Title:

 

 

Pledge Amendment    Page 1 of 2   


PLEDGED SECURITIES

 

ISSUER

 

CLASS OF

STOCK OR
INTERESTS

 

PAR

VALUE

 

CERTIFICATE

NO(S).

 

NUMBER

OF

SHARES

OR

INTERESTS

 

PERCENTAGE OF

ALL ISSUED

CAPITAL OR

OTHER EQUITY
INTERESTS OF

ISSUER

         
         
         
         
         

INTERCOMPANY NOTES

 

ISSUER

 

PRINCIPAL

AMOUNT

 

DATE OF

ISSUANCE

 

INTEREST

RATE

 

MATURITY

DATE

       
       
       
       
       

 

Pledge Amendment    Page 2 of 2   


EXHIBIT 3

[FORM OF]

JOINDER AGREEMENT

[ Name of New Pledgor ]

[Address of New Pledgor ]

[ Date ]

Wilmington Savings Fund Society, FSB,

as Noteholder Collateral Agent

500 Delaware Avenue

Wilmington, Delaware 19801

Attention: Corporate Trust

Ladies and Gentlemen:

Reference is made to that certain Security Agreement, dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), made by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and the subsidiaries of the Company from time to time party thereto (such parties, together with the Company, the “ Guarantors ”) (the Company, together with the Guarantors, as pledgors, assignors and debtors, and together with any successors, the “ Pledgors ,” and each, a “ Pledgor ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the “ Noteholder Collateral Agent ”).

This Joinder Agreement supplements the Security Agreement and is delivered by the undersigned, [                ] (the “ New Pledgor ”), pursuant to Section 3.5 of the Security Agreement. The New Pledgor hereby agrees to be bound as a Guarantor and as a Pledgor by all of the terms, covenants and conditions set forth in the Security Agreement to the same extent that it would have been bound if it had been a signatory to the Security Agreement on the execution date of the Security Agreement. Without limiting the generality of the foregoing, the New Pledgor hereby grants and pledges to the Noteholder Collateral Agent, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Notes Obligations, a Lien on and security interest in, all of

 

Joinder Agreement    Page 1 of 3   


its right, title and interest in, to and under the Collateral and expressly assumes all obligations and liabilities of a Guarantor under the Indenture and a Pledgor under the Security Agreement, subject to the terms of the Intercreditor Agreement. The New Pledgor hereby makes each of the representations and warranties and agrees to each of the covenants applicable to (i) the Pledgors contained in the Security Agreement and the other Notes Documents and (ii) the Guarantors under the Indenture and the other Notes Documents.

Annexed hereto are (i) a supplement to the Perfection Certificate and (ii) supplements to each of the Schedules to the Security Agreement with respect to the New Pledgor. Such supplements shall be deemed to be part of the Security Agreement or the Indenture, as applicable.

This Joinder Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement.

THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CHOICE OF LAW THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION.

[ Signature Page Follows ]

 

Joinder Agreement    Page 2 of 3   


IN WITNESS WHEREOF, the New Pledgor has caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.

 

[NEW PLEDGOR]

    By:
    Name:
    Title:

 

AGREED TO AND ACCEPTED:

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Noteholder Collateral Agent

By:  

 

  Name:  

 

  Title:  

 

[ Schedules to be attached ]

 

Joinder Agreement    Page 3 of 3   


EXHIBIT 4

[FORM OF]

SECURITIES ACCOUNT CONTROL AGREEMENT

This SECURITIES ACCOUNT CONTROL AGREEMENT (this “ Control Agreement ”), dated as of [                ] by and among [            ] , a [            ] (the “ Pledgor ”), Wells Fargo Bank, National Association (the “ ABL Agent ”), Delaware Trust Company (the “ Term Agent ”), Wilmington Savings Fund Society, FSB, as noteholder collateral agent under the Indenture, dated as of July 2, 2014 (the “ Existing Noteholder Collateral Agent ”), Wilmington Savings Fund Society, FSB, as noteholder collateral agent under the Indenture, dated as of July 27, 2016 (the “ Additional Noteholder Collateral Agent ”; together with the ABL Agent, the Term Agent and the Existing Noteholder Collateral Agent, the “ Agents ” and each individually, an “ Agent ”), and [                ] in its capacity as a “securities intermediary” (as defined in Section 8-102 of the UCC) (the “ Financial Institution ”), is delivered pursuant to the Loan Documents, as defined in that certain Amended and Restated Intercreditor Agreement, dated as of June 29, 2016, by and among SAExploration, Inc., SAExploration Sub, Inc., SAExploration Seismic Services (US), LLC, NES, LLC, Wells Fargo Bank, National Association, as lender and collateral agent, Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as trustee and collateral agent for the Indenture Secured Parties (as defined therein), Delaware Trust Company, as administrative agent and collateral agent, and, upon its execution of the Additional Indebtedness Joinder and Designation, dated as of July 27, 2016, Wilmington Savings Fund Society, FSB, as trustee and collateral agent for the Additional Indenture Secured Parties (as defined therein), as the same may be amended, amended, supplemented or otherwise modified from time to time in accordance with the provisions thereof (the “ Intercreditor Agreement ”).

This Control Agreement is for the purpose of perfecting the security interests of the Secured Parties (as defined in the Intercreditor Agreement), in each case granted by the Pledgor in the Designated Accounts (as defined below). Pursuant to the Intercreditor Agreement, the Pledgor has granted (i) to the ABL Agent a first priority security interest in the Designated Accounts, (ii) to the Term Agent a second priority security interest in the Designated Accounts, (iii) to the Additional Noteholder Collateral Agent a third priority security interest in the Designated Accounts, and (iv) to the Existing Noteholder Collateral Agent a fourth priority security interest in the Designated Accounts. Pursuant to the Intercreditor Agreement the ABL Agent has agreed to act as gratuitous bailee for and representative (as defined in Section 1-201(35) of the UCC (as defined below)) of the Agents for purposes of perfecting the security interest of the Agents for the benefit of the Secured Parties.

 

Securities Account Control Agreement    Page 1   


As used in this Control Agreement, “Controlling Party” shall mean the applicable Senior Representative, as defined in the Intercreditor Agreement; provided that at such time as such Senior Representative has provided the Financial Institution with a written notice that such Senior Representative has ceased to be the “Controlling Party” hereunder (such notice being the “ Controlling Party Notice ”), which notice such Senior Representative shall provide to the Financial Institution as soon as practicable following the applicable “Senior Obligations Payment Date” as defined in the Intercreditor Agreement, “Controlling Party” shall mean the next applicable Senior Representative. The Financial Institution shall rely exclusively on a Controlling Party Notice as to the determination whether the ABL Agent, the Term Agent, the Additional Noteholder Collateral Agent or the Existing Noteholder Collateral Agent is the Controlling Party hereunder and shall be under no obligation to make any independent investigation thereof. In order to perfect the security interest of any Agent at any time that such Agent is not the Controlling Party, the parties hereto agree that the Financial Institution shall comply with instructions given by any Agent in accordance with this Control Agreement directing the disposition of checks from time to time in the Account or as to any other matters relating to each Designated Account without further consent by the Pledgor if and only if such written instructions are consented to in writing by the Controlling Party.

All references herein to the “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York. As used herein, “Event of Default” means the occurrence of an “Event of Default” under and as defined in the applicable Senior Documents, as defined in the Intercreditor Agreement.

1. Confirmation of Establishment and Maintenance of Designated Account . The Financial Institution hereby confirms that (i) the Financial Institution has established for the Pledgor and maintains the account(s) listed on Schedule 1 hereto (such account(s), together with each such other account maintained by the Pledgor with the Financial Institution collectively, the “ Designated Accounts ” and each a “ Designated Account ”), and (ii) each Designated Account is a “securities account” as such term is defined in Article 8 of the UCC.

2. Control . The Controlling Party shall at all times have “control” (as defined in Section 8-106 of the UCC) of any Designated Account; provided that unless and until delivery by the Controlling Party of Notice of Sole Control pursuant to Section 7(i) hereof to the Financial Institution, the Pledgor shall have the right from time to time to write checks against and make withdrawals from and transfers of amounts in the Designated Accounts. From and after delivery by the Controlling Party of Notice of Sole Control pursuant to Section 7(i) hereof to the Financial Institution until such time as the Controlling Party delivers written notice to the Financial Institution rescinding such Notice of Sole Control (such period, the “ Activation Period ”), the Financial Institution shall comply solely with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) and instructions originated by the

 

Securities Account Control Agreement    Page 2   


Controlling Party without further consent of the Pledgor or any person or entity acting or purporting to act for the Pledgor being required, including, without limitation, directing disposition of the financial assets in each Designated Account. Prior to and after the end of any Activation Period, the Financial Institution shall be entitled to honor the Pledgor’s instructions and directions with respect to any transfer or withdrawal of financial assets from the Designated Accounts.

3. Subordination of Lien; Waiver of Set-Off . In the event that the Financial Institution has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Designated Account, the Financial Institution hereby agrees that such security interest shall be subordinate to that of the Controlling Party. The financial assets credited to any Designated Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any person or entity other than the Secured Parties (except that the Financial Institution may set off (i) all amounts due to the Financial Institution in respect of its customary fees and expenses for the routine maintenance and operation of the Designated Accounts, including overdraft fees, and (ii) the face amount of any checks or other items which have been credited to any Designated Account but are subsequently returned unpaid because of uncollected or insufficient funds).

4. Choice of Law . Both this Control Agreement and the Designated Account(s) shall be governed by the law of the State of New York. Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “security intermediary’s jurisdiction” (within the meaning of Section 8-110 of the UCC) and the Designated Account(s) shall be governed by the law of the State of New York.

5. Conflict with Other Agreements; Amendments . As of the date hereof, there are no other agreements entered into between the Financial Institution and the Pledgor with respect to any Designated Account or any financial assets credited thereto (other than standard and customary documentation with respect to the establishment and maintenance of such Designated Accounts). The Financial Institution and the Pledgor will not enter into any other agreement with respect to any Designated Account unless the Controlling Party shall have received prior written notice thereof. The Financial Institution and the Pledgor will not enter into any other agreement with respect to “control” of the Designated Accounts without the prior written consent of the Agents, each acting in its sole discretion. In the event of any conflict with respect to “control” over any Designated Account between this Control Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Control Agreement shall prevail. No amendment or modification of this Control Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.

6. Notice of Adverse Claims . Except for the claims and interest of the Secured Parties and of the Pledgor in the Designated Account(s), the Financial Institution on the date hereof does not know of any claim to, or security interest in, any Designated Account or in any financial assets credited thereto and does not know of any claim that any person or entity other than the Controlling Party has been given “control” of any Designated Account or any such financial assets. If any person or entity

 

Securities Account Control Agreement    Page 3   


asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process and any claim of “control ) against any financial assets credited to any Designated Account, the Financial Institution will promptly notify the Controlling Party and the Pledgor thereof.

7. Maintenance of Designated Accounts . In addition to, and not in lieu of, the obligation of the Financial Institution agreed in Section 2 hereof, the Financial Institution agrees to maintain the Designated Accounts as follows:

(i) Notice of Sole Control . Upon the occurrence and during the continuation of an Event of Default, the Controlling Party may deliver to the Financial Institution a notice of sole control in substantially the form set forth in Exhibit A hereto (the “ Notice of Sole Control ) with respect to any Designated Account. If at any time the Controlling Party delivers a Notice of Sole Control to the Financial Institution, the Financial Institution agrees that, after receipt of such notice, it will take all entitlement orders and other instruction with respect to such Designated Account solely from the Controlling Party. Without limiting the generality of the first sentence of this paragraph, upon receipt of a Notice of Sole Control, the Financial Institution shall follow all instructions given by the Controlling Party, including, without limitation, instructions for distribution or transfer of any financial assets in any Designated Account to be made to the Controlling Party. No later than five Business Days after such Event of Default shall have ceased to exist in accordance with the terms of the applicable Loan Document, the Controlling Party shall deliver written notice to the Financial Institution rescinding any applicable Notice of Sole Control.

(ii) Statements and Confirmations . The Financial Institution will promptly send copies of all statements and other correspondence (excluding routine confirmations) concerning any Designated Account to the Pledgor and each of the Agents at the address set forth in Section 11 hereof. The Financial Institution will promptly provide to the Controlling Party and to the Pledgor, upon the Controlling Party’s request therefor from time to time and, in any event as of the last Business Day of each calendar month, a statement of the cash balance and financial assets in each Designated Account.

8. Representations, Warranties and Covenants of the Financial Institution . The Financial Institution hereby makes the following representations, warranties and covenants:

(i) The Designated Accounts have been established as set forth in Section 1 hereof and each Designated Account will be maintained in the manner set forth herein until termination of this Control Agreement. The Financial Institution shall not change the name or account number of any Designated Account without the prior written consent of the Agents.

 

Securities Account Control Agreement    Page 4   


(ii) The Financial Institution is a “securities intermediary,” as such term is defined in the UCC.

(iii) All property credited to any Designated Account will be treated as “financial assets,” as such term is defined in the UCC.

(iv) This Control Agreement is the valid and legally binding obligation of the Financial Institution, enforceable against the Financial Institution in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(v) The Financial Institution has not entered into any agreement with any person or entity pursuant to which it has agreed to comply with any entitlement orders or instructions with respect to any Designated Account other than the Controlling Party. Until the termination of this Control Agreement, the Financial Institution will not, without the written approval of the Controlling Party, enter into any agreement with any person or entity pursuant to which it agrees to comply with any orders or instructions of such Person with respect to any Designated Account.

(vi) The Financial Institution has not entered into any other agreement with the Pledgor or the Controlling Party purporting to limit or condition the obligation of the Financial Institution to comply with any orders or instructions with respect to any Designated Account as set forth in Section 2 hereof.

9. Indemnification of Financial Institution . The Pledgor and the Controlling Party hereby agree that (i) the Financial Institution is released from any and all liabilities to the Pledgor and the Controlling Party arising from the terms of this Control Agreement and the Financial Institution’s compliance with the terms of this Control Agreement, except to the extent that such liabilities arise from the Financial Institution’s gross negligence or willful misconduct, and (ii) the Pledgor, its successors and assigns shall at all times indemnify and save harmless the Financial Institution from and against any and all claims, actions and suits of others arising out of the terms of this Control Agreement or the compliance of the Financial Institution with the terms hereof, except to the extent that such arises from the Financial Institution’s gross negligence or willful misconduct, and from and against any and all liabilities, losses, damages, costs, claims, counsel fees and other expenses of every nature and character arising by reason of the same, until the termination of this Control Agreement.

 

Securities Account Control Agreement    Page 5   


10. Successors; Assignment . The terms of this Control Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assignees.

11. Notices . Any notice, request or other communication required or permitted to be given under this Control Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by facsimile transmission or other electronic means and electronic confirmation of error free receipt is received or two days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below.

(i)     if to the Pledgor, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(ii)     if to the Financial Institution, at:

Financial Institution:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(iii)     if to the ABL Agent, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

 

Securities Account Control Agreement    Page 6   


(iv)     if to the Term Agent, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(v)     if to the Existing Noteholder Collateral Agent or the Additional Noteholder Collateral Agent, at:

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attention: Corporate Trust

Reference: SAExploration Holdings, Inc.

Facsimile: 302-421-9137

Telephone: 302-573-3218

Any party may change its address for notices in the manner set forth above.

12. Termination . The rights and powers granted herein to the Controlling Party have been granted in order to perfect the security interests of the Secured Parties in the Designated Accounts and are powers coupled with an interest that will be affected neither by the bankruptcy of the Pledgor nor by the lapse of time. The obligations of the Financial Institution hereunder shall continue in effect until (a) the termination of the security interests of the Secured Parties with respect to the Designated Account(s) and all of the Agents have notified the Financial Institution of such termination in writing or (b) all of the Agents have notified the Financial Institution of a termination in writing.

13. Severability . If any term or provision set forth in this Control Agreement shall be invalid or unenforceable, the remainder of this Control Agreement, other than those provisions held invalid or unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted.

14. Counterparts . This Control Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Control Agreement by signing and delivering one or more counterparts. Delivery of an executed counterpart of this Control Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart of this Control Agreement.

[ Signature Page Follows ]

 

Securities Account Control Agreement    Page 7   


IN WITNESS WHEREOF, the parties hereto have caused this Control Agreement to be duly executed by their respective authorized signatories as of the day and year first above written.

 

[                                         ] 1

By:

 

 

Name:

 

Title:

 

[                                 ]

as ABL Agent

By:

 

 

Name:

 

Title:

 

[                                 ]

as Term Agent

By:

 

 

Name:

 

Title:

 

 

 

1.   Insert applicable Pledgor.

 

Securities Account Control Agreement    Page 8   


WILMINGTON SAVINGS FUND

SOCIETY, FSB,

as Existing Noteholder Collateral Agent

By:

 

 

Name:

  Geoffrey Lewis

Title:

  Vice President

WILMINGTON SAVINGS FUND

SOCIETY, FSB,

as Additional Noteholder Collateral Agent

By:

 

 

Name:

  Geoffrey Lewis

Title:

  Vice President
[                            ], as Securities Intermediary

By:

 

 

Name:

 

Title:

 

 

Securities Account Control Agreement    Page 9   


SCHEDULE 1

DESIGNATED ACCOUNT(S)

 

Securities Account Control Agreement    Page 10   


EXHIBIT A

[LETTERHEAD OF CONTROLLING PARTY]

[ Date ]

[ Financial Institution ]

[ Address ]

Attention:                     

RE: NOTICE OF SOLE CONTROL

Ladies and Gentlemen:

As referenced in Section 7(i) of the Securities Account Control Agreement dated as of [                    ] , among [ applicable Pledgor] 2 , us and you (the Control Agreement ”; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Control Agreement) (a copy of which is attached), we hereby give you notice of our sole control over the Designated Account(s), account number(s):             (the “ Specified Designated Accounts ”). You are hereby instructed not to accept any entitlement orders or any other order, direction or instructions with respect to the Specified Designated Accounts or any financial assets credited thereto from any person or entity other than the undersigned, unless otherwise ordered by a court of competent jurisdiction.

You are instructed to deliver a copy of this notice by facsimile transmission to [ applicable Pledgor ] .

 

Very truly yours,
[                ], as Controlling Party

By:

 

Name:

 

Title:

 

 

cc: [ applicable Pledgor ]

 

 

2 . Insert applicable Pledgor.

 

Exhibit A to Securities Account Control Agreement


EXHIBIT 5

[FORM OF]

DEPOSIT ACCOUNT CONTROL AGREEMENT

This DEPOSIT ACCOUNT CONTROL AGREEMENT (this “ Control Agreement ”), dated as of [                    ] by and among [                    ] , a [                    ] (the “ Pledgor ”), [                    ] (the “ ABL Agent ”), Wells Fargo Bank, National Association (the “ ABL Agent ”), Delaware Trust Company (the “ Term Agent ”), Wilmington Savings Fund Society, FSB, as noteholder collateral agent under the Indenture, dated as of July 2, 2014 (the “ Existing Noteholder Collateral Agent ”), Wilmington Savings Fund Society, FSB, as noteholder collateral agent under the Indenture, dated as of July 27, 2016 (the “ Additional Noteholder Collateral Agent ”; together with the ABL Agent, the Term Agent and the Existing Noteholder Collateral Agent, the “ Agents ” and each individually, an “ Agent ”), and [                    ] in its capacity as a “securities intermediary” (as defined in Section 8-102 of the UCC) (the “ Financial Institution ”), is delivered pursuant to the Loan Documents, as defined in that certain Amended and Restated Intercreditor Agreement, dated as of June 29, 2016, by and among SAExploration, Inc., SAExploration Sub, Inc., SAExploration Seismic Services (US), LLC, NES, LLC, Wells Fargo Bank, National Association, as lender and collateral agent, Wilmington Savings Fund Society, FSB (successor to U.S. Bank National Association), as trustee and collateral agent for the Indenture Secured Parties (as defined therein), Delaware Trust Company, as administrative agent and collateral agent, and, upon its execution of the Additional Indebtedness Joinder and Designation, dated as of July 27, 2016, Wilmington Savings Fund Society, FSB, as trustee and collateral agent for the Additional Indenture Secured Parties (as defined therein), amended, amended, supplemented or otherwise modified from time to time in accordance with the provisions thereof (the “ Intercreditor Agreement ”).

This Control Agreement is for the purpose of perfecting the security interests of the Secured Parties (as defined in the Intercreditor Agreement), in each case granted by the Pledgor in the Designated Accounts (as defined below). Pursuant to the Intercreditor Agreement Security Agreement, the Pledgor has granted to (i) the ABL Agent a first priority security interest in the Designated Accounts, (ii) to the Term Agent a second priority security interest in the Designated Accounts, (iii) to the Additional Noteholder Collateral Agent a third priority security interest in the Designated Accounts, and (iv) to the Existing Noteholder Collateral Agent a fourth priority security interest in the Designated Accounts. Pursuant to the Intercreditor Agreement, the ABL Agent has agreed to act as gratuitous bailee for and representative (as defined in Section 1-201(35) of the UCC (as defined below)) of the Agents for purposes of perfecting the security interest of the Agents for the benefit of the Secured Parties.

 

Deposit Account Control Agreement    Page 1   


As used in this Control Agreement, “Controlling Party” shall mean the applicable Senior Representative, as defined in the Intercreditor Agreement; provided that at such time as such Senior Representative has provided the Financial Institution with a written notice that such Senior Representative has ceased to be the “Controlling Party” hereunder (such notice being the “ Controlling Party Notice ”), which notice such Senior Representative shall provide to the Financial Institution as soon as practicable following the applicable “Senior Obligations Payment Date” as defined in the Intercreditor Agreement, “Controlling Party” shall mean the next applicable Senior Representative. The Financial Institution shall rely exclusively on a Controlling Party Notice as to the determination whether the ABL Agent, the Term Agent, the Additional Noteholder Collateral Agent or the Existing Noteholder Collateral Agent is the Controlling Party hereunder and shall be under no obligation to make any independent investigation thereof. In order to perfect the security interest of any Agent at any time that the such Agent is not the Controlling Party, the parties hereto agree that the Financial Institution shall comply with instructions given by any Agent in accordance with this Control Agreement directing the disposition of checks from time to time in the Account or as to any other matters relating to each Designated Account without further consent by the Pledgor if and only if such written instructions are consented to in writing by the Controlling Party.

All references herein to the “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York. As used herein, “Event of Default” means the occurrence of an “Event of Default” under and as defined in the applicable Senior Documents, as defined in the Intercreditor Agreement.

1. Confirmation of Establishment and Maintenance of Designated Account . The Financial Institution hereby confirms that (i) the Financial Institution has established for the Pledgor and maintains the deposit account(s) listed on Schedule 1 hereto (such deposit account(s), together with each such other deposit account maintained by the Pledgor with the Financial Institution collectively, the “ Designated Accounts ” and each a “ Designated Account ”), and (ii) each Designated Account is a “deposit account” as such term is defined in Article 9 of the UCC.

2. Control . The Controlling Party shall at all times have “control” (as defined in Section 9-104 of the UCC) of any Designated Account; provided that unless and until delivery by the Controlling Party of Notice of Sole Control pursuant to Section 7(i) hereof to the Financial Institution, the Pledgor shall have the right from time to time to write checks against and make withdrawals from and transfers of amounts in the Designated Accounts. From and after delivery by the Controlling Party of Notice of Sole Control pursuant to Section 7(i) hereof to the Financial Institution until such time as the Controlling Party delivers written notice to the Financial Institution rescinding such Notice of Sole Control (such period, the “ Activation Period ”), the Financial Institution shall comply solely with instructions originated by the Controlling Party without further consent of the Pledgor or any person or

 

Deposit Account Control Agreement    Page 2   


entity acting or purporting to act for the Pledgor being required, including without limitation, directing disposition of the funds in each Designated Account. Prior to and after the end of any Activation Period, the Financial Institution shall be entitled to honor the Pledgor’s instructions and directions with respect to any transfer or withdrawal of funds from the Designated Accounts.

3. Subordination of Lien; Waiver of Set-Off . In the event that the Financial Institution has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Designated Account, the Financial Institution hereby agrees that such security interest shall be subordinate to that of the Controlling Party. The funds deposited into any Designated Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any person or entity other than the Secured Parties (except that the Financial Institution may set off (i) all amounts due to the Financial Institution in respect of its customary fees and expenses for the routine maintenance and operation of the Designated Accounts, including overdraft fees, and (ii) the face amount of any checks or other items which have been credited to any Designated Account but are subsequently returned unpaid because of uncollected or insufficient funds).

4. Choice of Law . Both this Control Agreement and the Designated Account(s) shall be governed by the law of the State of New York. Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the “bank’s jurisdiction” (within the meaning of Section 9-304 of the UCC) and the Designated Account(s) shall be governed by the law of the State of New York.

5. Conflict with Other Agreements; Amendments . As of the date hereof, there are no other agreements entered into between the Financial Institution and the Pledgor with respect to any Designated Account or any funds credited thereto (other than standard and customary documentation with respect to the establishment and maintenance of such Designated Accounts). The Financial Institution and the Pledgor will not enter into any other agreement with respect to any Designated Account unless the Controlling Party shall have received prior written notice thereof. The Financial Institution and the Pledgor will not enter into any other agreement with respect to “control” of the Designated Accounts without the prior written consent of the Agents, each acting in its sole discretion. In the event of any conflict with respect to “control” over any Designated Account between this Control Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Control Agreement shall prevail. No amendment or modification of this Control Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all the parties hereto.

6. Notice of Adverse Claims . Except for the claims and interest of the Secured Parties and of the Pledgor in the Designated Account(s), the Financial Institution on the date hereof does not know of any claim to, or security interest in, any Designated Account or in any funds credited thereto and does not know of any claim that any person or entity other than the Controlling Party has been given “control” of any Designated Account or any such funds. If any person or entity asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process and any claim of “control ) against any funds in any Designated Account, the Financial Institution will promptly notify the Controlling Party and the Pledgor thereof.

 

Deposit Account Control Agreement    Page 3   


7. Maintenance of Designated Accounts . In addition to, and not in lieu of, the obligation of the Financial Institution agreed in Section 2 hereof, the Financial Institution agrees to maintain the Designated Accounts as follows:

(i) Notice of Sole Control . Upon the occurrence and during the continuation of an Event of Default, the Controlling Party may deliver to the Financial Institution a notice of sole control in substantially the form set forth in Exhibit A hereto (the “ Notice of Sole Control ) with respect to any Designated Account. If at any time the Controlling Party delivers a Notice of Sole Control to the Financial Institution, the Financial Institution agrees that, after receipt of such notice, it will take all instruction with respect to such Designated Account solely from the Controlling Party. Without limiting the generality of the first sentence of this paragraph, upon receipt of a Notice of Sole Control, the Financial Institution shall follow all instructions given by the Controlling Party, including, without limitation, instructions for distribution or transfer of any funds in any Designated Account to be made to the Controlling Party. No later than five Business Days after such Event of Default shall have ceased to exist in accordance with the terms of the applicable Loan Document, as the case may be, the Controlling Party shall deliver written notice to the Financial Institution rescinding the applicable Notice of Sole Control.

(ii) Statements and Confirmations . The Financial Institution will promptly send copies of all statements and other correspondence (excluding routine confirmations) concerning any Designated Account to the Pledgor and each of the Agents at the address set forth in Section 11 hereof. The Financial Institution will promptly provide to the Controlling Party and to the Pledgor, upon the Controlling Party’s request therefore from time to time and, in any event as of the last Business Day of each calendar month, a statement of the cash balance in each Designated Account.

8. Representations, Warranties and Covenants of the Financial Institution . The Financial Institution hereby makes the following representations, warranties and covenants:

(i) The Designated Accounts have been established as set forth in Section 1 hereof and each Designated Account will be maintained in the manner set forth herein until termination of this Control Agreement. The Financial Institution shall not change the name or account number of any Designated Account without the prior written consent of the Agents.

 

Deposit Account Control Agreement    Page 4   


(ii) The Financial Institution is a “bank,” as such term is defined in the UCC.

(iii) This Control Agreement is the valid and legally binding obligation of the Financial Institution, enforceable against the Financial Institution in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(iv) The Financial Institution has not entered into any agreement with any person or entity pursuant to which it has agreed to comply with any orders or instructions with respect to any Designated Account other than the Controlling Party. Until the termination of this Control Agreement, the Financial Institution will not, without the written approval of the Controlling Party, enter into any agreement with any person or entity pursuant to which it agrees to comply with any orders or instructions of such person or entity with respect to any Designated Account.

(v) The Financial Institution has not entered into any other agreement with the Pledgor or the Controlling Party purporting to limit or condition the obligation of the Financial Institution to comply with any orders or instructions with respect to any Designated Account as set forth in Section 2 hereof.

9. Indemnification of Financial Institution . The Pledgor and the Controlling Party hereby agree that (a) the Financial Institution is released from any and all liabilities to the Pledgor and the Controlling Party arising from the terms of this Control Agreement and the Financial Institution’s compliance with the terms of this Control Agreement, except to the extent that such liabilities arise from the Financial Institution’s gross negligence or willful misconduct, and (b) the Pledgor, its successors and assigns shall at all times indemnify and save harmless the Financial Institution from and against any and all claims, actions and suits of others arising out of the terms of this Control Agreement or the compliance of the Financial Institution with the terms hereof, except to the extent that such arises from the Financial Institution’s gross negligence or willful misconduct, and from and against any and all liabilities, losses, damages, costs, claims, counsel fees and other expenses of every nature and character arising by reason of the same, until the termination of this Control Agreement.

10. Successors; Assignment . The terms of this Control Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assignees.

11. Notices . Any notice, request or other communication required or permitted to be given under this Control Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by facsimile transmission or other electronic means and electronic confirmation of error free receipt is received or two days after being sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to the party at the address set forth below.

 

Deposit Account Control Agreement    Page 5   


(i)     if to the Pledgor, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(ii)     if to the Financial Institution, at:

Financial Institution:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(iii)     if to the ABL Agent, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

(iv)     if to the Term Agent, at:

[                                         ]

[                                         ]

[                                         ]

Attention:

Facsimile:

Telephone:

 

Deposit Account Control Agreement    Page 6   


(v)     if to the Existing Noteholder Collateral Agent or the Additional Noteholder Collateral Agent, at:

Wilmington Savings Fund Society, FSB

500 Delaware Avenue

Wilmington, Delaware 19801

Attention: Corporate Trust

Reference: SAExploration Holdings, Inc.

Facsimile: 302-421-9137

Telephone: 302-573-3218

Any party may change its address for notices in the manner set forth above.

12. Termination . The rights and powers granted herein to the Controlling Party have been granted in order to perfect the security interests of the Secured Parties in the Designated Accounts and are powers coupled with an interest that will be affected neither by the bankruptcy of the Pledgor nor by the lapse of time. The obligations of the Financial Institution hereunder shall continue in effect until (a) the termination of the security interests of the Secured Parties with respect to the Designated Account(s) and all of the Agents have notified the Financial Institution of such termination in writing or (b) all of the Agents have notified the Financial Institution of a termination in writing.

13. Severability . If any term or provision set forth in this Control Agreement shall be invalid or unenforceable, the remainder of this Control Agreement, other than those provisions held invalid or unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted.

14. Counterparts . This Control Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Control Agreement by signing and delivering one or more counterparts. Delivery of an executed counterpart of this Control Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart of this Control Agreement.

[ Signature Page Follows ]

 

Deposit Account Control Agreement    Page 7   


IN WITNESS WHEREOF, the parties hereto have caused this Control Agreement to be duly executed by their respective authorized signatories as of the day and year first above written.

 

[                                         ]

By:

 

 

Name:

 

Title:

 

[                                 ]

as ABL Agent

By:

 

 

Name:

 

Title:

 

[                                 ]

as Term Agent

By:

 

 

Name:

 

Title:

 

 

Deposit Account Control Agreement    Page 8   


WILMINGTON SAVINGS FUND

SOCIETY, FSB,

as Additional Noteholder Collateral Agent

By:

 

 

Name:

 

Title:

 

WILMINGTON SAVINGS FUND

SOCIETY, FSB,

as Existing Noteholder Collateral Agent

By:

 

 

Name:

 

Title:

 

[                                 ], as Financial

Institution

By:

 

 

Name:

 

Title:

 

 

Deposit Account Control Agreement    Page 9   


SCHEDULE 1

DESIGNATED ACCOUNT(S)

 

Schedule 1 to Deposit Account Control Agreement


EXHIBIT A

[LETTERHEAD OF CONTROLLING PARTY]

[ Date ]

[ Financial Institution ]

[ Address ]

Attention:                                 

RE: NOTICE OF SOLE CONTROL

Ladies and Gentlemen:

As referenced in Section 7(i) of the Deposit Account Control Agreement dated as of [            ] , among [ applicable Pledgor] 3 , us and you (the Control Agreement ”; capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Control Agreement) (a copy of which is attached), we hereby give you notice of our sole control over the Designated Account(s), account number(s):                                 (the “ Specified Designated Accounts ”). You are hereby instructed not to accept any direction or instructions with respect to the Specified Designated Accounts or any funds credited thereto from any person or entity other than the undersigned, unless otherwise ordered by a court of competent jurisdiction.

You are instructed to deliver a copy of this notice by facsimile transmission to [ applicable Pledgor ] .

 

Very truly yours,
[                    ], as Controlling Party

By:

 

 

Name:

 

Title:

 

 

cc: [ applicable Pledgor ]

 

 

3 . Insert applicable Pledgor.

 

Exhibit A to Deposit Account Control Agreement


EXHIBIT 6

[FORM OF]

COPYRIGHT SECURITY AGREEMENT

This Copyright Security Agreement (this “ Copyright Security Agreement ”), dated as of [                    ] , by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and each Guarantor listed on Schedule 1 hereto (collectively with the Company, the “ Pledgors ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, dated as of the date hereof (in such capacity, the “ Noteholder Collateral Agent ”).

W I T N E S S E T H :

WHEREAS, the Pledgors are party to a Security Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”) in favor of the Noteholder Collateral Agent pursuant to which the Pledgors are required to execute and deliver this Copyright Security Agreement;

NOW, THEREFORE, in consideration of the premises and to induce the Noteholder Collateral Agent, for the benefit of the Secured Parties, to enter into the Indenture, the Pledgors hereby agree with the Noteholder Collateral Agent as follows:

SECTION 1. Defined Terms . Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

SECTION 2. Grant of Security Interest in Copyright Collateral . Each Pledgor hereby pledges and grants to the Noteholder Collateral Agent, for the benefit of the Secured Parties, a lien on and security interest in and to all of the right, title and interest of such Pledgor in, to and under the following Collateral of such Pledgor (collectively, the “ Copyright Collateral ”):

(a) the Copyrights of such Pledgor listed on Schedule 2 1 hereto;

(b) all Proceeds of any and all of the foregoing; and

(c) all causes of action arising prior to or after the date hereof for infringement of any of the Copyrights.

 

 

1.   List the Copyrights that are Registered as identified in the Perfection Certificate related to the Pledgors.

 

Copyright Security Agreement    Page 1 of 3   


SECTION 3. Security Agreement . The lien and security interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interest granted to the Noteholder Collateral Agent pursuant to the Security Agreement, and Pledgors hereby acknowledge and affirm that the rights and remedies of the Noteholder Collateral Agent with respect to the lien on and security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Copyright Security Agreement is deemed to be inconsistent with or in conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Noteholder Collateral Agent shall otherwise determine.

SECTION 4. Termination . Upon the release of the security interests granted to the Noteholder Collateral Agent pursuant to Section 11.4 of the Security Agreement, upon written request of the Company, the Noteholder Collateral Agent shall, at the sole cost and expense of the Company, execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Copyrights under this Copyright Security Agreement.

SECTION 5. Recordation . Each Pledgor authorizes and requests that the Register of Copyrights and any other applicable government officer record this Copyright Security Agreement.

SECTION 6. Execution in Counterparts . This Copyright Security Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

SECTION 7. Governing Law . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, EXCEPT TO THE EXTENT THAT THE UCC PROVIDES THAT PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH CASE THE LAWS OF SUCH JURISDICTION SHALL GOVERN WITH RESPECT TO THE PERFECTION OF THE SECURITY INTEREST IN, OR THE REMEDIES WITH RESPECT TO, SUCH PARTICULAR COLLATERAL.

 

Copyright Security Agreement    Page 2 of 3   


SECTION 8. Intercreditor Agreement . NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AT ANY TIME THAT THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE SECURITY AGREEMENT) SHALL BE IN FULL FORCE AND EFFECT, THE LIEN AND SECURITY INTEREST GRANTED TO THE NOTEHOLDER COLLATERAL AGENT PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE NOTEHOLDER COLLATERAL AGENT HEREUNDER SHALL BE SUBJECT TO THE TERMS OF THE INTERCREDITOR AGREEMENT, AND IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.

[ SIGNATURE PAGE FOLLOWS ]

 

Copyright Security Agreement    Page 3 of 3   


IN WITNESS WHEREOF, each Pledgor has caused this Copyright Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

SAEXPLORATION HOLDINGS, INC.

By:

 

Name:

 

Title:

 
[                                  ] 2

By:

 

Name:

 

Title:

 

 

Accepted and Agreed:

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Noteholder Collateral Agent

By:  

 

  Name:  Geoffrey Lewis
  Title:    Vice President

 

 

2.   Insert applicable Pledgor.

 

Copyright Security Agreement    Page 4 of 3   


SCHEDULE 1

TO

COPYRIGHT SECURITY AGREEMENT

PLEDGORS

 

NAME

 

ADDRESS

 
 
 
 
 
 
 
 

 

Schedule 1 to Copyright Security Agreement


SCHEDULE 2

TO

COPYRIGHT SECURITY AGREEMENT

COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS

Copyright Registrations:

 

PLEDGOR
OWNER

 

TITLE

OF

WORK

 

COUNTRY

 

TITLE

 

REG.

NO.

 

APPLICATION
NO.

 

FILING

DATE

 

ISSUE

DATE

             

Copyright Applications:

 

PLEDGOR

OWNER

 

TITLE OF

WORK

 

COUNTRY

 

TITLE

 

APPLICATION NO.

 

FILING

DATE

         

 

Schedule 2 to Copyright Security Agreement


EXHIBIT 7

[FORM OF]

PATENT SECURITY AGREEMENT

This Patent Security Agreement (this “ Patent Security Agreement ”), dated as of [                    ] ,by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and each Guarantor listed on Schedule 1 hereto (collectively, the “ Pledgors ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, dated as of the date hereof (in such capacity, the “ Noteholder Collateral Agent ”).

W I T N E S S E T H :

WHEREAS, the Pledgors are party to a Security Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”) in favor of the Noteholder Collateral Agent pursuant to which the Pledgors are required to execute and deliver this Patent Security Agreement;

NOW, THEREFORE, in consideration of the premises and to induce the Noteholder Collateral Agent, for the benefit of the Secured Parties, to enter into the Indenture, the Pledgors hereby agree with the Noteholder Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

SECTION 2. Grant of Security Interest in Patent Collateral. Each Pledgor hereby pledges and grants to the Noteholder Collateral Agent, for the benefit of the Secured Parties, a lien on and security interest in and to all of the right, title and interest of such Pledgor in, to and under the following Collateral of such Pledgor (collectively, the “ Patent Collateral ”):

(a) the Patents of such Pledgor listed on Schedule 2 1 hereto;

(b) all Proceeds of any and all of the foregoing; and

(c) all causes of action arising prior to or after the date hereof for infringement of any of the Patents.

 

 

1   List the Patents identified in the Perfection Certificate related to the Pledgors.

 

Patent Security Agreement    Page 1 of 3   


SECTION 3. Security Agreement. The lien and security interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interest granted to the Noteholder Collateral Agent pursuant to the Security Agreement, and Pledgors hereby acknowledge and affirm that the rights and remedies of the Noteholder Collateral Agent with respect to the lien on and security interest in the Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Patent Security Agreement is deemed to be inconsistent with or in conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Noteholder Collateral Agent shall otherwise determine.

SECTION 4. Termination. Upon the release of the security interests granted to the Noteholder Collateral Agent pursuant to Section 11.4 of the Security Agreement, upon written request of the Company, the Noteholder Collateral Agent shall, at the sole cost and expense of the Company, execute, acknowledge, and deliver to the Pledgor an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Patents under this Patent Security Agreement.

SECTION 5. Recordation . Each Pledgor authorizes and requests that the Commissioner of Patents and any other applicable government officer record this Patent Security Agreement.

SECTION 6. Execution in Counterparts . This Patent Security Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

SECTION 7. Governing Law . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, EXCEPT TO THE EXTENT THAT THE UCC PROVIDES THAT PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH CASE THE LAWS OF SUCH JURISDICTION SHALL GOVERN WITH RESPECT TO THE PERFECTION OF THE SECURITY INTEREST IN, OR THE REMEDIES WITH RESPECT TO, SUCH PARTICULAR COLLATERAL.

SECTION 8. Intercreditor Agreement . NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AT ANY TIME THAT THE INTERCREDITOR AGREEMENT (AS

 

Patent Security Agreement    Page 2 of 3   


DEFINED IN THE SECURITY AGREEMENT) SHALL BE IN FULL FORCE AND EFFECT, THE LIEN AND SECURITY INTEREST GRANTED TO THE NOTEHOLDER COLLATERAL AGENT PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE NOTEHOLDER COLLATERAL AGENT HEREUNDER SHALL BE SUBJECT TO THE TERMS OF THE INTERCREDITOR AGREEMENT AND IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.

[ SIGNATURE PAGE FOLLOWS ]

 

Patent Security Agreement    Page 3 of 3   


IN WITNESS WHEREOF, each Pledgor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

SAEXPLORATION HOLDINGS, INC.

By:

 

Name:

 

Title:

 

[                                   ] 2

By:

 

Name:

 

Title:

 

 

Accepted and Agreed:

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Noteholder Collateral Agent

By:  

 

  Name:
  Title:

 

 

2.   Insert applicable Pledgors.

 

Patent Security Agreement    Page 4 of 3   


SCHEDULE 1

TO

PATENT SECURITY AGREEMENT

PLEDGORS

 

NAME

 

ADDRESS

 
 
 
 
 
 
 
 

 

Schedule 1 to Patent Security Agreement


SCHEDULE 2

TO

PATENT SECURITY AGREEMENT

PATENTS AND PATENT APPLICATIONS

Patents:

 

PLEDGOR
OWNER

 

TITLE

 

COUNTRY

 

PATENT

NO.

 

APPLICATION

NO.

 

FILING

DATE

 

ISSUE

DATE

           

Patent Applications:

 

PLEDGOR

OWNER

 

TITLE

 

COUNTRY

 

APPLICATION NO.

 

FILING

DATE

       

 

Schedule 2 to Patent Security Agreement


EXHIBIT 8

[FORM OF]

TRADEMARK SECURITY AGREEMENT

This Trademark Security Agreement (this “ Trademark Security Agreement ”), dated as of [                    ], 2016 ,by SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and each Guarantor listed on Schedule 1 hereto (collectively, the “ Pledgors ”), in favor of Wilmington Savings Fund Society, FSB, in its capacity as noteholder collateral agent pursuant to the Indenture, dated as of the date hereof (in such capacity, the “ Noteholder Collateral Agent ”).

W I T N E S S E T H :

WHEREAS, the Pledgors are party to a Security Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”) in favor of the Noteholder Collateral Agent pursuant to which the Pledgors are required to execute and deliver this Trademark Security Agreement;

NOW, THEREFORE, in consideration of the premises and to induce the Noteholder Collateral Agent, for the benefit of the Secured Parties, to enter into the Indenture, the Pledgors hereby agree with the Noteholder Collateral Agent as follows:

SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement.

SECTION 2. Grant of Security Interest in Trademark Collateral. Each Pledgor hereby pledges and grants to the Noteholder Collateral Agent, for the benefit of the Secured Parties, a lien on and security interest in and to all of the right, title and interest of such Pledgor in, to and under the following Collateral of such Pledgor (collectively, the “ Trademark Collateral ”):

(a) the Trademarks of such Pledgor listed on Schedule 2 1 hereto (provided that no security interest shall be granted in United States intent-to-use trademark or service mark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service mark applications under applicable federal law);

(b) all Goodwill associated with such Trademarks;

 

 

1   List the Trademarks that are Registered as identified in the Perfection Certificate related to the Pledgors.

 

Trademark Security Agreement    Page 1 of 4   


(c) all Proceeds of any and all of the foregoing; and

(d) all causes of action arising prior to or after the date hereof for infringement of any of the Trademarks.

SECTION 3. Security Agreement. The lien and security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interest granted to the Noteholder Collateral Agent pursuant to the Security Agreement, and the Pledgors hereby acknowledge and affirm that the rights and remedies of the Noteholder Collateral Agent with respect to the lien on and security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement is deemed to be inconsistent with or in conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Noteholder Collateral Agent shall otherwise determine.

SECTION 4. Termination. Upon the release of the security interests granted to the Noteholder Collateral Agent pursuant to Section 11.4 of the Security Agreement, upon written request of the Company, the Noteholder Collateral Agent shall, at the sole cost and expense of the Company, execute, acknowledge, and deliver to the Pledgor an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Trademarks under this Trademark Security Agreement.

SECTION 5. Recordation . Each Pledgor authorizes and requests that the Commissioner of Trademarks and any other applicable government officer record this Trademark Security Agreement.

SECTION 6. Execution in Counterparts . This Trademark Security Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

SECTION 7. Governing Law . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION, EXCEPT TO THE EXTENT THAT THE UCC PROVIDES THAT PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH CASE THE LAWS OF SUCH

 

Trademark Security Agreement    Page 2 of 4   


JURISDICTION SHALL GOVERN WITH RESPECT TO THE PERFECTION OF THE SECURITY INTEREST IN, OR THE REMEDIES WITH RESPECT TO, SUCH PARTICULAR COLLATERAL.

SECTION 8. Intercreditor Agreement . NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, , AT ANY TIME THAT THE INTERCREDITOR AGREEMENT (AS DEFINED IN THE SECURITY AGREEMENT) SHALL BE IN FULL FORCE AND EFFECT, THE LIEN AND SECURITY INTEREST GRANTED TO THE NOTEHOLDER COLLATERAL AGENT PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE NOTEHOLDER COLLATERAL AGENT HEREUNDER SHALL BE SUBJECT TO THE TERMS OF THE INTERCREDITOR AGREEMENT AND IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.

[ SIGNATURE PAGE FOLLOWS ]

 

Trademark Security Agreement    Page 3 of 4   


IN WITNESS WHEREOF, each Pledgor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

SAEXPLORATION HOLDINGS, INC.

By:

 

Name:

 

Title:

 
[                                  ] 2

By:

 

Name:

 

Title:

 

 

Accepted and Agreed:

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Noteholder Collateral Agent

By:  

 

  Name:
  Title:

 

 

2.   Insert applicable Pledgors.

 

Trademark Security Agreement    Page 4 of 4   


SCHEDULE 1

TO

TRADEMARK SECURITY AGREEMENT

PLEDGORS

 

NAME

 

ADDRESS

 
 
 
 
 
 
 
 

 

Schedule 1 to Trademark Security Agreement


SCHEDULE 2

TO

TRADEMARK SECURITY AGREEMENT

TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS

Trademark Registrations:

 

PLEDGOR

OWNER

 

MARK

 

COUNTRY

 

REG.

NO.

 

APPLICATION

NO.

 

FILING

DATE

 

ISSUE

DATE

           

Trademark Applications:

 

PLEDGOR

OWNER

 

MARK

 

COUNTRY

 

APPLICATION NO.

 

FILING

DATE

       

 

Schedule 2 to Trademark Security Agreement


EXHIBIT 9

[FORM OF]

PERFECTION CERTIFICATE

[SEE ATTACHED.]


PERFECTION CERTIFICATE

JULY 27, 2016

Reference is hereby made to (i) that certain Security Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), among SAExploration Holdings, Inc., a Delaware corporation (the “ Issuer ”), the Guarantors (as defined in the Indenture (as hereinafter defined)) from time to time party thereto, as pledgors, assignors and debtors, in favor of the Noteholder Collateral Agent (as hereinafter defined) and (ii) that certain Indenture, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Indenture ”), among the Issuer, the Guarantors party thereto, Wilmington Savings Fund Society, FSB, as trustee (in such capacity, the “ Trustee ”) and as noteholder collateral agent (in such capacity, the “ Noteholder Collateral Agent ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture, and if not so defined in the Indenture, then such terms shall have the meanings given to them in the Security Agreement.

As used herein, the term “ Company ” means a “Pledgor,” as defined in the Security Agreement, and the term “ Companies ” means “Pledgors,” as defined in the Security Agreement.

The undersigned hereby certify to the Noteholder Collateral Agent and each of the Secured Parties as follows:

1. Names .

(a) The exact legal name of each Company, each direct Subsidiary of any thereof organized under the laws of a jurisdiction outside of the United States of America (a “ First-Tier Foreign Subsidiary ”), as such name appears in its respective certificate or deed of incorporation, certificate or articles of formation or any other Organizational Document, and the name of each branch of each Company located outside of the United States of America (a “ Foreign Branch ”), are set forth in Schedule 1(a) hereto. Each Company and First-Tier Foreign Subsidiary is (i) the type of entity disclosed next to its name in Schedule 1(a) hereto and (ii) a registered organization except to the extent disclosed in Schedule 1(a) hereto. Also set forth in Schedule 1(a) hereto is the organizational identification number, if any, of each Company, the Federal Taxpayer Identification Number of each Company and the jurisdiction of organization of each Company.

(b) Schedule 1(b) hereto sets forth any other corporate or organizational names each Company and First-Tier Foreign Subsidiary has had in the past five years, together with the date of any relevant change.

(c) Schedule 1(c) hereto sets forth a list of all other names (including trade names or similar appellations) used by each Company or First-Tier Foreign Subsidiary, or any other business or organization to which any Company or First-Tier Foreign Subsidiary became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time during the past five years and on the date hereof. Schedule 1(c) hereto also sets forth the information required by Section 1 hereto for any other business or organization to which each Company or First-Tier


Foreign Subsidiary became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time during the past five years and the date hereof. Except as set forth in Schedule 1(c) hereto, no Company or First-Tier Foreign Subsidiary has changed its jurisdiction of organization at any time during the past four months.

2. Current Locations .

(a) The chief executive office of each Company or Foreign Branch is located at the address set forth in Schedule 2(a) hereto.

(b) Schedule 2(b) hereto sets forth all locations where each Company maintains any books or records relating to any Collateral.

(c) Schedule 2(c) hereto sets forth all the other places of business of each Company or Foreign Branch (other than those listed in Schedule 2(d) ).

(d) Schedule 2(d) hereto sets forth all locations where each Company or Foreign Branch maintains any inventory or equipment (whether or not in the possession of any Company or Foreign Branch), except for job sites where such Equipment may be used from time to time in the ordinary course of business.

(e) Schedule 2(e) hereto sets forth the locations of all persons or entities other than each Company or the Noteholder Collateral Agent which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment.

3. Litigation . Except as otherwise disclosed on Schedule 3 hereto, there are no pending actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes that would have a material adverse effect on the Collateral taken as a whole or the enforceability of any of the Security Documents or the attachment, perfection or priority of any of the Liens intended to be created thereby.

4. Extraordinary Transactions . Except for those purchases, acquisitions and other transactions described on Schedule 4 hereto, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.

5. File Search Reports . Attached as Schedule 5 is a list of searches from (i) the Uniform Commercial Code filing offices (x) in each U.S. jurisdiction identified on Schedule 1(a) (State) or Schedule 2(a) (County) with respect to each current legal name set forth on Schedule 1(a) and Schedule 1(b) , and (y) in each jurisdiction described in Schedule 1(c) hereto or Schedule 4 hereto relating to any of the transactions described in Schedule 1(c) hereto or Schedule 4 hereto with respect to each legal name of the person or entity from which each Company purchased or otherwise acquired any of the Collateral and (ii) each filing officer in each real estate recording office identified on Schedule 8 hereto with respect to real estate on which Collateral consisting of fixtures is or is to be located.


6. UCC Filings . The financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral, attached as Schedule 6 hereto relating to the Security Agreement, are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 7 hereto.

7. Schedule of Filings . Schedule 7 hereto sets forth (i) the appropriate filing offices for the financing statements attached hereto as Schedule 6 and (ii) the appropriate filing offices for the filings described in Schedule 14 hereto.

8. Real Property . Schedule 8 hereto sets forth all real property owned, leased or licensed by each Company or Foreign Branch.

9. Termination Statements . Attached hereto as Schedule 9(a) are the duly authorized termination statements in the appropriate form for filing in each applicable filing office with respect to each Lien described in Schedule 9(b) .

10. No Change . The undersigned knows of no anticipated change in any of the circumstances or with respect to any of the matters contemplated in Sections 1 through 9 and Sections 11 through 17 of this Perfection Certificate except as set forth on Schedule 10 hereto.

11. Stock Ownership and Other Equity Interests . Schedule 11 hereto sets forth (i) all the issued and outstanding stock, partnership interests, limited liability company membership interests or other Equity Interests of each Company and, as to the Guarantors, the record and beneficial owners of such stock, partnership interests, membership interests or other Equity Interests, and (ii) each equity investment of each Company (including each equity investment that represents less than 50% of the equity of the entity in which such investment was made) except to the extent such equity investment is held in a Securities Account set forth on Schedule 16 hereto.

12. Instruments and Tangible Chattel Paper . Schedule 12 hereto sets forth (i) all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of the date hereof, including all intercompany notes between or among any two or more Companies, and (ii) in each case, the outstanding principal amount thereof.

13. Advances . Schedule 13 hereto sets forth (i) all advances made by any Company to any other Company as of the date hereof (other than those identified on Schedule 12 ), which advances on and after the date hereof are not evidenced by the Intercompany Subordinated Note pledged to the Noteholder Collateral Agent under the Security Agreement, and (ii) all unpaid intercompany transfers of goods sold and delivered by or to any Company as of the date hereof.

14. Intellectual Property.

(a) Patents . Schedule 14(a) hereto sets forth all of each Company’s Patents issued from, and patent applications pending in, the United States Patent and Trademark Office (“ USPTO ”); patent licenses recorded in the USPTO; all other Patents issued from, or patent applications pending in, all patent-granting authorities; all other patent licenses, recorded or unrecorded; and including, with respect to each of the foregoing Patents and


patent applications, the name of the owner and the number of each such Patent or patent application. For purposes of this Section 14 , the term “Patent” shall have the meaning ascribed thereto in the Security Agreement.

(b) Trademarks . Schedule 14(b) hereto sets forth all of each Company’s Trademarks registered with, and trademark applications pending in, the USPTO; trademark licenses recorded in the USPTO; all other Trademarks registered with, or trademark applications pending in, an authority other than the USPTO; all unregistered Trademarks; all other trademark licenses, recorded or unrecorded; and including, with respect to each of the foregoing registered Trademarks and trademark applications, the name of the owner and the number of each such registered Trademark or trademark application. For purposes of this Section 14(a) , the term “Trademark” shall have the meaning ascribed thereto in the Security Agreement.

(c) Copyrights . Schedule 14(c) hereto sets forth all of each Company’s Copyrights registered with, and copyright applications pending in, the United States Copyright Office (“ USCO ”); copyright licenses recorded in the USCO; and all other registered Copyrights, pending copyright applications, and recorded or unrecorded copyright licenses, including, with respect to each registered Copyright and copyright application, the name of the owner and the number of each such registered Copyright or copyright application. For purposes of this Section 14(c) , the term “Copyright” shall have the meaning ascribed thereto in the Security Agreement.

(d) Attached hereto as Schedule 14(d) hereto in proper form for filing with the United States Patent and Trademark Office and the United States Copyright Office are (together with the financing statements attached as Schedule 6 hereto) the filings necessary to preserve, protect and perfect the security interests in the Trademarks, trademark licenses, Patents, patent licenses, Copyrights and copyright licenses set forth on Schedules 14(a) , (b)   and (c)   hereto, including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and Copyright Security Agreement, as applicable. For purposes of this Section 14(c) , the terms “Patent Security Agreement,” “Trademark Security Agreement” and “Copyright Security Agreement” shall have the meanings ascribed thereto in the Security Agreement.

15. Commercial Tort Claims . Schedule 15 hereto sets forth all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, including a description thereof.

16. Deposit Accounts, Securities Accounts and Commodity Accounts.

(a) Schedule 16(a) hereto sets forth all Deposit Accounts (as defined in the Security Agreement) maintained by each Company (including by each Foreign Branch thereof), including the name of each institution where each such account is held, the name of each such account, the name of each entity that holds each account, the current balance thereof and whether such account is an Excluded Account (as defined in the Security Agreement).


(b) Schedule 16(b) hereto sets forth all Securities Accounts and Commodity Accounts (each as defined in Article 9 of the UCC) maintained by each Company, including the name of each institution where each such account is held, the name of each such account, the name of each entity that holds each account and the current balance thereof.

17. Letter-of-Credit Rights . Schedule 17 hereto sets forth all letters of credit issued in favor of each Company, as beneficiary thereunder.

18. Government Regulation . Please disclose any federal, state, or local government entity or any department, agency or instrumentality thereof that regulates the Company or any of the subsidiaries/branches disclosed in Schedule 1(a) .

(Remainder of Page Intentionally Left Blank.)


IN WITNESS WHEREOF, each of the undersigned executes this Perfection Certificate as of the date first above written.

 

SAEXPLORATION HOLDINGS, INC.
By:  

 

Name:   Brent Whiteley
Title:   Chief Financial Officer, General Counsel & Secretary

 

SAEXPLORATION SUB, INC.
By:  

 

Name:   Brent Whiteley
Title:   Chief Financial Officer, General Counsel & Secretary

 

SAEXPLORATION, INC.
By:  

 

Name:   Brent Whiteley
Title:   Chief Financial Officer, General Counsel & Secretary

 

SAEXPLORATION SEISMIC SERVICES (US), LLC
By:  

 

Name:   Brent Whiteley
Title:   Chief Financial Officer, General Counsel & Secretary

 

NES, LLC
By:  

 

Name:   Brent Whiteley
Title:   Chief Financial Officer, General Counsel & Secretary

 

Perfection Certificate


EXHIBIT 10

[FORM OF]

PERFECTION CERTIFICATE SUPPLEMENT

[See Attached.]

 

Perfection Certificate


PERFECTION CERTIFICATE SUPPLEMENT

[            ]

Reference is hereby made to (i) that certain Security Agreement, dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Security Agreement ”), among SAExploration Holdings, Inc., a Delaware corporation (the “ Issuer ”), the Guarantors (as defined in the Indenture (as hereinafter defined)) from time to time party thereto, as pledgors, assignors and debtors, in favor of the Noteholder Collateral Agent (as hereinafter defined), (ii) that certain Indenture, dated as of July 27, 2016 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Indenture ”), among the Issuer, the Guarantors party thereto, Wilmington Savings Fund Society, FSB, as trustee (in such capacity, the “ Trustee ”) and as noteholder collateral agent (in such capacity, the “ Noteholder Collateral Agent ”) and (iii) that certain Perfection Certificate, delivered on July 27, 2016 (as supplemented by any Perfection Certificate Supplements delivered prior to the date hereof, the “ Prior Perfection Certificate ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture, and if not so defined in the Indenture, then such terms shall have the meanings given to them in the Security Agreement.

This Perfection Certificate Supplement is being delivered to the Noteholder Collateral Agent pursuant to Section 4.5(d) of the Security Agreement, concurrently with the delivery of annual reports pursuant to Section 4.18(a)(1) of the Indenture.

As used herein, the term “ Company ” means a “Pledgor,” as defined in the Security Agreement, and the term “ Companies ” means “Pledgors,” as defined in the Security Agreement.

The undersigned hereby certify to the Noteholder Collateral Agent and each of the Secured Parties as follows:

1. Names .

(a) Except as listed on Schedule 1(a) hereto, (i) Schedule 1(a) to the Prior Perfection Certificate sets forth the exact legal name of each Company and each direct Subsidiary of any thereof organized under the laws of a jurisdiction outside of the United States of America (a “ First-Tier Foreign Subsidiary ”), as such name appears in its respective certificate or deed of incorporation, certificate or articles of formation or any other Organizational Document and the name of each branch of each Company located outside of the United States of America (a “ Foreign Branch ”), are set forth in Schedule 1(a) hereto. Each Company and First-Tier Foreign Subsidiary is (i) the type of entity disclosed next to its name in Schedule 1(a) to the Prior Perfection Certificate and (ii) a registered organization except to the extent disclosed in Schedule 1(a) to the Prior Perfection Certificate; and Schedule 1(a) to the Prior Perfection Certificate sets forth the organizational identification number, if any, of each Company, the Federal Taxpayer Identification Number of each Company and the jurisdiction of organization of each Company.


(b) Except as listed on Schedule 1(b) hereto, Schedule 1(b) to the Prior Perfection Certificate sets forth any other corporate or organizational names each Company and First-Tier Foreign Subsidiary has had in the past five years, together with the date of any relevant change.

(c) Except as listed on Schedule 1(c) hereto, (i) Schedule 1(c) to the Prior Perfection Certificate sets forth a list of all other names (including trade names or similar appellations) used by each Company and First-Tier Foreign Subsidiary, or any other business or organization to which any Company or First-Tier Foreign Subsidiary became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time during the past five years and the date hereof and (ii) Schedule 1(c) to the Prior Perfection Certificate also sets forth the information required by Section 1 hereto for any other business or organization to which each Company or First-Tier Foreign Subsidiary became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise, at any time during the past five years and the date hereof. Except as set forth in Schedule 1(c) hereto, no Company or First-Tier Foreign Subsidiary has changed its jurisdiction of organization at any time during the past four months.

2. Current Locations .

(a) Except as listed on Schedule 2(a) hereto, the chief executive office of each Company and Foreign Branch is located at the address set forth in Schedule 2(a) to the Prior Perfection Certificate.

(b) Except as listed on Schedule 2(b) hereto, Schedule 2(b) to the Prior Perfection Certificate sets forth all locations where each Company maintains any books or records relating to any Collateral.

(c) Except as listed on Schedule 2(c) hereto, Schedule 2(c) to the Prior Perfection Certificate sets forth all the other places of business of each Company or Foreign Branch.

(d) Except as listed on Schedule 2(d) hereto, Schedule 2(d) to the Prior Perfection Certificate sets forth all locations where each Company maintains any of the Collateral consisting of inventory or equipment (whether or not in the possession of any Company or Foreign Branch), except for project sites, or locations of such inventory or equipment while in transit to and from or being staged for delivery to project sites, where such inventory or equipment may be used from time to time in the ordinary course of business.

(e) Except as listed on Schedule 2(e) hereto, Schedule 2(e) to the Prior Perfection Certificate sets forth the locations of all persons or entities other than each Company or the Noteholder Collateral Agent which have possession or are intended to have possession of any of the Collateral consisting of instruments, chattel paper, inventory or equipment.

3. Litigation . Except as listed on Schedule 3 hereto, Schedule 3 to the Prior Perfection Certificate sets forth all pending actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes that would have a material adverse effect on the Collateral taken as a whole or the enforceability of any of the Security Documents or the attachment, perfection or priority of any of the Liens intended to be created thereby.


4. Extraordinary Transactions . Except for those purchases, acquisitions and other transactions described on Schedule 4 hereto, Schedule 4 to the Prior Perfection Certificate sets forth all of the exceptions to the Collateral having been originated by each Company in the ordinary course of business or consisting of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.

5. File Search Reports . Attached as Schedule 5 hereto is a list of searches from (i) the Uniform Commercial Code filing offices (x) in each U.S. jurisdiction identified on Schedule 1(a) hereto (State) or Schedule 2(a) hereto (County) with respect to each current legal name set forth on Schedule 1(a) hereto and Schedule 1(b) hereto, and (y) in each jurisdiction described in Schedule 1(c) hereto or Schedule 4 hereto relating to any of the transactions described in Schedule 1(c) hereto or Schedule 4 hereto with respect to each legal name of the person or entity from which each Company purchased or otherwise acquired any of the Collateral and (ii) each filing officer in each real estate recording office identified on Schedule 8 hereto with respect to real estate on which Collateral consisting of fixtures is or is to be located.

6. UCC Filings . All UCC financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a sufficient description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction in the United States and otherwise to the extent required by Section 3.7 of the Security Agreement necessary to protect and perfect the security interests and Liens under the Security Documents for a period of not less than 18 months after the date hereof (except with respect to continuation statements to be filed within such period with respect to the financing statements noted on Schedule 6 hereto) (the foregoing filings, recordings and registrations, collectively the “ Required Financing Statements ”). Except for the financing statements attached to Schedule 6 hereto, which are in the appropriate forms for filing, and have been filed, in the filing offices in the jurisdictions identified in Schedule 7 hereto, the Required Financing Statements are attached as Schedule 6 to the Prior Perfection Certificate .

7. Schedule of Filings . Schedule 7 hereto sets forth (i) the appropriate filing offices for the financing statements attached hereto as Schedule 6 , and (ii) the appropriate filing offices for the filings described in Schedule 14 hereto.

8. Real Property . Except as set forth on Schedule 8 hereto, Schedule 8 to the Prior Perfection Certificate sets forth all real property owned, leased or licensed by each Company or Foreign Branch.

9. [Intentionally Omitted.]

10. No Change . Except as set forth on Schedule 10 hereto, no Company presently intends to change its (i) legal name, (ii) the location of its chief executive office, (iii) its organizational identification number or (iv) its jurisdiction of incorporation or formation except for (x) changes permitted under the Indenture or the Security Agreement or (y) as set forth on Schedule 10 to the Prior Perfection Certificate.


11. Stock Ownership and Other Equity Interests . Except as set forth on Schedule 11 hereto, Schedule 11 to the Prior Perfection Certificate sets forth (i) all the issued and outstanding stock, partnership interests, limited liability company membership interests or other Equity Interests of each Company and, as to the Guarantors, the record and beneficial owners of such stock, partnership interests, membership interests or other Equity Interests, and (ii) each equity investment of each Company (including each equity investment that represents less than 50% of the equity of the entity in which such investment was made) except to the extent such equity investment is held in a Securities Account set forth on Schedule 16 hereto or on Schedule 16 to the Prior Perfection Certificate.

12. Instruments and Tangible Chattel Paper . Except as listed on Schedule 12 hereto, Schedule 12 to the Prior Perfection Certificate sets forth (i) all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of the date hereof, including all intercompany notes between or among any two or more Companies and (ii) in each case, the outstanding principal amount thereof.

13. Advances . Except as listed on Schedule 13 hereto, Schedule 13 to the Prior Perfection Certificate sets forth (i) all advances made by any Company to any other Company as of the date hereof (other than those identified on Schedule 12 hereto or Schedule 12 to the Prior Perfection Certificate), which advances on and after the date hereof are not evidenced by any Intercompany Subordinated Note pledged to the Noteholder Collateral Agent under the Security Agreement, and (ii) all unpaid intercompany transfers of goods sold and delivered by or to any Company as of the date hereof.

14. Intellectual Property .

(a) Patents . Except as listed on Schedule 14(a) hereto, Schedule 14(a) to the Prior Perfection Certificate sets forth all of each Company’s Patents issued from, and patent applications pending in, the United States Patent and Trademark Office (“ USPTO ”); patent licenses recorded in the USPTO; all other Patents issued from, or patent applications pending in, all patent granting authorities; all other patent licenses, recorded or unrecorded; and including, with respect to each of the foregoing Patents and patent applications, the name of the owner and the number of each such Patent or patent application. For purposes of this

Section 14 . , the term “Patent” shall have the meaning ascribed thereto in the Security Agreement.

(b) Trademarks . Except as listed on Schedule 14(b) hereto, Schedule 14(b) to the Prior Perfection Certificate sets forth all of each Company’s Trademarks registered with, and trademark applications pending in, the USPTO; trademark licenses recorded in the USPTO; all other Trademarks registered with, or trademark applications pending in, an authority other than the USPTO; all unregistered Trademarks; all other trademark licenses, recorded or unrecorded; and including, with respect to each of the foregoing registered Trademarks and trademark applications, the name of the owner and the number


of each such registered Trademark or trademark application. For purposes of this Section 14(b ), the term “Trademark” shall have the meaning ascribed thereto in the Security Agreement.

(c) Copyrights . Except as listed on Schedule 14(c) hereto, Schedule 14(c) to the Prior Perfection Certificate sets forth all of each Company’s Copyrights registered with, and copyright applications pending in, the United States Copyright Office (“ USCO ”); copyright licenses recorded in the USCO; and all other registered or unregistered Copyrights, pending copyright applications, and recorded or unrecorded copyright licenses, including, with respect to each registered Copyright and copyright application, the name of the owner and the number of each such registered Copyright or copyright application. For purposes of this Section 14(c ), the term “Copyright” shall have the meaning ascribed thereto in the Security Agreement.

(d) Attached hereto as Schedule 14(d) are the filings necessary to preserve, protect and perfect the security interests in the Trademarks, trademark licenses, Patents, patent licenses, Copyrights and copyright licenses set forth on Schedules 14(a) , (b) and (c)  hereto, in proper form for filing with the United States Patent and Trademark Office and the United States Copyright Office are (together with the financing statements attached as Schedule 6 hereto), including duly signed copies of each of the Patent Security Agreement, Trademark Security Agreement and Copyright Security Agreement, as applicable, not previously filed prior to the date hereof. For purposes of this Section 14(c) , the terms “Patent Security Agreement,” “Trademark Security Agreement” and “Copyright Security Agreement” shall have the meanings ascribed thereto in the Security Agreement.

15. Commercial Tort Claims . Except as listed on Schedule 15 hereto, Schedule 15 to the Prior Perfection Certificate sets forth all Commercial Tort Claims (as defined in the Security Agreement) held by each Company, including a description thereof.

16. Deposit Accounts, Securities Accounts and Commodity Accounts .

(a) Except as listed on Schedule 16(a) hereto, Schedule 16(a) to the Prior Perfection Certificate sets forth all Deposit Accounts (as defined in the Security Agreement) maintained by each Company (including by each Foreign Branch thereof), including the name of each institution where each such account is held, the name and/or number of each such account, the name of each entity that holds each account, the current balance thereof, and whether such account is an Excluded Account (as defined in the Security Agreement).

(b) Except as listed on Schedule 16(b) hereto, Schedule 16(b) to the Prior Perfection Certificate sets forth all Securities Accounts and Commodity Accounts (each as defined in Article 9 of the UCC) maintained by each Company, including the name of each institution where each such account is held, the name and/or number of each such account, the name of each entity that holds each account, and the current balance thereof.


17. Letter-of-Credit Rights . Except as listed on Schedule 17 hereto, Schedule 17 to the Prior Perfection Certificate sets forth all Letters of Credit and Letter-of-Credit Rights issued in favor of each Company, as beneficiary thereunder.

18. Government Regulation . Please disclose any federal, state, or local government entity or any department, agency or instrumentality thereof that regulates the Company or any of the subsidiaries/branches disclosed in Schedule 1(a) .

[The remainder of this page has been intentionally left blank.]


IN WITNESS WHEREOF , each of the undersigned executes this Perfection Certificate Supplement as of the date first above written.

 

SAEXPLORATION HOLDINGS, INC.
By:  

 

  Name:  
  Title:   Chief Financial Officer
SAEXPLORATION SUB, INC.
By:  

 

  Name:  
  Title:   Chief Financial Officer
SAEXPLORATION, INC.
By:  

 

  Name:  
  Title:   Chief Financial Officer
SAEXPLORATION SEISMIC SERVICES (US), LLC
By:  

 

  Name:  
  Title:   Chief Financial Officer
NES, LLC
By:  

 

  Name:  
  Title:   Chief Financial Officer

Perfection Certificate Supplement


Schedule 1(a)

Legal Names, Etc.

 

Legal Name

   Type of Entity      Registered
Organization

(Yes/No)
     Organizational
Number
     Federal Taxpayer
Identification

Number
     State of
Organization
 
              
              
              


Schedule 1(b)

Prior Organizational Names

 

Company

  

Prior Name

    

Date of Change

    

Reason for Change

 
        
        
        


Schedule 1(c)

Other Names; Changes in Corporate Identity

 

Company

   Corporate
Name
of Entity
     Action      Date of
Action
     State of
Formation
     List of All Other
Names Used
During Past Five
Years
     Explanation  
                 
                 
                 


Schedule 2(a)

Chief Executive Offices

 

Company

  

Address

    

County

    

State

 
        
        
        


Schedule 2(b)

Location of Books and Records

 

Company

  

Address

    

County

    

State

 
        
        
        


Schedule 2(c)

Other Places of Business

 

Company

  

Address

    

County

    

State

 
        
        
        


Schedule 2(d)

Additional Locations of Equipment and Inventory

 

Company

  

Address

    

County

    

State

 
        
        
        


Schedule 2(e)

Locations of Collateral in Possession of Persons Other Than Companies

 

Company

   Name of Entity in
Possession of

Collateral/Capacity
of such Entity
     Address/Location
of Collateral
     County      State  
           
           
           


Schedule 3

Litigation


Schedule 4

Transactions Other Than in the Ordinary Course of Business


Schedule 5

File Search Reports


Schedule 6

Additional Financing Statements and Continuation Statements

Financing Statements

[See attached.]

Continuation Statements

 

Financing Statement

Filing No.

   Debtor      Jurisdiction      Expiration Date  
        
        
        


Schedule 7

Filings/Filing Offices

 

Type of Filings*

   Debtor      Applicable Security
Document 1
     Jurisdiction  
        
        
        

 

* UCC-1 financing statement, fixture filing or other necessary filing.
1   Mortgage, Security Agreement or other.


Schedule 8

Real Property

 

Entity of

Record

   Location Address      Owned
or
Leased
     Landlord/
Owner if Leased
     Term of Lease  
           
           
           


Schedule 10

Changes from Circumstances Described in Perfection Certificate


Schedule 11

Stock Ownership and Other Equity Interests

 

Current

Legal

Entities

Owned

   Record
Owner
     Certificate
No.
     No.
Shares/Interest
     Percentage
Owned
     Percent
Pledged
 
              
              
              


Schedule 12

Instruments and Tangible Chattel Paper

 

1. Promissory Notes:

 

Entity

   Debtor      Principal
Amount
     Date of
Issuance
     Interest Rate      Maturity
Date
 
              
              
              

 

2. Chattel Paper:


Schedule 13

Advances

 

Description

and Date of

Advance

   From      To      Description
and Date of
Unpaid
Intercompany
Transfer of

Goods
     From      To  
              
              
              


Schedule 14(a)

Patents and Patent Licenses

UNITED STATES PATENTS:

Issued Patents:

 

OWNER

  

PATENT NUMBER

    

DESCRIPTION

 
     
     
     
     

Applications:

 

OWNER

  

APPLICATION NUMBER

    

DESCRIPTION

 
     
     
     
     

Licenses:

 

LICENSEE

  

LICENSOR

    

PATENT/

APPLICATION

NUMBER

    

DESCRIPTION

 
        
        
        
        


Schedule 14(a) (continued)

OTHER PATENTS:

Issued Patents:

 

OWNER

  

PATENT NUMBER

    

COUNTRY/STATE

    

DESCRIPTION

 
        
        
        
        

Applications:

 

OWNER

  

APPLICATION

NUMBER

    

COUNTRY/STATE

    

DESCRIPTION

 
        
        
        
        

Licenses:

 

LICENSEE

  

LICENSOR

    

COUNTRY/STATE

    

PATENT/

APPLICATION

NUMBER

    

DESCRIPTION

 
           
           
           
           


Schedule 14(b)

Trademarks and Trademark Licenses

UNITED STATES TRADEMARKS:

Registrations:

 

OWNER

 

REGISTRATION NUMBER

 

TRADEMARK

   
   
   
   

Applications:

 

OWNER

 

APPLICATION NUMBER

 

TRADEMARK

   
   
   
   

Licenses:

 

LICENSEE

 

LICENSOR

 

REGISTRATION/

APPLICATION

NUMBER

 

TRADEMARK

     
     
     
     

 


Schedule 14(b) (continued)

OTHER TRADEMARKS:

Registrations:

 

OWNER

 

REGISTRATION NUMBER

 

COUNTRY/STATE

 

TRADEMARK

     
     
     
     

Applications:

 

OWNER

 

APPLICATION

NUMBER

 

COUNTRY/STATE

 

TRADEMARK

     
     
     
     

Licenses:

 

LICENSEE

 

LICENSOR

 

COUNTRY/STATE

 

REGISTRATION/

APPLICATION

NUMBER

 

TRADEMARK

       
       
       
       

 


Schedule 14(c)

Copyrights and Copyright Licenses

UNITED STATES COPYRIGHTS

Registrations:

 

OWNER

 

TITLE

 

REGISTRATION NUMBER

   
   
   
   

Applications:

 

OWNER

 

APPLICATION NUMBER

 
 
 
 

Licenses:

 

LICENSEE

 

LICENSOR

 

REGISTRATION/

APPLICATION

NUMBER

 

DESCRIPTION

     
     
     
     

 


Schedule 14(c) (continued)

OTHER COPYRIGHTS

Registrations:

 

OWNER

 

COUNTRY/STATE

 

TITLE

 

REGISTRATION NUMBER

     
     
     
     

Applications:

 

OWNER

 

COUNTRY/STATE

 

APPLICATION NUMBER

   
   
   
   

Licenses:

 

LICENSEE

 

LICENSOR

 

COUNTRY/STATE

 

REGISTRATION/

APPLICATION

NUMBER

 

DESCRIPTION

       
       
       
       

 


Schedule 14(d)

Intellectual Property Filings


Schedule 15

Commercial Tort Claims


Schedule 16(a)

Deposit Accounts

 

OWNER

 

BANK

 

ACCOUNT

NAMES/

NUMBERS

 

ACCOUNT TYPE

 

CURRENT

BALANCE

       
       
       


Schedule 16(b)

Securities Accounts and Commodity Accounts


Schedule 17

Letters of Credit and Letter-of-Credit Rights

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is made and entered into as of July 27, 2016, by and among SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and each of the supporting holders listed on the signature pages hereto (the “Supporting Holders”) on behalf of themselves and the other Holders (as defined below).

WHEREAS, the Company and certain former holders of the Company’s 10.000% Senior Secured Notes due 2019 (the “ Old Notes ”) entered into a Restructuring Support Agreement dated as of June 13, 2016 (the “ RSA ”), which contemplated, among other things: (1) the issuance of shares of common stock of the Company (“ Common Stock ”) to certain of such holders that acted as lenders and backstop providers (together, the “ Senior Lenders ”) under the Company’s new Term Loan and Security Agreement dated as of June 29, 2016 by and among the Company, as borrower, the guarantors named therein, the lenders from time to time party thereto, and Delaware Trust Company, as collateral agent and administrative agent (such shares, the “ Loan Shares ”); and (2) the exchange of the Old Notes for the Company’s outstanding 10.000% Senior Secured Second Lien Notes due 2019 (the “ New Notes ”) and shares of the Common Stock in connection with the exchange offer (the “ Exchange Offer ”) pursuant to the Company’s Exchange Offer Memorandum and Consent Solicitation Statement dated June 24, 2016 (such shares, the “ Exchange Shares ” and, together with the Loan Shares, the “ Shares ”);

WHEREAS, the Company is issuing the Loan Shares to the Senior Lenders in connection with the RSA on July 27, 2016 (the “ Closing Date ”);

WHEREAS, the Company is issuing the New Notes and Exchange Shares in exchange for the Old Notes pursuant to the Exchange Offer on the Closing Date; and

WHEREAS, in connection with, and in consideration of, the transactions contemplated by the RSA and Exchange Offer, the Company has agreed to provide resale registration rights with respect to the Registrable Securities (as hereinafter defined) as set forth in this Agreement to any recipient of Shares (each a “ Holder ” and collectively, the “ Holders ”).

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the Parties hereby agree as follows:

1. Definitions . As used in this Agreement, the following terms have the meanings indicated:

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

Agreement ” has the meaning set forth in the recitals.


Blackout Period ” has the meaning set forth in Section 3(p) .

Board ” means the board of directors of the Company.

Business Day ” means any day other than a Saturday, Sunday or any other day on which banking institutions in the State of New York are authorized or required to be closed.

Closing Date ” has the meaning set forth in the recitals

Commission ” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.

Common Stock ” has the meaning set forth in the recitals.

Company ” has the meaning set forth in the recitals.

Company Securities ” means any equity interest of any class or series in the Company.

Effective Date ” means the time and date that a Registration Statement is first declared effective by the Commission or otherwise becomes effective.

Effectiveness Period ” has the meaning set forth in Section 2(a)(ii) .

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

Exchange Offer ” has the meaning set forth in the recitals.

FINRA ” means the Financial Industry Regulatory Authority, Inc.

Governmental Authority ” means any United States federal, state, local (including county or municipal) or foreign governmental, regulatory or administrative authority, agency, division, instrumentality, commission, court, judicial or arbitral body or any securities exchange or similar self-regulatory organization.

Holder ” has the meaning set forth in the recitals. A Person shall cease to be a Holder hereunder at such time as it ceases to hold any Registrable Securities.

Holder Indemnified Persons ” has the meaning set forth in Section 6(a) .

Initiating Shelf Take-Down Holders ” has the meaning set forth in Section 2(b)(i) .

Losses ” has the meaning set forth in Section 6(a) .

Marketed Underwritten Shelf Take-Down ” has the meaning set forth in Section 2(b)(ii) .

Marketed Underwritten Shelf Take-Down Notice ” has the meaning set forth in Section 2(b)(ii) .

 

2


New Notes ” has the meaning set forth in the recitals.

Old Notes ” has the meaning set forth in the recitals.

Parties ” has the meaning set forth in the recitals.

Person ” means an individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, estate, trust, government (or an agency or subdivision thereof) or other entity of any kind.

Piggyback Notice ” has the meaning set forth in Section 2(c)(i) .

Piggyback Registration ” has the meaning set forth in Section 2(c)(i) .

Proceeding ” means any action, claim, suit, proceeding or investigation (including a preliminary investigation or partial proceeding, such as a deposition) pending or, to the knowledge of the Company, to be threatened.

Prospectus ” means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus.

Registrable Securities ” means, collectively, (i) the Shares received by the Holders, and (ii) any additional shares of Common Stock paid, issued or distributed in respect of any such Shares by way of a stock dividend or distribution, or in connection with a split or combination of the Common Stock, and any security into which such Shares shall have been converted or exchanged in connection with a recapitalization, reorganization, reclassification, merger, consolidation, exchange, distribution or otherwise; provided however , that Registrable Securities shall not include: (i) any shares of Common Stock that have been registered under the Securities Act and disposed of pursuant to an effective Registration Statement or otherwise transferred to a Person who is not entitled to the registration and other rights hereunder; (ii) any shares of Common Stock that have been sold or transferred by the Holder thereof pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive “restricted securities” as defined in Rule 144; (iii) any shares of Common Stock that may be sold or transferred by the Holder thereof pursuant to Rule 144 (or any similar provision then in force under the Securities Act) without volume or manner-of-sale restrictions thereunder; and (iv) any shares of Common Stock that cease to be outstanding (whether as a result of repurchase and cancellation, conversion or otherwise).

Registration ” means a registration with the Commission of securities of the Company under a Registration Statement. The term “ Register ” shall have a correlative meaning.

Registration Expenses ” has the meaning set forth in Section 5 .

 

3


Registration Statement ” means a registration statement of the Company in the form required to register the resale of the Registrable Securities under the Securities Act and other applicable law, and including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

Representative ” has the meaning set forth in Section 3(g)(i) .

RSA ” has the meaning set forth in the recitals.

Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 405 ” means Rule 405 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 415 ” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 424 ” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 430A ” means Rule 430A promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 430B ” means Rule 430B promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

Rule 430C” means Rule 430C promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from time to time.

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

Selling Expenses ” means all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities and fees and disbursements of counsel for any Holder.

Senior Lenders ” has the meaning set forth in the recitals.

Shares ” has the meaning set forth in the recitals.

Shelf Take-Down ” has the meaning set forth in Section 2(b)(i) .

Shelf Registration ” has the meaning set forth in Section 2(a)(i) .

Shelf Registration Statement ” means a Registration Statement of the Company filed with the Commission on Form S-3 (or any successor form or other appropriate and permissible form under the Securities Act, including, without limitation, Form S-1) for an offering to be made on a continuous or delayed basis pursuant to Rule 415 (or any similar rule that may be adopted by the Commission) covering the Registrable Securities.

 

4


Supporting Holders ” has the meaning set forth in the recitals.

Suspension Period ” has the meaning set forth in Section 3(q) .

Trading Market ” means the principal national securities exchange on which the Common Stock is then listed, if any.

Underwritten Offering ” means an underwritten offering of Common Stock for cash (whether in connection with a Shelf Take-Down or in connection with a public offering of Common Stock by the Company, a public offering of Common Stock by stockholders or both).

Underwritten Shelf Take-Down Notice ” has the meaning set forth in Section 2(b)(i) .

Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (b) references to Sections refer to Sections of this Agreement; (c) the terms “include,” “includes,” “including” and words of like import shall be deemed to be followed by the words “without limitation”; (d) the terms “hereof,” “herein” or “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) unless the context otherwise requires, the term “or” is not exclusive and shall have the inclusive meaning of “and/or”; (f) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (g) references to any law or statute shall include all rules and regulations promulgated thereunder, and references to any law or statute shall be construed as including any legal and statutory provisions consolidating, amending, succeeding or replacing the applicable law or statute; (h) references to any Person include such Person’s successors and permitted assigns; and (i) references to “days” are to calendar days unless otherwise indicated.

2. Registration .

(a) Shelf Registration Statement .

(i) The Company shall use commercially reasonable efforts to prepare and file with the Commission a Shelf Registration Statement within 15 days of the Closing Date (except if the Company is not then eligible to use Form S-3, in which case, within 60 days thereof) registering the offering and sale on a delayed or continuous basis pursuant to Rule 415 of all of the Registrable Securities. The Shelf Registration Statement described in this Section 2(a)(i) shall relate to the offer and sale of the Registrable Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in such Shelf Registration Statement and Rule 415 under the Securities Act (such Registration Statement, together with any Registration Statement to replace such Registration Statement upon expiration thereof, if any, is referred to hereinafter as the “ Shelf Registration ”). Notwithstanding anything herein to the contrary, the Company shall have no obligation to register a Holder’s Registrable Securities if the Company has, at least 10 Business Days in advance of effectiveness, requested from the

 

5


Holder of such Registrable Securities information regarding such Holder that is required under the Securities Act to be included in the Shelf Registration and has not been provided with such information within 5 Business Days. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause the Shelf Registration to be declared effective under the Securities Act as promptly as practicable after the filing thereof, with a target effectiveness date with respect to a Shelf Registration on Form S-3 of October 15, 2016. The Company shall use its commercially reasonable efforts to address any comments from the Commission regarding the Shelf Registration and to advocate with the Commission for the Registration of all Registrable Securities in accordance with applicable Commission rules and regulations. Notwithstanding the foregoing, if the Commission prevents the Company from including any or all of the Registrable Securities on the Shelf Registration due to limitations on the use of Rule 415 of the Securities Act for the resale of the Registrable Securities by the Holders or otherwise, the Shelf Registration shall Register the resale of a number of Registrable Securities which is equal to the maximum number of shares as is permitted by the Commission, and, subject to the provisions of this Section 2 , the Company shall to use its commercially reasonable efforts to promptly Register all remaining Registrable Securities as set forth in this Section 2(a)(i) , whether by way of amending the Shelf Registration or filing a new Registration Statement (it being understood that the Company is under no obligation to take any action with respect to any Registrable Securities that the Commission has informed the Company may not be registered). In such event, the number of Registrable Securities to be Registered for each Holder in the Shelf Registration shall be reduced pro rata among all then-applicable Holders. The Company shall bear all Registration Expenses in connection with the Shelf Registration pursuant to this Section 2(a)(i) , whether or not such Shelf Registration becomes effective.

(ii) Except as provided herein, the Company shall use its commercially reasonable efforts to keep the Shelf Registration filed pursuant to Section 2(a)(i) continuously effective under the Securities Act until the earliest of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration, (ii) the date on which this Agreement terminates under Section 8(k) with respect to all Holders and (iii) such shorter period as the Holders holdings at least 50% of the Registrable Securities with respect to the Shelf Registration shall agree in writing (such period of effectiveness, the “ Effectiveness Period ”). Subject to Section 3(p) , the Company shall use its commercially reasonable efforts to keep the Shelf Registration effective during the Effectiveness Period for purposes of this Section 2(a)(ii) and shall not voluntarily and intentionally take any action or omit to take any action that would result in Holders not being able to offer and sell any Registrable Securities pursuant to the Shelf Registration during the Effectiveness Period in accordance with the terms of this Agreement, unless such action or omission is (x) in connection with a Blackout Period permitted pursuant to Section 3(p) or (y) required by applicable law, rule or regulation.

(iii) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause (i) the Shelf Registration (as of the effective date of such Shelf Registration), any amendment thereof (as of the effective date thereof) or supplement thereto (as of its date), (A) to comply in all material respects with applicable

 

6


Commission form requirements and Commission rules and regulations and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, and (ii) any related Prospectus (including any preliminary Prospectus) or free writing prospectus and any amendment thereof or supplement thereto, as of its date, (A) to comply in all material respects with applicable Commission rules and regulations and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided , however , the Company shall have no such obligations or liabilities with respect to any information pertaining to any Holder furnished in writing to the Company by or on behalf of such Holder specifically for inclusion therein.

(b) Shelf Take-Downs .

(i) An offering or sale of Registrable Securities pursuant to the Shelf Registration (each, a “ Shelf Take-Down ”) may be initiated by Holders of at least an aggregate of 50% of the Registrable Securities (each, an “ Initiating Shelf Take-Down Holders ”) by written notice (an “ Underwritten Shelf Take-Down Notice ”), which Shelf Take-Down shall be in the form of an Underwritten Offering, and the Company shall use its commercially reasonable efforts to amend or supplement the applicable Shelf Registration, if necessary, for such purpose as soon as practicable; provided , however , that in no event shall (a) any Holder be entitled to join in more than two Underwritten Shelf Take-Down Notices or (b) the Company be required to effect more than one Shelf Take-Down during any consecutive 90 day period. Subject to Section 2(b)(ii) below, such Initiating Shelf Take-Down Holders shall have the right to select the managing underwriter or underwriters to administer such offering, as specified in Section 2(b)(ii) below, which managing underwriter or underwriters shall be reasonably acceptable to the Company.

(ii) If the Underwritten Shelf Take-Down Notice provides that the offering will include a customary “road show” (including an “electronic road show”) or other substantial marketing effort by the Company and the underwriters over a period expected to exceed 48 hours (a “ Marketed Underwritten Shelf Take-Down ”), promptly upon delivery of such Underwritten Shelf Take-Down Notice (but in no event more than 3 Business Days thereafter), the Company shall promptly deliver a written notice (a “ Marketed Underwritten Shelf Take-Down Notice ”) of such Marketed Underwritten Shelf Take-Down to all Holders (other than the Initiating Shelf Take-Down Holders), and the Company shall include in such Marketed Underwritten Shelf Take-Down all such Registrable Securities of such Holders that are Registered on the Shelf Registration for which the Company has received written requests, which requests must specify the aggregate amount of such Registrable Securities of such Holder to be offered and sold pursuant to such Marketed Underwritten Shelf Take-Down, for inclusion therein within 5 Business Days after the date that such Marketed Underwritten Shelf Take-Down Notice has been delivered; provided , that if the managing underwriter or underwriters of any proposed Marketed Underwritten Shelf Take-Down informs the Holders that have

 

7


requested to participate in such Marketed Underwritten Shelf Take-Down in writing that, in its or their good-faith opinion, the number of Registrable Securities which such Holders intend to include in such offering exceeds the number of Registrable Securities which can be sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the Registrable Securities to be included in such Marketed Underwritten Shelf Take-Down shall be the number of Registrable Securities that, in the opinion of such managing underwriter or underwriters, can be sold without having such adverse effect in such Marketed Underwritten Shelf Take-Down, which number shall be allocated (i)  first , to the Registrable Securities requested to be included in such Marketed Underwritten Shelf Take-Down by the Initiating Shelf Take-Down Holders and (ii)  second , to the Registrable Securities requested to be included in such Marketed Underwritten Shelf Take-Down by any Holder who is not one of the Initiating Shelf Take-Down Holders on a pro rata basis. The Holders of a majority of the Registrable Securities to be included in any Marketed Underwritten Shelf Take-Down shall have the right to select the managing underwriter or underwriters to administer such offering, which managing underwriter or underwriters shall be reasonably acceptable to the Company. No holder of securities of the Company shall be permitted to include such holder’s securities in any Marketed Underwritten Shelf Take-Down except for Holders who wish to include Registrable Securities pursuant to this Section (2)(b)(ii) . Notwithstanding anything herein to the contrary, if an Underwritten Shelf Take-Down Notice does not expressly specify that the plan of distribution for a Shelf Take-Down shall include a customary road show or other substantial marketing efforts over a period expected to exceed 48 hours, the Company shall have no obligation to deliver a Marketed Underwritten Shelf Take-Down Notice to Holders.

(c) Piggyback Registration .

(i) If the Company shall at any time propose to conduct an Underwritten Offering of Common Stock for its own account or for the account of any other Persons (excluding an offering relating solely to an employee benefit plan, an offering relating to a transaction on Form S-4 or S-8, an offering on any registration statement form that does not permit secondary sales and any offering governed by Section 2(b) hereof), the Company shall promptly notify all Holders of such proposal reasonably in advance of (and in any event at least 10 Business Days before) the commencement of the offering, which notice will set forth the principal terms and conditions of the issuance, including the proposed offering price (or range of offering prices), if known, the anticipated filing date of the Registration Statement (if applicable) and the number of shares of Common Stock that are proposed to be registered (the “ Piggyback Notice ”); provided however , notwithstanding any other provision of this Agreement, if the managing underwriter or managing underwriters of an Underwritten Offering (other than a Shelf Take-Down) advise the Company that in their reasonable opinion the inclusion of any of a Holder’s Registrable Securities requested for inclusion in the subject Underwritten Offering (and any related registration or offering, if applicable) would likely have an adverse effect in any material respect on the price, timing or distribution of Common Stock proposed to be included in such Underwritten

 

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Offering, the Company shall have no obligation to provide a Piggyback Notice to such Holder and such Holder shall have no right to include any Registrable Securities in such Underwritten Offering (and any related registration or offering, if applicable). The Piggyback Notice shall offer the Holders the opportunity to include for registration in such Underwritten Offering (and any related registration or offering, if applicable) the number of Registrable Securities as they may request (a “ Piggyback Registration ”); provided , however , that only Registrable Securities of Holders which are subject to an effective Shelf Registration may be included in such Piggyback Registration. The Company shall use commercially reasonable efforts to include in each such Piggyback Registration such Registrable Securities for which the Company has received written requests for inclusion therein within five Business Days after sending the Piggyback Notice. If a Holder decides not to include all of its Registrable Securities in any Registration Statement thereafter filed by the Company, such Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent Registration Statement or Registration Statements as may be filed by the Company with respect to offerings of Common Stock, all upon the terms and conditions set forth herein.

(ii) If the managing underwriter or managing underwriters of an Underwritten Offering advise the Company and the Holders who have requested their Registrable Securities be included in such offering following a Piggyback Notice that in its or their opinion the inclusion of all of such Holders’ Registrable Securities requested for inclusion in the subject Underwritten Offering (and any other Common Stock proposed to be included in such offering) would likely have an adverse effect in any material respect on the price, timing or distribution of Common Stock proposed to be included in such offering by the Company, the Company shall include in such Underwritten Offering only that number of shares of Common Stock proposed to be included in such Underwritten Offering that, in the opinion of the managing underwriter or managing underwriters, will not have such adverse effect, with such number to be allocated as follows: (A)  first , to the Company and (B) second, if there remains availability for additional shares of Common Stock to be included in such Underwritten Offering, on a pro-rata basis among all Holders desiring to register Registrable Securities based on the number of Registrable Securities held by such Holder and, if applicable, to any other holders on whose behalf the Company filed such Registration Statement. If any Holder disapproves of the terms of any such Underwritten Offering, such Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter(s) delivered on or prior to the time of the commencement of such offering. Any Registrable Securities withdrawn from such underwriting shall be excluded and withdrawn from the registration.

(iii) The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2(c) at any time in its sole discretion whether or not any Holder has elected to include Registrable Securities in such Registration Statement. The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 5 hereof.

 

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(iv) Any Holder shall have the right to withdraw all or part of its request for inclusion of its Registrable Securities in a Piggyback Registration by giving written notice to the Company of its request to withdraw; provided , that (i) such request must be made in writing prior to the effectiveness of such Registration Statement and (ii) such withdrawal shall be irrevocable and, after making such withdrawal, a Holder shall no longer have any right to include Registrable Securities in the Piggyback Registration as to which such withdrawal was made.

(v) No Registration of Registrable Securities effected pursuant to a request under this Section 2(c) shall be deemed to have been effected pursuant to Section 2(a) or Section 2(b) or shall relieve the Company of its obligations under Section 2(a) or Section 2(b) .

3. Registration and Underwritten Offering Procedures .

The procedures to be followed by the Company and each Holder electing to sell Registrable Securities in a Registration Statement pursuant to this Agreement, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of such Registration Statement and the effectuation of any Underwritten Offering, are as follows:

(a) Preparation of the Registration Statement . The Company will prepare the required Registration Statement, and, before filing a Registration Statement, Prospectus or any free writing prospectus, or any amendments or supplements thereto, (x) furnish to the underwriters, if any, and the Holders participating in the Registration or a Shelf Take-Down, as applicable, copies of all documents prepared to be filed, and provide such underwriters and such Holders and their respective counsel with a reasonable opportunity to review and comment on such documents prior to their filing and (y) not file any Registration Statement or Prospectus to which any underwriters participating in the Registration or the Shelf Take-Down, as applicable, shall reasonably object, provided that any such objection is delivered to the Company reasonably in advance of any such filing.

(b) Holder Comments . In connection with any Registration Statement, the Company will use commercially reasonable efforts to address in each such document when so filed with the Commission such comments relating to such Holder or its intended manner of distribution as such Holders shall reasonably propose at least 3 Business Days prior to the filing thereof.

(c) Maintain Effectiveness . The Company will use commercially reasonable efforts to as promptly as reasonably practicable (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby and, subject to the limitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Holders; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; and

 

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(iii) respond to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably practicable provide such Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to such Holders as selling stockholders but not any comments that would result in the disclosure to such Holders of material and non-public information (within the meaning of U.S. federal securities laws) concerning the Company, unless requested by such Holders.

(d) Notice . The Company will notify such Holders who are included in a Registration Statement as promptly as reasonably practicable: (i)(A) when a Prospectus or any prospectus supplement or post-effective amendment to a Registration Statement in which such Holder is included has been filed; (B) when the Commission notifies the Company whether there will be a “review” of the applicable Registration Statement and whenever the Commission comments in writing on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of such Holders that pertain to such Holders as selling stockholders, but not any comments that would result in the disclosure to such Holders of material and non-public information (within the meaning of U.S. federal securities laws) concerning the Company, unless requested by such Holders); and (C) with respect to each applicable Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the Commission or any other federal or state Governmental Authority for amendments or supplements to such Registration Statement or Prospectus or for additional information that pertains to such Holders as sellers of Registrable Securities; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any amendments or supplements to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading ( provided however , that no notice by the Company shall be required pursuant to this clause (v) in the event that the Company either promptly files an amendment to the applicable Registration Statement, a prospectus supplement to supplement or update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Registration Statement, which in either case, contains the requisite information that results in such Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading).

 

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(e) Avoidance of Stop Orders and Suspension of Qualification . The Company will use commercially reasonable efforts to avoid the issuance of or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as promptly as reasonably practicable, or if any such order or suspension is made effective during any Blackout Period or Suspension Period, as promptly as reasonably practicable after such Blackout Period or Suspension Period is over.

(f) Compliance with Laws; FINRA; Blue Sky . The Company will:

(i) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement(s) and the disposition of all Registrable Securities covered by thereby;

(ii) other than as provided in clause (iv), use its commercially reasonable efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other Governmental Authority as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;

(iii) cooperate with each Holder and each underwriter, if any, participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;

(iv) use its commercially reasonable efforts to cooperate with the Holders, the managing underwriter or underwriters, if any, and their respective counsel, in connection with the registration or qualification of Registrable Securities for offer and sale under the securities or “Blue Sky” laws of each state and other jurisdiction of the United States as any Holder or managing underwriter or underwriters, if any, or their respective counsel reasonably request in writing, provided that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to taxation or general service of process in any such jurisdiction where it is not then so subject;

(v) use its commercially reasonable efforts to comply with all applicable securities laws.

(g) Underwriters; Due Diligence . In the case of an Underwritten Offering, the Company will:

 

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(i) (a) make such customary representations and warranties to the applicable Holders and the underwriters or agents, if any, in form, substance and scope as are customarily made by issuers in secondary underwritten public offerings, (b) enter into such customary agreements (including underwriting agreements) and take all such other actions as any Holder or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities, (c) obtain for delivery to the representative counsel or another representative designated to act on behalf of the Holders (the “ Representative ”) and to the underwriter or underwriters, if any, an opinion or opinions from counsel for the Company dated the date of the closing under the underwriting agreement, in customary form, scope and substance, which opinions shall be reasonably satisfactory to such Representative or underwriters, as the case may be, and (d) obtain for delivery to the Company and the managing underwriter or underwriters, with copies to the Representative, a cold comfort letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the date of the closing of the Underwritten Offering, as specified in the underwriting agreement.

(ii) subject to the execution of any confidentiality agreements as reasonably requested by the Company, make available upon reasonable notice at reasonable times and for reasonable periods for inspection by the Representative, by any underwriter participating in any disposition to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such Holder(s) or any such underwriter, all customarily provided, pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves reasonably available to discuss the business of the Company and to supply all information reasonably requested by any such Person in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility.

(h) Transfer Agent; Exchange Listing . The Company will:

(i) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement; and

(ii) use its commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which any of the Company Securities are then listed or quoted and on each inter-dealer quotation system on which any of the Company Securities are then quoted.

 

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(i) Delivery of Registration Statement .

During the period in which any Registration Statement is effective, the Company will furnish to each Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Holder (including those incorporated by reference) promptly after the filing of such documents with the Commission; provided , that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s EDGAR system.

(j) Delivery of Prospectus .

The Company will promptly deliver to each Holder, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) authorized by the Company for use and each amendment or supplement thereto as such Holder may reasonably request during the period in which any Registration Statement is effective; provided , that the Company will not have any obligation to provide any document pursuant to this clause that is available on the Commission’s EDGAR system. Subject to the terms of this Agreement, including Sections 3(m), 3(p) and 3(q) , the Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.

(k) Certificates .

The Company will cooperate with such Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a sale under a Registration Statement, which certificates shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may reasonably request in writing. In connection therewith, if required by the Company’s transfer agent, the Company will promptly, after the Effective Date of the Registration Statement, cause an opinion of counsel reasonably satisfactory to such transfer agent to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Holder of such Registrable Securities under the Registration Statement.

(l) Required Supplements and Amendments .

Upon the occurrence of any event contemplated by Section 3(d)(v) , as promptly as reasonably practicable, the Company will prepare a supplement or amendment, including a post-effective amendment, if required by applicable law, to the applicable

 

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Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(m) Duties of Holders in Underwritten Offerings .

With respect to Underwritten Offerings, (i) the right of any Holder to include such Holder’s Registrable Securities in an Underwritten Offering shall be conditioned upon such Holder’s participation in the process and required delivery of information for such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein, (ii) each Holder participating in such Underwritten Offering agrees to enter into an underwriting agreement in customary form and sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled to select the managing underwriter or managing underwriters hereunder and (iii) each Holder participating in such Underwritten Offering agrees to complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any Underwritten Offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, including using all commercially reasonable efforts to procure customary legal opinions and auditor “comfort” letters. In the event such Holders seek to complete an Underwritten Offering, for a commercially reasonable period prior to the filing of any Registration Statement and throughout the effective period of such registration statement, the Company will make available upon commercially reasonable notice at the Company’s principal place of business or such other commercially reasonable place for inspection during normal business hours by the managing underwriter or managing underwriters selected in accordance with this Section 3(m) such financial and other information and books and records of the Company, and cause the appropriate officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an attorney client privilege in such counsel’s reasonable belief) to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act.

(n) Holder Provision of Information .

Each Holder agrees to timely furnish to the Company any information regarding the Holder and the distribution of such securities as the Company reasonably determines is required to be included in any Registration Statement or any prospectus or prospectus supplement relating to any offering or sale of Registrable Securities contemplated by this Agreement, and to update or correct any previously delivered information as needed, and if any Holder does not do so after reasonably prompt written request by the Company, then the Company will not be required to register any shares of Common Stock of the Holder in a Registration Statement, or permit the continued use of a Prospectus.

 

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(o) Availability of Officers and Employees .

In connection with any Shelf Take-Down, the Company will use commercially reasonable efforts to cause appropriate officers and employees to be reasonably available, on a customary basis and upon commercially reasonable notice, to meet with prospective investors in presentations, meetings and road shows and otherwise to facilitate, cooperate with, and participate in each such proposed Underwritten Offering to the extent reasonably requested by the managing underwriter or underwriters.

(p) Suspension and Postponement .

Notwithstanding any other provision of this Agreement, upon delivery to the Holders of a certificate signed by the Chief Executive Officer or Chief Financial Officer of the Company, the Company shall not be required to file a Registration Statement (or any amendment thereto), or if the Company has filed a Shelf Registration Statement and has included Registrable Securities therein, the Company shall be entitled to suspend the offer and sale of Registrable Securities pursuant to such Registration Statement (including pursuant to a Shelf Takedown), for a period of up to 30 days, (i) if the Board determines that a postponement is in the best interest of the Company and its stockholders generally due to a pending transaction involving the Company, (ii) if the Board determines such registration would render the Company unable to comply with applicable securities laws, (iii) if the Board determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, (iv) upon issuance by the Commission of a stop order suspending the effectiveness of any Registration Statement under Section 8(d) or 8(e) of the Securities Act, (v) if the Company elects at such time to offer Common Stock or other equity securities of the Company to (A) fund a merger, third-party tender offer or other business combination, acquisition of assets or similar transaction or (B) meet rating agency and other capital funding requirements or (vi) if any other material development would materially and adversely interfere with any such registration (any such period, a “ Blackout Period ”); provided however , that in no event shall any Blackout Period together with any Suspension Period collectively exceed an aggregate of 90 days in any 12-month period. The Company shall promptly notify the Holders upon the termination of any Blackout Period, amend or supplement the applicable Registration Statement, Prospectus and any free writing prospectus, if necessary, so it does not contain a material misstatement of fact or omit to state a material fact required to be stated therein, in light of the circumstances under which they were made, or necessary to make the statements therein not misleading and furnish to the Holders such numbers of copies of the Prospectus and any free writing prospectus as so amended or supplemented as the Holders may reasonably request. The Company agrees, if necessary, to supplement or make amendments to the Shelf Registration Statement if required by the registration form used by the Company for the Registration or by Commission rules and regulations, or as may reasonably be requested by any Holder

 

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(q) Discontinued Disposition . Each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in clauses (ii) through (v) of Section 3(d) or (i) through (vi) of Section 3(p) , such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemental Prospectus or amended Registration Statement as contemplated by Section 3(l) or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement (a “ Suspension Period ”). The Company may provide appropriate stop orders to their transfer agent to enforce the provisions of this Section 3(q) .

(r) Exchange Act Filings

For the avoidance of doubt and notwithstanding any other provision of this Agreement, the Company shall not be required to furnish to Holders copies of any Exchange Act filings prior to the filing thereof with the Commission not related to information included in the Registration Statement relating to the Holders or the intended manner of distribution of Registrable Securities.

4. No Inconsistent Agreements; Additional Rights . The Company shall not hereafter enter into, and is not currently a party to, any agreement with respect to its securities that is inconsistent in any material respect with the rights granted to the Holders of Registrable Securities by this Agreement. For the avoidance of doubt, nothing contained in Section 5.05 of the Warrant Agreement dated July 27, 2016 between the Company and Continental Stock Transfer & Trust Company shall be deemed inconsistent with the rights granted to the Holders of Registrable Securities by this Agreement.

5. Registration Expenses . Except as specifically provided otherwise elsewhere in this Agreement, all expenses incident to the Parties’ performance of or compliance with their respective obligations under this Agreement or otherwise in connection with any Shelf Registration, Shelf Take-Down or Piggyback Registration (in each case, excluding any Selling Expenses) (“ Registration Expenses ”) shall be borne by the Company, whether or not any Registrable Securities are sold pursuant to a Registration Statement. Registration Expenses shall include, without limitation, (i) all registration and filing fees (including fees and expenses (A) with respect to filings required to be made with the Trading Market, the Commission or FINRA and (B) in compliance with applicable state securities or “Blue Sky” laws), (ii) printing, word processing, messenger, telephone and facsimile expenses (including expenses of printing certificates for Company Securities and of printing Prospectuses if the printing of Prospectuses is reasonably requested by a Holder of Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel, auditors and accountants for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement and (vii) all expenses relating to marketing the sale of the Registrable Securities, including expenses related to conducting a “road show.” In addition, the Company shall be responsible for all of its expenses incurred in connection with the consummation of the

 

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transactions contemplated by this Agreement (including expenses payable to third parties and including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on the Trading Market.

6. Indemnification .

(a) The Company shall indemnify and hold harmless each Holder, its Affiliates and each of their respective officers, directors, agents, advisors and employees thereof (collectively, “ Holder Indemnified Persons ”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including commercially reasonable costs of preparation and commercially reasonable attorneys’ fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative (collectively, “ Claims ”), which any Holder Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, “ Losses ”), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained or incorporated by reference into any Registration Statement under which any Registrable Securities were registered, in any preliminary prospectus or in any summary or final prospectus or free writing prospectus (if such free writing prospectus was authorized for use by the Company) or in any amendment or supplement thereto (if used during the period the Company is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading; provided however , that the Company shall not be liable to any Holder Indemnified Person to the extent that (i) any such Claim arises out of, is based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Holder Indemnified Person or any underwriter specifically for use in the preparation thereof, (ii) the Holder Indemnified Person continued to use a Registration Statement or Prospectus after the Company notified such Holder Indemnified Person to cease such use pursuant to Section 3(q) or (iii) the Company provided a corrected, supplemented or amended Registration Statement or Prospectus pursuant to Section 3(l) but the Holder Indemnified Person continued to use the then outdated or uncorrected Registration Statement or Prospectus. The Company shall notify the Holders promptly of the institution, threat or assertion of any Claim of which the Company is aware in connection with the transactions contemplated by this Agreement. This indemnity shall be in addition to any liability the Company may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any indemnified party and shall survive the transfer of such securities by such Holder. Notwithstanding anything to the contrary herein, this Section 6 shall survive any termination or expiration of this Agreement indefinitely.

 

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(b) In connection with any Registration Statement in which a Holder participates, such Holder shall, severally and not jointly, indemnify and hold harmless the Company, its Affiliates and each of their respective officers, directors, agents, advisors and employees thereof to the fullest extent permitted by applicable law, from and against any and all Losses as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any such Registration Statement, in any preliminary prospectus (if used prior to the Effective Date of such Registration Statement), or in any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto (if used during the period the Company is required to keep the Registration Statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in which they were made, not misleading, but only to the extent that the same are made in reliance and in conformity with information relating to the Holder furnished in writing to the Company by such Holder for use therein. This indemnity shall be in addition to any liability such Holder may otherwise have. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any indemnified party. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds received by such Holder under the sale of the Registrable Securities giving rise to such indemnification obligation.

(c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any Claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such Claim or there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, 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 (but such consent will not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a Claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to any local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party that are in addition to or may conflict with those available to another indemnified party with respect to such Claim. Failure to give prompt written notice shall not release the indemnifying party from its obligations hereunder.

(d) If the indemnification provided for in this Section 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any Losses referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the

 

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one hand, and of the indemnified party, on the other, in connection with the untrue or alleged untrue statement of a material fact or the omission to state a material fact that resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission;  provided , that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering received by such Holder.

7. Facilitation of Sales Pursuant to Rule 144 . To the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any Holder in connection with that Holder’s sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.

8. Miscellaneous .

(a) Remedies . In the event of a breach by the Company of any of its obligations under this Agreement, each Holder, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement.

(b) Amendments and Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Holders holding at least a majority of the then outstanding Registrable Securities. The Company shall provide prior notice to all Holders of any proposed waiver or amendment. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.

(c) Notices . Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Section 8(c) prior to 5:00 p.m. Central Time on a Business Day, (ii) the Business Day after the date of transmission, if such notice or communication is delivered via facsimile or electronic mail as specified in this Agreement later than 5:00 p.m. Central Time on any

 

20


date and earlier than 11:59 p.m. Central Time on such date, (iii) the Business Day following the date of mailing, if sent by nationally recognized overnight courier service or (iv) upon actual receipt by the Party to whom such notice is required to be given. The address for such notices and communications shall be as follows:

 

If to the Company:

  

SAExploration Holdings, Inc.

Attention: Brent Whiteley, Chief Financial Officer and General

Counsel

1160 Dairy Ashford, Suite 160

Houston, Texas 77079

Electronic mail: bwhiteley@saexploration.com

  

With copy to:

 

Jones Day

Attention: Alex Gendzier

250 Vesey Street

New York, NY 10281

Electronic mail: agendzier@jonesday.com

If to any Person who

is then the registered

Holder:

   To the address of such Holder as it appears in the applicable register for the Registrable Securities or such other address as may be designated in writing by such Holder.

(d) Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns, provided that (i) except as provided in this Section 8(d) , this Agreement, and any rights or obligations hereunder, may not be assigned without the prior written consent of the Company and the Holders, (ii) the registration rights of a Holder pursuant to this Agreement with respect to all or any portion of its Registrable Securities may be transferred or assigned without such consent (but only with all related obligations) with respect to such Registrable Securities by such Holder to one or more transferees or assignees of such Registrable Securities; provided (A) the Company is, within a commercially reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Registrable Securities with respect to which such registration rights are being assigned and (B) such transferee or assignee agrees in writing to be bound by and subject to the terms set forth in this Agreement and (iii) the Company shall have no obligation to file a Registration Statement or a post-effective amendment to any Registration Statement to add a transferee or an assignee as a selling security holder thereunder unless such person holds not less than 5% of the then outstanding Registrable Securities. The Company may not assign its rights or obligations hereunder without the prior written consent of the Holders.

 

21


(e) No Third Party Beneficiaries . Nothing in this Agreement, whether express or implied, shall be construed to give any Person, other than the parties hereto or their respective successors and permitted assigns, any legal or equitable right, remedy, claim or benefit under or in respect of this Agreement.

(f) Execution and Counterparts . This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile or electronic mail transmission, such signature shall create a valid binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such signature delivered by facsimile or electronic mail transmission were the original thereof.

(g) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial . This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York. Each of the Parties irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in the Borough of Manhattan in the City of New York and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each Party anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the Parties irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each of the Parties hereby waives any right to request a trial by jury in any litigation with respect to this Agreement and represents that counsel has been consulted specifically as to this waiver.

(h) Cumulative Remedies . The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

(i) Severability . If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

(j) Entire Agreement . This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and the matters addressed or governed hereby, whether oral or written.

 

22


(k) Termination . The rights and obligations of the Company and of any Holder under this Agreement, other than those obligations contained in Section 6 , shall terminate with respect to the Company and such Holder on the first date upon which the such Holder no longer beneficially owns any Registrable Securities.

[THIS SPACE LEFT BLANK INTENTIONALLY]

 

23


IN WITNESS WHEREOF, the Company and the Supporting Holders on behalf of themselves and the other Holders have executed this Agreement as of the date first written above.

 

SAEXPLORATION HOLDINGS, INC.
By:  

/s/ Brent Whiteley

Name:   Brent Whiteley
Title:   Chief Financial Officer and General Counsel
SUPPORTING HOLDERS:
By:  

 

Name:  
Title:  
Address for notice:

Signature Page to Registration Rights Agreement


WBOX 2015-7 LTD.
By:  

/s/ Mark Strefling

Name:   Mark Strefling
Title:   Partner, General Counsel,
  Chief Operating Officer

[Signature Page to Registration Rights Agreement]


BLUEMOUNTAIN CREDIT ALTERNATIVES MASTER FUND L.P.
By:   BlueMountain Capital Management,
  LLC, its investment manager
By:  

/s/ David O’Mara

Name:   David O’Mara
Title:   Deputy General Counsel
BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF
By:   BlueMountain Capital Management,
  LLC, its investment manager
By:  

/s/ David O’Mara

Name:   David O’Mara
Title:   Deputy General Counsel
BLUEMOUNTAIN KICKING HORSE FUND L.P.
By:   BlueMountain Capital Management,
  LLC, its investment manager
By:  

/s/ David O’Mara

Name:   David O’Mara
Title:   Deputy General Counsel

[Signature Page to Registration Rights Agreement]


BLUEMOUNTAIN GUADALUPE PEAK FUND L.P.
By:   BlueMountain Capital Management,
  LLC, its investment manager
By:  

/s/ David O’Mara

Name:   David O’Mara
Title:   Deputy General Counsel
BLUEMOUNTAIN SUMMIT TRADING
L.P.  
By:  

/s/ David O’Mara

Name:   David O’Mara
Title:   Deputy General Counsel

[Signature Page to Registration Rights Agreement]


MORGAN STANLEY INSTITUTIONAL FUND TRUST HIGH YIELD PORTFOLIO
By:   Morgan Stanley Investment
  Management Inc., as its Investment Advisor
By:  

/s/ Kim Cross

Name:   Kim Cross
Title:   Managing Director
MORGAN STANLEY GLOBAL FIXED INCOME OPPORTUNITIES FUND
By:   Morgan Stanley Investment
  Management Inc., as its Investment Advisor
By:  

/s/ Kim Cross

Name:   Kim Cross
Title:   Managing Director
SUNSUPER SUPERANNUATION FUND
By:   Morgan Stanley Investment
  Management Inc., as its Investment Advisor
By:  

/s/ Kim Cross

Name:   Kim Cross
Title:   Managing Director

[Signature Page to Registration Rights Agreement]


AMZAK CAPITAL MANAGEMENT, LLC
By:  

/s/ Michael Kazma

Name:   Michael Kazma
Title:   President

[Signature Page to Registration Rights Agreement]


ARISTIDES FUND LP
By:  

/s/ Daniel C. Nall

Name:   Daniel C. Nall
Title:   Chief Compliance Officer of GP
ARlSTIDES FUND QP, LP
By:  

/s/ Daniel C. Nall

Name:   Daniel C. Nall
Title:   Chief Compliance Officer of GP

[Signature Page to Registration Rights Agreement]


/s/ John Pecora

MR. JOHN PECORA

[Signature Page to Registration Rights Agreement]


TEGEAN MASTER FUND, LTD
By:  

/s/ Joseph N. Levy

Name:   Joseph N. Levy
Title:   Chief Compliance Officer – Controller

[Signature Page to Registration Rights Agreement]

Exhibit 10.3

WARRANT AGREEMENT

dated as of July 27, 2016 between

SAExploration Holdings, Inc.

and

Continental Stock Transfer & Trust Company,

as Warrant Agent


TABLE OF CONTENTS

 

               Page  
Article 1    Definitions      1   
   Section 1.01    Certain Definitions      1   
Article 2    Issuance, Execution and Transfer of Warrants      7   
   Section 2.01    Issuance and Delivery of Warrants      7   
   Section 2.02    Execution and Authentication of Warrants      8   
   Section 2.03    Registration, Transfer, Exchange and Substitution      8   
   Section 2.04    Form of Warrant Certificates      9   
   Section 2.05    Cancellation of the Series A Warrants      9   
   Section 2.06    Cancellation of the Series B Warrants      9   
   Section 2.07    Limitations on Transfer      10   
Article 3    Exercise and Settlement of Warrants      10   
   Section 3.01    Exercise of Warrants      10   
   Section 3.02    Procedure for Exercise      10   
   Section 3.03    Settlement of Warrants      11   
   Section 3.04    Delivery of Common Shares      12   
   Section 3.05    No Fractional Common Shares to Be Issued      13   
   Section 3.06    Acquisition of Warrants by Company      13   
   Section 3.07    Validity of Exercise      13   
   Section 3.08    Certain Calculations      13   
Article 4    Adjustments      14   
   Section 4.01    Adjustments to Exercise Price      14   
   Section 4.02    Adjustments to Number of Warrants      16   
   Section 4.03    Certain Distributions of Rights and Warrants      16   
   Section 4.04    Stockholder Rights Plans      17   
   Section 4.05    Restrictions on Adjustments      17   
   Section 4.06    Successor upon Consolidation, Merger and Sale of Assets      18   
   Section 4.07    Adjustment upon Reorganization Event      19   
   Section 4.08    Reserved      19   
   Section 4.09    Common Shares Outstanding; Common Shares Reserved for Issuance on Exercise      19   
   Section 4.10    Calculations; Instructions to Warrant Agent      20   
   Section 4.11    Notice of Adjustments      20   
   Section 4.12    Warrant Agent Not Responsible for Adjustments or Validity      20   
   Section 4.13    Statements on Warrants      21   
   Section 4.14    Effect of Adjustment      21   
Article 5    Other Provisions Relating to Rights of Global Warrant Holder      21   
   Section 5.01    No Rights as Stockholders      21   
   Section 5.02    Mutilated or Missing Global Warrant Certificates      21   
   Section 5.03    Modification, Waiver and Meetings      21   
   Section 5.04    Notices of Date, etc      22   
   Section 5.05    Registration and Listing      22   
Article 6    Representations of the Company      24   
   Section 6.01    Representations      24   
Article 7        Concerning the Warrant Agent and Other Matters      25   
   Section 7.01    Certificated Common Shares      25   

 

-i-


TABLE OF CONTENTS

(continued)

 

               Page  
   Section 7.02    Payment of Certain Taxes      25   
   Section 7.03    Reserved      25   
   Section 7.04    Change of Warrant Agent      25   
   Section 7.05    Compensation; Further Assurances      26   
   Section 7.06    Reliance on Counsel      27   
   Section 7.07    Proof of Actions Taken      27   
   Section 7.08    Correctness of Statements      27   
   Section 7.09    Validity of Agreement      27   
   Section 7.10    Use of Agents      27   
   Section 7.11    Liability of Warrant Agent      27   
   Section 7.12    Legal Proceedings      28   
   Section 7.13    Actions as Agent      28   
   Section 7.14    Appointment and Acceptance of Agency      28   
   Section 7.15    Successors and Assigns      28   
   Section 7.16    Notices      28   
   Section 7.17    Applicable Law; Jurisdiction      29   
   Section 7.18    Waiver of Jury Trial      29   
   Section 7.19    Benefit of this Warrant Agreement      29   
   Section 7.20    Registered Warrant Holder      29   
   Section 7.21    Headings      29   
   Section 7.22    Counterparts      29   
   Section 7.23    Entire Agreement      30   
   Section 7.24    Severability      30   
   Section 7.25    Termination      30   
   Section 7.26    Confidentiality      30   

 

SCHEDULE A    SCHEDULE OF INCREASES OR DECREASES IN WARRANTS
EXHIBIT A    FORM OF GLOBAL WARRANT CERTIFICATE
EXHIBIT B    FORM OF EXERCISE NOTICE
EXHIBIT C    WARRANT AGENT FEE SCHEDULE

 

-ii-


WARRANT AGREEMENT

Warrant Agreement (as it may be amended from time to time, this “ Warrant Agreement ”), dated as of July 27, 2016, between SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and Continental Stock Transfer & Trust Company, a New York corporation (the “ Warrant Agent ”).

WITNESSETH THAT:

WHEREAS, holders of the Company’s outstanding common stock, whether held in book entry or certificated form, as of July 26, 2016 (the “ Initial Beneficial Holders ”) are to be issued warrants to purchase up to an aggregate of 154,108 Common Shares (the “ Series A Warrants ”) and warrants to purchase up to an aggregate of 154,108 Common Shares (the “ Series B Warrants ” and, together with the Series A Warrants, the “ Warrants ”);

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, Transfer, substitution and exercise of the Warrants;

WHEREAS, the Company desires to provide for the terms upon which the Warrants shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants;

WHEREAS, the Warrants have the terms and conditions set forth in this Warrant Agreement (including the Exhibits hereto); and

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

NOW THEREFORE in consideration of the mutual agreements herein contained, the Company and the Warrant Agent agree as follows:

Article 1

Definitions

Section 1.01 Certain Definitions . As used in this Warrant Agreement, the following terms shall have their respective meanings set forth below:

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

Affiliated Buyer ” means, with respect to an Asset Sale or tender offer, any Person (i) who is an Affiliate of the Company, (ii) who is an officer, director, employee or member of the Company or any Affiliate of the Company, or (iii) a majority of which Person’s total outstanding equity, upon consummation of such transaction, is held by Persons who are equity holders in the Company immediately prior to the consummation of such transaction.

 

- 1 -


Alaska Tax Credit ” means any tax credit certificates issued by the State of Alaska to the Company or any of its Affiliates in connection with the receivable due to the Company from Alaska Seismic Ventures, LLC in a face amount of at least $25 million.

Appropriate Officer ” has the meaning set forth in Section 2.02(a) .

Asset Sale ” has the meaning set forth in Section 4.06(c) .

Authentication Order ” means a Company Order for authentication and delivery of the Warrants.

Beneficial Owner ” means any Person beneficially owning an interest in the Warrant Certificates, which, in the case of the Global Warrant Certificates, interest is credited to the account of a direct participant in the Depository for the benefit of such Person through the book-entry system maintained by the Depositary (or its agent)). For the avoidance of doubt, a Participant may also be a Beneficial Owner.

Board ” means the board of directors of the Company or any committee of such board duly authorized to exercise the power of the board of directors with respect to the matters provided for in this Warrant Agreement as to which the board of directors is authorized or required to act.

Business Day ” means any day other than (x) a Saturday or Sunday or (y) any day which is a legal holiday in the State of New York or a day on which banking institutions and trust companies in the state in which the Warrant Agent is located are authorized or obligated by Law, regulation or executive order to close.

Cash ” means such coin or currency of the United States as at any time of payment is legal tender for the payment of public and private debts.

Certificated Holders ” means holders of the Company’s outstanding common stock held in certificated form.

Change of Control ” means (i) any person or group (within the meaning of Sections 13(d)(3) or 14(d)(2) of the Exchange Act) (other than an Excluded Person, the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of Common Shares of the Company or pursuant to an Exempt Transaction), becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding Voting Securities; (ii) the consummation of a merger, reorganization or consolidation of the Company or a direct or indirect subsidiary of the Company with, another Person (other than an Exempt Transaction); (iii) the consummation of a sale, disposition or other change in ownership of assets of the Company and/or any of its direct and indirect subsidiaries having a value constituting at least 50% of the total gross fair market value of all of the assets of the Company and its direct and indirect subsidiaries (on a consolidated basis) immediately prior to such transaction to a Person other than an Excluded Person; or (iv) the consummation of a transaction that implements in whole or in part a resolution of the stockholders of the Company authorizing a complete liquidation or dissolution of the Company. For the avoidance of doubt, a Change of Control will not be deemed to have occurred if an Excluded Person has the ability to appoint a majority of the Board of the Company or any parent entity, and none of the transactions contemplated by the RSA shall be deemed a Change of Control.

Charter ” means the certificate of incorporation of the Company, as amended or restated.

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

Closing Date ” means July 27, 2016.

Common Shares ” means shares of the common stock, par value $0.0001 per share, of the Company.

 

- 2 -


Common Shares Deemed Outstanding ” means, at any given time, the sum of (a) the number of Common Shares actually outstanding at such time, plus (b) the number of Common Shares issuable upon conversion or exchange of Convertible Securities actually outstanding at such time, regardless of whether the Convertible Securities are actually exercisable at such time, plus (c) the number of Common Shares reserved for issuance at such time under the Company’s Management Plan or any other equity incentive plan of the Company, regardless of whether the Common Shares are actually subject to outstanding options at such time or whether any outstanding options are actually exercisable at such time; provided, that Common Shares Deemed Outstanding at any given time shall not include shares owned or held by or for the account of the Company or any of its wholly-owned subsidiaries.

Company ” has the meaning set forth in the preamble.

Company Order ” means a written request or order signed in the name of the Company by any Appropriate Officer or other duly authorized officer of the Company and delivered to the Warrant Agent.

Convertible Securities ” means options, rights, warrants or other securities convertible into or exchangeable or exercisable for Common Shares (including the Warrants).

Depository ” means The Depository Trust Company, its nominees, and their respective successors.

Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the related rules and regulations promulgated there under.

Excluded Person ” shall mean any of (a) Whitebox Advisors LLC, BlueMountain Capital Management, LLC, Morgan Stanley Investment Management Inc., Aristides Capital LLC, Taegean Capital Management, LLC, Amzak Capital Management, LLC, John Pecora, Jeff Hastings, Brian Beatty and Brent Whiteley, (b) any Related Party thereof, (c) any Person acting in the capacity of an underwriter or initial purchaser in connection with a public or private offering of the capital stock of the Company or any direct or indirect parent entity or securities convertible into or exchangeable or exercisable for such capital stock, (d) any controlling stockholder, 80% or more (based on voting power) owned Subsidiary, or immediate family member (in the case of an individual) of a Person described in clause (a), and (e) any trust, corporation, partnership, limited liability company or other entity, the beneficiaries, stockholders, partners, members, owners or Persons beneficially holding an 80% or more controlling interest of which consist of any one or more Excluded Persons.

Exempt Transaction ” shall mean a merger, reorganization or consolidation that results in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent immediately following such merger, reorganization or consolidation (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) more than 50% of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation (or the ultimate parent company of the Company or such surviving entity).

Exercise Date ” has the meaning set forth in Section 3.02(b) .

Ex-Date ” means with respect to a dividend or distribution to holders of the Common Shares, the first date on which the Common Shares can be traded without the right to receive such dividend or distribution.

Exercise Notice ” means, for any Warrant, an exercise notice substantially in the form set forth in Exhibit   B hereto.

Exercise Prices ” means the Series A Exercise Price and the Series B Exercise Price.

Expiration Date ” means the Close of Business on July 27, 2021.

Fair Value, ” as of a specified date, means the price per Common Share, other Securities or other distributed property determined as follows:

 

- 3 -


(i) in the case of Common Shares or other Securities listed on the New York Stock Exchange or the NASDAQ Stock Market, the VWAP of a Common Share or a single unit of such other Security for the 20 Trading Days ending on, but excluding, the specified date (or if the Common Shares or other Security has been listed for less than 20 Trading Days, the VWAP for such lesser period of time);

(ii) in the case of Common Shares or other Securities not listed on the New York Stock Exchange or the NASDAQ Stock Market, the VWAP of a Common Share or a single unit of such other Security in composite trading for the principal U.S. national or regional securities exchange on which such securities are then listed for the 20 Trading Days ending on, but excluding, the specified date (or if the Common Shares or other Security has been listed for less than 20 Trading Days, the VWAP for such lesser period of time); or

(iii) in all other cases, the fair value per Common Share, other Securities or other distributed property as of a date not earlier than 10 Business Days preceding the specified date as determined in good faith by the Board and, if the Board elects to engage the same, upon the advice of an independent investment banking, financial advisory or valuation firm or appraiser selected by the Board (a “ Representative ”); provided, however, that

(iv) notwithstanding the foregoing, if the Board determines in good faith that the application of clauses (i) or (ii) of this definition would result in a VWAP based on the trading prices of a thinly-traded Security such that the price resulting therefrom may not represent an accurate measurement of the fair value of such Security, the Board at its election may apply the provisions of clause (iii) of this definition in lieu of the applicable clause (i) or (ii) with respect to the determination of the fair value of such Security.

Full Physical Settlement ” means the settlement method pursuant to which an exercising Beneficial Owner shall be entitled to receive from the Company, for each Warrant exercised, a number of Common Shares equal to the Full Physical Share Amount in exchange for payment by the Beneficial Owner of the applicable Exercise Price.

Full Physical Share Amount ” means, for each Warrant exercised as to which Full Physical Settlement is applicable, one Common Share.

Fundamental Equity Change ” has the meaning set forth in Section 4.06(a) .

Global Warrants ” means the Series A Global Warrants and the Series B Global Warrants.

Global Warrant Certificates ” means the Series A Global Warrant Certificates and the Series B Global Warrant Certificates.

Global Warrant Holder ” means the Person acting as the Depository or nominee of the Depository in whose name the applicable Warrants are registered in the Warrant Register. The initial Global Warrant Holder shall be Cede & Co., as the Depository’s nominee.

Initial Beneficial Holders ” has the meaning set forth in the Recitals.

Law ” means any federal, state, local, foreign or provincial law, statute, ordinance, rule, regulation, judgment, order, injunction, decree or agency requirement having the force of law or any undertaking to or agreement with any governmental authority, including common law.

Management Plan ” means the management incentive plan to be adopted by the Company which shall reserve 10%, on a fully diluted basis, of the total outstanding Common Shares for distribution to covered employees.

Net Share Amount ” means for each Series A Warrant and Series B Warrant exercised as to which Net Share Settlement is applicable, a fraction of a Common Share equal to (i) the Fair Value (as of the Exercise Date for such Warrant) of one Common Share minus the Series A Exercise Price or the Series B Exercise Price, as applicable

 

- 4 -


therefor divided by (ii) such Fair Value. The number of Common Shares issuable upon exercise, on the same Exercise Date, of Warrants as to which Net Share Settlement is applicable shall be aggregated, with any fractional Common Share rounded down to the nearest whole share as provided in Section 3.05 . In no event shall the Company deliver a fractional Common Share in connection with an exercise of Warrants as to which Net Share Settlement is applicable.

Net Share Settlement ” means the settlement method pursuant to which an exercising Beneficial Owner shall be entitled to receive from the Company, for each Warrant exercised, a number of Common Shares equal to the Net Share Amount without any payment of Cash therefor.

Non-Affiliate Combination ” means a Fundamental Equity Change where (i) the acquirer is a true third party and not an Affiliate of the Company or any of its or its Affiliates’ officers, directors, employees or members and (ii) all of the equity held by equity holders of the Company (other than management) is extinguished or replaced by equity in a different Person (other than a Fundamental Equity Change in which the equity interests in the Company are replaced in a merger or other corporate combination with equity in the surviving Person that represents more than 50% of the total equity in the surviving Person).

Number of Warrants ” means the “Number of Warrants” specified on the face of the Series A Warrant Certificates and the Series B Warrant Certificates, subject to adjustment pursuant to Article 4 .

Officer’s Certificate ” means a certificate signed by any Appropriate Officer or other duly authorized officer of the Company.

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

Participant ” means any direct participant of the Depository, the account of which is credited with a beneficial interest in the Global Warrant for the benefit of a Beneficial Owner through the book-entry system maintained by the Depositary (or its agent).

Person ” means an individual, partnership, firm, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.

Prospectus ” means the prospectus included in a Shelf Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Shelf Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Warrants or the Common Shares issuable upon exercise of the Warrants covered by such Registration Statement and all other amendments and supplements to such prospectus, including post-effective amendments, and all documents incorporated by reference or deemed to be incorporated by reference in such prospectus.

Record Date ” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Shares have the right to receive any Cash, Securities or other property or in which Common Shares (or another applicable Security) are exchanged for or converted into, or any combination of, Cash, Securities or other property, the date fixed for determination of holders of Common Shares entitled to receive such Cash, Securities or other property or participate in such exchange or conversion (whether such date is fixed by the Board or by statute, contract or otherwise).

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

Reorganization Event ” has the meaning set forth in Section 4.07(a) .

Representative ” has the meaning set forth in clause (iii) of the definition of Fair Value.

 

- 5 -


RSA ” means the Restructuring Support Agreement dated as of June 13, 2016 among the Company, certain members of management identified therein and the Supporting Holders identified therein.

SEC ” means the United States Securities and Exchange Commission, or any other federal agency at the time administering the Securities Act or the Exchange Act, whichever is the relevant statute for the particular purpose.

Securities ” means (i) any capital stock (whether Common Shares or preferred stock, voting or non-voting), partnership, membership or limited liability company interest or other equity or voting interest, (ii) any right, option, warrant or other security or evidence of indebtedness convertible into, or exercisable or exchangeable for, directly or indirectly, any interest described in clause (i), (iii) any notes, bonds, debentures, trust receipts and other obligations, instruments or evidences of indebtedness, and (iv) any other “securities,” as such term is defined or determined under the Securities Act.

Securities Act ” means the Securities Act of 1933, as amended from time to time, and the related rules and regulations promulgated thereunder.

Series A Exercise Price ” means $10.30 per share.

Series A Global Warrant ” means a Series A Warrant in the form of a Global Warrant Certificate.

Series A Global Warrant Certificate ” means any certificate representing the Series A Global Warrants satisfying the requirements set forth in Section 2.04 .

Series A Warrants ” means the warrants of the Company which have the Series A Exercise Price, are exercisable for a single Common Share as provided herein and are issued pursuant to this Warrant Agreement with the terms, conditions and rights set forth herein.

Series A Warrant Certificate ” means any certificate representing the Series A Warrants satisfying the requirements set forth in Section 2.04 .

Series B Exercise Price ” means $12.88 per share, determined assuming the full exercise of the Series B Warrants.

Series B Global Warrant ” means a Series B Warrant in the form of a Global Warrant Certificate.

Series B Global Warrant Certificate ” means any certificate representing the Series B Global Warrants satisfying the requirements set forth in Section 2.04 .

Series B Warrants ” means the warrants of the Company which have the Series B Exercise Price, are exercisable for a single Common Share as provided herein and are issued pursuant to this Warrant Agreement with the terms, conditions and rights set forth herein.

Series B Warrant Certificate ” means any certificate representing the Series A Warrants satisfying the requirements set forth in Section 2.04 .

Settlement Date ” means, in respect of a Warrant that is exercised hereunder, the third Business Day immediately following the Exercise Date for such Warrant.

Subsidiary ” means, as to any Person, any corporation, partnership, limited liability company or other organization, whether incorporated or unincorporated, of which at least a majority of the securities or other interests having by their terms voting power to elect a majority of the Board or others performing similar functions with respect to such corporation or other organization is directly or indirectly beneficially owned or controlled by such party or by any one or more of its subsidiaries, or by such party and one or more of its subsidiaries.

 

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Third Party Tender Offer ” means the acquisition by a Person (other than (i) the Company or a wholly-owned subsidiary of the Company or (ii) a Person or Persons who are not Affiliated Buyers) in a tender offer or exchange offer of 50% or more of the outstanding Common Shares (determined on a fully-diluted basis).

Trading Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which Securities are not traded on the applicable securities exchange.

Transfer ” means, with respect to any Warrant, to directly or indirectly (whether by act, omission or operation of law), sell, exchange, transfer, hypothecate, negotiate, gift, convey in trust, pledge, assign, encumber, or otherwise dispose of, or by adjudication of a Person as bankrupt, by assignment for the benefit of creditors, by attachment, levy or other seizure by any creditor (whether or not pursuant to judicial process), or by passage or distribution of Warrants under judicial order or legal process, carry out or permit the transfer or other disposition of, all or any portion of such Warrant.

Transferee ” means a Person to whom any Warrant (or interest in the Global Warrant) is Transferred.

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

VWAP ” means, for any Trading Day, the price for Securities (including Common Shares) determined by the daily volume weighted average price per unit of such Securities for such Trading Day on the trading market on which such Securities are then listed or quoted, in each case, for the regular trading session (including any extensions thereof, without regard to pre-open or after hours trading outside of such regular trading session) as reported on the New York Stock Exchange or NASDAQ Stock Market, or if such Securities are not listed or quoted on the New York Stock Exchange or NASDAQ Stock Market, as reported by the principal U.S. national or regional securities exchange on which such Securities are then listed or quoted, whichever is applicable, as published by Bloomberg at 4:15 P.M., New York City time (or 15 minutes following the end of any extension of the regular trading session), on such Trading Day, or if such volume weighted average price is unavailable or in manifest error, the price per unit of such Securities using a volume weighted average price method selected by an independent nationally recognized investment bank or other qualified financial institution selected by the Board.

Warrant ” or “ Warrants ” means the Series A Warrants and the Series B Warrants.

Warrant Agent ” has the meaning set forth in the preamble.

Warrant Agreement ” has the meaning set forth in the preamble.

Warrant Certificates ” means the Series A Warrant Certificates and the Series B Warrant Certificates.

Warrant Register ” has the meaning set forth in Section 2.03(a) .

Article 2

Issuance, Execution and Transfer of Warrants

Section 2.01 Issuance and Delivery of Warrants .

(a) On the Closing Date, the Company shall initially issue and execute an aggregate of 308,217 Warrants, comprising 154,108 Series A Warrants and 154,108 Series B Warrants, and shall issue and execute Global Warrants (in accordance with Section 2.02 ) evidencing an initial aggregate Number of Warrants to be held in global form equal to 93,054 in the case of the Series A Warrants and 93,054 in the case of the Series B Warrants (such Number of Warrants to be subject to adjustment from time to time as described herein) in accordance with the terms of this Warrant Agreement and deliver such Warrants to the Warrant Agent, for authentication, along with duly executed Authentication Orders. The Warrant Agent shall then Transfer the applicable Warrants to Certificated Holders and the Global Warrants to the Global Warrant Holder for crediting to the accounts of the applicable Participants for the benefit of the applicable Initial Beneficial Holders pursuant to the

 

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procedures of the Depository on or after the Closing Date. The Series A Global Warrant and the Series B Global Warrant shall each evidence one or more Warrants. Each Warrant (including those evidenced by Global Warrants) shall be exercisable (upon payment of their respective Exercise Prices and compliance with the procedures set forth in this Warrant Agreement) for one Common Share. On the Closing Date, the Warrant Agent shall, upon receipt of such Warrants and Authentication Orders, authenticate such Warrants in accordance with Section 2.02 and register such Warrants in the Warrant Register. The Warrants shall be dated as of the Closing Date and, subject to the terms hereof, shall evidence the only Warrants issued or outstanding under this Warrant Agreement. The Global Warrant Certificates shall be deposited on or after the date hereof with the Warrant Agent.

(b) All Warrants issued under this Warrant Agreement shall in all respects be equally and ratably entitled to the benefits hereof, without preference, priority, or distinction on account of the actual time of the issuance and authentication or any other terms thereof. Each Warrant shall be, and shall remain, subject to the provisions of this Warrant Agreement until such time as all of the Warrants evidenced thereby shall have been duly exercised or shall have expired or been canceled in accordance with the terms hereof. The Global Warrant Holder shall be bound by all of the terms and provisions of this Warrant Agreement as fully and effectively as if the Global Warrant Holder had signed the same.

(c) Any Warrant that is forfeited by a Beneficial Owner or repurchased by the Company shall be deemed to be no longer outstanding for all purposes of this Warrant Agreement.

Section 2.02 Execution and Authentication of Warrants .

(a) Each of the Warrants (including those evidenced by Global Warrant Certificates and certificated Warrants) shall be executed on behalf of the Company by the Chief Executive Officer, President, the Chief Financial Officer, any Executive Vice President, any Senior Vice President or any Vice President, any Treasurer or Secretary (each, an “ Appropriate Officer ”) of the Company. The signature of any of the Appropriate Officers on such Warrants may be in the form of a facsimile or other electronically transmitted signature (including, without limitation, electronic transmission in portable document format (.pdf)).

(b) Any of the Warrants bearing the signatures of individuals, each of whom was, at the time he or she signed any of the Warrants or his or her facsimile signature was affixed to such Warrants, as the case may be, an Appropriate Officer, shall bind the Company, notwithstanding that such individuals or any of them have ceased be such an Appropriate Officer prior to the authentication of such Warrants by the Warrant Agent or was not such an Appropriate Officer at the date of such Warrants.

(c) No Warrant shall be entitled to any benefit under this Warrant Agreement or be valid or obligatory for any purpose unless there appears on the applicable Warrant a certificate of authentication substantially in the form provided for herein executed by the Warrant Agent, and such signature upon any of the Warrants shall be conclusive evidence, and the only evidence, that such Global Warrant has been duly authenticated and delivered hereunder. The signature of the Warrant Agent on any of the Warrants may be in the form of a facsimile or other electronically transmitted signature (including, without limitation, electronic transmission in portable document format (.pdf)).

Section 2.03 Registration, Transfer, Exchange and Substitution .

(a) The Company shall cause to be kept at the office of the Warrant Agent, and the Warrant Agent shall maintain, a register (the “ Warrant Register ”) in which the Company shall provide for the registration of any Warrants (including any Global Warrant) and Transfers, exchanges or substitutions thereof as provided herein. Any Warrant issued upon any registration of Transfer or exchange of or substitution for any Warrant shall be a valid obligation of the Company, evidencing the same obligations, and entitled to the same benefits under this Warrant Agreement, as any Warrant surrendered for such registration of Transfer, exchange or substitution.

(b) Transfers of a Global Warrant shall be limited to Transfers in whole, and not in part, to the Company, the Depository, their successors, and their respective nominees. A Warrant may be Transferred upon the delivery of a written instruction of Transfer in form reasonably satisfactory to the Warrant Agent and the

 

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Company, duly executed by the Warrant Holder or by such Warrant Holder’s attorney, duly authorized in writing. No such Transfer shall be effected until, and the Transferee shall succeed to the rights of the Warrant Holder only upon, final acceptance and registration of the Transfer in the Warrant Register by the Warrant Agent. Prior to the registration of any Transfer of a Warrant by the Warrant Holder as provided herein, the Company, the Warrant Agent, and any agent of the Company or the Warrant Agent may treat the Person in whose name such Warrant is registered as the owner thereof for all purposes, notwithstanding any notice to the contrary. To permit a registration of a Transfer of a Warrant, the Company shall execute the Warrant Certificates at the Warrant Agent’s request and the Warrant Agent shall authenticate such Warrant Certificates. Any Global Warrant Certificates shall be deposited on or after the date hereof with the Warrant Agent. No service charge shall be made for any such registration of Transfer. A party requesting transfer of a Warrant must provide any evidence of authority that may be required by the Warrant Agent, including but not limited to, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association, Inc.

(c) Interests of Beneficial Owners in a Global Warrant registered in the name of the Depository or its nominee shall only be Transferred in accordance with the procedures of the Depository, the applicable Participant and applicable Law.

(d) So long as any Global Warrant is registered in the name of the Depository or its nominee, the Beneficial Owners shall have no rights under this Warrant Agreement with respect to such Global Warrant held on their behalf by the Depository, and the Depository may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of such Global Warrant for all purposes. Accordingly, any such Beneficial Owner’s interest in such Global Warrant will be shown only on, and the Transfer of such interest shall be effected only through, records maintained by the Depository or its nominee or the applicable Participant, and neither the Company nor the Warrant Agent shall have any responsibility or liability with respect to such records maintained by the Depository or its nominee or the applicable Participant. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair the operation of customary practices of the Depository or Participants governing the exercise of the rights of a Beneficial Owner.

(e) Transfers hereunder shall be subject at all times to Section 2.07 hereof.

Section 2.04 Form of Warrant Certificates . Each of the Warrant Certificates shall be in substantially the form set forth in Exhibit A hereto and shall have such insertions as are appropriate or required by this Warrant Agreement and may have such letters, numbers or other marks of identification and such legends and endorsements, stamped, printed, lithographed or engraved thereon, as the Company may deem appropriate and as are not inconsistent with the provisions of this Warrant Agreement, such as may be required to comply with this Warrant Agreement, any Law or any rule of any securities exchange on which Warrants may be listed, and such as may be necessary to conform to customary usage. Global Warrant Certificates shall bear the global certificate legend, as set forth in Exhibit A and shall include the Schedule of Increases or Decreases in Warrants set forth in Schedule A.

Section 2.05 Cancellation of the Series A Warrants . Any Series A Warrant Certificate shall be promptly cancelled by the Warrant Agent upon the earlier of (i) the Series A Expiration Date, (ii) the mutilation of the Series A Warrant Certificate as described in Section 5.02 , or (iii) registration of Transfer or exercise of such Series A Warrants (or, in the case of a Series A Global Warrant, all Series A Warrants represented thereby) and, except as provided in this Article 2 in case of a Transfer or Section 5.02 in case of mutilation, no Series A Warrant Certificate shall be issued hereunder in lieu thereof.

Section 2.06 Cancellation of the Series B Warrants . Any Series B Warrant Certificate shall be promptly cancelled by the Warrant Agent upon the earlier of (i) the Series B Expiration Date, (ii) the mutilation of the Series B Global Warrant Certificate as described in Section 5.02 , or (iii) registration of Transfer or exercise of such Series B Warrants (or, in the case of a Series B Global Warrant Certificate, all Series B Warrants represented thereby) and, except as provided in this Article 2 in case of a Transfer or Section 5.02 in case of mutilation, no Series B Warrant Certificate shall be issued hereunder in lieu thereof.

 

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Section 2.07 Limitations on Transfer . Notwithstanding any other provision of this Warrant Agreement, the Warrants, and the Common Shares issuable upon exercise thereof, have not been registered under the Securities Act and, accordingly, may not be resold or otherwise transferred within the United States or to, or for the account or benefit of, U.S. Persons (as defined in Regulation S under the Securities Act), except as set forth in the following sentence. The Beneficial Owners may not sell or transfer any Warrants in the absence of an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act. By accepting a Warrant (whether at initial issuance or pursuant to a Transfer thereof), the recipient thereof agrees (A) that, prior to the expiration of the applicable holding period pursuant to Rule 144 under the Securities Act, it will not resell or otherwise transfer such Warrants except (1) to the Company or any Subsidiary thereof, (2) in accordance with an exemption from the registration requirements of the Securities Act (and based upon an opinion of counsel if the Company or the Warrant Agent so requests), in reliance with Rule 144A or Regulation S, or (3) following the filing by the Company of a registration statement covering the Warrants with the SEC in accordance with Section 5.05 of the Warrant Agreement and the SEC declaring such registration statement to be effective, and (B) to inform the Beneficial Owner of the limitations on Transfer set forth in this Section 2.07 , and shall instruct and direct such Beneficial Owner to conform to the restrictions set forth herein and shall maintain any applicable legends in its books and records. The Common Shares issuable in connection with the exercise of a Warrant shall be issued in accordance with Section 3.04(b) hereof. The Warrant Agent shall not be under any duty or responsibility to ensure compliance by the Company, the Global Warrant Holder, any Beneficial Owner or any other Person with any applicable U.S. federal or state securities laws.

Article 3

Exercise and Settlement of Warrants

Section 3.01 Exercise of Warrants .

(a) Contingent upon the receipt by the Company of the Alaska Tax Credit, the Warrants may be exercised during the period commencing thirty (30) days prior to the Expiration Date through, and including, the Close of Business on the Expiration Date. Any Warrants not exercised prior to the Expiration Date shall expire unexercised and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of the Close of Business on the Expiration Date. Only whole Warrants may be exercised.

(b) As soon as commercially practicable following the receipt of the Alaska Tax Credit, the Company will provide notice of the receipt in a form reasonably satisfactory to the Warrant Agent. The Warrant Agent will then provide notice to the Global Warrant Holder to be further distributed pursuant to the procedures established by the Depository and the applicable Participant.

Section 3.02 Procedure for Exercise .

(a) To exercise each Warrant, a Beneficial Owner must arrange for (i) the delivery of the Exercise Notice duly completed and executed by its applicable Participant to the principal office of the Warrant Agent and the Company, (ii) if Full Physical Settlement is elected, payment to the Warrant Agent in an amount equal to the respective Exercise Price for each Warrant to be exercised together with all applicable taxes and charges thereto, (iii) delivery of each Warrant to be exercised through the facilities of the Depository and (iv) compliance with all other procedures established by the Depository, the applicable Participant and the Warrant Agent for the exercise of Warrants.

(b) The date on which all the requirements for exercise set forth in this Section 3.02 in respect of a Warrant are satisfied is the “ Exercise Date ” for such Warrant.

(c) Subject to Section 3.02(e) and Section 3.02(f) , any exercise of a Warrant pursuant to the terms of this Warrant Agreement shall be irrevocable and enforceable in accordance with its terms.

(d) All funds received by the Warrant Agent under this Agreement that are to be distributed or applied by the Warrant Agent in the performance of services in accordance with this Agreement (the “ Funds ”)

 

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shall be held by the Warrant Agent as agent for the Company and deposited in one or more bank accounts to be maintained by the Warrant Agent in its name as agent for the Company (the “ Funds Account ”). Until paid pursuant to the terms of this Agreement, the Warrant Agent will hold the Funds through the Funds Account in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating), each as reported by Bloomberg Finance L.P. The Warrant Agent shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by the Warrant Agent in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. The Warrant Agent may from time to time receive interest, dividends or other earnings in connection with such deposits. The Warrant Agent shall not be obligated to pay such interest, dividends or earnings to the Company, any Beneficial Owner or any other party.

(e) The Company shall assist and cooperate with any Beneficial Owner required to make any governmental filings or obtain any governmental approvals prior to or in connection with any exercise of a Warrant (including, without limitation, making any filings required to be made by the Company), and any exercise of a Warrant may be made contingent upon the making of any such filing and the receipt of any such approval.

(f) Notwithstanding any other provision of this Warrant Agreement, if the exercise of any Warrant is to be made in connection with a registered public offering or a Change of Control, such exercise may, upon proper election in the Exercise Notice, be conditioned upon consummation of such transaction or event in which case such exercise shall not be deemed effective until the consummation of such transaction or event.

(g) The Warrant Agent shall forward funds deposited in the Funds Account in a given month by the fifth Business Day of the following month by wire transfer to an account designated by the Company.

(h) The Company hereby instructs the Warrant Agent to record tax basis for newly issued Common Shares as follows: the tax basis of each newly issued Common Share equals the tax basis of the exercised Warrant plus the applicable Exercise Price. The Company shall provide the tax basis of the Warrants no later than 90 days after the Closing Date.

(i) Payment of the applicable Exercise Price by or on behalf of a Beneficial Owner upon exercise of Warrants, in the case of Full Physical Settlement, shall be by federal wire or in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent.

Section 3.03 Settlement of Warrants .

(a) Full Physical Settlement shall apply to each Warrant unless the Beneficial Owner elects for Net Share Settlement to apply upon exercise of such Warrant. Such election shall be made in the Exercise Notice for such Warrant.

(b) If Full Physical Settlement applies to the exercise of a Warrant, upon the proper and valid exercise thereof by a Beneficial Owner the Company shall cause to be delivered to the exercising Beneficial Owner the Full Physical Settlement Amount.

(c) If Net Share Settlement applies to the exercise of a Warrant, upon the proper and valid exercise thereof by a Beneficial Owner the Company shall cause to be delivered to the exercising Beneficial Owner the Net Share Amount, with any fractional Common Share rounded down to the nearest whole share as provided in Section 3.05 .

(d) If there is a dispute as to the determination of the applicable Exercise Price or the calculation of the number of shares of Common Stock to be delivered to an exercising Beneficial Owner, the Company shall cause to be promptly delivered to the exercising Beneficial Owner the number of Common Shares that is not in dispute.

 

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Section 3.04 Delivery of Common Shares .

(a) In connection with the exercise of Warrants, the Warrant Agent shall:

(1) examine all Exercise Notices and all other documents delivered to it to ascertain whether, on their face, such Exercise Notices and any such other documents have been executed and completed in accordance with their terms;

(2) where an Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrant exists, endeavor to inform the appropriate parties (including the Person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;

(3) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between the Exercise Notices received and delivery of Warrants to the Warrant Agent’s account;

(4) advise the Company with respect to an exercise, no later than two Business Days following the satisfaction of each of the applicable procedures for exercise set forth in Section 3.02(a) , of (v) the receipt of such Exercise Notice and the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, (w) the number of Common Shares to be delivered by the Company; (x) the instructions with respect to issuance of the Common Shares, subject to the timely receipt from the Depository of the necessary information, (y) the number of Persons who will become holders of record of the Company (who were not previously holders of record) as a result of receiving Common Shares upon exercise of the Warrants and (z) such other information as the Company shall reasonably require;

(5) promptly deposit in the Funds Account all Funds received in payment of the applicable Exercise Price in connection with Full Physical Settlement of Warrants;

(6) promptly cancel and destroy the applicable Global Warrant Certificate if all Warrants represented thereby have been exercised in full and deliver a certificate of destruction to the Company, unless the Company shall otherwise direct in writing;

(7) if all Warrants represented by a Global Warrant Certificate shall not have been exercised in full, note and authenticate such decrease in the Number of Warrants on Schedule A of such Global Warrant Certificate; and

(8) provide to the Company, upon the Company’s request, the number of Warrants previously exercised, the number of Common Shares issued in connection with such exercises and the number of remaining outstanding Warrants.

(b) With respect to each properly exercised Warrant in accordance with this Warrant Agreement, the Company shall, in accordance with such Exercise Notice, issue and deliver to the Beneficial Owner in the name of the Beneficial Owner or in such other name or names of any Person(s) designated in such Exercise Notice, a certificate for the Common Shares issuable in connection with such exercise with appropriate restrictive legends, unless a registration statement covering the resale of such Common Shares and naming the Beneficial Owner as a selling stockholder thereunder is effective or the Common Shares issued in connection with such exercise are freely transferable without volume restrictions pursuant to Rule 144(b) under the Securities Act, in which case such Beneficial Owner shall receive (i) a certificate for the Common Shares issuable in connection with such exercise, free of restrictive legends, or (ii) an electronic delivery of the Common Shares issuable in connection with such exercise to the Beneficial Owner’s account (or the account of a Participant for the benefit of such Beneficial Owner) at the Depository. The Person on whose behalf and in whose name any Common Shares are registered shall for all purposes be deemed to have become the holder of record of such Common Shares as of the Close of Business on the applicable Exercise Date.

 

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(c) If a registration statement covering a resale of Common Shares issued in connection with properly exercised Warrants is not effective and the Beneficial Owner directs the Company to deliver the Common Shares issued in connection with such exercise in a name other than that of the Beneficial Owner or an Affiliate of the Beneficial Owner, such Beneficial Owner shall deliver to the Company on the Exercise Date an opinion of counsel reasonably satisfactory to the Company to the effect that the issuance of such Common Shares in such other name may be made pursuant to an available exemption from the registration requirements of the Securities Act and all applicable state securities or blue sky laws.

(d) Promptly after the Warrant Agent shall have taken the action required by this Section 3.04 (or at such later time as may be mutually agreeable to the Company and the Warrant Agent), the Warrant Agent shall account to the Company with respect to the consummation of any exercise of any Warrants.

Section 3.05 No Fractional Common Shares to Be Issued .

(a) Notwithstanding anything to the contrary in this Warrant Agreement, the Company shall not be required to issue any fraction of a Common Share upon exercise of any Warrants.

(b) If any fraction of a Common Share would, except for the provisions of this Section 3.05 , be issuable on the exercise of any Warrants, the Company shall instead round down to the nearest whole share the number of Common Shares that such Person designated in the applicable Exercise Notice shall receive. All Warrants exercised by a Beneficial Owner on the same Exercise Date shall be aggregated for purposes of determining the number of Common Shares to be delivered pursuant to Section 3.04(b).

(c) Each Beneficial Owner, by its acceptance of an interest in a Warrant, expressly waives its right to any fraction of a Common Share upon its exercise of such Warrant.

Section 3.06 Acquisition of Warrants by Company . The Company shall have the right, except as limited by Law, to purchase or otherwise to acquire one or more Warrants at such times, in such manner and for such consideration as it may deem appropriate.

Section 3.07 Validity of Exercise . All questions as to the validity, form and sufficiency (including time of receipt) of a Warrant exercise shall be determined by the Company, which determination shall be final and binding with respect to the Warrant Agent. The Warrant Agent shall incur no liability for or in respect of and, except to the extent such liability arises from the Warrant Agent’s gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final non-appealable judgment), shall be indemnified and held harmless by the Company for acting or refraining from acting upon, or as a result of such determination by the Company. The Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Exercise Notices with regard to any particular exercise of Warrants.

Section 3.08 Certain Calculations .

(a) The Warrant Agent shall be responsible for performing all calculations, save for in the case of Net Share Settlements, required in connection with the exercise and settlement of the Warrants as described in this Article 3 . In connection therewith, the Warrant Agent shall provide prompt written notice to the Company, in accordance with Section 3.04(a)(4), of the number of Common Shares deliverable upon exercise and settlement of Warrants. For the avoidance of doubt, the Warrant Agent shall not be responsible for performing the calculations set forth in Article 4 .

(b) The Warrant Agent shall not be accountable with respect to the validity or value of any Common Shares or Units of Reference Property that may at any time be issued or delivered upon the exercise of any Warrant, and it makes no representation with respect thereto. The Warrant Agent shall not be responsible, to the extent not arising from the Warrant Agent’s gross negligence, willful misconduct or bad faith (as determined by a

 

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court of competent jurisdiction in a final non-appealable judgment), for any failure of the Company to issue, transfer or deliver any Common Shares or Units of Reference Property, or to comply with any of the covenants of the Company contained in this Article 3 .

Article 4

Adjustments

Section 4.01 Adjustments to Exercise Price . After the date on which the Warrants are first issued and while any Warrants remain outstanding and unexpired, the Exercise Prices shall be subject to adjustment (without duplication) upon the occurrence of any of the following events:

(a) The issuance of Common Shares as a dividend or distribution to all holders of Common Shares, or a subdivision, combination, split, reverse split or reclassification of the outstanding Common Shares into a greater or smaller number of Common Shares, in which event the Exercise Prices shall be adjusted based on the following formula:

 

E 1 = E 0   x  

N 0

 
    N 1  

 

where:    
E 1   =   the applicable Exercise Price in effect immediately after (i) the Open of Business on the Ex-Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification;
E 0   =   the applicable Exercise Price in effect immediately prior to (i) the Open of Business on the Ex-Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification;
N 0   =   the number of Common Shares Deemed Outstanding immediately prior to (i) the Open of Business on the Record Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification; and
N 1   =   the number of Common Shares equal to (i) in the case of a dividend or distribution, the sum of the number of Common Shares Deemed Outstanding immediately prior to the Open of Business on the Record Date for such dividend or distribution plus the total number of Common Shares issued pursuant to such dividend or distribution or (ii) in the case of a subdivision, combination, split, reverse split or reclassification, the number of Common Shares Deemed Outstanding immediately after such subdivision, combination, split, reverse split or reclassification.

Such adjustment shall become effective immediately after (i) the Open of Business on the Ex-Date in the case of a dividend or distribution or (ii) the consummation of the transaction in the case of a subdivision, combination, split, reverse split or reclassification. If any dividend or distribution or subdivision, combination, split, reverse split or reclassification of the type described in this Section 4.01(a) is declared or announced but not so paid or made, the Exercise Prices shall again be adjusted to the applicable Exercise Prices that would then be in effect if such dividend or distribution or subdivision, combination, split, reverse split or reclassification had not been declared or announced, as the case may be.

(b) Reserved .

(c) The issuance as a dividend or distribution to all holders of Common Shares of evidences of indebtedness, Securities of the Company or any other Person (other than Common Shares), Cash or other property (excluding any dividend or distribution covered by Section 4.01(a) ), in which event the Exercise Prices will be adjusted based on the following formula:

 

E 1 = E 0   x  

P - FMV

 
    P  

 

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where:    
E 1   =   the applicable Exercise Price in effect immediately after the Open of Business on the Ex-Date for such dividend or distribution;
E 0   =   the applicable Exercise Price in effect immediately prior to the Open of Business on the Ex-Date for such dividend or distribution;
P   =   the Fair Value of a Common Share as of immediately prior to the Open of Business on the second Business Day preceding the Ex-Date for such dividend or distribution; and
FMV   =   the Fair Value of the portion of such dividend or distribution applicable to one Common Share as of the Open of Business on the date of such dividend or distribution.

Such adjustment shall become effective immediately after the Open of Business on the Ex-Date for such dividend or distribution. In the event that such dividend or distribution is declared or announced but not so paid or made, the Exercise Prices shall again be adjusted to be the Exercise Prices which would then be in effect if such distribution had not been declared or announced.

(d) The payment in respect of any tender offer or exchange offer by the Company for Common Shares, where the cash and Fair Value of any other consideration included in the payment per Common Share exceeds the Fair Value of a Common Share as of the open of business on the second business day preceding the expiration date of the tender or exchange offer (the “Offer Expiration Date”), in which event the applicable Exercise Price will be adjusted based on the following formula:

 

E 1 = E 0   x  

N 0 x P) – A

 
    (P x N 1 )  

 

where:

 

E 1

  =   the applicable Exercise Price in effect immediately after the Close of Business on the Offer Expiration Date;
E 0   =   the applicable Exercise Price in effect immediately prior to the Close of Business on the Offer Expiration Date;
N 0   =   the number of Common Shares Deemed Outstanding immediately prior to the expiration of the tender or exchange offer (prior to giving effect to the purchase or exchange of Common Stock);
N 1   =   the number of Common Shares deemed outstanding immediately after the expiration of the tender or exchange offer (after giving effect to the purchase or exchange of Common Shares);
A   =   the aggregate cash and Fair Value of any other consideration payable for Common Shares purchased in such tender offer or exchange offer; and
P   =   the Fair Value of a Common Share as of the Open of Business on the second Business Day preceding the Offer Expiration Date.

Such adjustment shall become effective immediately after the close of business on the Offer Expiration Date. In the event that the Company or a Subsidiary of the Company is obligated to purchase Common Shares pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable Law from effecting any such purchases, or all such purchases are rescinded, then the Exercise Price shall again be adjusted to be the Exercise Price which would then be in effect if such tender offer or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this clause (d) to any tender offer or exchange offer would result in an increase in the Exercise Price, no adjustment shall be made for such tender offer or exchange offer under this clause (d).

 

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(e) If any single action would require adjustment of the Exercise Prices pursuant to more than one subsection of this Section 4.01 , only one adjustment shall be made and such adjustment shall be the amount of adjustment that has the highest, relative to the rights and interests of the registered holders of the Warrants then outstanding, absolute value. For the purpose of calculations pursuant to Section 4.01 , the number of Common Shares outstanding shall be equal to the sum of (i) the number of Common Shares issued and outstanding and (ii) the number of Common Shares issuable pursuant to the conversion or exercise of Convertible Securities that are outstanding, in each case on the applicable date of determination.

(f) The Company may from time to time, to the extent permitted by Law, decrease the Exercise Prices and/or increase the Number of Warrants by any amount for any period of at least twenty days. In that case, the Company shall give the Global Warrant Holder and the Warrant Agent at least ten days’ prior written notice of such increase or decrease, and such notice shall state the applicable decreased Exercise Price and/or increased Number of Warrants and the period during which the decrease and/or increase will be in effect. The Company may make such decreases in the Exercise Prices and/or increases in the Number of Warrants, in addition to those set forth in this Article 4 , as the Board deems advisable, including to avoid or diminish any income tax to holders of the Common Shares resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.

(g) Notwithstanding this Section 4.01 or any other provision of this Warrant Agreement or the Warrants, if an Exercise Prices adjustment becomes effective on any Ex-Date, and a Warrant has been exercised on or after such Ex-Date and on or prior to the related Record Date resulting in the Person issued Common Shares being treated as the record holder of the Common Shares on or prior to the Record Date, then, notwithstanding the Exercise Prices adjustment provisions in this Section 4.01 , the Exercise Prices adjustment relating to such Ex-Date will not be made with respect to such Warrant. Instead, such Person will be treated as if it were the record owner of Common Shares on an un-adjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment.

Section 4.02 Adjustments to Number of Warrants . Concurrently with any adjustment to the Exercise Prices under Section 4.01 , the Number of Warrants will be adjusted such that the Number of Warrants in effect immediately following the effectiveness of such adjustment will be equal to the Number of Warrants in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator of which is the applicable Exercise Price in effect immediately prior to such adjustment and (ii) the denominator of which is the applicable Exercise Price in effect immediately following such adjustment.

Section 4.03 Certain Distributions of Rights and Warrants .

(a) Rights or warrants distributed by the Company to all holders of Common Shares entitling the holders thereof to subscribe for or purchase the Company’s Securities (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “ Trigger Event ”):

(1) are deemed to be transferred with such Common Shares;

(2) are not exercisable; and

(3) are also issued in respect of future issuances of Common Shares,

shall be deemed not to have been distributed for purposes of Article 4 (and no adjustment to the Exercise Prices or the Number of Warrants under this Article 4 will be made) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exercise Prices and the Number of Warrants shall be made under this Article 4 (subject in all respects to Section 4.04 ).

(b) If any such right or warrant is subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights or warrants with such rights (subject in all respects to Section 4.04 ).

 

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(c) In addition, except as set forth in Section 4.04 , in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in Section 4.03(b) ) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exercise Prices and the Number of Warrants under Article 4 was made (including any adjustment contemplated in Section 4.04 ):

(1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by the holders thereof, the Exercise Prices and the Number of Warrants shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a distribution under Section   4.01(c) , equal to the per share redemption or repurchase price received by a holder or holders of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Shares as of the date of such redemption or repurchase; and

(2) in the case of such rights or warrants that shall have expired or been terminated without exercise by the holders thereof, the Exercise Prices and the Number of Warrants shall be readjusted as if such rights and warrants had not been issued or distributed.

Section 4.04 Stockholder Rights Plans . If the Company has a stockholder rights plan in effect with respect to the Common Shares, upon exercise of a Warrant the holder shall be entitled to receive, in addition to the Common Shares, the rights under such stockholder rights plan, unless, prior to such exercise, such rights have separated from the Common Shares.

Section 4.05 Restrictions on Adjustments .

(a) Except in accordance with Section 4.01 , the Exercise Prices and the Number of Warrants will not be adjusted for the issuance of Common Shares or other Securities of the Company.

(b) For the avoidance of doubt, neither the Exercise Prices nor the Number of Warrants will be adjusted:

(1) upon the issuance of any Securities by the Company on or after the Closing Date pursuant to either the RSA or the transactions contemplated thereby;

(2) upon the issuance of any Common Shares or other Securities or any payments pursuant to the Management Plan or any other equity incentive plan of the Company;

(3) upon any issuance of any Common Shares (or Convertible Securities) pursuant to the exercise of the Warrants; and

(4) upon the issuance of Common Shares or other Securities of the Company in connection with a business acquisition transaction (except to the extent otherwise expressly required by this Warrant Agreement).

(c) No adjustment shall be made to the Exercise Prices or the Number of Warrants for any of the transactions described in Section 4.01 if the Company makes provisions for participation in any such transaction with respect to Warrants without exercise of such Warrants on the same basis as with respect to Common Shares with notice that the Board determines in good faith to be fair and appropriate.

(d) Notwithstanding anything to the contrary in this Warrant Agreement, prior to, or in the absence of, the receipt of stockholder approval, any adjustment to be made to the Exercise Prices or the Number of

 

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Warrants that would result in the Common Shares issued or issuable upon exercise of all Warrants to be equal to 20% or greater of the then-outstanding Common Shares shall be limited to the extent necessary for such adjustment to result in Common Shares issued or issuable upon exercise of all Warrants representing no more than 19.9% of the then-outstanding Common Shares so that the Company may remain in compliance with the listing requirements of the stock exchange on which its Common Shares are then listed. Upon receipt of stockholder approval, the full adjustment to the Exercise Prices or Number of Warrants shall be made.

(e) No adjustment shall be made to the Series A Exercise Price or the Series B Exercise Price, nor will any corresponding adjustment be made to the Number of Warrants, unless the adjustment would result in a change of at least 1% of the Series A Exercise Price or the Series B Exercise Price, respectively; provided, however, that any adjustment of less than 1% that was not made by reason of this Section 4.04(d) shall be carried forward and made as soon as such adjustment, together with any other adjustments not previously made by reason of this Section 4.04(d) , would result in a change of at least 1% in the aggregate. All calculations under this Article 4 shall be made to the nearest cent or to the nearest 1/100th of a Common Share, as the case may be.

(f) If the Company takes a record of the holders of Common Shares for the purpose of entitling them to receive a dividend or other distribution, and thereafter (and before the dividend or distribution has been paid or delivered to members) legally abandons its plan to pay or deliver such dividend or distribution, then thereafter no adjustment to the Exercise Prices or the Number of Warrants then in effect shall be required by reason of the taking of such record.

Section 4.06 Successor upon Consolidation, Merger and Sale of Assets .

(a) The Company may consolidate or merge with another Person (a “ Fundamental Equity Change ”) only (i) if the Company is the surviving Person or (ii), if the Company is not the surviving Person, then:

(1) the successor to the Company assumes all of the Company’s obligations under this Warrant Agreement and the Warrants, other than as provided in Section 4.07 , shall become exercisable into the common stock or other common equity of the successor; and

(2) the successor to the Company provides written notice of such assumption to the Warrant Agent promptly following the Fundamental Equity Change.

(b) In the case of a Fundamental Equity Change, the successor Person to the Company shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company, and the Company shall thereupon be released from all obligations and covenants under this Warrant Agreement and the Warrants. Such successor Person shall provide in writing to the Warrant Agent with such identifying corporate information as may be reasonably requested by the Warrant Agent. Such successor Person thereafter may cause to be signed, and may issue any or all of, the Global Warrants issuable pursuant to this Warrant Agreement which theretofore shall not have been issued by the Company; and, upon the order of such successor Person, instead of the Company, and subject to all the terms, conditions and limitations in this Warrant Agreement, the Warrant Agent shall authenticate and deliver, as applicable, any Global Warrants that previously shall have been signed and delivered by the officers of the Company to the Warrant Agent for authentication, and any Warrants which such successor Person thereafter shall cause to be signed and delivered to the Warrant Agent for such purpose.

(c) If the Company desires to sell, lease, convey or otherwise transfer in one transaction or a series of related transactions all or substantially all of the consolidated assets of the Company and its Subsidiaries (an “ Asset Sale ”), the Company may only consummate such Asset Sale if such Buyer agrees (i) to enter into a warrant agreement in form and substance substantially similar to this Warrant Agreement and (ii) to issue warrants for equity in such Buyer (or a Person to which all or substantially all of the assets of the Company and its Subsidiaries acquired in such Asset Sale are transferred or conveyed) to the Global Warrant Holder on terms (including economic) and conditions substantially similar to the Global Warrant (taking into account any Warrants that are exercised prior to the Expiration Date (taking into account the materiality of the transferred assets to the total assets and operations of the Affiliated Buyer, taken as a whole), for crediting to the accounts of the applicable Participants for the benefit of the Beneficial Owners pursuant to the procedures of the Depository.

 

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Section 4.07 Adjustment upon Reorganization Event .

(a) If there occurs any Fundamental Equity Change or any recapitalization, reorganization, consolidation, reclassification, change in the outstanding Common Shares (other than changes resulting from a subdivision or combination to which Section 4.01(a) applies), statutory share exchange or other transaction (each such event a “ Reorganization Event ”), in each case as a result of which the Common Shares would be converted into, changed into or exchanged for, stock, other securities, other property or assets (including Cash or any combination thereof) (the “ Reference Property ”) while any Warrants remain outstanding and unexpired, then following the effective time of the Reorganization Event, the right to receive Common Shares upon exercise of a Warrant shall be changed to a right to receive, upon exercise of such Warrant, the kind and amount of shares of stock, other securities or other property or assets (including Cash or any combination thereof) that a holder of one Common Share would have owned or been entitled to receive in connection with such Reorganization Event (such kind and amount of Reference Property per Common Share, a “ Unit of Reference Property ”). In the event holders of Common Shares have the opportunity to elect the form of consideration to be received in a Reorganization Event, the type and amount of consideration into which the Warrants shall be exercisable from and after the effective time of such Reorganization Event shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Shares in such Reorganization Event. The Company hereby agrees not to become a party to any Reorganization Event unless its terms are consistent with this Section 4.07 .

(b) At any time from, and including, the effective time of a Reorganization Event:

(1) each Warrant shall be exercisable for a single Unit of Reference Property instead of one Common Share; and

(2) the Fair Value shall be calculated with respect to a Unit of Reference Property.

(c) On or prior to the effective time of any Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute an amendment to this Warrant Agreement providing that the Warrants shall be exercisable for Units of Reference Property in accordance with the terms of this Section 4.07. If the Reference Property in connection with any Reorganization Event includes shares of stock or other securities and assets of a Person other than the successor or purchasing Person, as the case may be, in such Reorganization Event, then the Company shall cause such amendment to this Warrant Agreement to be executed by such other Person and such amendment shall contain such additional provisions to protect the interests of the Global Warrant Holder (for the benefit of the Beneficial Owners) as the Board shall reasonably consider necessary by reason of the foregoing. Any such amendment to this Warrant Agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article 4. In the event the Company shall execute an amendment to this Warrant Agreement pursuant to this Section 4.07, the Company shall promptly file with the Warrant Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of Cash, securities or property or assets that will comprise a Unit of Reference Property after the relevant Reorganization Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with. The Company shall cause notice of the execution of the amendment to be mailed to the Global Warrant Holder within 20 Business Days after execution thereof.

(d) The above provisions of this Section 4.07 shall similarly apply to successive Reorganization Events.

(e) If this Section 4.07 applies to any event or occurrence, no other provision of this Article 4 shall apply to such event or occurrence (other than Section 4.06).

Section 4.08 Reserved .

Section 4.09 Common Shares Outstanding; Common Shares Reserved for Issuance on Exercise .

(a) For the purposes of this Article 4 , the number of Common Shares at any time outstanding shall not include Common Shares held, directly or indirectly, by the Company or any of its Subsidiaries.

 

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(b) The Board has authorized and reserved for issuance such number of Common Shares as will be issuable upon the exercise of all outstanding Warrants for Common Shares. The Company covenants that all Common Shares that shall be so issuable shall be duly and validly issued, fully paid and non-assessable.

(c) The Company agrees to authorize and direct its current and future transfer agents for the Common Shares to reserve for issuance the number of Common Shares specified in this Section 4.09 and shall take all action required to increase the authorized number of Common Shares if at any time there shall be insufficient authorized but unissued Common Shares to permit such reservation or to permit the exercise of a Warrant. Promptly after each of the Expiration Dates, the Warrant Agent shall certify to the Company the aggregate Number of Warrants then outstanding, and thereafter no Common Shares shall be required to be reserved in respect of such Warrants.

Section 4.10 Calculations; Instructions to Warrant A gent .

(a) Subject to Section 4.10(b) , the Company shall be responsible for making all calculations called for under this Section 4 for purposes of determining any adjustments to the Exercise Prices and the Number of Warrants, including determinations as to Fair Value and the composition of Units of Reference Property. Such calculations and determinations shall be final and binding on the Global Warrant Holder and all Beneficial Owners absent manifest error. The Company shall provide a schedule of the Company’s calculations and determinations to the Warrant Agent, and the Warrant Agent is entitled to rely upon the accuracy of the Company’s calculations without independent verification.

(b) In the event the Board engages a Representative to advise it with respect to the determination of Fair Value, the Board shall be entitled to rely upon the determination of such Representation. The Company shall pay the fees and expenses of any Representative.

Section 4.11 Notice of Adjustments . The Company shall mail, or cause to be mailed, to the Global Warrant Holder and the Warrant Agent, in accordance with Section 7 .16 , a notice of any adjustment or readjustment to the Exercise Prices or the Number of Warrants no less than three Business Days prior to the effective date of such adjustment or readjustment. The Company shall file with the Warrant Agent such notice and an Officer’s Certificate setting forth such adjustment or readjustment and kind and amount of securities, Cash or other property for which a Warrant shall thereafter be exercisable and the applicable Exercise Price, showing in reasonable detail the facts upon which such adjustment or readjustment is based. The Officer’s Certificate shall be conclusive evidence that the adjustment or readjustment is correct, and the Warrant Agent shall not be deemed to have any knowledge of any adjustments or readjustments unless and until it has received such Officer’s Certificate. The Warrant Agent shall not be under any duty or responsibility with respect to any such Officer’s Certificate except to exhibit the same to the Global Warrant Holder.

Section 4.12 Warrant Agent Not Responsible for Adjustments or Validity . The Warrant Agent shall at no time be under any duty or responsibility to determine whether any facts exist that may require an adjustment or readjustment of the Exercise Prices and the Number of Warrants, or with respect to the nature or extent of any such adjustment or readjustment when made, or with respect to the method employed, herein or in any supplemental agreement provided to be employed, in making the same. The Warrant Agent shall have no duty to verify or confirm any calculation called for hereunder. The Warrant Agent shall have no liability for any failure or delay in performing its duties hereunder caused by any failure or delay of the Company in providing such calculations to the Warrant Agent. The Warrant Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Common Shares or of any Securities or property which may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment or readjustment pursuant to this Article 4 , and it makes no representation with respect thereto. The Warrant Agent shall not be responsible for any failure of the Company to make any Cash payment or to issue, transfer or deliver any Common Shares or stock certificates or other securities or property or scrip upon the surrender of any Warrant for the purpose of exercise or upon any adjustment pursuant to this Article 4 , or to comply with any of the covenants of the Company contained in this Article 4 . The Warrant Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein or in any notice from the Company. The Warrant Agent may rely conclusively, and shall be protected in acting, upon any notice, instruction, request, order, judgment, certification, opinion or advice of counsel, statement, demand or other instrument or document, not only as to its due execution,

 

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validity (including the authority of the person signing or presenting the same) and effectiveness, but also as to the truth and accuracy of any information contained therein, which the Warrant Agent shall believe to be genuine and to have been signed or presented by the person or parties purporting to sign the same.

Section 4.13 Statements on Warrants . Other than notation of any applicable increase or decrease in the Number of Warrants on Schedule A of each Global Warrant Certificate, the form of each Warrant Certificate need not be changed because of any adjustment or readjustment made pursuant to this Article 4 , and Warrant Certificates issued after such adjustment or readjustment may state the same information (other than the applicable adjusted Exercise Price and the adjusted Number of Warrants) as are stated in the Warrant Certificates initially issued pursuant to this Warrant Agreement.

Section 4.14 Effect of A djustment . The Depository and applicable Participants shall effect any applicable adjustments, changes or payments to the Beneficial Owners with respect to beneficial interests in the Global Warrants resulting from any adjustments or readjustments, changes or payments effected pursuant to this Article 4 in accordance with the procedures of the Depository and the applicable Participants.

Article 5

Other Provisions Relating to the Rights of Warrant Holders

Section 5.01 No Rights as Stockholders . Nothing contained in this Warrant Agreement or in any Warrant Certificate shall be construed as conferring upon any Person, by virtue of holding or having a warrant or a beneficial interest in a Global Warrant, the right to vote, to consent, to receive any Cash dividends, stock dividends, allotments or rights or other distributions paid, allotted or distributed or distributable to the holders of Common Shares, or to exercise any rights whatsoever as a stockholder of the Company unless, until and only to the extent such Persons become holders of record of Common Shares issued upon settlement of Warrants.

Section 5.02 Mutilated or Missing Warrant Certificates . If any Warrant Certificate at any time is mutilated, defaced, lost, destroyed or stolen, then on the terms set forth in this Warrant Agreement, such Warrant Certificate may be replaced with a new Warrant Certificate, of like date and tenor and representing the same number of Warrants, at the cost of the Company at the office of the Warrant Agent subject to the replacement procedures of the Warrant Agent which shall include obtaining an open penalty surety bond satisfactory to the Warrant Agent holding the Company and the Warrant Agent harmless. Any such new Warrant Certificate shall constitute an original contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated or destroyed Warrant Certificate shall be at any time enforceable by anyone. All Warrant Certificates shall be issued upon the express condition that the foregoing provisions are exclusive with respect to the substitution for lost, stolen, mutilated or destroyed Warrant Certificates, and shall preclude any and all other rights or remedies notwithstanding any Law or statute existing or hereafter enacted to the contrary with respect to the substitution for and replacement of negotiable instruments or other securities without their surrender.

Section 5.03 Modification, Waiver and Meetings .

(a) This Warrant Agreement may be modified or amended by the Company and the Warrant Agent, without the consent of the Warrant Holders, any Beneficial Owner of any Global Warrant, or any applicable Participant with respect to any Global Warrant, for the purposes of curing any ambiguity or correcting or supplementing any defective provision contained in this Warrant Agreement or to make any other provisions in regard to matters or questions arising in this Warrant Agreement which the Company and the Warrant Agent may deem necessary or desirable; provided that such modification or amendment does not adversely affect the interests of the Warrant Holder or the Beneficial Owners in any material respect. As a condition precedent to the Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent a certificate from an Appropriate Officer that states that the proposed amendment is in compliance with the terms of this Section 5.03 .

(b) Modifications and amendments to this Warrant Agreement or to the terms and conditions of Warrants not contemplated by Section 5.03(a) may also be made by the Company and the Warrant Agent, and noncompliance with any provision of the Warrant Agreement or Warrants may be waived, by the Warrant Holders (pursuant to a proper vote or consent of a majority of the Warrants at the time outstanding). Notwithstanding

 

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anything to the contrary herein, the Company may amend Schedule A from time to time to accurately reflect the name and address of the Warrant Holder after the Closing Date without any further consent or agreement from any other Person.

(c) However, no modification, amendment or waiver may, without the written consent of:

(1) the Warrant Holders (pursuant to a proper vote or consent of each Warrant):

(A) change the Expiration Date; or

(B) increase either of the Exercise Prices or decrease the Number of Warrants (except as set forth in Article 4 );

(2) the Warrant Holders (pursuant to a proper vote or consent of 66.66% of the Warrants affected):

(A) impair the right to institute suit for the enforcement of any payment or delivery with respect to the exercise and settlement of any Warrant;

(B) except as otherwise expressly permitted by provisions of this Warrant Agreement concerning specified reclassifications or corporate reorganizations, impair or adversely affect the exercise rights with respect to Warrants, including any change to the calculation or payment of the number of Common Shares received upon exercise of each Warrant;

(C) reduce the percentage of Warrants outstanding necessary to modify or amend this Warrant Agreement or to waive any past default; or

(D) reduce the percentage in Warrants outstanding required for any other waiver under this Warrant Agreement.

Section 5.04 Notices of Date, e tc . In the event of any Change of Control, then, and in each such case, the Company will mail or cause to be mailed to the Warrant Holder, at least 15 days prior to the effective date, a notice specifying the effective date on which such Change of Control is or is expected to take place, and the time, if any is to be fixed, as of which the holders of record of Common Shares (or such other stock or Securities at the time deliverable upon the exercise of a Warrant) shall be entitled to exchange their Common Shares (or such other stock or Securities) for Securities or other property deliverable upon such Change of Control.

Section 5.05 Registration and Listing .

(a) If the Board determines that it is necessary for the Company to file a registration statement in order for the Warrants or the Common Shares issuable upon exercise of the Warrants to be freely transferable, then no later than 90 days from the issuance of the Warrants, the Company agrees to use commercially reasonable efforts to cause to be filed pursuant to the Securities Act a registration statement covering the resale of the Warrants and such Common Shares (the “ Shelf Registration Statement ”). The Company agrees to use commercially reasonable efforts to cause the Shelf Registration Statement to become effective thereafter and to remain effective until the earlier of (i) such time as all Warrants and such Common Shares have been exercised, (ii) such time as the Warrants and such Common Shares are freely transferable pursuant to Rule 144, and (iii) the Expiration Date. The Company shall promptly inform the Warrant Agent of any change in the status of the effectiveness or availability of the Shelf Registration Statement.

(b) Notwithstanding any other provision of this Agreement, the Company shall not be required to file a registration statement (or any amendment thereto) or, if the Company has filed a Shelf Registration Statement, the Company shall be entitled to suspend the offer and sale of Warrants or the Common Shares issuable upon exercise of the Warrants pursuant to such Shelf Registration Statement for a period of up to 60 days, (i) if the

 

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Board determines that such postponement or suspension, as applicable, is in the best interest of the Company due to a pending transaction involving the Company (including a pending securities offering by the Company), (ii) if the Board determines such registration would render the Company unable to comply with applicable securities laws, (iii) if the Board determines such registration would require disclosure of material information that the Company has a bona fide business purpose for preserving as confidential, (iv) upon issuance by the SEC of a stop order suspending the effectiveness of such Shelf Registration Statement or upon the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of the Warrants or the Common Shares issuable upon exercise of the Warrants for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) if the Company elects at such time to offer any equity securities of the Company to (A) fund a merger, third-party tender offer or other business combination, acquisition of assets or similar transaction or (B) meet rating agency and other capital funding requirements, (vi) if the Company is pursuing a primary underwritten offering of equity securities pursuant to a registration statement or a private placements of its equity securities or equity-linked securities, (vii) upon the occurrence of any event or any passage of time that makes any statement made in such Shelf Registration Statement (or any related Prospectus) untrue in any material respect or that requires any revisions thereto so that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (viii) if any other material development would materially and adversely interfere with the use of such Shelf Registration Statement (any such period, a “ Blackout Period ”); provided, however , that in no event shall such Blackout Periods collectively exceed an aggregate of 120 days in any 12-month period. Each Beneficial Owner of Warrants agrees, that upon receipt of a notice from the Company of a Blackout Period, such Beneficial Owner shall forthwith discontinue disposition of Warrants under the Shelf Registration Statement until the Company confirms the expiration thereof. The Company may provide appropriate stop orders to enforce such restrictions.

(c) All expenses incident to the Company’s performance of or compliance with its obligations under this Section 5.05 will be borne by the Company, including without limitation: (i) all SEC, stock exchange or Financial Industry Regulatory Authority registration and filing fees, (ii) all expenses of any Persons incurred by or on behalf of the Company in preparing or assisting in preparing, printing and distributing the Shelf Registration Statement or any other registration statement, prospectus, any amendments or supplements thereto and other documents relating to the performance of and compliance with this Section 5.05 , (iv) the fees and disbursements of counsel for the Company and the Warrant Agent as agreed and (v) any fees and disbursements of the independent public accountants of the Company incident to such performance and compliance.

(d) The Company will notify such Beneficial Owners who are included in a Shelf Registration Statement as promptly as reasonably practicable: (i)(A) when Prospectus or any prospectus supplement or post-effective amendment to a Shelf Registration Statement in which such Beneficial Owner is included has been filed; (B) when the SEC notifies the Company whether there will be a review of the applicable Shelf Registration Statement and whenever the SEC comments in writing on such Shelf Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each of such Beneficial Owners that pertain to such Beneficial Owners as selling stockholders); and (C) with respect to each applicable Shelf Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Shelf Registration Statement or Prospectus or for additional information that pertains to such Beneficial Owners as sellers of the Warrants or the Common Shares issuable upon exercise of the Warrants; (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Shelf Registration Statement covering any or all of the Warrants or the Common Shares issuable upon exercise of the Warrants or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Warrants or the Common Shares issuable upon exercise of the Warrants for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes any statement made in such Shelf Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Shelf Registration Statement, Prospectus or other documents so that, in the case of such Shelf Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading ( provided ,   however , that no notice by the Company shall be required pursuant to this

 

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clause (v) in the event that the Company either promptly files a prospectus supplement to update the Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by reference into the Shelf Registration Statement, which in either case, contains the requisite information that results in such Shelf Registration Statement no longer containing any untrue statement of material fact or omitting to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading).

(e) The right of any Beneficial Owner to include their Warrants or the Common Shares issuable upon exercise of the Warrants in a Shelf Registration Statement or any Prospectus or prospectus supplement shall be conditioned upon the Beneficial Owner furnishing to the Company such information the Company deems is reasonably necessary for any Shelf Registration Statement or any Prospectus or prospectus supplement including, without limitation, the completion and execution of all questionnaires, powers of attorney, indemnities, underwriter lock-up agreements (if requested by the Company) and other documents and information regarding the distribution of their Warrants or the Common Shares issuable upon exercise of the of the Warrants, and if any Holder does not do so after prompt written request by the Company, then the Company will not be required to register any shares of Common Shares of the Beneficial Owner in a Shelf Registration Statement.

(f) Following the Shelf Registration Statement being declared effective by the SEC, if the Board determines that it is in the best interests of the Company for the Warrants or the Common Shares issuable upon exercise of the Warrants to be listed on a national securities exchange, the Company agrees to use its commercially reasonable efforts to list the Warrants on the stock exchange on which the Company’s Common Shares are then listed or such other national securities exchange as the Board may select as soon as commercially practicable thereafter.

Section 5.06 Tax Consequences . All Persons holding or having a Warrant or a beneficial interest in a Global Warrant are responsible for obtaining their own tax advice regarding the tax consequences of such interest. The Company has given no tax advice regarding the Warrants.

Article 6

Representations of the Company

Section 6.01 Representations . The Company makes the following representations to the Transfer Agent:

(a) the issuance of the Warrants will comply in all material respects with the Securities Act and all other applicable requirements of applicable U.S. and non-U.S. federal, state and local law, including, without limitation, any applicable regulations of the SEC and any other U.S. and non-U.S. regulatory or governmental authority;

(b) as of the date hereof and, after giving effect to the Transactions (as defined in the Exchange Offer Memorandum and Consent Solicitation Statement of the Company dated as of June 24, 2016), each of the Company and its subsidiaries is not and will not be, individually or on a consolidated basis, an “investment company” that is required to be registered under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder;

(c) without limiting any provision herein, no registration under the Securities Act is required for the issuance of the Warrants.

(d) no securities of the Company of the same class as the Warrants have been offered, issued, or sold by the Company or any of its affiliates within the six-month period immediately prior to the date hereof, and the Company does not have any intention of making an offer or sale of such securities of the Company of the same class as the Warrants, for a period of six months after the issue date of the Warrants;

 

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(e) none of the Company, any of its affiliates or any person acting on behalf of the Company has engaged or will engage, in connection with the issuance of the Warrants, in any form of general solicitation or general advertising within the meaning of Rule 502 under the Securities Act;

(f) none of the Company, any of its affiliates or any person acting on behalf of the Company has, with respect to Warrants issued outside the United States, offered the Warrants to buyers qualifying as “U.S. persons” (as defined in Rule 902 under the Securities Act) or engaged in any directed selling efforts within the meaning of Rule 902 under the Securities Act; and

(g) neither the Company, nor any of its affiliates has entered or will enter into any arrangement or agreement with respect to the distribution of the Warrants except for this Agreement.

As used in clause (d) above, the terms “offer” and “sale” have the meanings specified in Section 2(a)(3) of the Securities Act.

Article 7

Concerning the Warrant Agent and Other Matters

Section 7.01 Certificated Common Shares . Certificated Holders shall be subject to the same terms and conditions set forth in this Warrant Agreement (including the Exhibits hereto) as Initial Beneficial Holders that hold Common Shares in book-entry form. In exercising any rights and satisfying any obligations pursuant to this Warrant Agreement, Certificated Holders shall comply with any rules and procedures of the Warrant Agent applicable to Warrants issued to Certificated Holders, including, without limitation, such rules and procedures as may apply to the registration of transfer of any Warrant on the Warrant Register (including the delivery of any requisite written instructions and supporting documentation), the treatment of the registered holder reflected in the Warrant Register as the absolute owner of such Warrants, and the exercise of Warrants by directly completing the requirements set forth in Section 3.02 .

Section 7.02 Payment of Certain Taxes .

(a) The Company shall pay any and all documentary, stamp or similar issue or transfer taxes that may be payable upon the initial issuance of the Warrants hereunder and delivery to the Warrant Holders.

(b) The Company shall pay any and all documentary, stamp or similar issue or transfer taxes that may be payable upon the issuance of Common Shares upon the exercise of Warrants hereunder.

Section 7.03 Reserved .

Section 7.04 Change of Warrant A gent .

(a) The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder (except for liability arising as a result of the Warrant Agent’s own gross negligence, willful misconduct or bad faith) after giving sixty days’ notice in writing to the Company, except that such shorter notice may be given as the Company shall, in writing, accept as sufficient. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor warrant agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty days after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated warrant agent or by any Warrant Holder, then the Warrant Holders (pursuant to a proper vote or consent of 50.00% of the Warrants) may apply to any court of competent jurisdiction for the appointment of a successor warrant agent.

(b) The Warrant Agent may be removed by the Company at any time upon sixty days’ written notice to the Warrant Agent; provided , however , that the Company shall not remove the Warrant Agent until a successor warrant agent meeting the qualifications hereof shall have been appointed; provided, further, that, until such successor warrant agent has been appointed, the Company shall compensate the Warrant Agent in accordance with Section 7.05 .

 

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(c) Any successor warrant agent, whether appointed by the Company or by such a court, shall be a corporation or banking association organized, in good standing and doing business under the Laws of the United States of America or any state thereof or the District of Columbia, and authorized under such Laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority and having a combined capital and surplus of not less than $50,000,000. The combined capital and surplus of any such successor warrant agent shall be deemed to be the combined capital and surplus as set forth in the most recent report of its condition published prior to its appointment; provided that such reports are published at least annually pursuant to Law or to the requirements of a federal or state supervising or examining authority. After acceptance in writing of such appointment by the successor warrant agent, such successor warrant agent shall be vested with all the authority, powers, rights, immunities, duties and obligations of its predecessor warrant agent with like effect as if originally named as warrant agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor warrant agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor warrant agent all the authority, powers and rights of such predecessor warrant agent hereunder; and upon request of any successor warrant agent, the Company shall make, execute, acknowledge and deliver any and all instruments in writing to more fully and effectually vest in and conform to such successor warrant agent all such authority, powers, rights, immunities, duties and obligations. Upon assumption by a successor warrant agent of the duties and responsibilities hereunder, the predecessor warrant agent shall deliver and transfer, at the expense of the Company, to the successor warrant agent any property at the time held by it hereunder. As soon as practicable after such appointment, the Company shall give notice thereof to the predecessor warrant agent, each Warrant Holder and each transfer agent for its Common Shares. Failure to give such notice, or any defect therein, shall not affect the validity of the appointment of the successor warrant agent.

(d) Any entity into which the Warrant Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any Person succeeding to all or substantially all of the corporate trust or agency business of the Warrant Agent, shall be the successor warrant agent under this Warrant Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such entity would be eligible for appointment as a successor warrant agent under Section 7.04(c) . In case at the time such successor to the Warrant Agent shall succeed to the agency created by this Warrant Agreement, any Warrant Certificate shall have been countersigned but not delivered, any such successor to the Warrant Agent may adopt the countersignature of the original Warrant Agent and deliver such Warrant Certificate so countersigned, and in case at that time any Warrant Certificates shall not have been countersigned, any successor to the Warrant Agent may countersign such Warrant Certificate either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant Certificate shall have the full force provided in the Warrant Certificate and in this Warrant Agreement.

(e) In case at any time the name of the Warrant Agent shall be changed and at such time any Global Warrant Certificate shall have been countersigned but not delivered, the Warrant Agent may adopt the countersignatures under its prior name and deliver such Warrant Certificate so countersigned; and in case at that time any Warrant Certificate shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificate either in its prior name or in its changed name; and in all such cases such Warrant Certificate shall have the full force provided in the Warrant Certificate and in this Warrant Agreement.

Section 7.05 Compensation; Further Assurances . The Company agrees that it will (a) pay the Warrant Agent reasonable compensation for its services as Warrant Agent in accordance with Exhibit C attached hereto and, except as otherwise expressly provided, will pay or reimburse the Warrant Agent upon written demand for all reasonable and documented expenses, disbursements and advances incurred or made by the Warrant Agent in accordance with any of the provisions of this Warrant Agreement (including the reasonable compensation, expenses and disbursements of its agents and counsel incurred in connection with the execution and administration of this Agreement), except any such expense, disbursement or advance as may arise from its or any of their gross negligence, willful misconduct or bad faith, and (b) perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Warrant Agreement.

 

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Section 7.06 Reliance on Counsel . The Warrant Agent may consult with legal counsel (who may be legal counsel for the Company), and the written opinion of such counsel or any advice of legal counsel subsequently confirmed by a written opinion of such counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted by it in good faith and in accordance with such written opinion or advice.

Section 7.07 Proof of Actions Taken . Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent shall deem it necessary or desirable that any matter be proved or established by the Company prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the Warrant Agent, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Warrant Agent; and such Officer’s Certificate shall, in the absence of bad faith on the part of the Warrant Agent, be full warrant to the Warrant Agent for any action taken, suffered or omitted in good faith by it under the provisions of this Warrant Agreement in reliance upon such Officer’s Certificate; but in its discretion the Warrant Agent may in lieu thereof accept other evidence of such fact or matter or may require such further or additional evidence as to it may seem reasonable.

Section 7.08 Correctness of Statements . The Warrant Agent shall not be liable for or by reason of any of the statements of fact or recitals contained in this Warrant Agreement or any Warrant Certificate (except its countersignature thereof) or be required to verify the same, and all such statements and recitals are and shall be deemed to have been made by the Company only.

Section 7.09 Validity of A greement . From time to time, the Warrant Agent may apply to any Appropriate Officer for instruction and the Company shall provide the Warrant Agent with such instructions concerning the services to be provided hereunder. The Warrant Agent shall not be held to have notice of any change of authority of any Person, until receipt of notice thereof from the Company. The Warrant Agent shall not be under any responsibility in respect of the validity of this Warrant Agreement or the execution and delivery hereof or in respect of the validity or execution of any Warrant Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Warrant Agreement or in any Warrant Certificate; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Shares to be issued pursuant to this Warrant Agreement or any Warrants or as to whether any Common Shares will, when issued, be validly issued and fully paid and non-assessable. The Warrant Agent and its agents and subcontractors shall not be liable and shall be indemnified by the Company for any action taken or omitted by Warrant Agent in reliance upon any Company instructions except to the extent that the Warrant Agent had actual knowledge of facts and circumstances that would render such reliance unreasonable.

Section 7.10 Use of Agents . The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents provided that the Warrant Agent shall remain responsible for the activities or omissions of any such agent or attorney and reasonable care has been exercised in the selection and in the continued employment of such attorney or agent.

Section 7.11 Liability of Warrant A gent . The Warrant Agent shall incur no liability or responsibility to the Company or to any Global Warrant Holder for any action taken or not taken (i) in reliance on any notice, resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by it to be genuine and to have been signed, sent or presented by the proper party or parties or (ii) in relation to its services under this Warrant Agreement, unless such liability arises out of or is attributable to the Warrant Agent’s gross negligence, material breach of this Warrant Agreement, or willful misconduct or bad faith or material breach of any representation or warranty of the Warrant Agent hereunder. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all losses, expenses and liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted in good faith by the Warrant Agent in the execution of this Warrant Agreement or otherwise arising in connection with this Warrant Agreement, except as a result of the Warrant Agent’s gross negligence, material breach of this Warrant Agreement, willful misconduct or bad faith (as

 

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determined by a court of competent jurisdiction in a final non- appealable judgment) or material breach of any representation or warranty of the Warrant Agent hereunder. The Warrant Agent shall be liable hereunder only for its gross negligence, material breach of this Warrant Agreement, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final non-appealable judgment) or its material breach of any representation or warranty of the Warrant Agent hereunder, for which the Warrant Agent is not entitled to indemnification under this Warrant Agreement. Neither party to this Agreement shall be liable to the other party for any consequential, indirect, punitive, special or incidental damages under any provisions of this Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder even if that party has been advised of or has foreseen the possibility of such damages.

Section 7.12 Legal Proceedings . The Warrant Agent shall be under no obligation to institute any action, suit or legal proceeding or to take any other action likely to involve expense unless the Company, the applicable Warrant Holder(s) or any applicable Participant on behalf of a Beneficial Owner shall furnish the Warrant Agent with reasonable indemnity for any costs and expenses which may be incurred, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without any such security or indemnity. The Warrant Agent shall promptly notify the Company and the Warrant Holders in writing of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Warrant Agreement.

Section 7.13 Actions as A gent . The Warrant Agent shall act hereunder solely as agent and not in a ministerial or fiduciary capacity, and its duties shall be determined solely by the provisions hereof. The duties and obligations of the Warrant Agent shall be determined solely by the express provisions of the Warrant Agreement, and the Warrant Agent shall not be liable except for the performance of such duties and obligations as are specifically set forth in the Warrant Agreement. No implied covenants or obligations shall be read into the Warrant Agreement against the Warrant Agent. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in good faith in connection with this Warrant Agreement except for its own gross negligence, willful misconduct or bad faith.

Section 7.14 Appointment and Acceptance of Agency . The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth in this Warrant Agreement, and the Warrant Agent hereby accepts the agency established by this Warrant Agreement and agrees to perform the same upon the terms and conditions herein set forth or as the Company and the Warrant Agent may hereafter agree.

Section 7.15 Successors and Assigns . All the covenants and provisions of this Warrant Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns hereunder. The Warrant Agent may assign this Agreement or any rights and obligations hereunder, in whole or in part, to an Affiliate thereof with the prior consent of the Company, provided that the Warrant Agent may make such an assignment without consent of the Company to any successor to the Warrant Agent by consolidation, merger or transfer of its assets subject to the terms and conditions of the Agreement.

Section 7.16 Notices . Any notice or demand authorized by this Warrant Agreement to be given or made to the Company shall be sufficiently given or made if sent by mail first-class, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

Attention: Brent Whiteley, Chief Financial Officer and General Counsel

SAExploration Holdings, Inc.

1160 Dairy Ashford, Suite 160

Houston, Texas 77079

with a copy to counsel designated by the Company.

Any notice or demand authorized by this Warrant Agreement to be given or made to the Warrant Agent shall be sufficiently given or made if sent by mail first-class, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

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Attention: Margaret Villani

Continental Stock Transfer & Trust Company

17 Battery Place

New York, NY 10004

Any notice or demand authorized by this Warrant Agreement to be given or made to the Global Warrant Holder shall be sufficiently given or made if sent by first-class mail, postage prepaid to the last address of the Global Warrant Holder as it shall appear on the Warrant Register.

Section 7.17 Applicable Law; Jurisdiction . The validity, interpretation and performance of this Warrant Agreement and of the Warrant Certificates shall be governed in accordance with the laws of the State of New York. The parties hereto irrevocably consent to the exclusive jurisdiction of the courts of the State of New York and any federal court located in such state in connection with any action, suit or proceeding arising out of or relating to this Warrant Agreement.

Section 7.18 Waiver of Jury T rial . EACH OF THE COMPANY AND THE WARRANT AGENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS WARRANT AGREEMENT OR A WARRANT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PERSON HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PERSON MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS WARRANT AGREEMENT OR A WARRANT. EACH OF THE COMPANY AND THE WARRANT AGENT CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) SUCH PERSON UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) SUCH PERSON MAKES THIS WAIVER VOLUNTARILY, AND (d) SUCH PERSON HAS BEEN INDUCED TO ENTER INTO THIS WARRANT AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 7.19 Benefit of this Warrant A greement . Nothing in this Warrant Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any Person or corporation other than the parties hereto and the Warrant Holder any right, remedy or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Warrant Agreement contained shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Warrant Holder.

Section 7.20 Registered Warrant Holder . Prior to due presentment for registration of Transfer, the Company and the Warrant Agent may deem and treat the Person in whose name any Warrants are registered in the Warrant Register as the absolute owner thereof for all purposes whatever (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Company or the Warrant Agent) and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary or be bound to recognize any equitable or other claim to or interest in any Warrants on the part of any other Person and shall not be liable for any registration of Transfer of Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or nominee is committing a breach of trust in requesting such registration of Transfer or with such knowledge of such facts that its participation therein amounts to bad faith.

Section 7.21 Headings . The Article and Section headings herein are for convenience only and are not a part of this Warrant Agreement and shall not affect the interpretation thereof.

Section 7.22 Counterparts . This Warrant Agreement may be executed in any number of counterparts on separate counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.

 

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Section 7.23 Entire Agreement . This Warrant Agreement and the Warrant Certificates constitute the entire agreement of the Company, the Warrant Agent and Warrant Holder with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Company, the Warrant Agent and the Warrant Holder with respect to the subject matter hereof.

Section 7.24 Severability . Wherever possible, each provision of this Warrant Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Warrant Agreement shall be prohibited by or invalid under applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Warrant Agreement.

Section 7.25 Termination . This Warrant Agreement, as it relates to Warrants shall terminate at the Expiration Date (or Close of Business on the Settlement Date with respect to any Exercise Notice delivered prior to the Expiration Date). Notwithstanding the foregoing, this Warrant Agreement, as it relates to the Series A Warrants and the Series B Warrants will terminate on such earlier date on which all outstanding Series A Warrants or the Series B Warrants have been exercised, respectively. All provisions regarding indemnification, warranty, liability and limits thereon shall survive the termination or expiration of this Warrant Agreement.

Section 7.26 Confidentiality . The Warrant Agent and the Company agree that (a) personal, non-public Global Warrant Holder and Beneficial Owner information which is exchanged or received pursuant to the negotiation or the carrying out of this Agreement and (b) the fees for services set forth in the attached schedule shall remain confidential, and shall not be voluntarily disclosed to any other person, except disclosures pursuant to applicable securities Laws or otherwise as may be required by Law, including, without limitation, pursuant to subpoenas from state or federal government authorities.

[ signature pages follow ]

 

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IN WITNESS WHEREOF, this Warrant Agreement has been duly executed by the parties hereto as of the day and year first above written.

 

SAExploration Holdings, Inc.
By:    

/s/ Brent Whiteley

  Name:    Brent Whiteley
 

Title:

  Chief Financial Officer and General Counsel
Continental Stock Transfer & Trust Company
By:  

/s/ Kevin Jennings

  Name:   Kevin Jennings
  Title:   Vice President

 

[SIGNATURE PAGE TO WARRANT AGREEMENT]


SCHEDULE A

SCHEDULE OF INCREASES OR DECREASES IN WARRANTS

The initial Number of Warrants is 308,217. In accordance with the Warrant Agreement dated as of July 27, 2016 among the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, the following increases or decreases in the Number of Warrants have been made:

 

Date

 

Amount of increase

in Number of

Warrants evidenced

by this Global

Warrant

 

Amount of decrease

in Number of

Warrants evidenced

by this Global

Warrant

  

Number of Warrants
evidenced by this

Global Warrant
following such

decrease or increase

  

Signature of

authorized signatory

         


EXHIBIT A

FORM OF SERIES A WARRANT

 

No. 1

  
   CUSIP NO. [    ]

[Global Certificate Legend:

[UNLESS THIS GLOBAL WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO SAEXPLORATION HOLDINGS, INC. (THE “COMPANY”), THE CUSTODIAN OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART, TO THE COMPANY, DTC, THEIR SUCCESSORS AND THEIR RESPECTIVE NOMINEES.]

TRANSFERS OF THIS WARRANT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO ON THE REVERSE HEREOF.

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (2) IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY OR THE WARRANT AGENT SO REQUESTS), IN RELIANCE WITH RULE 144A OR REGULATION S, OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.

 

A-1


SAExploration Holdings, Inc.

July 27, 2016

NUMBER OF WARRANTS: Initially, 154,108 Warrants, subject to adjustment as described in the Warrant Agreement dated as of July 27, 2016 between SAExploration Holdings, Inc. and Continental Stock Transfer & Trust Company, as Warrant Agent (as supplemented or amended, the “Warrant Agreement”), each of which is exercisable for one Common Share.

EXERCISE PRICE: Initially, $10.30 per Warrant, subject to adjustment as described in the Warrant Agreement.

FORM OF SETTLEMENT:

Full Physical Settlement : If Full Physical Settlement is elected, the Company shall deliver, against payment of the Exercise Price, a number of Common Shares equal to the number of Warrants exercised.

Net Share Settlement : If Net Share Settlement is elected, the Company shall deliver, without any Cash payment therefor, a number of Common Shares equal to the quotient determined by dividing (i) the Fair Value (as of the Exercise Date) of the number of Common Shares deliverable pursuant to Full Physical Settlement minus the Exercise Price that would be payable pursuant to Full Physical Settlement by (ii) the Fair Value of one Common Share determined pursuant to the above clause (i).

DATES OF EXERCISE: Contingent upon the receipt by the Company of Alaska tax credit certificates in a face amount of at least $25 million, at any time and from time to time during the period commencing thirty (30) days prior to July 27, 2021 through, and including, the Close of Business on July 27, 2021.

EXPIRATION DATE: July 27, 2021.

This Series A Warrant Certificate certifies that:

[[Cede & Co.], or its registered assigns, is the Global Warrant Holder] [is the Registered Holder] of the Number of Warrants (the “ Warrants ”) specified above (such number subject to adjustment from time to time as described in the Warrant Agreement).

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as though fully set forth in this place.

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.

In the event of any inconsistency between the Warrant Agreement and this Warrant Certificate, the Warrant Agreement shall govern.

 

A-2


IN WITNESS WHEREOF, SAExploration Holdings, Inc. has caused this instrument to be duly executed as of the date first written above.

 

SAEXPLORATION HOLDINGS, INC.
By:   

 

Name:
  Title:

 

A-3


Certificate of Authentication

These are the Warrants referred to in the above-mentioned Warrant Agreement. Countersigned as of the date above written:

Continental Stock Transfer & Trust Company,

as Warrant Agent

 

By:    

 

  Authorized Officer

 

A-4


SAEXPLORATION HOLDINGS, INC.

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued by the Company pursuant to the Warrant Agreement, dated as of July 27, 2016 (as it may be amended or supplemented, the “ Warrant Agreement ”), between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Warrant Holder consents by issuance of this Warrant Certificate. Without limiting the foregoing, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Warrant Agreement.

The Warrant Agreement and the terms of the Warrants are subject to amendment as provided in the Warrant Agreement.

This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.

 

A-5


FORM OF ASSIGNMENT

FOR VALUE RECEIVED, the undersigned assigns and transfers the Warrant(s) represented by this Certificate to:

 

 

Name, Address and Zip Code of Assignee

and irrevocably appoints

 

 

Name of Agent

as its agent to transfer this Warrant Certificate on the books of the Warrant Agent.

[Signature page follows]

Date: [    ]

 

 

Name of Assignor

By:   

 

Name:
Title:
(Sign exactly as your name appears on this Certificate)

NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.

 

A-6


FORM OF SERIES B WARRANT

 

No. 1

  
   CUSIP NO. [    ]

[Global Certificate Legend:

[UNLESS THIS GLOBAL WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO SAEXPLORATION HOLDINGS, INC. (THE “COMPANY”), THE CUSTODIAN OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART, TO THE COMPANY, DTC, THEIR SUCCESSORS AND THEIR RESPECTIVE NOMINEES.]

TRANSFERS OF THIS WARRANT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO ON THE REVERSE HEREOF.

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (2) IN ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY OR THE WARRANT AGENT SO REQUESTS), IN RELIANCE WITH RULE 144A OR REGULATION S, OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT.

 

A-7


SAExploration Holdings, Inc.

July 27, 2016

NUMBER OF WARRANTS: Initially, 154,108 Warrants, subject to adjustment as described in the Warrant Agreement dated as of July 27, 2016 between SAExploration Holdings, Inc. and Continental Stock Transfer & Trust Company, as Warrant Agent (as supplemented or amended, the “Warrant Agreement”), each of which is exercisable for one Common Share.

EXERCISE PRICE: Initially, $12.88 per Warrant, subject to adjustment as described in the Warrant Agreement.

FORM OF SETTLEMENT:

Full Physical Settlement : If Full Physical Settlement is elected, the Company shall deliver, against payment of the Exercise Price, a number of Common Shares equal to the number of Warrants exercised.

Net Share Settlement : If Net Share Settlement is elected, the Company shall deliver, without any Cash payment therefor, a number of Common Shares equal to the quotient determined by dividing (i) the Fair Value (as of the Exercise Date) of the number of Common Shares deliverable pursuant to Full Physical Settlement minus the Exercise Price that would be payable pursuant to Full Physical Settlement by (ii) the Fair Value of one Common Share determined pursuant to the above clause (i).

DATES OF EXERCISE: Contingent upon the receipt by the Company of Alaska tax credit certificates in a face amount of at least $25 million, at any time and from time to time during the period commencing thirty (30) days prior to July 27, 2021 through, and including, the Close of Business on July 27, 2021.

EXPIRATION DATE: July 27, 2021.

This Series A Warrant Certificate certifies that:

[[Cede & Co.], or its registered assigns, is the Global Warrant Holder] [is the Registered Holder] of the Number of Warrants (the “ Warrants ”) specified above (such number subject to adjustment from time to time as described in the Warrant Agreement).

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as though fully set forth in this place.

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.

In the event of any inconsistency between the Warrant Agreement and this Warrant Certificate, the Warrant Agreement shall govern.

 

A-8


IN WITNESS WHEREOF, SAExploration Holdings, Inc. has caused this instrument to be duly executed as of the date first written above.

 

SAEXPLORATION HOLDINGS, INC.
By:    

 

Name:
  Title:

 

A-9


Certificate of Authentication

These are the Warrants referred to in the above-mentioned Warrant Agreement. Countersigned as of the date above written:

Continental Stock Transfer & Trust Company,

as Warrant Agent

 

By:    

 

  Authorized Officer

 

A-10


SAEXPLORATION HOLDINGS, INC.

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued by the Company pursuant to the Warrant Agreement, dated as of July 27, 2016 (as it may be amended or supplemented, the “ Warrant Agreement ”), between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Warrant Holder consents by issuance of this Warrant Certificate. Without limiting the foregoing, all capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Warrant Agreement.

The Warrant Agreement and the terms of the Warrants are subject to amendment as provided in the Warrant Agreement.

This Warrant Certificate shall be governed by, and interpreted in accordance with, the laws of the State of New York.

 

A-11


FORM OF ASSIGNMENT

FOR VALUE RECEIVED, the undersigned assigns and transfers the Warrant(s) represented by this Certificate to:

 

 

Name, Address and Zip Code of Assignee

and irrevocably appoints

 

 

Name of Agent

as its agent to transfer this Warrant Certificate on the books of the Warrant Agent.

[Signature page follows]

Date: [    ]

 

 

Name of Assignor

By:   

 

Name:
Title:
(Sign exactly as your name appears on this Certificate)

NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.

 

A-12


EXHIBIT B

Form of Exercise Notice

[Address]

Attention: Steven Vacante

 

Re: Warrant Agreement dated as of July 27, 2016 between SAExploration Holdings, Inc (the “Company”) and Continental Stock Transfer & Trust Company, as Warrant Agent (as it may be supplemented or amended, the “Warrant Agreement”)

The undersigned hereby irrevocably elects to exercise the right, represented by the Global Warrant Certificate No. [    ] held for its benefit through the book-entry facilities of The Depository Trust Company (the “Depository”), to exercise Warrants and receive the consideration deliverable in exchange therefor pursuant to the following settlement method (check one):

 

  ¨ Full Physical Settlement

 

  ¨ Net Sale Settlement

If Full Physical Settlement is elected, the undersigned shall tender payment of the Exercise Price therefore in accordance with instructions received from the Warrant Agent.

Please check below if this exercise is contingent upon a registered public offering or any Change of Control in accordance with Section 3.02(f) of the Warrant Agreement.

¨ This exercise is being made in connection with a registered public offering or any Other Change of Control; provided, that in the event that such transaction shall not be consummated, then this exercise shall be deemed revoked.

THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO CLOSE OF BUSINESS ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU OF THE ADDRESS AND PHONE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.

ALL CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE MEANINGS SET FORTH IN THE WARRANT AGREEMENT.

 

By:    

 

  Authorized Signature
  Address:
  Telephone:

 

B-1


EXHIBIT C

Fee Schedule

The Company shall pay the Warrant Agent for performance of its services under this Agreement such compensation as shall be agreed in writing between the Company and the Warrant Agent.

 

C-1

Exhibit 10.4

DIRECTOR AND OFFICER INDEMNIFICATION AGREEMENT

This Director and Officer Indemnification Agreement, dated as of July 27, 2016 (this “ Agreement ”), is made by and between SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and             (“ Indemnitee ”).

RECITALS :

A. Section 141 of the Delaware General Corporation Law provides that the business and affairs of a corporation shall be managed by or under the direction of its board of directors.

B. Pursuant to Sections 141 and 142 of the Delaware General Corporation Law, significant authority with respect to the management of the Company has been delegated to the officers of a corporation.

C. By virtue of the managerial prerogatives vested in the directors and officers of a Delaware corporation, directors and officers act as fiduciaries of the corporation and its stockholders.

D. The Company’s certificate of incorporation and bylaws (collectively, the “ Constituent Documents ”) expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Company’s Board of Directors (the “ Board ”), officers and other persons with respect to indemnification.

D. Thus, it is critically important to the Company and its stockholders that the Company be able to attract and retain the most capable persons reasonably available to serve as directors and officers of the Company.

E. In recognition of the need for corporations to be able to induce capable and responsible persons to accept positions in corporate management, Delaware law authorizes (and in some instances requires) corporations to indemnify their directors and officers, and further authorizes corporations to purchase and maintain insurance for the benefit of their directors and officers.

F. The Delaware courts have recognized that indemnification by a corporation serves the dual policies of (1) allowing corporate officials to resist unjustified lawsuits, secure in the knowledge that, if vindicated, the corporation will bear the expense of litigation and (2) encouraging capable women and men to serve as corporate directors and officers, secure in the knowledge that the corporation will absorb the costs of defending their honesty and integrity.

G. Delaware law also authorizes a corporation to pay in advance of the final disposition of an action, suit or proceeding the expenses incurred by a director or officer in the defense thereof, and any such right to the advancement of expenses may be made separate and distinct from any right to indemnification and need not be subject to the satisfaction of any standard of conduct or otherwise affected by the merits of any claims against the director or officer.


H. The number of lawsuits challenging the judgment and actions of directors and officers of Delaware corporations, the costs of defending those lawsuits, and the threat to directors’ and officers’ personal assets have all materially increased over the past several years, chilling the willingness of capable women and men to undertake the responsibilities imposed on corporate directors and officers.

I. Recent federal legislation and rules adopted by the Securities and Exchange Commission and the national securities exchanges have imposed additional disclosure and corporate governance obligations on directors and officers of public companies and have exposed such directors and officers to new and substantially broadened civil liabilities.

J. These legislative and regulatory initiatives have also exposed directors and officers of public companies to a significantly greater risk of criminal proceedings, with attendant defense costs and potential criminal fines and penalties.

K. The authority of a corporation to indemnify and advance the costs of defense to its directors and officers applies to criminal proceedings as well as to civil, administrative and investigative proceedings.

L. Indemnitee is a director or officer of the Company and his or her willingness to serve in such capacity is predicated, in substantial part, upon the Company’s willingness to indemnify him or her in accordance with the principles reflected above, to the fullest extent permitted by applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, and upon the other undertakings set forth in this Agreement.

M. Therefore, in recognition of the need to provide Indemnitee with substantial protection against personal liability, in order to procure Indemnitee’s continued service as a director or officer of the Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in order to provide such protection pursuant to express contract rights (intended to be enforceable irrespective of, among other things, any amendment to the Constituent Documents, any change in the composition of the Board or any change-in-control or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancement of Expenses (as defined in Section 1(e)) to Indemnitee as set forth in this Agreement and for the continued coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies.

N. In light of the considerations referred to in the preceding recitals, it is the Company’s intention and desire that the provisions of this Agreement be construed liberally, subject to their express terms, to maximize the protections to be provided to Indemnitee hereunder.

 

2


AGREEMENT :

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:

(a) “ Claim ” means (i) any threatened, asserted, pending or completed claim, demand, action, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other, and whether made pursuant to federal, state or other law; and (ii) any threatened, pending or completed inquiry or investigation, whether made, instituted or conducted by or at the behest of the Company or any other person, including any federal, state or other court or governmental entity or agency and any committee or other representative of any corporate constituency, that Indemnitee determines might lead to the institution of any such claim, demand, action, suit or proceeding.

(b) “ Controlled Affiliate ” means any corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not for profit, that is directly or indirectly controlled by the Company. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity or enterprise, whether through the ownership of voting securities, through other voting rights, by contract or otherwise; provided that direct or indirect beneficial ownership of capital stock or other interests in an entity or enterprise entitling the holder to cast 10% or more of the total number of votes generally entitled to be cast in the election of directors (or persons performing comparable functions) of such entity or enterprise shall be deemed to constitute control for purposes of this definition.

(c) “ Disinterested Director ” means a director of the Company who is not and was not a party to the Claim in respect of which indemnification is sought by Indemnitee.

(d) “ ERISA Losses ” means any taxes, penalties or other liabilities under the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended.

(e) “ Expenses ” means attorneys’ and experts’ fees, retainers, costs and expenses and all other costs and expenses paid or payable in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in (including on appeal), any Claim, other than the fees, expenses and costs in respect of which the Company is expressly stated in Section 15 to have no obligation. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Claim, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 4 only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. The parties agree that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable.

 

3


(f) “ Incumbent Directors ” means the individuals who, as of the date hereof, are members of the Board and any individual becoming a member of the Board subsequent to the date hereof whose election, nomination for election by the Company’s stockholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent Directors (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination); provided , however , that an individual shall not be an Incumbent Director if such individual’s election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Securities Exchange Act of 1934, as amended) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.

(g) “ Indemnifiable Claim ” means any Claim based upon, arising out of or resulting from (i) any actual, alleged or suspected act or failure to act by Indemnitee in his or her capacity as a director, officer, employee or agent of the Company or as a director, officer, employee, member, manager, trustee or agent of any other corporation, limited liability company, partnership, joint venture, trust or other entity or enterprise, whether or not for profit (including any employee benefit plan or related trust), as to which Indemnitee is or was serving at the request of the Company as a director, officer, employee, member, manager, trustee or agent, (ii) any actual, alleged or suspected act or failure to act by Indemnitee in respect of any business, transaction, communication, filing, disclosure or other activity of the Company or any other entity or enterprise referred to in clause (i) of this sentence, or (iii) Indemnitee’s status as a current or former director, officer, employee or agent of the Company or as a current or former director, officer, employee, member, manager, trustee or agent of the Company or any other entity or enterprise referred to in clause (i) of this sentence or any actual, alleged or suspected act or failure to act by Indemnitee in connection with any obligation or restriction imposed upon Indemnitee by reason of such status; provided , however , that except for compulsory counterclaims, Indemnifiable Claim shall not include any Claim initiated by Indemnitee against the Company or any director or officer of the Company unless (1) the Incumbent Directors consented to the initiation of such Claim prior to its initiation, (2) the Incumbent Directors authorize the Company to join in such Claim, or (3) such Claim is initiated solely to enforce Indemnitee’s rights under this Agreement. In addition to any service at the actual request of the Company, for purposes of this Agreement, Indemnitee shall be deemed to be serving or to have served at the request of the Company as a director, officer, employee, member, manager, trustee or agent of another entity or enterprise if Indemnitee is or was serving as a director, officer, employee, member, manager, trustee or agent of such entity or enterprise and (i) such entity or enterprise is or at the time of such service was a Controlled Affiliate, (ii) such entity or enterprise is or at the time of such service was an employee benefit plan (or related trust) sponsored or maintained by the Company or a Controlled Affiliate, or (iii) the Company or a Controlled Affiliate directly or indirectly caused or authorized Indemnitee to be nominated, elected, appointed, designated, employed, engaged or selected to serve in such capacity.

 

4


(h) “ Indemnifiable Losses ” means any and all Losses relating to, arising out of or resulting from any Indemnifiable Claim.

(i) “ Independent Counsel ” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company (or any Subsidiary) or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other named (or, as to a threatened matter, reasonably likely to be named) party to the Indemnifiable Claim giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

(j) “ Losses means any and all Expenses, damages, losses, liabilities, judgments, fines, penalties (whether civil, criminal or other), ERISA Losses and amounts paid or payable in settlement, including all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing.

(k) “ Subsidiary ” means an entity in which the Company directly or indirectly beneficially owns 50% or more of the outstanding Voting Stock.

(l) “ Voting Stock ” means securities entitled to vote generally in the election of directors (or similar governing bodies).

2. Indemnification Obligation. Subject to Section 8, the Company shall indemnify and hold harmless Indemnitee, to the fullest extent permitted or required by applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted or required indemnification, against any and all Indemnifiable Claims and Indemnifiable Losses; provided , however , that no repeal or amendment of any applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, shall in any way diminish or adversely affect the rights of Indemnitee pursuant to this Agreement in respect of any occurrence or matter arising prior to any such repeal or amendment.

3. Advancement of Expenses. Indemnitee shall have the right to advancement by the Company prior to the final disposition of any Indemnifiable Claim of any and all Expenses relating to, arising out of or resulting from any Indemnifiable Claim paid or incurred by Indemnitee or which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee. Indemnitee’s right to such advancement is not subject to the satisfaction of any standard of conduct and is not conditioned upon any prior determination that Indemnitee is entitled to indemnification under this Agreement with respect to the Indemnifiable Claim or the absence of any prior determination to the contrary. Without limiting the generality or effect of the foregoing, within five business days after any request by Indemnitee, the Company shall, in accordance with such request (but without duplication), (a) pay such Expenses on behalf of Indemnitee, (b) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (c) reimburse Indemnitee for such Expenses; provided that Indemnitee shall repay, without interest

 

5


any amounts actually advanced to Indemnitee that, at the final disposition of the Indemnifiable Claim to which the advance related, were in excess of amounts paid or payable by Indemnitee in respect of Expenses relating to, arising out of or resulting from such Indemnifiable Claim. In connection with any such payment, advancement or reimbursement, if delivery of an undertaking is a legally required condition precedent to such payment, advance or reimbursement, Indemnitee shall execute and deliver to the Company an undertaking in the form attached hereto as Exhibit A (subject to Indemnitee filling in the blanks therein and selecting from among the bracketed alternatives therein), which need not be secured and shall be accepted by the Company without reference to Indemnitee’s ability to repay the Expenses. In no event shall Indemnitee’s right to the payment, advancement or reimbursement of Expenses pursuant to this Section 3 be conditioned upon any undertaking that is less favorable to Indemnitee than, or that is in addition to, the undertaking set forth in Exhibit A .

4. Indemnification for Additional Expenses. Without limiting the generality or effect of the foregoing, the Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request, any and all Expenses paid or incurred by Indemnitee or which Indemnitee determines are reasonably likely to be paid or incurred by Indemnitee in connection with any Claim made, instituted or conducted by Indemnitee, in each case to the fullest extent permitted or required by applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted or required indemnification, reimbursement or advancement of such Expenses, for (a) indemnification or payment, advancement or reimbursement of Expenses by the Company under any provision of this Agreement, or under any other agreement or provision of the Constituent Documents now or hereafter in effect relating to Indemnifiable Claims, and/or (b) recovery under any directors’ and officers’ liability insurance policies maintained by the Company; provided , however , that Indemnitee shall return, without interest, any such advance of Expenses (or portion thereof) which remains unspent at the final disposition of the Claim to which the advance related.

5. Contribution . To the fullest extent permissible under applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, in effect on the date hereof or as such law may from time to time hereafter be amended to increase the scope of permitted or required indemnification, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the payment of any and all Indemnifiable Claims or Indemnifiable Losses, in such proportion as is fair and reasonable in light of all of the circumstances in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Indemnifiable Claim or Indemnifiable Loss and/or (ii) the relative fault of the Company (and its other directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s); provided that such contribution shall not be required where it is determined, pursuant to a final disposition of such Indemnifiable Claim or Indemnifiable Loss in accordance with Section 8, that Indemnitee is not entitled to indemnification by the Company with respect to such Indemnifiable Claim or Indemnifiable Loss. The Company will indemnify and hold harmless Indemnitee from any claim of contribution that may be brought by directors, officers, employees or other agents or representatives of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.

 

6


6. Partial Indemnity. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Indemnifiable Loss, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

7. Procedure for Notification . To obtain indemnification under this Agreement in respect of an Indemnifiable Claim or Indemnifiable Loss, Indemnitee shall submit to the Company a written request therefor, including a brief description (based upon information then available to Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss. If, at the time of the receipt of such request, the Company has directors’ and officers’ liability insurance in effect under which coverage for such Indemnifiable Claim or Indemnifiable Loss is potentially available, the Company shall give prompt written notice of such Indemnifiable Claim or Indemnifiable Loss to the applicable insurers in accordance with the procedures set forth in the applicable policies. The Company shall provide to Indemnitee a copy of such notice delivered to the applicable insurers, and copies of all subsequent correspondence between the Company and such insurers regarding the Indemnifiable Claim or Indemnifiable Loss, in each case substantially concurrently with the delivery or receipt thereof by the Company. If requested by Indemnitee, the Company shall use its reasonable best efforts, at the Company’s expense, to enforce on behalf of and for the benefit of Indemnitee all rights (including rights to receive payment) that may exist under the applicable policies of insurance in relation to such Indemnifiable Claim or Indemnifiable Loss. The failure by Indemnitee to timely notify the Company of any Indemnifiable Claim or Indemnifiable Loss shall not relieve the Company from any liability hereunder unless, and only to the extent that, the Company did not otherwise learn of such Indemnifiable Claim or Indemnifiable Loss and such failure results in forfeiture by the Company of substantial defenses, rights or insurance coverage.

8. Determination of Right to Indemnification .

(a) To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter therein, including dismissal without prejudice, Indemnitee shall be indemnified against Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 8(b)) shall be required with respect to such Indemnifiable Claim. To the extent that Indemnitee’s involvement in an Indemnifiable Claim is to prepare to serve and serve as a witness, and not as a party, the Indemnitee shall be indemnified against all Losses incurred in connection therewith to the fullest extent allowable by law and no Standard of Conduct Determination (as defined below) shall be required.

(b) To the extent that the provisions of Section 8(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied any applicable standard of conduct under applicable law, including but not limited to Delaware law and the U.S. federal securities laws, that is a legally required condition precedent to indemnification of Indemnitee hereunder against Indemnifiable Losses

 

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relating to, arising out of or resulting from such Indemnifiable Claim (a “ Standard of Conduct Determination ”) shall be made as follows: (i) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (ii) if such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a majority vote of all Disinterested Directors, or (iii) if there are no such Disinterested Directors or if Indemnitee so requests, by Independent Counsel, selected by the Indemnitee and approved by the Board (such approval not to be unreasonably withheld, delayed or conditioned), in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; provided , however , that if at the time of any Standard of Conduct Determination Indemnitee is neither a director nor an officer of the Company, such Standard of Conduct Determination may be made by or in the manner specified by the Board, any duly authorized committee of the Board or any duly authorized officer of the Company (unless Indemnitee requests that such Standard of Conduct Determination be made by Independent Counsel, in which case such Standard of Conduct Determination shall be made by Independent Counsel). Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or persons, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in so cooperating with the person or persons making such Standard of Conduct Determination.

(c) The Company shall use its reasonable efforts to cause any Standard of Conduct Determination required under Section 8(b) to be made as promptly as practicable. If (i) the person or persons empowered or selected under Section 8 to make the Standard of Conduct Determination shall not have made a determination within 30 days after the later of (A) receipt by the Company of written notice from Indemnitee advising the Company of the final disposition of the applicable Indemnifiable Claim (the date of such receipt being the “ Notification Date ”) and (B) the selection of an Independent Counsel, if such determination is to be made by Independent Counsel, and (ii) Indemnitee shall have fulfilled his or her obligations set forth in the second sentence of Section 8(b), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided that such 30-day period may be extended for a reasonable time, not to exceed an additional 30 days, if the person or persons making such determination in good faith requires such additional time for obtaining or evaluating any documentation or information relating thereto.

(d) If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable Losses pursuant to Section 8(a), (ii) no determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section 8(b) or (c) to have satisfied any applicable standard of conduct under Delaware law which is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, then the Company shall pay to Indemnitee, within five business days after the later of (x) the Notification Date in respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted and (y) the earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the amount of such Indemnifiable Losses.

 

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9. Presumption of Entitlement.

(a) In making a determination of whether Indemnitee has been successful on the merits or otherwise in defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter therein, the Company acknowledges that a resolution, disposition or outcome short of dismissal or final judgment, including outcomes that permit Indemnitee to avoid expense, delay, embarrassment, injury to reputation, distraction, disruption or uncertainty, may constitute such success. In the event that any Indemnifiable Claim or any portion thereof or issue or matter therein is resolved or disposed of in any manner other than by adverse judgment against Indemnitee (including any resolution or disposition thereof by means of settlement with or without payment of money or other consideration), it shall be presumed that Indemnitee has been successful on the merits or otherwise in defense of such Indemnifiable Claim or portion thereof or issue or matter therein. The Company may overcome such presumption only by its adducing clear and convincing evidence to the contrary.

(b) In making any Standard of Conduct Determination, the person or persons making such determination shall presume that Indemnitee has satisfied the applicable standard of conduct, and the Company may overcome such presumption only by its adducing clear and convincing evidence to the contrary. The knowledge and/or action, or failure to act, of any director, officer, employee, agent or representative of the Company will not be imputed to Indemnitee for purposes of any Standard of Conduct Determination. Any Standard of Conduct Determination that Indemnitee has satisfied the applicable standard of conduct shall be final and binding in all respects, including with respect to any litigation or other action or proceeding initiated by Indemnitee to enforce his or her rights hereunder. Any Standard of Conduct Determination that is adverse to Indemnitee may be challenged by Indemnitee in the Court of Chancery of the State of Delaware. No determination by the Company (including by its directors or any Independent Counsel) that Indemnitee has not satisfied any applicable standard of conduct shall be a defense to any Claim by Indemnitee for indemnification or reimbursement or advance payment of Expenses by the Company hereunder or create a presumption that Indemnitee has not met any applicable standard of conduct.

(c) Without limiting the generality or effect of Section 9(b), (i) to the extent that any Indemnifiable Claim relates to any entity or enterprise (other than the Company) referred to in clause (i) of the first sentence of the definition of “Indemnifiable Claim,” Indemnitee shall be deemed to have satisfied the applicable standard of conduct if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the interests of such entity or enterprise (or the owners or beneficiaries thereof, including in the case of any employee benefit plan the participants and beneficiaries thereof) and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful, and (ii) in all cases, any belief of Indemnitee that is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company in the course of their duties, or on the advice of legal counsel for the Company, the Board, any committee of the Board or any director,

 

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or on information or records given or reports made to the Company, the Board, any committee of the Board or any director by an independent certified public accountant or by an appraiser or other expert selected by or on behalf of the Company, the Board, any committee of the Board or any director shall be deemed to be reasonable.

10. No Adverse Presumption. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.

11. Primacy of Company’s Obligations

(a) The rights of Indemnitee hereunder will be in addition to any other rights Indemnitee may have against the Company under the Constituent Documents, or the substantive laws of the Company’s jurisdiction of incorporation, any other contract or otherwise (collectively, “ Other Indemnity Provisions ”); provided , however , that (a) to the extent that Indemnitee otherwise would have any greater right to indemnification under any Other Indemnity Provision, Indemnitee will be deemed to have such greater right hereunder and (b) to the extent that any change is made to any Other Indemnity Provision which permits any greater right to indemnification than that provided under this Agreement as of the date hereof, Indemnitee will be deemed to have such greater right hereunder. The Company will not adopt any amendment to any of the Constituent Documents the effect of which would be to deny, diminish or encumber Indemnitee’s right to indemnification under this Agreement or any Other Indemnity Provision.

(b) The Company hereby acknowledges that Indemnitee may have rights to indemnification for Losses provided by certain third parties (“Other Indemnitor(s)”). The Company agrees with Indemnitee that the Company is the indemnitor of first resort of Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of Indemnitee under this Agreement without regard to any rights that Indemnitee may have against the Other Indemnitor(s). The Company hereby waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to Indemnitee hereunder. The Company further agrees that no payment of Expenses or Losses by the Other Indemnitor to or for the benefit of Indemnitee shall affect the obligations of the Company hereunder, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify Indemnitee for such Expenses or Losses hereunder.

12. Liability Insurance and Funding. For the duration of Indemnitee’s service as a director and/or officer of the Company, and thereafter for so long as Indemnitee shall be subject to any pending or possible Indemnifiable Claim, the Company shall use reasonable efforts (taking into account the scope and amount of coverage available relative to the cost thereof) to cause to be maintained in effect policies of directors’ and officers’ liability insurance providing coverage for directors and/or officers of the Company that is at least substantially comparable in scope and amount to that provided by the Company’s current policies of directors’ and officers’

 

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liability insurance. The Company shall provide Indemnitee with a copy of all directors’ and officers’ liability insurance applications, binders, policies, declarations, endorsements and other related materials, and shall provide Indemnitee with a reasonable opportunity to review and comment on the same. Without limiting the generality or effect of the two immediately preceding sentences, the Company shall not discontinue or significantly reduce the scope or amount of coverage from one policy period to the next (i) without the prior approval thereof by a majority vote of the Incumbent Directors, even if less than a quorum, or (ii) if at the time that any such discontinuation or significant reduction in the scope or amount of coverage is proposed there are no Incumbent Directors, without the prior written consent of Indemnitee (which consent shall not be unreasonably withheld, delayed or conditioned). In all policies of directors’ and officers’ liability insurance obtained by the Company, Indemnitee shall be named as an insured in such a manner as to provide Indemnitee the same rights and benefits, subject to the same limitations, as are accorded to the Company’s directors and officers most favorably insured by such policy. The Company may, but shall not be required to, create a trust fund, grant a security interest or use other means, including a letter of credit, to ensure the payment of such amounts as may be necessary to satisfy its obligations to indemnify and advance expenses pursuant to this Agreement.

13. Subrogation. Except as set forth in Section 11(b) of this Agreement (which, in all events, shall supersede this Section 13 to the extent of any conflict), in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against other persons or entities (other than Indemnitee’s successors), including any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(g). Indemnitee shall execute all papers reasonably required to evidence such rights (all of Indemnitee’s reasonable Expenses, including attorneys’ fees and charges, related thereto to be reimbursed by or, at the option of Indemnitee, advanced by the Company).

14. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment to Indemnitee in respect of any Indemnifiable Losses to the extent Indemnitee has otherwise actually received and is entitled to retain payment (net of any Expenses incurred in connection therewith and any repayment by Indemnitee made with respect thereto) under any insurance policy, the Constituent Documents and Other Indemnity Provisions or otherwise (including from any entity or enterprise referred to in clause (i) of the definition of “Indemnifiable Claim” in Section 1(g)) in respect of such Indemnifiable Losses otherwise indemnifiable hereunder; provided that the foregoing shall in no way limit the obligations of the Company pursuant to Section 11(b).

15. Defense of Claims. Except for any Indemnifiable Claim asserted by or in the right of the Company (as to which Indemnitee shall be entitled to exclusively control the defense), the Company shall be entitled to participate at its own expense in the defense of any Indemnifiable Claim or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. The Company’s participation in the defense of any Indemnifiable Claim of which the Company has not assumed the defense will not in any manner affect the rights of Indemnitee under this Agreement, including Indemnitee’s right to control the defense of such Indemnifiable Claims. With respect to the period (if any) commencing at the time at which the Company notifies Indemnitee that the Company has assumed the defense of any Indemnifiable Claim and

 

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continuing for so long as the Company shall be using its reasonable best efforts to provide an effective defense of such Indemnifiable Claim, the Company shall have the right to control the defense of such Indemnifiable Claim and shall have no obligation under this Agreement in respect of any attorneys’ or experts’ fees or expenses or any other costs or expenses paid or incurred by Indemnitee in connection with defending such Indemnifiable Claim (other than such costs and expenses paid or incurred by Indemnitee in connection with any cooperation in the Company’s defense of such Indemnifiable Claim or other action undertaken by Indemnitee at the request of the Company or with the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed)); provided that if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (a) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (b) the named parties in any such Indemnifiable Claim (including any impleaded parties) include both the Company and Indemnitee and Indemnitee shall conclude that there may be one or more legal defenses available to him or her that are different from or in addition to those available to the Company, or (c) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain and use the services of separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any particular Indemnifiable Claim) at the Company’s expense. Nothing in this Agreement shall limit Indemnitee’s right to retain or use his or her own counsel at his or her own expense in connection with any Indemnifiable Claim; provided that in all events Indemnitee shall not unreasonably interfere with the conduct of the defense by the Company of any Indemnifiable Claim that the Company shall have assumed and of which the Company shall be using its reasonable best efforts to provide an effective defense. The Company shall not be liable to Indemnitee under this Agreement for any amounts paid in settlement of any threatened or pending Indemnifiable Claim effected without the Company’s prior written consent. The Company shall not, without the prior written consent of Indemnitee, effect any settlement of any threatened or pending Indemnifiable Claim to which Indemnitee is, or could have been, a party unless such settlement solely involves the payment of money and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither the Company nor Indemnitee shall unreasonably withhold, condition or delay its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a complete and unconditional release of Indemnitee.

16. Successors and Binding Agreement.

(a) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to Indemnitee and his or her counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including any person acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the “ Company ” for purposes of this Agreement), but shall not otherwise be assignable or delegatable by the Company.

 

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(b) This Agreement shall inure to the benefit of and be enforceable by Indemnitee’s personal or legal representatives, executors, administrators, heirs, distributees, legatees and other successors.

(c) This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Sections 16(a) and 16(b). Without limiting the generality or effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge, creation of a security interest or otherwise, other than by a transfer by Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted assignment or transfer contrary to this Section 16(c), the Company shall have no liability to pay any amount so attempted to be assigned or transferred.

17. Notices. For all purposes of this Agreement, all communications, including notices, consents, requests or approvals, required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid or one business day after having been sent for next-day delivery by a nationally recognized overnight courier service, addressed to the Company (to the attention of the Secretary of the Company) and to Indemnitee at the applicable address shown on the signature page hereto, or to such other address as any party hereto may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.

18. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without giving effect to the principles of conflict of laws of such State. The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the Chancery Court of the State of Delaware for all purposes in connection with any action or proceeding which arises out of or relates to this Agreement and agree that any action instituted under this Agreement shall be brought only in the Chancery Court of the State of Delaware.

19. Validity. If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance shall not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal. In the event that any court or other adjudicative body shall decline to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the immediately preceding sentence, the parties thereto shall take all such action as may be necessary or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal with one or more alternative provisions that effectuate the purpose and intent of the original provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise illegal.

 

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20. Miscellaneous. No provision of this Agreement may be waived, modified or discharged unless such waiver, modification or discharge is agreed to in writing signed by Indemnitee and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party hereto that are not set forth expressly in this Agreement.

21. Legal Fees and Expenses; Interest.

(a) It is the intent of the Company that Indemnitee not be required to incur legal fees and or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to Indemnitee hereunder. Accordingly, without limiting the generality or effect of any other provision hereof, if it should appear to Indemnitee that the Company has failed to comply with any of its obligations under this Agreement (including its obligations under Section 3) or in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, the Company irrevocably authorizes Indemnitee from time to time to retain counsel of Indemnitee’s choice, at the expense of the Company as hereafter provided, to advise and represent Indemnitee in connection with any such interpretation, enforcement or defense, including the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to Indemnitee’s entering into an attorney-client relationship with such counsel, and in that connection the Company and Indemnitee agree that a confidential relationship shall exist between Indemnitee and such counsel. The Company will pay and be solely financially responsible for any and all attorneys’ and related fees and expenses incurred by Indemnitee in connection with any of the foregoing to the fullest extent permitted or required by applicable law, including but not limited to the laws of the State of Delaware and the U.S. federal securities laws, in effect on the date hereof or as such laws may from time to time hereafter be amended to increase the scope of such permitted or required payment of such fees and expenses.

(b) Any amount due to Indemnitee under this Agreement that is not paid by the Company by the date on which it is due will accrue interest at the maximum legal rate under Delaware law from the date on which such amount is due to the date on which such amount is paid to Indemnitee.

22. Certain Interpretive Matters. Unless the context of this Agreement otherwise requires, (a) “it” or “its” or words of any gender include each other gender, (b) words using the singular or plural number also include the plural or singular number, respectively, (c) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement, (d) the terms “ “Section” or “Exhibit” refer to the specified Section or Exhibit of or to this

 

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Agreement, (e) the terms “include,” “includes” and “including” will be deemed to be followed by the words “without limitation” (whether or not so expressed), and (f) the word “or” is disjunctive but not exclusive. Whenever this Agreement refers to a number of days, such number will refer to calendar days unless business days are specified and whenever action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain period of time or by a particular date that ends or occurs on a non-business day, then such period or date will be extended until the immediately following business day. As used herein, “business day” means any day other than Saturday, Sunday or a United States federal holiday.

23. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original but all of which together shall constitute one and the same agreement.

[Signatures Appear on Following Page]

 

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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized representative to execute this Agreement as of the date first above written.

 

SAExploration Holdings, Inc.
1160 Dairy Ashford Road, Suite 160
Houston, Texas 77079
By:  

 

  Name:
  Title:
[INDEMNITEE]
[Address]

 

[Indemnitee]

 

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EXHIBIT A

UNDERTAKING

This Undertaking is submitted pursuant to the Director and Officer Indemnification Agreement, dated as of             ,          (the “ Indemnification Agreement ”), between SAExploration Holdings, Inc., a Delaware corporation (the “ Company ”), and the undersigned. Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in the Indemnification Agreement.

The undersigned hereby requests [payment], [advancement], [reimbursement] by the Company of Expenses which the undersigned [has incurred] [reasonably expects to incur] in connection with             (the “ Indemnifiable Claim ”).

The undersigned hereby undertakes to repay the [payment] , [advancement] , [reimbursement] of Expenses made by the Company to or on behalf of the undersigned in response to the foregoing request to the extent it is determined, following the final disposition of the Indemnifiable Claim and in accordance with Section 8 of the Indemnification Agreement, that the undersigned is not entitled to indemnification by the Company under the Indemnification Agreement with respect to the Indemnifiable Claim.

IN WITNESS WHEREOF, the undersigned has executed this Undertaking as of this             day of             ,         .

 

 

[Indemnitee]