Consent Letter dated May 7, 2020, with respect to the Senior Secured Convertible Notes Indenture dated as of September 26, 2018
Exhibit 10.19
May 7, 2020
SAExploration Holdings, Inc.
1160 Dairy Ashford, Suite 160
Houston, Texas 77079
Attn: Michael Faust,
Chief Executive Officer and President
Dear Mr. Faust:
Reference is hereby made to:
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| (i) | that certain Senior Secured Convertible Notes Indenture dated as of September 26, 2018, entered into among SAExploration Holdings, Inc., a Delaware corporation (the “Issuer”), the Guarantors party thereto, and Wilmington Savings Fund Society FSB, as trustee and collateral trustee under and as defined in the Indenture (hereinafter defined) (in such capacities, the “Trustee”) (as amended, supplemented or otherwise modified, the “Indenture”), and |
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| (ii) | that certain Forbearance Agreement dated April 13, 2020, among the Issuer, the Guarantors, and the Holders party thereto (the “Forbearance Agreement”). |
This consent letter (this “Consent”) relates to the Indenture. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Indenture. All references to sections in this Consent shall be to sections of the Indenture unless otherwise indicated.
The Issuer has informed the Trustee that SAExploration, Inc. (“SAExploration”) has applied for an unsecured loan under the Small Business Administration Paycheck Protection Program (as part of the CARES Act (hereinafter defined)) in a principal amount not to exceed $10.0 million (the “PPP Loan”). The restrictions in Section 5.01 of the Indenture and in the Forbearance Agreement do not currently allow SAExploration or the other Company Indenture Parties to incur the PPP Loan.
SAExploration has requested that the Required Holders consent to the PPP Loan, and the Holders signatory hereto which constitute Required Holders do hereby consent to the incurrence of unsecured Indebtedness under the PPP Loan, notwithstanding anything in Section 5.01 or in the Forbearance Agreement to the contrary; provided that, (i) at all times when the PPP Loan is outstanding, each Company Indenture Party will maintain its eligibility for such PPP Loan and take all actions necessary to stay in compliance with the requirements applicable to such PPP Loan under The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (as amended, modified, or supplemented, the “CARES Act”), (ii) each Company Indenture Party shall take all action necessary to cause the maximum portion of the PPP Loan which is eligible to be forgiven in accordance with the CARES Act, and (iii) the loan documents evidencing the PPP Loan (“PPP Loan Documents”) shall not be amended in a manner adverse to the interests of the Holders including without limitation by securing the PPP Loan with collateral. The parties hereto agree that any default under or breach of the PPP Loan Documents shall constitute an Event of Default under the Indenture. For the avoidance of doubt, upon its incurrence the PPP Loan will constitute Indebtedness for all purposes under the Indenture and the other Indenture Documents until such time as the obligation to repay the PPP Loan is forgiven and/or paid (as applicable) in accordance with its terms.
The Issuer, SAExploration and each of the other Guarantors hereby expressly (a) acknowledges the terms of this Consent, and (b) ratifies and affirms its obligations under, and acknowledges, renews and
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extends its continued liability under, each Indenture Document to which it is a party and agrees that each Indenture Document to which it is a party remains in full force and effect, except as expressly set forth herein.
The foregoing consent is hereby granted to the extent and only to the extent specifically stated herein and for no other purpose and shall not be deemed to (a) be a consent or agreement to, or waiver or modification of, any other term or condition of the Indenture, the Forbearance Agreement or any other Indenture Document or any of the documents referred to therein, (b) except as expressly set forth herein, impair or prejudice any right or rights which the Trustee or the Holders may now have or may have in the future under or in connection with the Indenture, the Forbearance Agreement or any other Indenture Document or any of the documents referred to therein, or (c) constitute any course of dealing or other basis for altering any obligation of the Issuer, SAExploration, or the other Guarantors or any right, privilege or remedy of the Trustee or the Holders under the Indenture, the Forbearance Agreement, the other Indenture Documents, or any other contract or instrument. Granting the consent set forth herein does not and should not be construed to be an assurance or promise that any consent or waiver will be granted in the future.
This Consent (including, but not limited to, the validity and enforceability hereof) shall be governed by, and construed in accordance with, the laws of the State of New York.
This Consent is an “Indenture Document” as defined and described in the Indenture and all of the terms and provisions of the Indenture relating to Indenture Documents shall apply hereto.
This Consent may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Consent by facsimile or email transmission shall be effective as delivery of a manually executed counterpart hereof.
This Consent, the Indenture, the Forbearance Agreement and the other Indenture Documents represent the final agreement between the parties with respect to the subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements among the parties with respect to the subject matter hereof.
If the foregoing correctly states your understanding with respect to the matters stated in this Consent, please acknowledge by signing in the space provided below. The undersigned Holders party hereto have caused this Consent to be executed and delivered as of the date first above written.
[Signature Pages Follow]
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HOLDERS:
WHITEBOX ASYMMETRIC PARTNERS, L.P.
By: /s/ Mark Strefling
Name: Mark Strefling
Title: Partner & CEO
WHITEBOX MULTI-STRATEGY PARTNERS, L.P.
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| By: | Whitebox Advisors LLC, its investment manager |
By: /s/ Mark Strefling
Name: Mark Strefling
Title: Partner & CEO
WHITEBOX CREDIT PARTNERS, L.P.
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| By: | Whitebox Advisors LLC, its investment manager |
By: /s/ Mark Strefling
Name: Mark Strefling
Title: Partner & CEO
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HOLDERS:
HIGHBRIDGE MSF INTERNATIONAL LTD.
(f/k/a 1992 MSF International Ltd.)
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| By: | Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity |
By: /s/ Jonathan Segal
Name: Jonathan Segal
Title: Managing Director
HIGHBRIDGE TACTICAL CREDIT
MASTER FUND, L.P.
(f/k/a 1992 Tactical Credit Master Fund, L.P.)
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| By: | Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity |
By: /s/ Jonathan Segal
Name: Jonathan Segal
Title: Managing Director
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HOLDER:
JOHN PECORA
By: /s/ John Pecora
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Accepted and Agreed to as of the date first written above by:
ISSUER:
SAEXPLORATION HOLDINGS, INC.
By: /s/ Michael J. Faust
Name: Michael J. Faust
Title: Chief Executive Officer and President
GUARANTORS:
SAEXPLORATION, INC.
SAEXPLORATION SUB, INC.
NES, LLC
SAEXPLORATION SEISMIC SERVICES (US), LLC
By: /s/ Michael J. Faust
Name: Michael J. Faust
Title: Chief Executive Officer and President of
each of the foregoing companies
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