Amendment No. 1 to Forbearance Agreement, dated as of December 31, 2019, among SAExploration, Inc., SAExploration Holdings, Inc., the other loan parties party thereto and the lenders party thereto
Exhibit 10.1
Execution Version
AMENDMENT NO. 1 TO FORBEARANCE AGREEMENT
This AMENDMENT NO. 1 TO FORBEARANCE AGREEMENT, dated as of December 31, 2019 (this “Amendment”) among SAEXPLORATION, INC., a Delaware corporation (the “Borrower”), SAExploration Holdings, Inc., a Delaware corporation (“Parent”), the other Loan Parties (as defined in the Credit Agreement referred to below), and the Lenders (as defined in the Credit Agreement) party hereto (the “Forbearing Lenders”), together constituting the Required Lenders (as defined in the Credit Agreement), hereby amends the Forbearance Agreement (the “Forbearance Agreement”), dated as of September 23, 2019, by and among the parties thereto. Capitalized terms used and not defined herein shall have the definitions ascribed to such terms in the Forbearance Agreement or Credit Agreement (as defined below), as applicable.
RECITALS
WHEREAS, the Borrower, the other Loan Parties, Cantor Fitzgerald Securities, as administrative agent and collateral agent for the Lenders under and as defined in the Credit Agreement (in such capacity, the “Agent”), and the Lenders (including the Forbearing Lenders) are party to that certain Third Amended and Restated Credit and Security Agreement, dated as of September 26, 2018 (as heretofore amended or otherwise modified, the “Credit Agreement”);
WHEREAS, each of the parties hereto is party to the Forbearance Agreement relating to the Credit Agreement, pursuant to which the Forbearing Lenders, upon the terms and conditions set forth in the Forbearance Agreement, agreed to forbear during the Forbearance Period from exercising certain rights and remedies arising from or in respect of the Existing Defaults and the Potential Defaults specified in Exhibit A to the Forbearance Agreement;
WHEREAS, the parties hereby desire to make certain amendments to the Forbearance Agreement.
NOW, THEREFORE, in consideration of the premises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Amendments to Forbearance Agreement.
(a) The following defined term in Section 1 of the Forbearance Agreement is hereby amended and restated as follows:
“Termination Date” means 5:00 p.m. on the earlier of (i) January 27, 2020, or (ii) the date on which a Termination Event occurs. “Termination Event” means the occurrence of any of the following: (i) the receipt by the Loan Parties of a written notice from Forbearing Lenders constituting the Required Lenders terminating the Forbearance Period if (A) any representation or warranty made herein by any Loan Party shall be false in any material respect when made, (B) any Loan Party shall fail to perform, observe or comply with any of its covenants and agreements contained in this Agreement, including without limitation, any breach of Section 5 hereof, which failure is not remedied within one (1) Business Day after any Loan Party receives from any Forbearing Lender written notice thereof, (C) any
Event of Default, other than an Existing Default, a Potential Default, or an Event of Default pursuant to Sections 9.4 or 9.5 of the Credit Agreement, shall have occurred and be continuing, (D) the “Termination Date” or any “Termination Event” (each, as defined in the Term Loan Forbearance Agreement or the Convertible Notes Forbearance Agreement, as applicable) shall occur, or the Term Loan Forbearance Agreement or the Convertible Notes Forbearance Agreement shall otherwise cease to be in full force and effect, or (E) the second Business Day following the Restatement Date, or (ii) any Event of Default pursuant to Sections 9.4 or 9.5 of the Credit Agreement.
(b) Exhibit A of the Forbearance Agreement is hereby amended to insert the Existing Defaults and Potential Defaults identified in Exhibit 1 hereto.
Section 2. No Other Amendments. This Amendment shall not constitute an amendment of any provision of the Forbearance Agreement except as expressly stated herein. Except as expressly amended hereby, the provisions of the Forbearance Agreement shall remain in full force and effect in accordance with their terms.
Section 3. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 4. Controlling Effect. The parties hereto hereby agree that this Amendment shall be a “Loan Document” as defined in the Credit Agreement. In the event of a conflict or inconsistency between this Amendment and the Credit Agreement or any other Loan Document, this Amendment shall control.
Section 5. Governing Law. The validity of this Amendment and the other Loan Documents (unless expressly provided to the contrary in another Loan Document in respect of such other Loan Document), the construction, interpretation, and enforcement hereof and thereof, and the rights of the parties hereto and thereto with respect to all matters arising hereunder or thereunder or related hereto or thereto as well as all claims, controversies or disputes arising under or related to this Amendment and the other Loan Documents shall be determined under, governed by, and construed in accordance with the laws of the state of New York, without regard to the conflicts of laws principles thereof that would require the application of the laws of another jurisdiction.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| BORROWER: | ||
| SAEXPLORATION, INC. | ||
| By: | /s/ Michael J. Faust | |
| Name: Michael J. Faust | ||
| Title: Interim Chief Executive Officer | ||
| GUARANTORS: | ||
| SAEXPLORATION HOLDINGS, INC. | ||
| By: | /s/ Michael J. Faust | |
| Name: Michael J. Faust | ||
| Title: Chief Executive Officer | ||
| SAEXPLORATION SUB, INC. | ||
| By: | /s/ Michael J. Faust | |
| Name: Michael J. Faust | ||
| Title: Interim Chief Executive Officer | ||
| NES, LLC | ||
| By: | /s/ Michael J. Faust | |
| Name: Michael J. Faust | ||
| Title: Interim Chief Executive Officer | ||
| SAEXPLORATION SEISMIC SERVICES (US), LLC | ||
| By: | /s/ Michael J. Faust | |
| Name: Michael J. Faust | ||
| Title: Interim Chief Executive Officer | ||
[Signature page to Amendment No. 1 to Forbearance Agreement]
| FORBEARING LENDERS: | ||
| WHITEBOX ASYMMETRIC PARTNERS, L.P. | ||
| By: | /s/ Mark Strefling | |
| Name: Mark Strefling | ||
| Title: Partner & CEO | ||
| WHITEBOX MULTI-STRATEGY PARTNERS, L.P. | ||
| By: | Whitebox Advisors LLC its investment manager | |
| By: | /s/ Mark Strefling | |
| Name: Mark Strefling | ||
| Title: Partner & CEO | ||
| WHITEBOX CREDIT PARTNERS, L.P. | ||
| By: | Whitebox Advisors LLC its investment manager | |
| By: | /s/ Mark Strefling | |
| Name: Mark Strefling | ||
| Title: Partner & CEO | ||
[Signature page to Amendment No. 1 to Forbearance Agreement]
| FORBEARING LENDERS: | ||||
| BLUE MOUNTAIN CREDIT ALTERNATIVES MASTER FUND, L.P. | ||||
| By: | /s/ David O’Mara | |||
| Name: | David O’Mara |
| Title: | Deputy General Counsel |
| BLUEMOUNTAIN KICKING HORSE FUND, L.P. | ||||
| By: | /s/ David O’Mara | |||
| Name: | David O’Mara |
| Title: | Deputy General Counsel |
| BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF, L.P. | ||||
| 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 Amendment No. 1 to Forbearance Agreement]
| FORBEARING LENDERS:
HIGHBRIDGE MSF INTERNATIONAL LTD. | ||||
| 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. | ||||
| By: | Highbridge Capital Management, LLC, as Trading Manager and not in its individual capacity | |||
| By: | /s/ Jonathan Segal | |||
| Name: | Jonathan Segal |
| Title: | Managing Director |
[Signature page to Amendment No. 1 to Forbearance Agreement]
| FORBEARING LENDERS:
JOHN PECORA | ||||
| By: | /s/ John Pecora | |||
[Signature page to Amendment No. 1 to Forbearance Agreement]
Exhibit 1
EXISTING DEFAULTS
| 7. | Events of Default under Section 9.2(a) of the Credit Agreement as a result of the failure to timely furnish, pursuant to Section 6.1 and Schedule 6.1 of the Credit Agreement, copies of the Parent’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to the Required Lenders in their Permitted Discretion, for the 2020 fiscal year, on a monthly basis, together with any applicable Compliance Certificates. |
| 8. | Any Default or Event of Default under Section 9.2(a) of the Credit Agreement as a result of the failure to timely furnish, pursuant to Section 6.1 of the Credit Agreement, the unaudited financial statements for the month ended November 30, 2019, together with any applicable Compliance Certificate. |
| 9. | Any existing event of default under the Term Documents or Convertible Notes Documents which is the subject of a forbearance agreement or forbearance extension entered into by the parties thereto contemporaneously with an extension of the Termination Date under this Agreement agreed to by the Forbearing Lenders. |
POTENTIAL DEFAULTS
| 8. | Any Default or Event of Default under Section 9.2(a) of the Credit Agreement as a result of the failure to timely furnish, pursuant to Section 6.1 of the Credit Agreement, the unaudited financial statements for the month ended December 31, 2019, together with any applicable Compliance Certificate. |
| 9. | Any anticipated default under the Term Documents or Convertible Notes Documents which is the subject of a forbearance agreement or forbearance extension entered into by the parties thereto contemporaneously with an extension of the Termination Date under this Agreement agreed to by the Forbearing Lenders. |
Exh. 1
