SAExploration 8K Enters into Restructuring Support Agreement for Comprehensive Balance Sheet Improvement | SEC 28 Aug 20

Exhibit 10.1

RESTRUCTURING SUPPORT AGREEMENT

This RESTRUCTURING SUPPORT AGREEMENT (together with all exhibits, annexes, and schedules hereto, in each case as may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of August 27, 2020, is entered into by and among:

(i) SAExploration Holdings, Inc. (“SAE Holdings”), SAExploration Sub, Inc. (“SAE Sub”), SAExploration, Inc. (“SAE Inc.”), SAExploration Seismic Services (US), LLC (“Seismic Services”), and NES, LLC (“NES”) (collectively, the “Company”);

(ii) the undersigned lenders or investment advisors or managers for the account of the lenders (together with their respective successors and permitted assigns and any other Prepetition Credit Agreement Lenders that become party hereto in accordance with the terms hereof, the “Consenting Credit Agreement Lenders”) under that certain Third Amended and Restated Credit and Security Agreement, dated as of September 26, 2018 (as may be amended or supplemented from time to time, the “Prepetition Credit Agreement” and the Advances (as defined therein) made thereunder, the “Prepetition Credit Agreement Advances”), among SAE Inc., the guarantors party thereto, Cantor Fitzgerald Securities, as administrative agent and collateral agent, and the lenders party thereto from time to time (the “Prepetition Credit Agreement Lenders”);

(iii) the undersigned lenders or investment advisors or managers for the account of the lenders (together with their respective successors and permitted assigns and any other Prepetition Term Loan Lenders that become party hereto in accordance with the terms hereof, the “Consenting Term Loan Lenders”) under that certain Term Loan and Security Agreement, dated as of June 29, 2016 (as may be amended or supplemented from time to time, the “Prepetition Term Loan Agreement” and the Advances (as defined therein) made thereunder, the “Prepetition Term Loan Advances”), among SAE Holdings, the guarantors party thereto, and Delaware Trust Company, as administrative agent and collateral agent, and the lenders party thereto from time to time (the “Prepetition Term Loan Lenders”); and

(iv) the undersigned noteholders or investment advisors or managers for the account of the noteholders (together with their respective successors and permitted assigns and any other Prepetition Noteholders that become party hereto in accordance with the terms hereof, the “Consenting Convertible Noteholders” and together with the Consenting Credit Agreement Lenders and the Consenting Term Loan Lenders, the “Consenting Creditors”) under that certain Senior Secured Convertible Notes Indenture dated as of September 26, 2018 (as may be amended or supplemented from time to time, the “Prepetition Indenture”, the 6.00% Senior Secured Convertible Notes due 2023 outstanding thereunder, the “Prepetition Convertible Notes” and the Holders (as defined therein) of the Prepetition Convertible Notes, the “Prepetition Convertible Noteholders”), among SAE Holdings, the guarantors party thereto, and Wilmington Savings Funds Society, FSB, as Trustee and Collateral Trustee thereunder.

The Company and each Consenting Creditor and any subsequent Person or entity that becomes a party hereto in accordance with the terms hereof are referred to herein as the “Parties” and individually as a “Party.” Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Plan (as defined below) attached hereto as Exhibit A (including any schedules and exhibits attached thereto).

Notwithstanding anything contained herein to the contrary, it is the intent of the Parties that all references to votes or voting in this Agreement be interpreted to include votes or voting on a plan of reorganization under title 11 of the United States Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code”). Time is of the essence in the performance of the obligations of each of the Parties under this Agreement. When a reference is made in this Agreement to a Section, Exhibit or Schedule, such reference shall be to a Section, Exhibit or Schedule, respectively, of or attached to this Agreement unless otherwise indicated. Unless the context of this Agreement otherwise requires, (a) words using the singular or plural number also include the plural or singular number, respectively, (b) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement, (c) the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation,” and (d) the word “or” shall not be exclusive and shall be read to mean “and/or.” “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. Any reference to “business day” means any day, other than a Saturday, a Sunday or any other day on which banks located in New York, New York are closed for business as a result of federal, state or local holiday and any other reference to day means a calendar day.

RECITALS

WHEREAS, the Parties have agreed to enter into certain transactions (the “Restructuring Transactions”) in furtherance of a global restructuring of the Company’s capital structure (the “Restructuring”) which requires the consummation of a joint “pre-negotiated” plan of reorganization on the terms set forth in Exhibit A and otherwise as approved pursuant to this Agreement (such plan, together with any exhibits, schedules, attachments or appendices thereto, in each case as may be amended or otherwise modified from time to time in accordance with the terms herein and therein, the “Plan”), a solicitation of votes therefor (the “Solicitation”) pursuant to the Bankruptcy Code, and the commencement by the Debtors (as defined below) of voluntary cases (the “Chapter 11 Cases”) under chapter 11 of the Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of Texas (the “Court”);

WHEREAS, the Restructuring Transactions include: (i) the Reorganized Debtors’ entry into a first lien exit term loan facility (the “First Lien Exit Facility”) in an aggregate principal amount of $15 million, on the terms set forth in the First Lien Exit Facility Term Sheet attached hereto as Exhibit B (the “First Lien Exit Facility Term Sheet”) and otherwise as approved pursuant to the terms of the Definitive Documents (as defined below); (ii) conducting a rights offering (the “Rights Offering”) pursuant to which all eligible Prepetition Credit Agreement Lenders, Prepetition Term Loan Lenders, and Prepetition Convertible Noteholders will be offered the opportunity to purchase loans to be advanced under the First Lien Exit Facility and equity in reorganized SAE Holdings, in each case in the amounts and in accordance with the Rights Offering Procedures (as defined below) and the Plan, with the Rights Offering being backstopped by certain of the Consenting Credit Agreement Lenders, Consenting Term Loan Lenders, and Consenting

Convertible Noteholders pursuant to the backstop commitment agreement (the “Backstop Agreement”) attached hereto as Exhibit I; (iii) the satisfaction in full of the Prepetition Credit Agreement Advances through the entry into a Second Lien Exit Facility (the “Second Lien Exit Facility”) in an aggregate amount of $20.5 million, on the terms set forth in the Second Lien Exit Facility Term Sheet attached hereto as Exhibit C and otherwise as approved pursuant to the terms of the Definitive Documents (as defined below); (iv) the conversion of the Prepetition Term Loan Advances and the Prepetition Convertible Notes to new equity in reorganized SAE Holdings as described in the Plan; and (v) the grant of a new Management Incentive Plan on the terms described in the MIP Term Sheet attached hereto as Exhibit D and otherwise as approved pursuant to the terms of the Definitive Documents (the “Management Incentive Plan”);

WHEREAS, as of the date hereof, the Consenting Credit Agreement Lenders hold, in the aggregate, 100% of the aggregate outstanding principal amount of the Prepetition Credit Agreement Advances;

WHEREAS, as of the date hereof, the Consenting Term Loan Lenders hold, in the aggregate, approximately 82% of the aggregate outstanding principal amount of the Prepetition Term Loan Advances;

WHEREAS, as of the date hereof, the Consenting Convertible Noteholders hold, in the aggregate, approximately 100% of the aggregate outstanding principal amount of the Prepetition Convertible Notes;

WHEREAS, the Company and the Consenting Creditors have reached an agreement for the consensual use of Cash Collateral (as defined in section 363(a) of the Bankruptcy Code), as approved pursuant to the terms set forth in the Definitive Documents;

WHEREAS, the Parties desire to express to each other their mutual support and commitment in respect of the matters discussed in the Plan and hereunder.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Certain Definitions.

As used in this Agreement, the following terms have the following meanings:

(a) “Alternative Restructuring” means any plan, plan proposal, restructuring proposal, dissolution, winding up, liquidation, assignment for the benefit of creditors, sale or disposition of all or substantially all assets, reorganization, merger, restructuring, financing (debt or equity), or repurchase, refinancing, extension, or repayment of a material portion of the funded debt, in each case of SAE Holdings or any of its subsidiaries, other than the Plan.

(b) “Claims” means any claims (as defined in section 101(15) of the Bankruptcy Code) against the Debtors, and shall expressly not include any Interests in any Debtor.

(c) “Confirmation Order” means the order of the Court confirming the Plan in the Chapter 11 Cases pursuant to section 1129 of the Bankruptcy Code.

(d) “Consenting Creditor Counsel” means Paul, Weiss, Rifkind, Wharton & Garrison LLP and Rapp & Krock, PC, as counsel to certain of the Consenting Credit Agreement Lenders, Consenting Term Loan Lenders, and Consenting Convertible Noteholders.

(e) “Debtors” means SAE Holdings, SAE Sub, SAE Inc., Seismic Services and NES, which will file cases under chapter 11 of the Bankruptcy Code.

(f) “Disclosure Statement” means the disclosure statement in respect of the Plan attached hereto as Exhibit F, including all exhibits and schedules thereto, as approved or ratified by the Court pursuant to section 1125 of the Bankruptcy Code.

(g) “Effective Date” means the date upon which all conditions to the effectiveness of the Plan have been satisfied or waived in accordance with the terms thereof and the Plan becomes effective.

(h) “Final Order” means an order or judgment of the Court (or any other court of competent jurisdiction) entered by the Clerk of the Court (or such other court) on the docket in the Chapter 11 Cases (or the docket of such other court), which has not been modified, amended, reversed, vacated or stayed and as to which (A) the time to appeal, petition for certiorari, or move for a new trial, stay, reargument or rehearing has expired and as to which no appeal, petition for certiorari or motion for new trial, stay, reargument or rehearing shall then be pending or (B) if an appeal, writ of certiorari, new trial, stay, reargument or rehearing thereof has been sought, such order or judgment of the Court (or other court of competent jurisdiction) shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, stay, reargument or rehearing shall have been denied or resulted in no modification of such order, and the time to take any further appeal, petition for certiorari or move for a new trial, stay, reargument or rehearing shall have expired, as a result of which such order shall have become final in accordance with Rule 8002 of the Federal Rules of Bankruptcy Procedure; provided that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Federal Rules of Bankruptcy Procedure, may be filed relating to such order, shall not cause an order not to be a Final Order.

(i) “Interest” means any equity interest (as defined in section 101(16) of the Bankruptcy Code) of a Debtor, including all ordinary shares, units, common stock, preferred stock, membership interest, partnership interest or other instrument, evidencing any fixed or contingent ownership interest in any Debtor, whether or not transferable, including any option, warrant, or other right, contractual or otherwise, to acquire any such interest in a Debtor, that existed immediately before the Effective Date.

(j) “Person” shall mean an individual, a partnership, a joint venture, a limited liability company, a corporation, a trust, an unincorporated organization, a group, a governmental or regulatory authority, or any legal entity or association.

(k) “Prepetition Agreements” means (i) the Prepetition Credit Agreement, (ii) the Prepetition Term Loan Agreement, and (iii) the Prepetition Indenture.

(l) “Qualified Marketmaker” means an entity that (i) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers Claims against the Company (or enter with customers into long and short positions in Claims against the Company), in its capacity as a dealer or marketmaker in Claims against the Company and (ii) is, in fact, regularly in the business of making a market in claims against or interests in issuers or borrowers (including debt securities or other debt).

(m) “Requisite Convertible Noteholders” means, as of the date of determination, at least a majority in aggregate principal amount of the outstanding Prepetition Convertible Notes held by the Consenting Convertible Noteholders as of such date.

(n) “Requisite Credit Agreement Lenders” means, as of the date of determination, at least a majority in aggregate principal amount of the outstanding Prepetition Credit Agreement Advances held by the Consenting Credit Agreement Lenders as of such date.

(o) “Requisite Creditors” means each of (i) the Requisite Credit Agreement Lenders, (ii) the Requisite Term Loan Lenders, and (iii) the Requisite Convertible Noteholders.

(p) “Requisite Term Loan Lenders” means, as of the date of determination, at least a majority in aggregate principal amount of the outstanding Prepetition Term Loan Advances held by the Consenting Term Loan Lenders as of such date.

(q) “Rights Offering Procedures” means the procedures governing the Rights Offering, substantially in the form attached to the Disclosure Statement.

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

(s) “Securities Act” means the Securities Act of 1933, as amended.

(t) “Support Effective Date” means the earliest date on which counterpart signature pages to this Agreement shall have been executed and delivered by (i) the Company, (ii) Consenting Credit Agreement Lenders holding at least 66²⁄₃%, in aggregate principal amount outstanding as of such date, of the Prepetition Credit Agreement Advances, (iii) Consenting Term Loan Lenders holding at least 66²⁄₃%, in aggregate principal amount outstanding as of such date, of the Prepetition Term Loan Advances, and (iv) Consenting Convertible Noteholders holding at least 66²⁄₃%, in aggregate principal amount outstanding as of such date, of the Prepetition Convertible Notes.

(u) “Support Period” means the period commencing on the Support Effective Date and ending on the earlier of (i) the date on which this Agreement is terminated in full with respect to all Parties in accordance with Section 5 and (ii) the Effective Date.

(v) “Transfer” means to sell, transfer, loan, issue, pledge, hypothecate, assign or otherwise dispose of; provided, that any pledge in favor of (a) a bank or broker dealer at which a Consenting Creditor maintains an account where such bank or broker dealer holds a security interest or other encumbrance over property in the account generally, or (b) any lender, agent, or trustee to secure obligations generally under debt issued by the applicable fund or account, in each case shall not be deemed a “Transfer” for purposes hereunder.

2. Bankruptcy Process; Plan of Reorganization.

(a) The Plan. The Plan is expressly incorporated herein and made a part of this Agreement. The material terms and conditions of the Restructuring are set forth in the Plan.

(b) The definitive documents (the “Definitive Documents”) with respect to the Restructuring shall include the following along with any other documents (including any related orders, motions, applications, agreements, instruments, schedules or exhibits) that are described in or contemplated by this Agreement and the Plan and necessary or desirable to implement the Restructuring and the Restructuring Transactions:

(i) this Agreement;

(ii) the Plan and Disclosure Statement and all of their respective exhibits, appendices, supplements, and related documents;

(iii) the motion seeking approval of the Disclosure Statement (including the Rights Offering Procedures), the Solicitation procedures, and the form of ballots and notices and related relief (such motion, together with all exhibits, appendices, supplements, and related documents, the “Disclosure Statement Motion”), and the order approving the Disclosure Statement Motion;

(iv) the Confirmation Order;

(v) the credit agreement, guarantees, security documents, intercreditor agreements, and other definitive documents with respect to the First Lien Exit Facility;

(vi) the Backstop Agreement and the Rights Offering Procedures;

(vii) the motion seeking approval by the Court of the Backstop Agreement and the order of the Court approving the Backstop Agreement;

(viii) the credit agreement, guarantees, security documents, intercreditor agreements, and other definitive documents with respect to the Second Lien Exit Facility;

(ix) the motion seeking authority to use Cash Collateral and an interim order (the “Interim Cash Collateral Order”) and a final order (the “Final Cash Collateral Order” and together with the Interim Cash Collateral Order, the “Cash Collateral Orders”), approving same, which Cash Collateral Orders shall, without limitation, provide the Prepetition Credit Agreement Lenders, Prepetition Term Loan Lenders and the Prepetition Convertible Noteholders adequate protection for the use of their cash collateral as described in the Cash Collateral Orders;

(x) the first day motions, second day motions and orders of the Court approving any first day motions or second day motions;

(xi) the supplement to the Plan, including, without limitation, all shareholder’s agreements and organizational and governance documents governing the reorganized Company and other corporate documents (the “Governance Documents”), consistent with the Governance Term Sheet attached hereto as Exhibit G and otherwise as approved pursuant to the terms of the Definitive Documents and all documents related to the Management Incentive Plan; and

(xii) any other documents, instruments, schedules or exhibits described in, related to, contemplated in, or necessary to implement, each of the foregoing.

Each of the Definitive Documents shall (1) contain terms and conditions consistent in all material respects with this Agreement and (2) otherwise be in form and substance acceptable in all respects to the Company and the Requisite Creditors.

3. Agreements of the Consenting Creditors.

(a) Voting; Support. Each Consenting Creditor agrees that, for the period commencing on the date of this Agreement and ending on the earlier of (x) the expiration of the Support Period and (y) the date upon which this Agreement is validly terminated pursuant to the terms hereof with respect to such Consenting Creditor, such Consenting Creditor (acting severally and not jointly with the other Consenting Creditors) shall:

(i) (A) timely vote (or cause to be voted) its Claims, to the extent entitled to vote on the Plan, to accept the Plan, including the provisions of the Plan for a release of third party claims against each Released Party (as defined in the Plan), by delivering its duly executed and completed ballot or ballots, as applicable, accepting the Plan and granting and, if applicable, not opting out of, such release on a timely basis following commencement of the Solicitation, (B) not change or withdraw such vote (or cause or direct such vote to be changed or withdrawn) and (C) not object to, delay, impede, or take any other action that would reasonably be expected to materially interfere with, delay, or postpone acceptance, consummation, or implementation of the Plan;

(ii) timely vote (or cause to be voted) its Claims, to the extent entitled to vote on such Alternative Restructuring, against any Alternative Restructuring;

(iii) not directly or indirectly, through any Person or entity (including any administrative agent, collateral agent, or indenture trustee), propose, file, knowingly support, or vote to accept any Alternative Restructuring, or knowingly take any other action that would reasonably be expected to prevent, interfere with, delay or impede the Solicitation, approval of the Disclosure Statement, or the confirmation and consummation of the Plan and the Restructuring;

(iv) not direct any administrative agent, collateral agent, or indenture trustee (as applicable) to take any action inconsistent with such Consenting Creditor’s obligations under this Agreement and, if any applicable administrative agent, collateral agent, or indenture trustee takes any action inconsistent with such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall use its commercially reasonable efforts to request or direct that such administrative agent, collateral agent, or indenture trustee cease and refrain from taking any such action; provided, that such commercially reasonable efforts shall not include posting any bond or indemnity or taking any other action that would, in the reasonable judgment of such Consenting Creditor, impose any risk of liability on such Consenting Creditor.

(v) forbear from exercising, directly or indirectly, its rights or remedies or from asserting or bringing any claims under or with respect to any of the Prepetition Agreements, against the Company or any of its assets;

(vi) at the reasonable request of the Company, support and take in a timely manner all actions reasonably necessary to facilitate approval of the Disclosure Statement, Solicitation of the Plan, and confirmation and consummation of the Plan and the Restructuring; and

(vii) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring, negotiate in good faith with the Company on appropriate additional or alternative provisions to address any such impediments.

(b) Rights of Consenting Creditors Unaffected. Nothing contained herein shall limit:

(i) the rights of a Consenting Creditor under any applicable bankruptcy, insolvency, foreclosure or similar proceeding, including appearing as a party in interest in any matter to be adjudicated in order to be heard concerning any matter arising in the Chapter 11 Cases, in each case, so long as the exercise of any such right is consistent with this Agreement and such Consenting Creditor’s obligations hereunder;

(ii) the ability of a Consenting Creditor to purchase, sell, or enter into any transactions in connection with its Claims, in compliance with the terms hereof and applicable law;

(iii) subject to the terms and obligations hereof and applicable law, any right of a Consenting Creditor under the Prepetition Agreements, any other applicable agreement, instrument or document that gives rise to a Consenting Creditor’s Claims, as applicable, or constitute a waiver or amendment of any provision of any such agreement, instrument or document;

(iv) subject to any confidentiality provisions in this Agreement and the Prepetition Agreements, the ability of a Consenting Creditor to consult with any other Parties or entities; or

(v) the ability of a Consenting Creditor to enforce any right, remedy, condition, consent or approval requirement under this Agreement or any of the other Definitive Documents, if any, or any right to contest whether any matter, fact, or thing is a breach of, or is inconsistent with this Agreement or any of the other Definitive Documents.

(c) Transfers. Each Consenting Creditor agrees, severally and not jointly, that, for the period commencing on the date of this Agreement and ending on the earlier of (x) the expiration of the Support Period and (y) the date upon which this Agreement is validly terminated pursuant to the terms hereof with respect to such Consenting Creditor, such Consenting Creditor shall not

Transfer, directly or indirectly, in whole or in part, any of its Claims or any option thereon or any right or interest therein (including grant any proxy or deposit any Claims into a voting trust or entry into a voting agreement with respect thereto), unless the transferee thereof either (A) is a Consenting Creditor or (B) prior to such Transfer, agrees in writing for the benefit of the Parties to become a Consenting Creditor and to be bound by all of the terms of this Agreement applicable to Consenting Creditors (including with respect to any and all Claims it already may hold prior to such Transfer) by executing a joinder agreement, a form of which is attached hereto as Exhibit H (a “Joinder Agreement”), and delivering an executed copy thereof within three (3) business days of such execution, to (i) Porter Hedges LLP (“Porter Hedges”), as counsel to the Company, and (ii) Consenting Creditor Counsel, in which event (x) the transferee (including the Consenting Creditor transferee, if applicable) shall be deemed to be a Consenting Creditor hereunder to the extent of such transferred rights and obligations and (y) the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement to the extent of such transferred rights and obligations. Each Consenting Creditor agrees that any Transfer of any Claim that does not comply with the terms and procedures set forth herein shall be deemed void ab initio, and the Company and each other Consenting Creditor shall have the right to enforce the voiding of such Transfer. Each transferee shall indicate, on the appropriate schedule annexed to its Joinder Agreement, the number and amount of Claims held by such transferee. Notwithstanding anything to the contrary herein, a Consenting Creditor may Transfer its Claims to an entity that is acting in its capacity as a Qualified Marketmaker without the requirement that the Qualified Marketmaker become a Party; provided, however, that (x) such Qualified Marketmaker must Transfer such right, title, or interest by the earlier of (A) ten (10) calendar days following its receipt thereof and (B) if received prior to the deadline to vote on the Plan, seven (7) calendar days prior to such deadline, (y) any subsequent Transfer by such Qualified Marketmaker of the right, title, or interest in such Claims is to a transferee that is or becomes a Consenting Creditor at the time of such Transfer, and (z) such Consenting Creditor shall be solely responsible for the Qualified Marketmaker’s failure to comply with the requirements of Section 3(a).

(d) Additional Claims. Nothing in this Agreement shall be construed to preclude a Consenting Creditor from (i) acquiring additional Claims, or (ii) Transferring any such additional Claims; provided, that, in each case, such Consenting Creditor shall promptly notify its counsel, who will notify counsel to the Company. Each Consenting Creditor agrees that any such additional Claims shall automatically and immediately upon acquisition by such Consenting Creditor be subject to this Agreement (regardless of when or whether notice of such acquisition is given to the Company or whether it is of the same nature as the Claims owned by such Consenting Creditor as of the date of this Agreement), and that, until the earlier of the expiration of the Support Period and the date upon which this Agreement is validly terminated pursuant to the terms hereof with respect to such Consenting Creditor, it shall vote (or cause to be voted) any such additional Claims entitled to vote on the Plan (to the extent still held by it or on its behalf at the time of such vote), in a manner consistent with Section 3(a).

(e) Additional Consenting Creditors. Any Prepetition Credit Agreement Lender, Prepetition Term Loan Lender, or Prepetition Convertible Noteholder may, at any time after the Support Effective Date, become a party to this Agreement as a Consenting Creditor (an “Additional Consenting Creditor”) by executing a joinder agreement substantially in the form attached hereto as Exhibit H, pursuant to which such Additional Consenting Creditor shall be bound by the terms of this Agreement as a Consenting Credit Agreement Lender, Consenting Term Loan Lender, or Consenting Convertible Noteholder, as applicable, hereunder, including under Section 3(d) in respect of any additional Claims acquired after the date of such joinder agreement.

4. Agreements of the Company.

(a) Covenants. The Company agrees that, for the duration of the Support Period, the Company shall, and shall cause each of its subsidiaries included in the definition of Company, to:

(i) prepare or cause to be prepared the Definitive Documents, each of which, for the avoidance of doubt, shall contain terms and conditions consistent with this Agreement and subject to the approval rights set forth in the last paragraph of Section 2;

(ii) use its commercially reasonable efforts to (A) support and take any and all actions necessary, appropriate or reasonably requested by the Consenting Creditors to facilitate the Restructuring Transactions, including (1) the Solicitation of the Plan, (2) obtaining approval and confirmation of the Plan, (3) consummating the Restructuring, and (4) timely filing any objection or opposition to any motion filed with the Court seeking the entry of an order modifying or terminating the Debtors’ exclusive right to file and/or solicit acceptances of a chapter 11 plan of reorganization, directing the appointment of an examiner with expanded powers or a trustee, converting or dismissing the Chapter 11 Cases or for relief that (x) is inconsistent with this Agreement in any respect or (y) would, or would reasonably be expected to, frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring, (B) obtain orders of the Court in respect of the Restructuring, (C) support the release and exculpation provisions contained in the Plan, and (D) perform its obligations under this Agreement in accordance with its terms and as set forth in the Plan;

(iii) (A) seek entry of the Cash Collateral Orders and, if necessary, timely file a formal written response in opposition to any objection filed with the Court by any Person or entity with respect to entry of the Cash Collateral Orders or with respect to any adequate protection proposed to be granted or granted to the Prepetition Credit Agreement Lenders, the Prepetition Term Loan Lenders and the Prepetition Convertible Noteholders pursuant to the Cash Collateral Orders, (B) subject to professional responsibilities, prosecute and defend any appeals related to the Restructuring, (C) execute and deliver any other required agreements to effectuate and consummate the Restructuring and (D) operate its business in the ordinary course and consistent with past practice, and that is consistent with this Agreement and the Restructuring and maintain the good standing (or equivalent status under the laws of its incorporation or organization) under the laws of the jurisdiction in which each of the entities comprising the Company are incorporated or organized;

(iv) provide reasonably prompt written notice (in accordance with Section 19) to the Consenting Creditors between the date hereof and the Effective Date of (A) the occurrence, or failure to occur, of any event of which the Company has actual knowledge which occurrence or failure would be likely to cause (1) any covenant of the Company contained in this Agreement not to be satisfied in any material respect or (2) any condition precedent contained in the Plan not to timely occur or become impossible to satisfy, (B) receipt of any notice from any third party alleging that the consent of such Person is or

may be required in connection with the transactions contemplated by the Restructuring, (C) receipt of any material notice, including from any governmental unit with jurisdiction, of any proceeding or of any complaints, litigations, investigations or hearings commenced, or, to the actual knowledge of the Company, threatened against the Company, relating to or involving the Company (or of any communications that the same may be contemplated or threatened), and (D) any failure of the Company to comply, in any material respect, with or satisfy, any covenant, condition or agreement to be complied with or satisfied by it hereunder;

(v) subject to compliance with all applicable confidentiality agreements or obligations, provide to the Consenting Creditors and/or their respective professionals during normal business hours and without disruption to the Company’s business, (A) upon reasonable advance notice to the Company, reasonable access to the respective management and advisors of the Company, (B) prompt access to any information provided to any existing or prospective financing sources (including lenders under any exit financing) and (C) timely and reasonable responses to all diligence requests;

(vi) use commercially reasonable efforts to obtain any and all required regulatory and/or third-party approvals for the Restructuring embodied in the Plan, if any;

(vii) (A) provide draft copies of all material motions or applications and other documents (including all Definitive Documents) the Company intends to file with the Court, execute, distribute, use or publicly disclose to the Consenting Creditor Counsel at least two (2) business days prior to the date when the Company intends to file with the Court, execute, distribute, use or publicly disclose any such pleading or other document (provided that if delivery of such motions, orders or materials (other than the Definitive Documents) at least two (2) business days in advance is not reasonably practicable, such motion, order or material shall be delivered as soon as reasonably practicable prior to filing with the Court, executing, distributing, using or publicly disclosing); and (B) without limiting any approval rights set forth herein, consult in good faith with Consenting Creditor Counsel regarding the form and substance of any of the foregoing documents in advance of the filing, execution, distribution, use (as applicable) or public disclosure thereof;

(viii) to pay in cash upon demand on or before the Petition Date all accrued and unpaid fees, costs, and documented out of pocket expenses of Consenting Creditor Counsel, each subject to the terms of applicable engagement letters (if any), provided, however, that contemporaneously with the execution of this Agreement, the Company shall pay all such fees, costs, and documented out of pocket expenses incurred prior to the Support Effective Date, in each case. The Company shall additionally pay all reasonable fees, costs, and expenses on a regular and continuing basis within seven (7) business days of demand (without any requirement for Court review or further Court order unless the Company has objected to the reasonableness of the fees, costs, or expenses); provided, however, that the Company shall not be responsible for any fees, costs and expenses incurred after termination of this Agreement;

(ix) comply in all material respects with applicable laws (including making or seeking to obtain all required material consents and/or appropriate filings or registrations with, notifications to, or authorizations, consents or approvals of any regulatory or governmental authority), and paying all material taxes as they become due and payable except to the extent nonpayment thereof is permitted by the Bankruptcy Code; and

(x) to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring, negotiate in good faith with the Consenting Creditors on appropriate additional or alternative provisions to address any such impediments.

(b) Negative Covenants. The Company agrees that for the duration of the Support Period, without the consent of the Requisite Creditors, the Company shall not, and shall cause each of its subsidiaries included in the definition of Company, not to, directly or indirectly:

(i) seek, solicit, propose, support, or consummate an Alternative Restructuring;

(ii) modify the Plan, in whole or in part, in a manner that is inconsistent with any material aspect of this Agreement;

(iii) withdraw or revoke the Plan or publicly announce its intention not to pursue the Plan, except as may be required by the Requisite Creditors;

(iv) take or threaten to take, any action or file any motion, pleading or other Definitive Document with the Court (including any modifications or amendments thereof) or any other documents related to the Restructuring that (A) is inconsistent in any material respect with this Agreement, the Plan or any other Definitive Document; or (B) has not received the requisite approvals in accordance with the rights set forth in the last paragraph of Section 2;

(v) take any action that is inconsistent with, or is reasonably likely to interfere with, consummation of the Restructuring;

(vi) commence an avoidance action or other legal proceeding that challenges the validity, enforceability, or priority of the Claims held by the Consenting Creditors, or otherwise negatively affects the rights of the Consenting Creditors;

(vii) incur or suffer to exist any indebtedness or any guarantee of indebtedness, except as contemplated by this Agreement and the Plan, and indebtedness existing and outstanding immediately prior to the date hereof, and trade payables and liabilities arising and incurred in the ordinary course of business; and

(viii) incur any liens or security interests, except the liens and security interests created by the Cash Collateral Orders; and

(ix) enter into any commitment or agreement with respect to debtor-in-possession financing or the use of cash collateral other than the Cash Collateral Orders without the written consent of the Consenting Creditors.

(c) Automatic Stay. The Company acknowledges and agrees and shall not dispute that after the commencement of the Chapter 11 Cases, the giving of notice of default or termination of this Agreement by any Party pursuant to this Agreement shall not be a violation of the automatic stay of section 362 of the Bankruptcy Code (and the Company hereby waives, to the fullest extent permitted by law, the applicability of the automatic stay to the giving of such notice); provided that nothing herein shall prejudice any Party’s rights to argue that the giving of notice of default or termination was not proper under the terms of this Agreement.

(d) No Additional Fiduciary Obligations. Notwithstanding anything to the contrary herein, nothing in this Agreement shall create or impose any additional fiduciary obligations upon any Company entity or any members, partners, managers, managing members, officers, directors, employees, advisors, principals, attorneys, professionals, accountants, investment bankers, consultants, agents or other representatives of the same or their respective affiliated entities, in such person’s capacity as a member, partner, manager, managing member, officer, director, employee, advisor, principal, attorney, professional, accountant, investment banker, consultant, agent or other representative of any Company entity, that such entities did not have prior to the Support Effective Date.

5. Termination of Agreement.

(a) This Agreement shall terminate (i) as to all Parties two (2) business days following the delivery of notice, delivered in accordance with Section 19, from the Company to the other Parties at any time after and during the continuance of a Company Termination Event (as defined below), (ii) as to the Consenting Convertible Noteholders two (2) business days following the delivery of notice, delivered in accordance with Section 19, from the Requisite Convertible Noteholders to the other Parties at any time after and during the continuance of any Consenting Convertible Noteholder Termination Event (as defined below), (iii) as to the Consenting Credit Agreement Lenders two (2) business days following the delivery of notice, delivered in accordance with Section 19, from the Requisite Credit Agreement Lenders to the other Parties at any time after and during the continuance of any Consenting Credit Agreement Lender Termination Event (as defined below), or (iv) as to the Consenting Term Loan Lenders two (2) business days following the delivery of notice, delivered in accordance with Section 19, from the Requisite Term Loan Lenders to the other Parties at any time after and during the continuance of any Consenting Term Loan Lender Termination Event, in each case, unless the giving of such notice is waived in writing by the other Parties. Notwithstanding any provision to the contrary in this Section 5, no Party may exercise any of its respective termination rights as set forth herein if such Party has failed to perform or comply in all material respects with the terms and conditions of this Agreement (unless such failure to perform or comply arises as a result of another Party’s actions or inactions that breached this Agreement), with such failure to perform or comply causing, or resulting in, the occurrence of the Company Termination Event, Consenting Convertible Noteholder Termination Event, Consenting Credit Agreement Lender Termination Event or Consenting Term Loan Lender Termination Event, as applicable. In addition, this Agreement shall terminate automatically (x) if, within 20 days after the Petition Date (or such later date as may be determined by the Requisite Creditors), the Court has not entered an order or orders, in form and substance acceptable to the Requisite Creditors, approving the Backstop Agreement on or before such date, and (y) on the Effective Date of the Plan.

(b) A “Company Termination Event” shall mean any of the following:

(i) the breach by one or more of the Consenting Creditors of any of the undertakings, representations, warranties or covenants of the Consenting Creditors set forth herein in any material respect which remains uncured for a period of five (5) business days after the receipt of written notice of such breach pursuant to Section 19, but only if the non-breaching Consenting Creditors in the applicable class of Claims hold less than 66²⁄₃% of the aggregate principal amount of Claims in such class;

(ii) the board of directors, managers, members or partners, as applicable, of the Company reasonably determines in good faith based upon the advice of outside counsel that continued performance under this Agreement would be inconsistent with the exercise of its fiduciary duties under applicable law; provided, that the Company provides notice of such determination to the Consenting Creditors within one (1) business day after the date thereof;

(iii) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment or order enjoining the consummation of or rendering illegal the Plan or the Restructuring, and such ruling, judgment or order has not been stayed, reversed or vacated within thirty (30) days after such issuance;

(iv) as of 11:59 p.m. prevailing Central Time on August 27, 2020, the Support Effective Date shall not have occurred; or

(v) if, within 80 days after the Petition Date, the Effective Date shall not have occurred;

(i) the breach by the Company, the Requisite Credit Agreement Lenders or the Requisite Term Loan Lenders of any of the obligations, undertakings, representations, warranties or covenants of such Party set forth herein (except those obligations, undertakings, representations, warranties or covenants separately listed below in this Section 5(c)), which remains uncured for a period of five (5) business days after the receipt of written notice of such breach pursuant to Section 19;

(ii) the issuance by any governmental authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment or order enjoining the consummation of or rendering illegal the Plan or the Restructuring, and either (A) such ruling, judgment or order has been issued at the request of or with the acquiescence of the Company, or (B) in all other circumstances, such ruling, judgment or order has not been stayed, reversed or vacated within thirty (30) days after such issuance;

(iii) if the Company shall not have complied with each of the following milestones, which may be extended with the consent of the Requisite Creditors (the “Milestones”):

(1) if, as of 11:59 p.m. prevailing Central Time on August 27, 2020, the Chapter 11 Cases shall not have been filed (the “Petition Date”);

(2) if, within one business day after the Petition Date, the Company shall not have filed the Plan and Disclosure Statement with the Court;

(3) if, within five days after the Petition Date, the Interim Cash Collateral Order has not been entered by the Court;

(4) if, within 20 days after the Petition Date, the Court shall not have entered an order provisionally approving the Disclosure Statement;

(5) if, within 25 days after the Petition Date, the Company shall not have commenced the Solicitation in accordance with section 1126(b) of the Bankruptcy Code;

(6) if, within 35 days after the Petition Date, the Final Cash Collateral Order has not been entered by the Court;

(7) if, within 70 days after the Petition Date, the Confirmation Order has not been entered by the Court; and

(8) if, within 80 days after the Petition Date, the Effective Date shall not have occurred;

provided that, to the extent such Milestone is not met solely due to the actions of the Requisite Convertible Noteholders in violation of this Agreement, there shall be no termination right under this Section 5(c)(iii);

(iv) the Company files or otherwise supports any chapter 11 plan other than the Plan (as amended or modified in accordance with the provisions hereof);

(v) the Court or a court of competent jurisdiction enters an order denying confirmation of the Plan or refusing to approve the Disclosure Statement and such order becomes a Final Order;

(vi) the Company (A) withdraws the Plan or Disclosure Statement, or the Company amends or modifies the Plan or Disclosure Statement, or the Company files any motion, pleading or related document (including any other Definitive Documents) with the Court that has not received the requisite approvals set forth in the last paragraph of Section 2 or is inconsistent with this Agreement or the Plan and such motion, pleading or related document (including any other Definitive Documents) has not been withdrawn prior to two (2) business days after the Company receives written notice from the Requisite Convertible Noteholders (in accordance with Section 19 hereof) that such motion, pleading or related document (including any Definitive Documents) is inconsistent with this Agreement or the Plan or has not received the requisite approvals set forth in the last paragraph of Section 2, or (B) seeks, solicits, supports, or enters into a definitive agreement with respect to any Alternative Restructuring;

(vii) the Company files any motion for the (A) conversion of one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (B) appointment of an examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code or a trustee or receiver in one or more of the Chapter 11 Cases or (C) dismissal of one or more of the Chapter 11 Cases;

(viii) the Court or a court of competent jurisdiction enters an order (A) directing the appointment of an examiner with expanded powers or a trustee in the Chapter 11 Cases, (B) converting any of the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, (C) dismissing any of the Chapter 11 Cases, (D) terminating exclusivity under section 1121 of the Bankruptcy Code, (E) making a finding of fraud, dishonesty or misconduct by any current executive, officer or director of any of the entities comprising the Company, regarding or relating to the Company or (F) vacating, extending, terminating, amending or modifying in any material respect the Cash Collateral Orders without the consent of the Requisite Convertible Noteholders;

(ix) the Court or a court of competent jurisdiction enters an order granting relief from the automatic stay to the holder or holders of any security interest to permit foreclosure (or the granting of a deed in lieu of foreclosure on the same) on any of the Company’s assets (other than in respect of insurance proceeds or with respect to assets having a fair market value of less than $250,000 in the aggregate);

(x) the Company (A) files any motion seeking to avoid, disallow, subordinate or recharacterize any claim, lien, or interest (including any Claim) held by any Consenting Convertible Noteholder or (B) shall have supported any application, adversary proceeding or cause of action referred to in the immediately preceding clause (A) filed by a third party, or consents (without the consent of the affected Consenting Convertible Noteholder) to the standing of any such third party to bring such application, adversary proceeding or cause of action;

(xi) on or after the date hereof, the Company engages in any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness, liquidation, or other similar transaction outside of the ordinary course of business other than (A) the commencement of the Chapter 11 Cases and the consummation of the Restructuring Transactions, or (B) with the consent of the Requisite Creditors;

(xii) the Court or a court of competent jurisdiction enters an order granting relief that (A) is inconsistent with this Agreement in any material respect or (B) would, or would reasonably be expected to, materially frustrate the purposes of this Agreement, including by preventing the consummation of the Restructuring;

(xiii) the occurrence of a “Termination Event” (as defined in the Cash Collateral Orders) under the Cash Collateral Orders that has not been waived or timely cured in accordance therewith;

(xiv) the termination of this Agreement with respect to the Consenting Credit Agreement Lenders or the Consenting Term Loan Lenders;

(xv) the Company makes any payment to the Consenting Credit Agreement Lenders or the Consenting Term Loan Lenders, or repays, redeems, repurchases, or refinances any debt for borrowed money of, or declares or makes or declares any dividend or distribution with respect to any Interest in, the Company, in each case other than as provided in this Agreement or any Definitive Document;

(xvi) the entry by the Company into any material transaction or payment by the Company of any material payment inconsistent with this Agreement or the Plan;

(xvii) the Company fails to timely pay the fees and documented out of pocket expenses of the Consenting Convertible Noteholders or their counsel as set forth under Section 4(a)(viii);

(xviii) any of the orders approving the Backstop Agreement, the Disclosure Statement Motion, or the Plan are reversed, dismissed, stayed, vacated, reconsidered, modified, or amended without the consent of the Requisite Convertible Noteholders; or

(xix) the Backstop Agreement terminates in accordance with its terms.

(d) A “Consenting Credit Agreement Lender Termination Event” shall mean any of the following:

(i) the breach by the Company, the Requisite Convertible Noteholders or the Requisite Term Loan Lenders of any of the obligations, undertakings, representations, warranties or covenants of such Party set forth herein (except those obligations, undertakings, representations, warranties or covenants separately listed below in this Section 5(d)), which remains uncured for a period of five (5) business days after the receipt of written notice of such breach pursuant to Section 19;

(iii) the Company shall not have complied with each of the Milestones, which may be extended with the consent of the Requisite Creditors; provided that, to the extent such Milestone is not met solely due to the actions of the Requisite Credit Agreement Lenders in violation of this Agreement, there shall be no termination right under this Section 5(d)(iii);

(iv) the Company files or otherwise supports any chapter 11 plan other than the Plan (as amended or modified in accordance with the provisions hereof);

(v) the Court or a court of competent jurisdiction enters an order denying confirmation of the Plan or refusing to approve the Disclosure Statement and such order becomes a Final Order;

(vi) the Company (A) withdraws the Plan or Disclosure Statement, or the Company amends or modifies the Plan or Disclosure Statement, or the Company files any motion, pleading or related document (including any other Definitive Documents) with the Court that has not received the requisite approvals set forth in the last paragraph of Section 2 or is inconsistent with this Agreement or the Plan and such motion, pleading or related document (including any other Definitive Documents) has not been withdrawn prior to two (2) business days after the Company receives written notice from the Requisite Credit Agreement Lenders (in accordance with Section 19 hereof) that such motion, pleading or related document (including any Definitive Documents) is inconsistent with this Agreement or the Plan or has not received the requisite approvals set forth in the last paragraph of Section 2, or (B) seeks, solicits, supports, or enters into a definitive agreement with respect to any Alternative Restructuring;

(x) the Company (A) files any motion seeking to avoid, disallow, subordinate or recharacterize any claim, lien, or interest (including any Claim) held by any of the Consenting Credit Agreement Lenders or (B) shall have supported any application, adversary proceeding or cause of action referred to in the immediately preceding clause (A) filed by a third party, or consents (without the consent of any affected Consenting Credit Agreement Lenders) to the standing of any such third party to bring such application, adversary proceeding or cause of action;

(xiii) the occurrence of a “Termination Event” (as defined in the Cash Collateral Orders) under the Cash Collateral Orders that has not been waived or timely cured in accordance therewith;

(xiv) the termination of this Agreement by the Consenting Convertible Noteholders or the Consenting Term Loan Lenders;

(xv) the Company makes any payment to the Consenting Convertible Noteholders or the Consenting Term Loan Lenders, or repays, redeems, repurchases, or refinances any debt for borrowed money of, or declares or makes or declares any dividend or distribution with respect to any Interest in, the Company, in each case other than as provided in this Agreement or any Definitive Document;

(xvi) the entry by the Company into any material transaction or payment by the Company of any material payment inconsistent with this Agreement or the Plan;

(xvii) the Company fails to timely pay the fees and documented out of pocket expenses of the Consenting Credit Agreement Lenders or their counsel as set forth under Section 4(a)(viii);

(xix) the Backstop Agreement terminates in accordance with its terms.

(e) A “Consenting Term Loan Lender Termination Event” shall mean any of the following:

(i) the breach by the Company, the Requisite Convertible Noteholders, or the Requisite Credit Agreement Lenders of any of the obligations, undertakings, representations, warranties or covenants of such Party set forth herein (except those obligations, undertakings, representations, warranties or covenants separately listed below in this Section 5(d)), which remains uncured for a period of five (5) business days after the receipt of written notice of such breach pursuant to Section 19;

(iii) the Company shall not have complied with each of the Milestones, which may be extended with the consent of the Requisite Creditors; provided that, to the extent such Milestone is not met solely due to the actions of the Requisite Term Loan Lenders in violation of this Agreement, there shall be no termination right for such Parties under this Section 5(d)(iii);

(iv) the Company files or otherwise supports any chapter 11 plan other than the Plan (as amended or modified in accordance with the provisions hereof);

(v) the Court or a court of competent jurisdiction enters an order denying confirmation of the Plan or refusing to approve the Disclosure Statement and such order becomes a Final Order;

(vi) the Company (A) withdraws the Plan or Disclosure Statement, or the Company amends or modifies the Plan or Disclosure Statement, or the Company files any motion, pleading or related document (including any other Definitive Documents) with the Court that has not received the requisite approvals set forth in the last paragraph of Section 2 or is inconsistent with this Agreement or the Plan and such motion, pleading or related document (including any other Definitive Documents) has not been withdrawn prior to two (2) business days after the Company receives written notice from the Requisite Term Loan Lenders (in accordance with Section 19 hereof) that such motion, pleading or related document (including any Definitive Documents) is inconsistent with this Agreement or the Plan or has not received the requisite approvals set forth in the last paragraph of Section 2, or (B) seeks, solicits, supports, or enters into a definitive agreement with respect to any Alternative Restructuring;

(x) the Company (A) files any motion seeking to avoid, disallow, subordinate or recharacterize any claim, lien, or interest (including any Claim) held by any of the Consenting Term Loan Lenders or (B) shall have supported any application, adversary proceeding or cause of action referred to in the immediately preceding clause (A) filed by a third party, or consents (without the consent of any affected Consenting Term Loan Lenders) to the standing of any such third party to bring such application, adversary proceeding or cause of action;

(xi) on or after the date hereof, the Company engages in any merger, consolidation, disposition, acquisition, investment, dividend, incurrence of indebtedness, liquidation or other similar transaction outside of the ordinary course of business other than (A) the commencement of the Chapter 11 Cases and the consummation of the Restructuring Transactions, or (B) with the consent of the Requisite Creditors;

(xiii) the occurrence of a “Termination Event” (as defined in the Cash Collateral Orders) under the Cash Collateral Orders that has not been waived or timely cured in accordance therewith;

(xiv) the termination of this Agreement by the Consenting Convertible Noteholders or the Consenting Credit Agreement Lenders;

(xv) the Company makes any payment to the Consenting Convertible Noteholders or the Consenting Credit Agreement Lenders, or repays, redeems, repurchases, or refinances any debt for borrowed money of, or declares or makes or declares any dividend or distribution with respect to any Interest in, the Company, in each case other than as provided in this Agreement or any Definitive Document;

(xvi) the entry by the Company into any material transaction or payment by the Company of any material payment inconsistent with this Agreement or the Plan;

(xvii) the Company fails to timely pay the fees and documented out of pocket expenses of the Consenting Term Loan Lenders or their counsel as set forth under Section 4(a)(viii);

(xix) the Backstop Agreement terminates in accordance with its terms.

(f) Mutual Termination. This Agreement may be terminated by mutual agreement of the Company and the Requisite Creditors upon the receipt of written notice delivered in accordance with Section 19.

(g) Effect of Termination. Upon the termination of this Agreement in accordance with this Section 5, and except as provided in Section 13, this Agreement shall forthwith become void and of no further force or effect and each Party shall be immediately released from its liabilities, obligations, commitments, undertakings and agreements under or related to this Agreement and shall have all the rights and remedies that it would have had and shall be entitled to take all actions, whether with respect to the Restructuring or otherwise, that it would have been entitled to take had it not entered into this Agreement, including all rights and remedies available to it under applicable law, and any ballot submitted by any Consenting Creditor on the Plan shall immediately be deemed withdrawn, null, and void; provided, however, that in no event shall any such termination relieve a Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination.

(h) If the Restructuring Transactions are not consummated or the Support Effective Date does not occur or this Agreement is terminated for any reason (other than a termination on the Effective Date of the Plan), nothing herein shall be construed as a waiver by any Party of any or all of such Party’s rights and the Parties expressly reserve any and all of their respective rights and any and all of their remedies, Claims, and Interests. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms. This Agreement shall in no event be construed as or be deemed to be evidence of an admission or concession on the part of any Party of any Claim or fault or liability or damages whatsoever. Each of the Parties denies any and all wrongdoing or liability of any kind and does not concede any infirmity in the Claims or defenses which it has asserted or could assert.

6. Definitive Documents; Good Faith Cooperation; Further Assurances.

Each Party hereby covenants and agrees to cooperate with each other in good faith in connection with, and shall exercise commercially reasonable efforts with respect to the pursuit, approval, negotiation, execution, delivery, implementation and consummation of the Plan, the Restructuring and the Restructuring Transactions, as well as the negotiation, drafting, execution and delivery of the Definitive Documents. Furthermore, subject to the terms hereof, including the approval rights under the last paragraph of Section 2, each of the Parties shall take such action as may be reasonably necessary and appropriate to carry out the purposes and intent of this Agreement, including making and filing any required regulatory filings, and shall refrain from taking any action that would frustrate the purposes and intent of this Agreement.

7. Representations and Warranties.

(a) Each Party, severally and not jointly, represents and warrants to the other Parties that the following statements are true, correct and complete as of the date hereof (or as of the date a Consenting Creditor becomes a party hereto):

(i) such Party is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has all requisite corporate, partnership, limited liability company or similar authority to enter into this Agreement and carry out the transactions contemplated hereby and perform its obligations contemplated hereunder; and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, limited liability company, partnership or other similar action on its part;

(ii) the execution, delivery and performance by such Party of this Agreement does not and will not (A) violate any material provision of law, rule or regulation applicable to it or its charter or bylaws (or other similar governing documents) and with respect to the Company, each of the entities that comprise the Company, or (B) with respect to the Company, conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contractual obligation to which it or any of the entities that comprise the Company is a party or its or their assets are bound, except for the filing of the Chapter 11 Cases and any actions taken during the Chapter 11 Cases in accordance with this Agreement;

(iii) the execution, delivery and performance by such Party of this Agreement does not and will not require any registration or filing with, consent, authorization or approval of, or notice to, or other action, with or by, any federal, state or governmental authority or regulatory body, except such filings as may be necessary and/or required by the SEC or other securities regulatory authorities under applicable securities laws; and

(iv) this Agreement is the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

(b) Each Consenting Creditor severally (and not jointly) represents and warrants to the Company that, as of the date hereof (or as of the date such Consenting Creditor becomes a party hereto):

(i) such Consenting Creditor (A) is the beneficial owner of the principal amount of each Claim set forth below its name on Exhibit E hereto (or below its name on the schedule of a Joinder Agreement for any Consenting Creditor that becomes a party hereto after the date hereof), and/or (B) has, with respect to the beneficial owners of such Claims, (1) sole investment or voting discretion with respect thereto, (2) full power and authority to vote on and consent to matters concerning such Claims or to Transfer such Claims, and (3) full power and authority to bind or act on the behalf of, such beneficial owners;

(ii) the amount of each Claim set forth below each Consenting Creditor’s name Exhibit E hereto (or below its name on the schedule of a Joinder Agreement for any Consenting Creditor that becomes a party hereto after the date hereof) does not include any Claim out for loan pursuant to a securities lending program on the date hereof; and

(iii) such Consenting Creditor does not beneficially own any Claims under the Prepetition Credit Agreement, the Prepetition Term Loan Agreement, the Prepetition Indenture, or the Prepetition Convertible Notes other than the Claims set forth below each Consenting Creditor’s name on Exhibit E hereto (or below its name on the schedule of a Joinder Agreement for any Consenting Creditor that becomes a party hereto after the date hereof).

(c) Each Consenting Creditor severally (and not jointly) makes the representations and warranties set forth in Section 20(c), in each case, to the Company.

8. Disclosure; Publicity.

The Company shall submit drafts to Consenting Creditor Counsel of any press releases, public filings (including filings with the SEC), public announcements or communications with any news media or to the public generally, that constitute disclosure of the existence or terms of this Agreement (or any amendment to the terms of this Agreement) or the transactions contemplated hereby at least two (2) business days prior to making any such disclosure for the review, consultation and approval by the Consenting Party Counsel. Except as required by applicable law or otherwise permitted under the terms of any other agreement between the Company and any Consenting Creditor, no Party or its advisors shall disclose to any Person (including, for the avoidance of doubt, any other Party), other than advisors to the Company, subject to any confidentiality agreement between the Company and any Consenting Creditor, the principal amount or percentage of any Claims held by any Consenting Creditor or any of its respective subsidiaries or affiliates, in each case, without such Consenting Creditor’s prior written consent, and the Company acknowledges and agrees that it may not disclose such information provided by a Consenting Creditor contained on Exhibit E of this Agreement or a Joinder Agreement (including the schedule thereto) with any other Consenting Creditor, and further agrees that it shall redact such information from the applicable exhibits or schedules before filing any pleading with the Court (provided, that the holdings disclosed may be filed in unredacted form with the Court under seal) and from “closing sets” or other representations of the fully executed Agreement or any Joinder Agreements; provided, however, that (i) if such disclosure is required by law, subpoena, or other legal process or regulation, the disclosing Party shall afford the relevant Consenting Creditor a reasonable opportunity to review and comment in advance of such disclosure and shall take all reasonable measures to limit such disclosure (the expense of which, if any, shall be borne by the relevant Consenting Creditor) and (ii) the foregoing shall not prohibit the disclosure of the aggregate percentage or aggregate principal amount of Claims held by all the Consenting Creditors, collectively, on a facility by facility basis. Notwithstanding the provisions in this Section 8, any Party may disclose, only to the extent consented to in writing by a Consenting Creditor, such Consenting Creditor’s individual holdings.

9. Amendments and Waivers.

(a) Other than as set forth in Section 9(b), this Agreement, including any exhibits or schedules hereto, may not be waived, modified, amended or supplemented except with the written consent of the Company and the Requisite Creditors;

(b) Notwithstanding Section 9(a):

(i) any waiver, modification, amendment or supplement to this Section 9 shall require the written consent of all of the Parties;

(ii) any modification, amendment or change to the definition of “Requisite Creditors,” “Requisite Convertible Noteholders,” “Requisite Credit Agreement Lenders,” or “Requisite Term Loan Lenders” shall require the written consent of each individual Consenting Creditor included in such definition; and

(iii) any change, modification or amendment to this Agreement or the Plan that treats or affects any Consenting Creditor in a manner that is materially and adversely disproportionate, on an economic or non-economic basis, to the manner in which any of the other Consenting Creditors are treated (after taking into account each of the Consenting Creditors’ respective holdings and interests in the Company and the recoveries contemplated by the Plan (as in effect on the date hereof)) shall require the written consent of such Consenting Creditor.

10. Effectiveness.

This Agreement shall become effective and binding upon each Party on the Support Effective Date; provided, however, that Exhibit E shall be delivered to (a) other Consenting Creditors in a redacted form that removes the details of such Consenting Creditors’ holdings of Claims and (b) the Company, Porter Hedges, and Consenting Creditor Counsel in an unredacted form (to be held by Porter Hedges and Consenting Creditor Counsel on a professionals’ eyes only-basis).

11. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.

(a) This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the law of the State of New York, without giving effect to the conflict of laws principles thereof.

(b) Each of the Parties irrevocably agrees that any legal action, suit or proceeding arising out of or relating to this Agreement brought by any Party or its successors or assigns shall be brought and determined, to the extent possible, in the Court, and otherwise in any federal or state court in the State of New York and, to the extent permitted by applicable law, the City of New York and the County of New York (“New York Courts”) and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Agreement or the Restructuring Transactions. Each of the Parties agrees not to commence any proceeding relating hereto or thereto except in the Court, to the extent possible, or otherwise the New York Courts, other than proceedings in any court of competent jurisdiction to enforce any judgment, decree or award rendered by the Court or any New York Courts. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any proceeding arising out of or relating to this Agreement

or the Restructuring Transactions, (i) any claim that it is not personally subject to the jurisdiction of the Court or the New York Courts for any reason, (ii) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) that (A) the proceeding in any such court is brought in an inconvenient forum, (B) the venue of such proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Notwithstanding the foregoing, during the pendency of the Chapter 11 Cases, all proceedings contemplated by this Section 11(b) shall be brought in the Court.

(c) EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (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 HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

12. Specific Performance/Remedies.

It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief (including attorneys’ fees and costs) as a remedy of any such breach in addition to any other remedy to which such non-breaching Party may be entitled, at law or in equity, without the necessity of proving the inadequacy of money damages as a remedy, including an order of the Court requiring any Party to comply promptly with any of its obligations hereunder. Each Party also agrees that it will not seek, and will waive any requirement for, the securing or posting of a bond in connection with any Party seeking or obtaining such relief.

13. Survival.

Notwithstanding the termination of this Agreement pursuant to Section 5, the agreements and obligations of the Parties in this Section 13, and Sections 4(a)(viii) (with respect to accrued and unpaid expenses through the date of termination), 5(g), 5(h), 8 (other than the first sentence thereof, and only for a period of 12 months following such termination), 11, 12, 15, 16, 17, 18, 19, 20, 21, 22 and 23 (and any defined terms used in any such Sections) shall survive such termination and shall continue in full force and effect in accordance with the terms hereof; provided, however, that any liability of a Party for failure to comply with the terms of this Agreement shall survive such termination.

14. Headings.

The headings of the sections, paragraphs and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.

15. Successors and Assigns; Severability; Several Obligations.

This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, executors, administrators and representatives; provided, however, that nothing contained in this Section 15 shall be deemed to permit Transfers of the Prepetition Credit Agreement Advances, Prepetition Term Loan Advances, the Prepetition Convertible Notes, or claims arising under the Prepetition Credit Agreement Advances, Prepetition Term Loan Advances or the Prepetition Convertible Notes, other than in accordance with the express terms of this Agreement. If any provision of this Agreement, or the application of any such provision to any Person or entity or circumstance, shall be held invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon any such determination of invalidity, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible. The agreements, representations and obligations of the Parties are, in all respects, ratable and several and neither joint nor joint and several.

16. No Third-Party Beneficiaries.

Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other Person or entity shall be a third-party beneficiary hereof.

17. Prior Negotiations; Entire Agreement.

This Agreement, including the exhibits and schedules hereto (including the Plan) constitutes the entire agreement of the Parties, and supersedes all other prior negotiations, with respect to the subject matter hereof and thereof, except that the Parties acknowledge that any confidentiality agreements (if any) (including any confidentiality obligations under the Prepetition Term Loan Agreement) heretofore executed between the Company and each Consenting Creditor shall continue in full force and effect.

18. Counterparts.

This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement. Execution copies of this Agreement may be delivered by electronic mail, or otherwise, which shall be deemed to be an original for the purposes of this paragraph.

19. Notices.

All notices hereunder shall be deemed given if in writing and delivered, if contemporaneously sent by electronic mail, courier or by registered or certified mail (return receipt requested) to the following addresses (or such other addresses as shall be specified by like notice):

(1) If to the Company, to:

SAExploration Holdings, Inc.

1160 Dairy Ashford Rd., Suite 160

Houston, Texas 77079

Attention: Michael J. Faust and John A. Simmons

With a copy (which shall not constitute notice) to:

Porter Hedges LLP

1000 Main Street, 36^th Floor

Houston, Texas 77002

Attention: John F. Higgins, Esq.

(jhiggins@porterhedges.com)

E. James Cowen, Esq.

(jcowen@porterhedges.com)

- and -

M. Shane Johnson, Esq.

(sjohnson@porterhedges.com)

(2) If to a Consenting Creditor, to the addresses set forth below following the Consenting Creditors’ signature (or as directed by any transferee thereof), as the case may be, with copies (which shall not constitute notice) to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Attention: Andrew N. Rosenberg, Esq.

(arosenberg@paulweiss.com)

Brian Bolin, Esq.

(bbolin@paulweiss.com)

Teresa Lii, Esq.

(tlii@paulweiss.com)

Any notice given by delivery, mail or courier shall be effective when received. Any notice given by electronic mail shall be effective upon oral, machine or electronic mail (as applicable) confirmation of transmission.

20. No Solicitation; Representation by Counsel; Adequate Information.

(a) This Agreement is not and shall not be deemed to be a solicitation for votes in favor of the Plan in the Chapter 11 Cases or a solicitation to tender or exchange any Claims. The acceptances of the Consenting Creditors with respect to the Plan will not be solicited until such Consenting Creditor has received the Disclosure Statement and related ballots and solicitation materials. In addition, this Agreement does not constitute an offer to issue or sell securities to any Person or entity, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.

(b) Each Consenting Creditor acknowledges that it has had an opportunity to receive information from the Company and each Party acknowledges that it has been represented by counsel in connection with this Agreement and the transactions contemplated hereby. Accordingly, any rule of law or any legal decision that would provide any Party with a defense to the enforcement of the terms of this Agreement against such Party based upon lack of legal counsel shall have no application and is expressly waived.

(c) Each Consenting Creditor acknowledges, agrees and represents to the Company that it (i) is either (a) a “qualified institutional buyer” as such term is defined in Rule 144A of the Securities Act or an “accredited investor” as such term is defined in Rule 501 of Regulation D of the Securities Act or (b) a non-U.S. Person within the meaning of Regulation S under the Securities Act located outside the United States, (ii) understands that if it is to acquire any securities, as defined in the Securities Act, pursuant to the Restructuring Transactions, such securities have not been and will not be registered under the Securities Act or any state or foreign securities or “blue sky” laws and that such securities are, to the extent not acquired pursuant to section 1145 of the Bankruptcy Code, being acquired from the Company in a transaction not involving a public offering and that such Consenting Creditor must continue to bear the economic risk of the investment in such securities, if applicable, unless the offer and sale of such securities is subsequently registered under the Securities Act and all applicable state or foreign securities or “blue sky” laws or an exemption from such registration is available, (iii) understands that it is not anticipated that there will be any public market for such securities; (iv) understands that to the extent not acquired pursuant to section 1145 of the Bankruptcy Code, if Rule 144 under the Securities Act is not available, public offer or sale of any such securities without registration will require the availability of another exemption under the Securities Act; (v) understands that to the extent not acquired pursuant to section 1145 of the Bankruptcy Code, a restrictive legend will be placed on the certificates representing such securities, (vi) understands that the Company is offering such securities based in part upon such Consenting Creditor’s representations contained in this Agreement and (vii) has such knowledge and experience in financial and business matters that such Consenting Creditor is capable of evaluating the merits and risks of such securities to be acquired by it (if any) pursuant to the Restructuring Transactions and understands and is able to bear any economic risks with such investment.

21. Independent Analysis.

Each of the Consenting Creditors and the Company hereby confirms that it has made its own decision to execute this Agreement based upon its own independent assessment of documents and information available to it, as it has deemed appropriate.

22. Conflicts Between this Agreement and the Plan.

In the event the terms and conditions as set forth in the Plan and this Agreement are inconsistent, the Plan shall control. Notwithstanding the foregoing, nothing contained in this Section 22 shall affect, in any way, the requirements set forth herein for the amendment of this Agreement.

23. Relationships.

None of the Consenting Creditors shall have any fiduciary duty or other duties or responsibilities in any kind or form to each other, the Company or any of the Company’s creditors or other stakeholders as a result of this Agreement. Except as expressly provided in this Agreement, there are no commitments among or between the Consenting Creditors. In this regard, it is understood and agreed that any Consenting Creditors may trade in or Transfer any Claims or Interests or other debt or equity of the Company without the consent of the Company or any other Consenting Creditor, subject to applicable securities laws and the terms of this Agreement. No prior history, pattern or practice of sharing confidences among or between the Consenting Creditors shall in any way affect or negate this understanding and agreement. Further, the Parties agree that, except as set forth in the Plan, this Agreement does not constitute a commitment to, nor shall it obligate any of the Consenting Creditors to, provide any new financing or credit support.

[REMAINDEROF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and delivered by their respective duly authorized officers, solely in their respective capacity as officers of the undersigned and not in any other capacity, as of the date set forth above.


SAEXPLORATION HOLDINGS, INC.
SAEXPLORATION SUB, INC.
SAEXPLORATION, INC.
SAEXPLORATION SEISMIC SERVICES (US), LLC
NES, LLC

By:		/s/ Michael J. Faust
Name: Michael J. Faust
Title: Chief Executive Officer and President

CONSENTING CREDIT AGREEMENT 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


BLUE MOUNTAIN CREDIT ALTERNATIVES MASTER FUND, L.P.
By: BlueMountain Capital Management, LLC, its Investment Manager

By:		/s/ Dawn Jasiak
Name: Dawn Jasiak
Title: General Counsel

BLUEMOUNTAIN KICKING HORSE FUND, L.P.
By: BlueMountain Capital Management, LLC, its Investment Manager

By:		/s/ Dawn Jasiak
Name: Dawn Jasiak
Title: General Counsel

BLUEMOUNTAIN MONTENVERS MASTER FUND SCA SICAV-SIF, L.P.
By: BlueMountain Capital Management, LLC, its Investment Manager

By:		/s/ Dawn Jasiak
Name: Dawn Jasiak
Title: General Counsel

BLUEMOUNTAIN SUMMIT TRADING, L.P.
By: BlueMountain Capital Management, LLC, its Investment Manager

By:		/s/ Dawn Jasiak
Name: Dawn Jasiak
Title: General Counsel