saex-ex103_70.htm



Exhibit 10.3

AMENDMENT NO. 1
TO

THIRD AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT

This AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (this “Amendment”) dated as of January 25, 2019, is entered into among SAExploration, Inc., a Delaware corporation (the “Borrower”), the Guarantors party hereto, the Lenders party hereto, and Cantor Fitzgerald Securities, as administrative agent and collateral agent for the Lenders (in such capacities, the “Agent”), and amends that certain Third Amended and Restated Credit and Security Agreement dated as of September 26, 2018, entered into among the Borrower, the Guarantors party thereto, the Lenders party thereto and Agent (the “Agreement”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.

WITNESSETH:

WHEREAS, the Borrower has requested that the Lenders amend the Agreement to effect the changes described below; and

WHEREAS, the Lenders party hereto constituting the “Required Lenders” have agreed to so amend the Agreement subject to the terms and conditions hereof.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:

1.Amendment.  The following defined term in Schedule 1.1a to the Agreement is hereby amended and restated as follows:

“Excluded Accounts” means, as to any Loan Party, all Deposit Accounts (i) used solely for payroll and/or accrued employee benefits, (ii) used solely for employee benefit plans, or (iii) that do not hold, in the aggregate, more than $25,000.00 at any time.

 

2.Conditions Precedent.  As a condition to the effectiveness of this Amendment, the Agent and the Lenders party hereto shall have received the following (in the case of Clause (b) below, concurrently with the effectiveness of this Amendment):

 

a)this Amendment, duly executed by the Borrower, the Guarantors, the Required Lenders and the Agent; 

 

b)the Borrower shall have obtained the necessary amendments under the Term Documents and the Convertible Notes Documents in a manner similar to the amendment in Section 1 of this Amendment, each in form and substance satisfactory to the Agent and the Required Lenders, duly executed, and in full force and effect; and

 

c)payment of all costs and expenses of the Agent and Lenders (i) incurred by or on behalf of the Agent or Lenders (including reasonable attorneys’ fees and expenses) arising under or in connection with the preparation, execution and delivery of this Amendment, and (ii) outstanding on the date hereof (to the extent that such costs and expenses are reimbursable and/or payable under the Agreement and/or the other Loan Documents).

 

3.Confirmation of Compliance with Section 15.1 of the Agreement.  The Borrower and the Lenders party hereto hereby confirm that all of the actions required to be taken by the Lenders and Borrower pursuant to Section 15.1 of the Agreement have been taken in accordance with the provisions of such Section.  The Borrower confirms that this Amendment is permitted under the Agreement, the Intercreditor Agreement and the Junior Documents (as defined in the Intercreditor Agreement).

 



 

4.Representations and Warranties.  Each of the Loan Parties hereby represents and warrants that the execution and delivery of this Amendment and, after giving effect to the amendments contained herein, the performance by each of them of their respective obligations under the Agreement, in each case, are within its powers, have been duly authorized, are not in contravention of applicable law or the terms of its operating agreement or other organizational documents and except as have been previously obtained, do not require the consent or approval of any governmental body, agency or authority, and this Amendment and the Agreement (as amended hereby) will constitute the valid and binding obligations of the Loan Parties, as applicable, enforceable in accordance with their terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, ERISA or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law).

5.Reference to and Effect on the Agreement.  Each of the Loan Parties hereby reaffirms, confirms, ratifies, covenants, and agrees to be bound by each of its covenants, agreements, and obligations under the Agreement (as amended hereby), and each other Loan Document previously executed and delivered by it.  Each reference in the Agreement to “this Agreement” or “the Loan Agreement” shall be deemed to refer to the Agreement after giving effect to this Amendment.  This Amendment is a Loan Document.

6.Execution in Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.  Delivery of an executed counterpart of a signature page to this Amendment by telecopier or electronic mail shall be effective as delivery of a manually executed counterpart of this Amendment.

7.Direction; Indemnity; Expenses.  Each of the Lenders party hereto (which collectively constitute the Required Lenders) hereby (i) authorizes and directs the Agent to execute and deliver this Amendment, and (ii) acknowledges and agrees that the foregoing directed action constitutes a direction from the Lenders under Article 17 of the Agreement, including, without limitation, Section 17.1 and Section 17.3 of the Agreement.  The Borrower, the Guarantors party hereto and the Lenders party hereto expressly agree and confirm that the Agent’s right to indemnification, as set forth in Sections 11.3 and 17.5 of the Agreement shall apply with respect to any and all losses, claims, liabilities costs and expenses that the Agent suffers, incurs or is threatened with relating to actions taken or omitted by the Agent (in accordance with the Agreement) in connection with this Amendment and any other documents contemplated hereby.  The Borrower hereby agrees to pay on demand all costs and expenses in accordance with Section 19.9 of the Agreement, in each case, incurred in connection with the preparation, negotiation and execution of this Amendment and all related documents.

8.Governing Law.  This Amendment shall be a contract made under and governed by the laws of the State of New York without giving effect to its principles of conflicts of laws.

9.Guarantors Consent and Acknowledgement.  The Guarantors, for value received, hereby consent to the Borrower’s execution and delivery of this Amendment, and the performance by the Borrower of its agreements and obligations hereunder.  This Amendment and the performance or consummation of any transaction that may be contemplated under this Amendment, shall not limit, restrict, extinguish or otherwise impair the Guarantors’ liabilities and obligations to Agent and/or Lenders under the Loan Documents (including without limitation the Guaranteed Obligations).  Each of the Guarantors acknowledges and agrees that (i) the Guaranty to which such Guarantor is a party remains in full force and effect and is fully enforceable against such Guarantor in accordance with its terms and (ii) it has no offsets, claims or defenses to or in connection with the Guaranteed Obligations, all of such offsets, claims and/or defenses are hereby waived.

[Signature Pages Follow]

 

 

 



 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered under seal as of the date first above written.

 


	
BORROWER:

	
 
	
 
	
 

	
SAEXPLORATION, INC.

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Brent Whiteley

	
Name:
	
 
	
Brent Whiteley

	
Title:
	
 
	
Chief Financial Officer, General Counsel and Secretary

	
 
	
 
	
 

	
 
	
 
	
 

	
GUARANTORS:

	
 
	
 
	
 

	
SAEXPLORATION HOLDINGS, INC.

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Brent Whiteley

	
Name:
	
 
	
Brent Whiteley

	
Title:
	
 
	
Chief Financial Officer, General Counsel and Secretary

	
 
	
 
	
 

	
 
	
 
	
 

	
SAEXPLORATION SUB, INC.

	
 
	
 
	
 

	
By:
	
 
	
/s/Brent Whiteley

	
Name:
	
 
	
Brent Whiteley

	
Title:
	
 
	
Chief Financial Officer, General Counsel and Secretary

	
 
	
 
	
 

	
NES, LLC

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Brent Whiteley

	
Name:
	
 
	
Brent Whiteley

	
Title:
	
 
	
Chief Financial Officer, General Counsel and Secretary

	
 
	
 
	
 

	
SAEXPLORATION SEISMIC SERVICES (US), LLC

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Brent Whiteley

	
Name:
	
 
	
Brent Whiteley

	
Title:
	
 
	
Chief Financial Officer, General Counsel and Secretary




 

 

 

[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Security Agreement]

 



 

 


	
AGENT:

	
 
	
 
	
 

	
 
	
 
	
 

	
CANTOR FITZGERALD SECURITIES, as Agent

	
 
	
 
	
 

	
By:
	
 
	
/s/James A. Buccola

	
Name:
	
 
	
James Buccola

	
Title:
	
 
	
Head of Fixed Income




 

[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Security Agreement]

 



 

 


	
LENDERS:

	
 
	
 
	
 

	
 
	
 
	
 

	
WHITEBOX ASYMMETRIC PARTNERS, L.P.

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Mark Strefling

	
Name:
	
 
	
Mark Strefling

	
Title:
	
 
	
Chief Executive Officer and General Counsel

	
 
	
 
	
 

	
 
	
 
	
 

	
WHITEBOX MULTI-STRATEGY PARTNERS, L.P.

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Mark Strefling

	
Name:
	
 
	
Mark Strefling

	
Title:
	
 
	
Chief Executive Officer and General Counsel

	
 
	
 
	
 

	
 
	
 
	
 

	
WHITEBOX CREDIT PARTNERS, L.P.

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Mark Strefling

	
Name:
	
 
	
Mark Strefling

	
Title:
	
 
	
Chief Executive Officer and General Counsel




 

 

 

[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Security Agreement]

 



 

 

 

 


	
1992 MSF INTERNATIONAL LTD.

	
 
	
 
	
 

	
 
	
 
	
 

	
By: Highbridge Capital Management, LLC as Trading Manager and not in its individual capacity

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Johnathan Segal

	
Name:
	
 
	
Johnathan Segal

	
Title:
	
 
	
Managing Director

	
 
	
 
	
 

	
 
	
 
	
 

	
1992 TACTICAL CREDIT MASTER FUND, L.P.

	
 
	
 
	
 

	
 
	
 
	
 

	
By: Highbridge Capital Management, LLC as Trading Manager and not in its individual capacity

	
 
	
 
	
 

	
 
	
 
	
 

	
By:
	
 
	
/s/Johnathan Segal

	
Name:
	
 
	
Johnathan Segal

	
Title:
	
 
	
Managing Director




 

[Signature Page to Amendment No. 1 to Third Amended and Restated Credit and Security Agreement]