An Officer of the Issuer shall sign the Secured Notes on behalf of the Issuer by manual or facsimile
signature (including in PDF or similar format).
If an Officer whose signature is on a Note no longer holds that office at the time the Secured Notes
Trustee authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid or obligatory for any purpose until an authorized
signatory of the Secured Notes Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under the Secured Notes Indenture.
Upon receipt of the Issuer Order directing the Trustee to authenticate the Secured Notes specified in such Issuer Order, the Issuer shall execute and the
Secured Notes Trustee shall authenticate (a) Original Notes, on the date hereof, for original issue up to an aggregate principal amount of $150,000,000 and (b) Additional Notes, from time to time for an aggregate principal amount specified in such
Issuer Order for such Additional Notes issued hereunder. Any issuance of Additional Notes shall be subject to compliance at the time of issuance of such Additional Notes with the provisions of Sections 4.06 and 4.07 of the Secured Notes Indenture.
Any issue of Additional Notes that is to utilize the same ISIN or CUSIP number as a Note already issued hereunder shall be effected in a manner and under circumstances whereby the Additional Notes are fungible with the Original Notes for U.S.
federal income tax purposes. Otherwise the Additional Notes will have a separate CUSIP or ISIN number.
The Secured Notes Trustee may appoint an
authenticating agent reasonably acceptable to the Issuer to authenticate the Secured Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate Secured Notes whenever the Secured Notes Trustee may do so.
Each reference in the Secured Notes Indenture to authentication by the Secured Notes Trustee includes authentication by any such agent. An authenticating agent has the same rights as any Registrar, co-Registrar Transfer Agent or Paying Agent to deal
with the Holders, the Issuer or an Affiliate of the Issuer.
The Secured Notes Trustee shall have the right to decline to authenticate and deliver any
Secured Notes under Section 2.02 of the Secured Notes Indenture if the Secured Notes Trustee, (i) being advised by counsel, determines that such action may not lawfully be taken or if the Secured Notes Trustee in good faith shall determine that such
action would expose the Secured Notes Trustee to personal liability, (ii) in good faith by its board of directors, executive committee or a trust committee of directors and/or Trust Officers of the Secured Notes Trustee in good faith determines that
such action would expose the Secured Notes Trustee to personal liability to Holders of any outstanding series of Secured Notes, or (iii) if the issue of such Secured Notes pursuant to the Secured Notes Indenture will affect the Secured Notes
Trustees own rights, duties or immunities under the Secured Notes and the Secured Notes Indenture or otherwise in a manner which is not reasonably acceptable to the Secured Notes Trustee.
Release of Collateral.
(a) The Liens securing the Obligations will be automatically released, all without delivery of any instrument or
performance of any act by any party, at any time and from time to time as provided by Section 10.02 of the Secured Notes Indenture. Upon such release, subject to the terms of the Collateral Documents, all rights in the released Collateral
securing Obligations shall revert to the Issuer and the Guarantors, as applicable. The Collateral shall be released from the Lien and security interest securing the Obligations created by the Collateral Documents and the Secured Notes Collateral
Agent shall execute documents evidencing such release in accordance with Article Ten of the Secured Notes Indenture at the Issuers sole cost and expense, under one or more of the following circumstances:
(i) in whole upon:
(A) payment in full of the principal of, together with accrued and unpaid interest on, the Secured Notes
and all other Obligations under the Secured Notes Indenture, the Guarantees and the other Notes Documents (for the avoidance of doubt, other than contingent obligations in respect of which no claims have been made) that are due and payable at or
prior to the time such principal, together with accrued and unpaid interest, are paid;
(B) satisfaction and discharge of the Secured Notes Indenture with respect to the Secured Notes as set
forth under Section 7.05 of the Secured Notes Indenture; or
(C) a Legal Defeasance or Covenant
Defeasance of the Secured Notes Indenture with respect to the Secured Notes as set forth under Section 7.02 or 7.03 of the Secured notes Indenture, as applicable;
(ii) in whole or in part, with the consent of Holders in accordance with Article Eight of the Secured
Notes Indenture;
(iii) in part, as to any asset:
(A) constituting Collateral that is sold or otherwise Disposed of by the Issuer or any of the Guarantors
to any Person that is not the Issuer or a Guarantor in a transaction permitted by the Secured Notes Indenture (to the extent of the interest sold or Disposed of), if and to the extent that such release shall be required pursuant to the terms of the
New Miner Equipment Intercreditor Agreement (but only if any Liens thereon securing New Miner Equipment Lender Debt shall be released concurrently therewith),
(B) constituting Collateral that is sold or otherwise Disposed of by the Issuer or any of the Guarantors
to any Person that is not the Issuer or a Guarantor in a transaction not prohibited by the Secured Notes Indenture (to the extent of the interest sold or Disposed of), if and to the extent that such release shall be required pursuant to the terms of
the 1L/2L/3L Intercreditor Agreement (but only if any Liens thereon securing the Convertible Secured Notes and the Senior Credit Facility shall be released concurrently therewith),
(C) that is held by a Guarantor or a Subsidiary that ceases to be a Guarantor or a Subsidiary as a
result of a transaction not prohibited by the Secured Notes Indenture (as in effect on the Issue Date),
(D) that becomes an Excluded Asset pursuant to a transaction or under circumstances permitted by the
Secured Notes Indenture,
(E) constituting Collateral that is the subject of a Permitted Asset
Disposition or an Exempted Disposition (in each case, as defined on the Issue Date) to a Person that is not the Issuer or a Guarantor (and the Issuer or the relevant Guarantor shall certify that such Disposition is a Permitted Asset Disposition or
Exempted Disposition and the Secured Notes Collateral Agent may rely conclusively on any such certificate without further inquiry), or
(F) that is otherwise released in accordance with, and as expressly provided for by the terms of, the
Secured Notes Indenture, the 1L/2L/3L Intercreditor Agreement and the other Collateral Documents;
provided, that, if applicable,
the proceeds (if any) of Collateral released in accordance with clause (iii)(B) above shall be applied in accordance with the 1L/2L/3L Intercreditor Agreement; provided further, that the Liens securing the Obligations will be
automatically released, all without delivery of any instrument or performance of any act by any party, at any time and from time to time (i) upon release of any such Liens securing the Senior Credit Facility or (ii) pursuant to the
applicable terms of the New Miner Equipment Intercreditor Agreement or any other Acceptable Intercreditor Agreement, in each case, in accordance with its terms; provided further, that to the extent the Senior Credit Facility is
outstanding, no asset shall be released pursuant to any of the foregoing provisions unless such asset is or will also be released from any Liens securing the Senior Credit Facility, in accordance with its terms.
(b) Any release of Collateral permitted by Section 10.02 of the Secured Notes Indenture shall be deemed not to
impair the Liens under the Secured Notes Indenture and the Collateral Documents in contravention thereof.
(c) The
Holders authorize the Secured Notes Collateral Agent to subordinate its Liens (i) on assets financed with any Permitted Purchase Money Debt to any Permitted Purchase Money Lien permitted to attach to such assets pursuant to Section 4.02 of
the Secured Notes Indenture, and (ii) to any other Permitted Lien expressly entitled to senior priority under the Secured Notes Indenture (as in effect on the Issue Date, or as modified with the consent of such Holders as is required therefor
pursuant to Section 8.02 of the Secured Notes Indenture), and to enter into any Acceptable Intercreditor Agreement or enter into an amendment or other modification to the New Miner Equipment Intercreditor Agreement to effectuate the foregoing
in accordance with Section 6.10(b) of the Secured Notes Indenture.
(d) The Secured Notes Collateral Agent
shall have no obligation to assure that any Collateral exists or is owned by the Issuer or a Guarantor, or is cared for, protected or insured, nor to assure that the Secured Notes Collateral Agents Liens have been properly created, perfected
or enforced, or are entitled to any particular priority, nor to exercise any duty of care with respect to any Collateral. If any Collateral is Disposed pursuant to a Permitted Asset Disposition to any Person other than the Issuer or a Guarantor,
such Collateral shall be sold free and clear of the Liens created by the Secured Notes Indenture, the Collateral Documents and the Secured Notes Collateral Agent shall, at the expense of the Issuer, take any and all actions reasonably requested by
the Issuer to effect the foregoing (provided, that the Issuer shall provide an Officers Certificate to the Secured Notes Collateral Agent that such Disposition is permitted by the Secured Notes Indenture, in addition to any other
certificate or opinion required by the Secured Notes Indenture).
Release of Guarantees.
A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged (and all Liens granted pursuant to any Collateral Document upon
any Collateral of such Guarantor automatically released), and no further action by such Guarantor, the Issuer, the Secured Notes Collateral Agent or the Secured Notes Trustee is required for the release of such Guarantors Guarantee upon:
(a) any direct or indirect sale, exchange or transfer (by merger, consolidation or otherwise) of the Capital Stock of
such Guarantor (including any sale, exchange or transfer), after which the applicable Guarantor is no longer a Subsidiary;
(b) the release or discharge of the guarantee by such Guarantor of the Senior Credit Facility and the Convertible
Secured Notes issued under the Convertible Secured Notes Indenture and any Permitted Refinancing thereof (in each case, as applicable, other than by reason of the payment under, termination or repayment of such Senior Credit Facility or the
discharge of the Convertible Secured Notes Indenture in accordance with its terms) or the guarantee which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee; or
(c) the Issuer exercising its Legal Defeasance option or Covenant Defeasance option in accordance with the Secured
Notes Indenture or the Issuers obligations under the Secured Notes Indenture being discharged in accordance with the terms of the Secured Notes Indenture.
Prior to (or concurrent with) the release of any Guarantee of any Guarantor hereunder, the Issuer shall deliver to the Secured Notes Trustee and the Secured
Notes Collateral Agent an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Secured Notes Indenture relating to such release have been complied with.
Upon request of the Issuer, the Secured Notes Trustee and the Secured Notes Collateral Agent shall evidence such release by a supplemental indenture or other
instrument which may be executed by the Secured Notes Trustee without the consent of any Holder.
Satisfaction and Discharge.
The Secured Notes Indenture shall be discharged and shall cease to be of further effect when:
(a) the Issuer has irrevocably deposited or caused to be deposited with the Secured Notes Trustee as funds in trust for
such purpose an amount in dollars or U.S. Government Obligations sufficient to pay and discharge the entire Debt on such Secured Notes that have not, prior to such time, been delivered to the Secured Notes Trustee for cancellation, for principal of,
premium, if any, and accrued and unpaid interest on the Secured Notes to the date of such deposit (in the case of Secured Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be, and the Issuer has
delivered irrevocable instructions to the Secured Notes Trustee under the Secured Notes Indenture in the form of an Officers Certificate to apply the deposited money toward the payment of Secured Notes at Maturity or on the Redemption Date, as
the case may be and either:
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(i) |
all the Secured Notes that have been authenticated and delivered (other than destroyed, lost or stolen Secured
Notes that have been replaced or paid and Secured Notes for whose payment money has been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust as provided for in
Section 2.04 of the Secured Notes Indenture) have been delivered to the Secured Notes Trustee for cancellation; or |
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(ii) |
all Secured Notes that have not been delivered to the Secured Notes Trustee for cancellation (x) have become
due and payable (by reason of the mailing of a notice of redemption or otherwise), (y) will become due and payable at Stated Maturity within one year or (z) are to be called for redemption within one year under arrangements satisfactory to the
Secured Notes Trustee for the giving of notice of redemption by the Secured Notes Trustee in the Issuers name, and at the Issuers expense; |
(b) the Issuer has paid or caused to be paid all sums payable by the Issuer under the Secured Notes Indenture;
and
(c) the Issuer has delivered to the Secured Notes Trustee an Officers Certificate and an Opinion of
Counsel, each stating that: all conditions precedent provided in the Secured Notes Indenture relating to the satisfaction and discharge of the Secured Notes Indenture have been satisfied.
If the Secured Notes Indenture shall be satisfied and discharged pursuant to Section 7.05 of the Secured Notes Indenture, all Liens on
the Collateral in favor of the Secured Notes Collateral Agent for the benefit of the Secured Parties will be released and the Collateral Documents, solely with respect to the Secured Notes, shall cease to be of further effect, all without delivery
of any instrument or performance of any act by any party.
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