CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. DOUBLE ASTERISKS DENOTE OMISSIONS.
Exhibit 10.10
FIFTH AMENDMENT
TO TERM LOAN CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this “Amendment”),
dated as of February 23, 2023, relating to the Credit Agreement referred to below, is made by and among PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the “Borrower”), PROFRAC HOLDINGS, LLC, a Texas limited liability company (“Holdings”), the Guarantors party hereto, each of the Lenders party hereto, as required, as the case may be, by the terms of this Amendment and the Existing Credit Agreement, and PIPER SANDLER FINANCE LLC, as the Agent and the Collateral Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, Holdings the other Obligors from time to time party thereto, the Lenders from time to time party thereto, the Agent and the Collateral Agent have entered into the Term Loan Credit Agreement, dated as of March 4, 2022, as amended by the First Amendment to Term Loan Credit Agreement, dated as of July 25, 2022, as amended by the Second Amendment, Consent and Limited Waiver to Term Loan Credit Agreement, dated as of November 1, 2022, as amended by the Third Amendment, Consent and Limited Waiver to Term Loan Credit Agreement, dated as of December 30, 2022, the Fourth Amendment, dated as of February 1, 2023, and as further amended, restated, amended and restated, extended, supplemented, waived or otherwise modified from time to time immediately prior to the effectiveness of this Amendment (the “Existing Credit Agreement”, and, as amended by this Amendment, and as further amended, restated, supplemented or otherwise modified from time to time after the effectiveness of this Amendment, the “Credit Agreement”; capitalized terms used and not otherwise defined herein having the meanings ascribed to them in the Credit Agreement);
WHEREAS, the Borrower and the other Obligors have requested that the Lenders amend the Existing Credit Agreement to, among other things, (i) permit certain amendments to the ABL Credit Agreement on the terms set forth in the Fourth Amendment to ABL Credit Agreement, to be dated as of the date hereof, by and among the Borrower, Holdings, the ABL Agent, the ABL Lenders party thereto and the other parties party thereto (the “Fourth Amendment to ABL Credit Agreement”), (ii) [**] (iii) permit the Performance Acquisition on the terms set forth in the Performance Acquisition Documents and
(iv) and amend certain other provisions thereof; and
WHEREAS, the Required Lenders under the Existing Credit Agreement that are parties hereto are hereby so willing to amend the Existing Credit Agreement subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto hereby covenant and agree as follows:
SECTION 1. Amendments to the Existing Credit Agreement. Effective as of the Fifth Amendment Effective Date:
(a) The Existing Credit Agreement is hereby amended to (i) delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and (ii) add the double-underlined text (indicated textually in the same manner as the following example: double- underlined text or double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto. The foregoing as-amended provisions of the Existing Credit Agreement are incorporated herein by this reference as if fully set forth herein.
SECTION 2. Conditions to Effectiveness. This Amendment shall become effective on the first date when, and only when, each of the conditions set forth below shall have been satisfied or waived in accordance with the terms herein (such date, the “Fifth Amendment Effective Date”):
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By executing and delivering its signature page to this Amendment, each Lender acknowledges and agrees that the conditions precedent set forth in this Section 2 have been satisfied.
SECTION 3. Representations and Warranties of the Obligors. To induce the Agent and the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Agent and each Lender that as of the Fifth Amendment Effective Date:
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SECTION 4. Expenses. The Borrower hereby reconfirms the obligations of the Borrower to pay all reasonable and documented or invoiced out- of-pocket costs and expenses incurred by the Agent in connection with this Amendment, in each case, pursuant to Section 14.7 of the Credit Agreement.
SECTION 5. No Other Amendments or Waivers; Reaffirmation of the Obligors.
SECTION 7. No Reliance, Etc. For the avoidance of doubt, and without limitation of any other provisions of the Credit Agreement or the other Loan Documents, Piper Sandler Finance LLC, in its capacity as Agent, shall be entitled to the benefits of Sections 13.3, 13.4 and 14.18 of the Credit Agreement as if such provisions were set forth in full herein mutatis mutandis.
SECTION 8. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except in accordance with Section 12.1 of the Credit Agreement.
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SECTION 9. Integration; Effect of Modifications. This Amendment represents the entire agreement of the Borrower, the other Obligors, the Agent and the Lenders party hereto with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. It is understood and agreed that each reference in each Loan Document to the Credit Agreement, whether direct or indirect, shall hereafter be deemed to be a reference to the Credit Agreement as modified hereby and that this Amendment is a Loan Document.
SECTION 10. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; PROCESS AGENTS. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 14.3 OF THE CREDIT AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT AS IF SUCH PROVISION WERE SET FORTH IN FULL HEREIN MUTATIS MUTANDIS AND SHALL APPLY HERETO.
SECTION 11. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AMENDMENT.
SECTION 12. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment, the Credit Agreement, or any instrument or agreement required hereunder.
SECTION 13. Interpretative Provisions. Section 1.3 of the Credit Agreement shall apply to this Amendment as if such provisions were set forth in full herein mutatis mutandis.
SECTION 14. Counterparts. This Amendment may be executed in any number of counterparts, and by each party hereto in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic transmission (e.g., a “pdf”, “tif” or similar
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format by electronic mail) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. The Agent may require that any such documents and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile or other electronic signature.
[Remainder of Page Intentionally Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first written above.
PROFRAC HOLDINGS II, LLC,
as the Borrower
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PROFRAC HOLDINGS, LLC, as Holdings
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PROFRAC SERVICES, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PROFRAC MANUFACTURING, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
BEST PUMP AND FLOW, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
ALPINE SILICA, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
FTS INTERNATIONAL SERVICES, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
FTS INTERNATIONAL MANUFACTURING, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
ALPINE MONAHANS, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
ALPINE MONAHANS II, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
AG PSC FUNDING LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
U.S. WELL SERVICES HOLDINGS, LLC.,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
U.S. WELL SERVICES, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
USWS HOLDINGS LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
USWS FLEET 10, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
USWS FLEET 11, LLC,
as a Guarantor
By: /s/ Lance Turner Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
By: /s/ Lance Turner Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
MONARCH SILICA, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
REV ENERGY HOLDINGS, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
REV ENERGY SERVICES, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PRODUCERS SERVICE HOLDINGS LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PRODUCERS SERVICE COMPANY LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
PRODUCERS SERVICE COMPANY – WEST LLC,
as a Guarantor
By: /s/ Lance Turner Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
PRODUCERS SERVICE I, LLC,
as a Guarantor
By: /s/ Lance Turner
Name: Lance Turner
Title: Chief Financial Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
PIPER SANDLER FINANCE LLC,
as the Agent
By: /s/ Amrit Agrawal
Name: Amrit Agrawal
Title: Chief Investment Officer
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
ELLINGTON CLO III, LTD., as a Lender
By: Ellington CLO Management LLC, its Collateral Manager |
By: /s/ Jacob Gomolinksi-Ekel |
Name: Jacob Gomolinski-Ekel |
Title: Authorized Signatory |
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
SILVER POINT SCF CLO I, LTD, as a Lender
By: /s/ Stacy Hatch
Name: Stacy Hatch
Title: Authorized Signatory
SPECIALTY CREDIT FACILITY II ON MM, LLC, as a Lender
By: /s/ Stacy Hatch
Name: Stacy Hatch
Title: Authorized Signatory
SOFA FACILITY HOLDINGS, LLC, as a Lender
By: /s/ Stacy Hatch
Name: Stacy Hatch
Title: Authorized Signatory
SILVER POINT LOAN FUNDING, LLC, as a Lender
By: /s/ Stacy Hatch
Name: Stacy Hatch
Title: Authorized Signatory
SILVER POINT SPECIALITY CREDIT III MASTER FUND L.P., as a Lender
By: Silver Point Specialty Credit Fund III Management, LLC as its investment manager
By: /s/ Stacy Hatch
Name: Stacy Hatch
Title: Authorized Signatory
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
PIONEER FLOATING RATE FUND, INC., FLORIDA POWER & LIGHT COMPANY, PIONEER GLOBAL HIGH YIELD FUND, PIONEER HIGH INCOME FUND, INC., PIONEER HIGH YIELD FUND, INSTITUTIONAL MULTI-SECTOR FIXED INCOME PORTFOLIO,
STICHTING PENSIOENFONDS MEDISCH SPECIALISTEN,
PIONEER STRATEGIC INCOME FUND, PIONEER STRATEGIC INCOME VCT PORTFOLIO,
AMUNDI NVIT MULTI SECTOR BOND FUND, NATIONWIDE AMUNDI STRATEGIC INCOME FUND,
NATIONWIDE AMUNDI GLOBAL HIGH YIELD FUND,
PIONEER DIVERSIFIED HIGH INCOME FUND, INC.,
PIONEER FLOATING RATE FUND,
FDP GLOBAL FIXED INCOME PORTFOLIO,
each, as a Lender
By: Amundi Asset Management US, Inc., as investment adviser to each Lender above
By: /s/ Kenneth J. Monaghan
Name: Kenneth J. Monaghan
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
LENDERS:
Beach Point Total Return Master Fund, L.P. Beach Point Strategic Master Fund, L.P. Beach Point SCF IV LLC
Pacific Coast Investment Fund LLC Beach Point Multi-Asset Credit Fund Ltd.
Beach Point Multi-Strategy Credit Master Fund, L.P. Beach Point SCF I LP
Beach Point SCF Multi-Port LP Lloyds Bank Pension Scheme No. 1 Lloyds Bank Pension Scheme No. 2 HBOS Final Salary Pension Scheme
Associated British Foods Pension Scheme Royal Mail Pension Plan
Royal Mail Pension Plan (RMG Section)(Re: DBCB) Beach Point SCF 0166 LP
Beach Point SCF 0166 LP - Special Investments Beach Point Select Fund LP
By: Beach Point Capital Management LP Its: Investment Manager
By: /s/ Allan Schweitzer
Name: Allan Schweitzer
Title: Portfolio Manager
Mercer QIF Fund PLC – Mercer Investment Fund 1
By: Beach Point Capital Management LP Its: Sub-Investment Manager
By: /s/ Allan Schweitzer
Name: Allan Schweitzer
Title: Portfolio Manager
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
BLACKROCK CAPITAL ALLOCATION TRUST,
as a Lender
By: BlackRock Advisors, LLC, as Investment Advisor
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK GLOBAL ALLOCATION FUND,
INC., as a Lender
By: BlackRock Advisors, LLC, as Investment Adviser
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK GLOBAL LONG/SHORT CREDIT FUND OF BLACKROCK FUNDS IV, as a Lender
By: BlackRock Advisors, LLC, its Investment Manager
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK STRATEGIC INCOME OPPORTUNITIES PORTFOLIO OF BLACKROCK
FUNDS V, as a Lender
By: BlackRock Advisors, LLC, its Investment Advisor
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
BLACKROCK STRATEGIC GLOBAL BOND
FUND, INC., as a Lender
By: BlackRock Advisors, LLC, the Fund's Investment Manager
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK GLOBAL ALLOCATION PORTFOLIO OF BLACKROCK SERIES FUND,
INC., as a Lender
By: BlackRock Advisors, LLC, as Investment Adviser
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK GLOBAL ALLOCATION V.I. FUND OF BLACKROCK VARIABLE SERIES FUNDS,
INC., as a Lender
By: BlackRock Advisors, LLC, as Investment Adviser
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK GLOBAL ALLOCATION FUND
(AUST), as a Lender
By: BlackRock Investment Management, LLC as Investment Manager for BlackRock Investment Management (Australia) Limited as responsible entity of the BlackRock Global Allocation Fund (Australia)
By: /s/ Henry Brennan
Name: Henry Brennan
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
Title: Managing Director
MASTER TOTAL RETURN PORTFOLIO OF
MASTER BOND LLC, as a Lender
By: BlackRock Financial Management, Inc., its Registered Sub-Advisor
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK GLOBAL ALLOCATION
COLLECTIVE FUND, as a Lender
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE STRATEGIC INCOME OPPORTUNITIES FUND,
as a Lender
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
BLACKROCK INSTITUTIONAL TRUST COMPANY, NA, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF THE BLACKROCK TOTAL RETURN BOND FUND, as
a Lender
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
LVIP BLACKROCK GLOBAL ALLOCATION
FUND, as a Lender
By: BlackRock Investment Management, LLC, its Sub- Advisor
By: /s/ Henry Brennan
Name: Henry Brennan
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
BTC HOLDINGS FUND II LLC, as a Lender
By: Blue Torch Credit Opportunities Fund II LP, its sole member
By: Blue Torch Credit Opportunities GP II LLC, its general partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
BTC OFFSHORE HOLDINGS FUND II-B LLC, as a
Lender
By: Blue Torch Offshore Credit Opportunities Master Fund II LP, its Sole Member
By: Blue Torch Offshore Credit Opportunities GP II LLC, its General Partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
BTC OFFSHORE HOLDINGS FUND II-C LLC, as a
Lender
By: Blue Torch Offshore Credit Opportunities Master Fund II LP, its Sole Member
By: Blue Torch Offshore Credit Opportunities GP II LLC, its General Partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
BTC HOLDINGS SC FUND LLC, as a Lender
By: Blue Torch Credit Opportunities SC Master Fund LP, its sole member
By: Blue Torch Credit Opportunities SC GP LLC, its general partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
BTC HOLDINGS SBAF FUND LLC, as a Lender
By: Blue Torch Credit Opportunities SBAF Fund LP, its sole member
By: Blue Torch Credit Opportunities SBAF GP LLC, its general partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
BTC HOLDINGS KRS FUND LLC, as a Lender
By: Blue Torch Credit Opportunities KRS Fund LP, its sole member
By: Blue Torch Credit Opportunities KRS GP LLC, its general partner
By: KPG BTC Management LLC, its sole member
By: /s/ Kevin Genda
Name: Kevin Genda
Title: Managing Member
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
PULA LLC, as a Lender
By: /s/ Roberto Sara
Name: Roberto Sara
Title: Senior Associate
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
CHAMBERS ENERGY CAPITAL IV, LP, as a
Lender
By: CEC Fund IV GP, LLC, its general partner
By: /s/ Robert Hendricks
Name: Robert Hendricks
Title: Partner
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
CITY OF NEW YORK GROUP TRUST
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
FS Credit Income Fund
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
GOLDENTREE 2004 TRUST
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
GOLDENTREE CREDIT OPPORTUNITIES, LP
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
GOLDENTREE PRIVATE CREDIT MASTER FUND (A) LP
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
GT NM, L.P.
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
LOUISIANA STATE EMPLOYEES RETIREMENT SYSTEM
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
SAN BERNARDINO COUNTY EMPLOYEES RETIREMENT ASSOCIATION
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
SYNCORA GUARANTEE INC.
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
TOLLESON HIGH YIELD CREDIT, LP
By: GoldenTree Asset Management, LP
By: /s/ Karen Weber
Name: Karen Weber
Title: Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
MARATHON CLO 14 LTD., as a Lender
By: Marathon Asset Management L.P., its Collateral Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
MARATHON CLO 2020-15 LTD., as a Lender
By: Marathon Asset Management L.P., its Portfolio Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
BOWERY FUNDING ULC, as a Lender
By: /s/ Shamim Rayhan
Name: Shamim Rayhan
Title: Authorized Signatory
INTERNATIONALE KAPITALANLAGEGESELLSCHAFT MBH
ACTING FOR SDF 2, as a Lender
By: Marathon Asset Management L.P., its Fund Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
MARATHON CLO 14 LTD., as a Lender
By: Marathon Asset Management L.P., its Collateral Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
MARATHON CLO 2020-15 LTD., as a Lender
By: Marathon Asset Management L.P., its Portfolio Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
BOWERY FUNDING ULC, as a Lender
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
INTERNATIONALE KAPITALANLAGEGESELLSCHAFT MBH
ACTING FOR SDF 2, as a Lender
By: Marathon Asset Management L.P., its Fund Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
MARATHON CLO VIII LTD., as a Lender
By: Marathon Asset Management L.P., its Portfolio Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
QUAESTIO ALTERNATIVE FUNDS S.C.A. SICAV-FIS: CMAB - SIF – CREDIT MULTI
ASSET POOL B, as a Lender
By: Marathon Asset Management L.P., its Sub- Investment Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
MAM CORPORATE LOAN FUND, as a Lender
By: Marathon Asset Management L.P., its Portfolio Manager
By: /s/ Louis T. Hanover
Name: Louis T. Hanover
Title: Authorized Signatory
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
OAKTREE-TCDRS STRATEGIC CREDIT, LLC, as
a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE-FORREST MULTI-STRATEGY, LLC,
as a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
OAKTREE-TBMR STRATEGIC CREDIT FUND C,
LLC, as a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE-TBMR STRATEGIC CREDIT FUND F,
LLC, as a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE-TBMR STRATEGIC CREDIT FUND
G, LLC, as a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE-TSE 16 STRATEGIC CREDIT, LLC, as
a Lender
By: Oaktree Capital Management, L.P., its Investment Manager
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
INPRS STRATEGIC CREDIT HOLDINGS, LLC, as
a Lender
By: Oaktree Fund Advisors, LLC, its Investment Adviser
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
OAKTREE GILEAD INVESTMENT FUND AIF
(DELAWARE), L.P., as a Lender
By: Oaktree Fund AIF Series, L.P. – Series T, its General Partner
By: Oaktree Fund GP AIF, LLC, its Managing Member
By: Fund GP III, L.P.,
its Managing Member
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Authorized Signatory
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Authorized Signatory
OSI 2 SENIOR LENDING SPV, LLC, as a Lender
By: Oaktree Strategic Income II, Inc., its Managing Member
By: Oaktree Fund Advisors, LLC, its Investment Adviser
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
OAKTREE SPECIALTY LENDING
CORPORATION, as a Lender
By: Oaktree Fund Advisors, LLC, its Investment Adviser
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE STRATEGIC CREDIT FUND, as a
Lender
By: Oaktree Fund Advisors, LLC, its Investment Adviser
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
OAKTREE DIVERSIFIED INCOME FUND INC.,
as a Lender
By: Oaktree Fund Advisors, LLC, its Investment Adviser
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
OAKTREE GCP FUND DELAWARE HOLDINGS,
L.P., as a Lender
By: Oaktree Global Credit Plus Fund GP, L.P., its General Partner
By: Oaktree Global Credit Plus Fund GP Ltd., its General Partner
By: Oaktree Capital Management, L.P., its Director
By: /s/ Michael Shannon
Name: Michael Shannon
Title: Managing Director
By: /s/ Mary Gallergly
Name: Mary Gallegly
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
EACH FUND OR ACCOUNT SET FORTH IN ANNEX 11 HERETO
By: Pacific Investment Management Company LLC, as investment manager or adviser
By: /s/ Alfred T. Murata
Name: Alfred T. Murata
Title: Managing Director
1 The obligations arising out of this instrument (if any) are several and not joint with respect to each participating fund or account, in accordance with its proportionate interest hereunder, and the parties agree not to proceed against any fund or account for the obligations of another. To the extent a fund or account is a registered investment company (“Trust”) or a series thereof, a copy of the Declaration of Trust of such Trust is on file with the Secretary of State of The Commonwealth of Massachusetts or Secretary of State of the State of Delaware. The obligations of or arising out of this instrument are not binding upon any of such Trust's trustees, officers, employees, agents or shareholders individually, but are binding solely upon the assets and property of the Trust in accordance with its proportionate interests hereunder. If this instrument is executed by or on behalf of a Trust on behalf of one or more series of the Trust, the assets and liabilities of each series of the Trust are separate and distinct and the obligations of or arising out of this instrument are binding solely upon the assets or property of the series on whose behalf this instrument is executed. If this agreement is being executed on behalf of more than one series of a Trust, the obligations of each series hereunder shall be several and not joint, in accordance with its proportionate interest hereunder, and the parties agree not to proceed against any series for the obligations of another.
Annex 1
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
PDILS I LLC PAXSLS I LLC PFLEXLS I LLC
PIMCO Horseshoe Fund, LP NRGX SPV I LLC
PCM Fund, Inc.
PIMCO Corporate & Income Opportunity Fund PIMCO Income Strategy Fund
PIMCO Income Strategy Fund II PIMCO Funds: PIMCO Diversified Income Fund
Koch Financial Assets V, LLC PDOLS I LLC
PIMCO ETF Trust: PIMCO Senior Loan Active Exchange-Traded Fund PIMCO Funds: PIMCO Low Duration Credit Fund
U.S. SPECIALTY INSURANCE COMPANY, as a
Lender
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
SAFETY NATIONAL CASUALTY
CORPORATION, as a Lender
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
PHILADELPHIA INDEMNITY INSURANCE
COMPANY, as a Lender
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
TCW DL VII FINANCING LLC, as a Lender
By: TCW Asset Management Company LLC, its Collateral Manager
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
TCW DIRECT LENDING STRUCTURED
SOLUTIONS 2019 LLC, as a Lender
By: TCW Asset Management Company LLC, its Investment Manager
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
TCW WV FINANCING LLC, as a Lender
By: TCW Asset Management Company LLC, its Collateral Manager
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
TCW SKYLINE LENDING LP, as a Lender
By: TCW Asset Management Company LLC, its Investment Advisor
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
TCW BRAZOS FUND LLC, as a Lender
By: TCW Asset Management Company LLC, its Investment Advisor
By: /s/ Suzanne Grosso
Name: Suzanne Grosso
Title: Managing Director
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
VOYA FLOATING RATE FUND, as a Lender
By: Voya Investment Management Co. LLC, as its Sub-Adviser
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
VOYA INVESTMENT TRUST CO. - VOYA SENIOR LOAN TRUST FUND, as a Lender
By: Voya Investment Trust Co. as its trustee
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
VOYA INVESTMENT TRUST CO. - SENIOR LOAN COMMON TRUST FUND, as a Lender
By: Voya Investment Trust Co. as its trustee
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
VOYA CREDIT INCOME FUND, as a Lender
By: Voya Investment Management Co. LLC, as its Sub-Adviser
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
VOYA STRATEGIC INCOME OPPORTUNITIES FUND, as a Lender
By: Voya Investment Management Co. LLC, as its investment manager
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
MEDTRONIC HOLDINGS SARL, as a Lender
By: Voya Investment Management Co. LLC, as its investment manager
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
NN (L) FLEX – SENIOR LOANS SELECT, as a Lender
By: Voya Investment Management Co. LLC, as its investment manager
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
NN (L) FLEX – SENIOR LOANS, as a Lender
By: Voya Investment Management Co. LLC, as its investment manager
By: /s/ Jason Esplin
Name: Jason Esplin
Title: Senior Vice President
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
GREAT ELM CAPITAL CORP.
By: /s/ Matthew Kaplan
Name: Matthew Kaplan
Title: CEO
[Signature Page to Fifth Amendment to Term Loan Credit Agreement]
EXHIBIT A
Credit Agreement (see attached)
Exhibit A to Fifth Amendment to Term Loan Credit Agreement
TERM LOAN CREDIT AGREEMENT
Dated as of March 4, 2022 among
PROFRAC HOLDINGS, LLC,
as Holdings,
PROFRAC HOLDINGS II, LLC,
as the Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
and
PIPER SANDLER FINANCE LLC,
as the Agent and the Collateral Agent
PIPER SANDLER & CO.
as the Lead Arranger and Bookrunner
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
ARTICLE II TERM LOANS
ARTICLE III INTEREST AND FEES
ARTICLE IV PAYMENTS AND PREPAYMENTS
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ARTICLE V
TAXES, YIELD PROTECTION AND ILLEGALITY
ARTICLE VI
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
ARTICLE VII
GENERAL WARRANTIES AND REPRESENTATIONS
ARTICLE VIII
AFFIRMATIVE AND NEGATIVE COVENANTS
ARTICLE IX CONDITIONS OF LENDING
Closing Date 150
ARTICLE X DEFAULT; REMEDIES
ARTICLE XI
TERM AND TERMINATION
ARTICLE XII
AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
ARTICLE XIII
THE APPOINTED AGENTS
ARTICLE XIV MISCELLANEOUS
EXHIBITS AND SCHEDULES
EXHIBIT A FORM OF NOTICE OF BORROWING
EXHIBIT B FORM OF NOTICE OF CONTINUATION/CONVERSION EXHIBIT C FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT EXHIBIT E PERFECTION CERTIFICATE
EXHIBIT F FORM OF SOLVENCY CERTIFICATE EXHIBIT G FORM OF CLOSING CERTIFICATE
EXHIBIT H FORM OF INTERCOMPANY SUBORDINATED NOTE
EXHIBIT I-1 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-2 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-3 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-4 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT J FORM OF TERM LOAN NOTE
EXHIBIT K FORM OF ABL INTERCREDITOR AGREEMENT EXHIBIT L FORM OF MONTHLY REPORT
EXHIBIT M FORM OF SHARED SERVICES AGREEMENT EXHIBIT N FORM OF HOLDINGS LLC AGREEMENT SCHEDULE 1.1 LENDERS’ TERM LOAN COMMITMENTS SCHEDULE 1.2 GUARANTORS
SCHEDULE 1.3 IMMATERIAL SUBSIDIARIES SCHEDULE 1.4 UNRESTRICTED SUBSIDIARIES SCHEDULE 1.5 CLOSING DATE SECURITY DOCUMENTS SCHEDULE 7.2 REAL PROPERTY
SCHEDULE 7.4 SUBSIDIARIES; STOCK SCHEDULE 7.17 USE OF PROCEEDS SCHEDULE 8.11 PERMITTED INVESTMENTS SCHEDULE 8.12 DEBT
SCHEDULE 8.14 AFFILIATE TRANSACTIONS SCHEDULE 8.15 BUSINESSES CONDUCTED SCHEDULE 8.16 LIENS
SCHEDULE 8.17 RESTRICTIVE AGREEMENTS SCHEDULE 8.23 DEPOSIT ACCOUNTS SCHEDULE 8.27 HOLDINGS’ OPERATIONS
SCHEDULE 8.29 CERTAIN POST-CLOSING OBLIGATIONS SCHEDULE 9.1 EXISTING DEBT
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TERM LOAN CREDIT AGREEMENT
TERM LOAN CREDIT AGREEMENT, dated as of March 4, 2022, among PROFRAC HOLDINGS, LLC, a Texas limited liability company (“Holdings,” as hereinafter further defined), PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the “Borrower,” as hereinafter further defined), the guarantors party hereto, and the Lenders (as hereinafter further defined), and PIPER SANDLER FINANCE LLC, as the Agent and the Collateral Agent (each as hereinafter further defined) for the Lenders.
RECITALS:
WHEREAS, capitalized terms used and not defined herein shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, the Borrower has requested that, immediately upon the satisfaction in full (or waiver) of the applicable conditions precedent set forth in Section 9.1 below, the Lenders extend credit to the Borrower in the form of a term loan facility in an aggregate principal amount of
$450,000,000 on the Closing Date (such term loan facility from the Closing Date until immediately prior to the First Amendment Effective Date, the “Closing Date Term Loan Facility”, and such term loan facility immediately on and after the First Amendment Effective Date, the Third Amendment Effective Date and the Fourth Amendment Effective Date, including without limitation, after giving effect to all voluntary and mandatory prepayments made hereunder immediately prior to and the making of the Additional Term A Loans on the First Amendment Effective Date, the Additional Term B Loans on the Fourth Amendment Effective Date and the making of any Delayed Draw Term Loans from time to time, the “Term Loan Facility”);
WHEREAS, the Lenders have indicated their willingness to extend the Closing Date Term Loan Facility on the terms and subject to the conditions set forth below;
WHEREAS, in connection with the foregoing and as an inducement for the Lenders to extend the credit contemplated hereunder, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority lien (such priority subject to certain Liens permitted hereunder and the ABL Intercreditor Agreement, the Monarch Acquisition Intercreditor Agreement, the REV Energy Acquisition Intercreditor Agreement and [**]) on substantially all of its assets with certain limited exceptions specifically set forth in the Loan Documents; and
WHEREAS, in connection with the foregoing and as an inducement for the Lenders to extend the credit contemplated hereunder, each Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority lien (such priority subject to certain Liens permitted hereunder and the ABL Intercreditor Agreement, the Monarch Acquisition Intercreditor Agreement, the REV Energy Acquisition Intercreditor Agreement and [**]) on substantially all of its assets with certain limited exceptions specifically set forth in the Loan Documents.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” has the meaning specified in [**]. “[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“[**]” means [**].
“ABL Administrative Agent” means JPMorgan, in its capacity as administrative agent under the ABL Facility Documentation or any successor administrative agent thereunder.
“ABL Collateral Agent” means JPMorgan, in its capacity as collateral agent under the ABL Facility Documentation or any successor collateral agent appointed in accordance with the provision of the ABL Credit Agreement.
“ABL Credit Agreement” means the Credit Agreement, dated as of March 4, 2022, among, inter alios, Holdings, the Borrower, the ABL Administrative Agent, the ABL Collateral Agent and the lenders from time to time party thereto (except as otherwise stated herein, as in effect on the Closing Date and as the same may be subsequently amended, restated, amended and restated, refinanced, replaced, extended, renewed or restructured in accordance with the provisions of the ABL Credit Agreement and the terms of the ABL Intercreditor Agreement, including, in each case, by means of any Replacement ABL Credit Agreement (as defined in the ABL Intercreditor Agreement)).
“ABL Facility” means the asset-based credit facility made available to the Borrower and certain of its Subsidiaries pursuant to the ABL Credit Agreement.
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“ABL Facility Documentation” means the ABL Credit Agreement and all security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith, as the same may be amended, amended and restated, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time in each case in accordance with the provisions of such ABL Facility Documentation and the terms of the ABL Intercreditor Agreement.
“ABL Facility Indebtedness” means the “Obligations” (as defined in the ABL Credit Agreement) or any equivalent term under any Replacement ABL Credit Agreement (as defined in the ABL Intercreditor Agreement).
“ABL Financial Covenant” means the financial covenant specified in Section 8.20 of the ABL Credit Agreement.
“ABL Intercreditor Agreement” means the Intercreditor Agreement substantially in the form of Exhibit K hereto, dated as of the date hereof, by and among the Collateral Agent, the ABL Collateral Agent, the other agents party thereto (if any) and the Obligors, as may be amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time in accordance with the terms hereof, the ABL Credit Agreement, and the provisions of such ABL Intercreditor Agreement.
“Account Debtor” means each Person obligated in any way on or in connection with an
Account.
“Accounts” means, with respect to each Obligor, all of such Obligor’s now owned or hereafter acquired or arising accounts, as defined in the UCC, including any rights to payment of a monetary obligation for the sale or lease of goods or rendition of services, whether or not they have been earned by performance.
“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or any Converted Restricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of the term “Consolidated EBITDA” were references to such Acquired Entity or Business or any Converted Restricted Subsidiary and its subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Acquired Entity or Business or any Converted Restricted Subsidiary in accordance with GAAP.
“Acquired Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA.”
“[**]” means [**].
“[**]” means [**].
“Additional Term A Loan Commitment” means, with respect to each applicable Lender, the commitment of such Lender to make an Additional Term A Loan to the Borrower on the First Amendment Effective Date pursuant to Section 2.4(a) in the amount set forth on Schedule I of the First Amendment.
“Additional Term B Loan Commitment” means, with respect to each applicable Lender, the commitment of such Lender to make an Additional Term B Loan to the Borrower on the Fourth
-3-
Amendment Effective Date pursuant to Section 2.4(a) in the amount set forth on Schedule I of the Fourth Amendment.
“Additional Term Loan Commitment” means, with respect to each applicable Lender, the commitment of such Lender to make an Additional Term A Loan or Additional Term B Loan to the Borrower on the First Amendment Effective Date and/or Fourth Amendment Effective Date, as applicable, pursuant to Section 2.4(a) in the amount set forth on Schedule I of the First Amendment and Fourth Amendment, as applicable.
“Additional Term Loan Lender” means the Lenders that fund the Additional Term Loans on the First Amendment Effective Date and/or the Fourth Amendment Effective Date, as applicable, up to their respective Additional Term Loan Commitments.
“Additional Term A Loans” has the meaning as set forth in Section 2.4(a).
“Additional Term B Loans” has the meaning as set forth in Section 2.4(a).
“Additional Term Loans” has the meaning as set forth in Section 2.4(a).
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adjustment Date” means the first day of each April, July, October and January, as
applicable.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. The terms “controlling” and “controlled” shall have meanings correlative thereto.
“Affiliated Insurance Entity” means an Affiliate of the Borrower that (a) is domiciled in the State of Texas, (b) is a captive insurance company, (c) is registered and licensed by all applicable federal, state and local insurance agencies or regulators, including the Texas Department of Insurance and
(d) provides insurance policies to Holdings, the Borrower and its Restricted Subsidiaries at or below market rates.
“Affiliated Lender” has the meaning specified in Section 12.2(a).
“Agent” means Piper, in its capacity as the administrative agent for the Lenders under this Agreement, or any successor agent appointed in accordance with this Agreement and the other Loan Documents.
“Agent-Related Persons” means the Agent and the Collateral Agent, together with their respective Affiliates, and the respective officers, directors, employees, agents, controlling persons,
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advisors and other representatives, successors and permitted assigns of the Agent and the Collateral Agent and their respective Affiliates.
“Agreement” means this Credit Agreement.
“Agreement Date” means the date of this Agreement.
“Alpine” means Alpine Silica, LLC, a Texas limited liability company.
“Alpine Acquisition” means the acquisition by Holdings and/or its Affiliate(s) of 100% of the Stock of Alpine.
“Anti-Terrorism Laws” means the USA PATRIOT Act and any Executive Order administered by the U.S. Treasury Department Office of Foreign Assets Control (OFAC), and other laws and regulations relating to anti-money laundering or economic sanctions, including without limitation all published economic sanctions imposed, administered or enforced from time to time by the U.S. Department of State and OFAC.
“Applicable ECF Percentage” means, with respect to each Excess Cash Flow Period,
(a) 50% of Excess Cash Flow if the Total Net Leverage Ratio (as certified by a Responsible Officer of the Borrower) as of the last day of the applicable Excess Cash Flow Period is greater than 1.00:1.00, and (b) 25% of Excess Cash Flow if the Total Net Leverage Ratio (as certified by a Responsible Officer of the Borrower) as of the last day of the applicable Excess Cash Flow Period is less than or equal to 1.00:1.00.
“Applicable Entities” has the meaning specified in Section 14.18.
“Applicable Margin” means a percentage per annum equal to (a) until October 1, 2022,
(i) for SOFR Rate Loans, 8.50%, and (ii) for Base Rate Loans, 7.50% and (b) thereafter, the following percentages per annum, based upon Total Net Leverage Ratio as of the most recent Adjustment Date:
|
Applicable Margin |
|
Applicable Margin for |
|||
Level |
|
Total Net Leverage Ratio |
|
for Adjusted SOFR Rate Loans |
|
Base Rate Loans |
I |
|
≥ 2.00:1.00 |
|
8.00% |
|
7.00% |
II |
|
< 2.00:1.00 |
|
7.25% |
|
6.25% |
The Applicable Margin shall be adjusted quarterly in accordance with the table above on each Adjustment Date for the period beginning on such Adjustment Date based upon the Total Net Leverage Ratio as the Agent shall determine in good faith within ten (10) Business Days after such Adjustment Date (with any such change, for the avoidance of doubt, being given retroactive effect to the Adjustment Date) and the Agent shall notify the Borrower promptly after such determination. Any increase or decrease in the Applicable Margin resulting from a change in the Total Net Leverage Ratio shall become effective on the Adjustment Date.
Notwithstanding the foregoing:
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the period commencing on the Adjustment Date for such period through the date on which such Financial Statements are delivered.
“Appointed Agents” has the meaning specified in Section 13.1.
“Approved Fund” means any Person (other than a natural person) that is engaged in making, holding or investing in extensions of credit in its ordinary course of business and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either.
“Arrangers” means (a) Piper Sandler & Co. in its capacity as lead arranger of the Closing Date Term Loan Facility and (b) Piper Sandler & Co. in its capacity as bookrunner of the Closing Date Term Loan Facility.
“Assignee” has the meaning specified in Section 12.2(a).
“Assignment and Acceptance” means an assignment and acceptance agreement entered into by one or more Lenders and Eligible Assignees (with the consent of any party whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit D or any other form approved by the Agent.
“Attorney Costs” means and includes all reasonable and documented or invoiced fees, expenses and other charges of (a) Proskauer Rose LLP, as counsel to the Agent and the Lenders, (b) after the Closing Date, one additional counsel selected by, and as counsel for, the Required Lenders, (c) if necessary, a single firm of local counsel in each relevant jurisdiction, or any other counsel (in lieu of, or in addition to, Proskauer Rose LLP and counsel for the Required Lenders) otherwise retained with the Borrower’s consent (such consent not to be unreasonably withheld, conditioned or delayed) and (d) solely in the case of an actual or potential conflict of interest, one additional primary counsel and one additional counsel in each relevant jurisdiction to the affected Lenders similarly situated.
“Attributable Indebtedness” when used with respect to any Sale Leaseback Transaction, as at the date of determination, the present value (discounted at a rate equivalent to the Borrower’s then- current weighted average cost of funds for borrowed money as at such date of determination, compounded on a semi-annual basis) of the total obligations of Holdings and each of its Restricted Subsidiaries that is the lessee under the applicable lease for payments of base or fixed rent under such lease for the then remaining term thereof (excluding any renewal terms, except to the extent Holdings and each of its Restricted Subsidiaries has exercised its right to renew such lease term for any such renewal term).
-8-
“Available Amount” means, at and as of any time (the “Available Amount Reference Time”), an amount equal to (but not less than zero in the aggregate) the sum of the following (but only to the extent Not Otherwise Applied), without duplication of any amounts otherwise included in the calculation of Consolidated Net Income or Cumulative Retained Excess Cash Flow Amount:
4.3 hereof; plus
“Available Amount Reference Time” has the meaning specified in the definition of “Available Amount.”
“Available Tenor” means, as of any date of determination and with respect to the then- current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such
-9-
date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 5.5(e).
“Back-Stop Note” means that certain unsecured subordinated promissory note, dated as of the date hereof, issued by Holdings to THRC Holdings, LP and/or its Affiliates in the aggregate principal amount of $27,070,000.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief of debtors.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate (which, if negative, shall be deemed to be 0.00%) plus ½ of 1%, (b) the rate of interest quoted in the print edition of The Wall Street Journal, Money Rates Section, as the prime rate in effect from time to time, (c) Adjusted Term SOFR for a one month interest period as determined on such day, plus 1.0% and (d) 2.00%. The “prime rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Agent) or any similar release by the Federal Reserve Board (as determined by the Agent in its reasonable discretion).
“Base Rate Loan” means any Term Loan during any period for which it bears interest based on the Base Rate.
“Basel III” means, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented by a Lender’s primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory authority, as applicable.
“Basin Purchase and Sale Agreement” mean a Purchase and Sale Agreement dated as of February 9, 2022 by and among CSP IV Connect Acquisition, LLC, a Delaware limited liability company, Basin Special Situations LLC, a Delaware limited liability company, Basin Holdings LLC, a Delaware limited liability company, Basin Production and Completion LLC, a Delaware limited liability company, and Holdings, as amended, restated, supplemented and/or modified from time to time.
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“Basin Units Acquisition” means the acquisition by Holdings of the Purchased BPC Units pursuant to the Basin Purchase and Sale Agreement.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then- current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.5(b).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date:
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means a date and time determined by the Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
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determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.5 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.5.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
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“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Best Pump” means Best Pump & Flow, LLC, a Texas limited liability company.
“Best Pump Acquisition” means the acquisition by Holdings and/or its Affiliate(s) of 100% of the Stock of Best Pump.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person, (b) in the case of any limited liability company, the sole manager or the board of managers or managing member, of such Person, (c) in the case of any partnership, the board of directors of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.
“Borrower” has the meaning as set forth in the preamble of this Agreement.
“Borrowing” means a borrowing hereunder consisting of Term Loans of one Type and Class made on the same day by Lenders to the Borrower.
“BPC