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”):

 

(a)
the Agent shall have received duly executed counterparts of this Amendment by the Borrower, Holdings, the Guarantors and the Lenders constituting Required Lenders under the Existing Credit Agreement as required hereby and pursuant to the Credit Agreement;

 

(b)
the Lenders shall have received a duly executed copy of that certain Fifth Amendment Fee Letter (the “Fifth Amendment Fee Letter”), dated as of the Fifth Amendment Effective Date, by and between the Borrower and the Agent;

 

(c)
the Agent shall have received all fees and amounts due and payable on or prior to the Fifth Amendment Effective Date to the extent invoiced at least two (2) Business Days prior to the Fifth Amendment Effective Date, including reimbursement or payment of all reasonable and documented or invoiced out-of-pocket costs and expenses associated with this Amendment, with such costs and expenses to be limited to the Attorney Costs;

 

(d)
the representations and warranties set forth in this Amendment or any other Loan Document shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) after giving effect to this Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date;

 

(e)
no Default or Event of Default shall have occurred and be continuing or shall result, in each case, after giving effect to this Amendment;

 

(f)
the Agent and the Lenders party hereto shall have received a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2(d) and Section 2(e) of this Amendment;

 

(g)
the Agent (or its counsel) shall have received drafts of the Performance Acquisition Documents, in form and substance reasonably satisfactory to the Agent and the Required Lenders;

 

(h)
the Agent shall have received a copy of an executed Fourth Amendment to the ABL Credit Agreement, in form and substance reasonably satisfactory to the Agent and the Required Lenders;

 

(i)
[**];

 

(j)
[**];

 

(k)
[**];

 

2


 

 

3


(l)
the Agent shall have received a copy of an executed amendment to the ABL Intercreditor Agreement dated as of the Fifth Amendment Effective Date by and among the Agent, the ABL Collateral Agent, and the Obligors, in form and substance reasonably satisfactory to the Agent and the Required Lenders (the “Amendment to Intercreditor”);

 

(m)
the Agent shall have received a substantially final copy of an amendment to the Monarch Acquisition Intercreditor Agreement, to be dated as of the [**], by and among the Subordinated Creditors (as defined therein), the Senior Creditor (as defined therein), [**] and;

 

(n)
the Agent shall have received a substantially final copy of an amendment to the REV Energy Acquisition Intercreditor Agreement, to be dated as of the [**].

 

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:

 

(a)
Holdings and each Obligor party to this Amendment has the power and authority to execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its shareholders, if necessary) to authorize the execution, delivery and performance of this Amendment. This Amendment has been duly executed and delivered by Holdings and each Obligor party hereto and constitutes the legal, valid and binding obligations of Holdings and each such Obligor, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (i) conflict with, or constitute a violation or breach of, the terms of (A) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;

 

(b)
no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;

 

(c)

 

 

4


(d)
after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Fifth Amendment Effective Date as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date.

 

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.

 

(a)
Except as expressly provided herein and in the Amendment to Intercreditor, (i) the Credit Agreement and the other Loan Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms, (ii) the consents and agreements of the Agent and the Lenders set forth herein shall be limited strictly as written and shall not constitute a consent or agreement to any transaction not specifically described in connection with any such consent and/or agreement, and (iii) this Amendment shall not be deemed a waiver of any term or condition of any Loan Document and shall not be deemed to prejudice any right or rights which the Agent or any Lender may now have or may have in the future under or in connection with any Loan Document or any of the instruments or agreements referred to therein, as the same may be amended from time to time.

 

(b)
This Amendment shall constitute a Loan Document.

 

(c)
Each of the Borrower, Holdings and the Guarantors hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which such Obligor is a party is, and the obligations of such Obligor contained in the Credit Agreement (as amended by this Amendment) or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as modified by this Amendment and, in the case of the ABL Intercreditor Agreement, the Amendment to Intercreditor. For greater certainty and without limiting the foregoing, each of the Borrower, Holdings and the Guarantors hereby confirms that the existing security interests granted by such Obligor in favor of the Secured Parties pursuant to the Loan Documents in the Collateral described therein shall continue to secure the Obligations as and to the extent provided in the Loan Documents.

 

 

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.

 

 

5


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

 

6


 

 

7


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]

 

 

8


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

 

 


1.1
Defined Terms 2
1.2
Accounting Terms 85
1.3
Interpretive Provisions 86
1.4
Classification of Term Loans and Borrowings 87
1.5
Limited Condition Acquisition 88
1.6
Rounding 88
1.7
Times of Day 88
1.8
Timing of Payment or Performance 88
1.9
Currency Equivalents Generally 88
1.10
Rates 89

ARTICLE II TERM LOANS

2.1
Term Loan Commitments 90
2.2
Term Loans 90
2.3
Loan Administration 90
2.4
Additional Term Loans 91
2.5
Delayed Draw Term Loans 92
2.6
[Reserved] 93
2.7
Defaulting Lenders 93
2.8
Tax Treatment 94

ARTICLE III INTEREST AND FEES

3.1
Interest 94
3.2
Continuation and Conversion Elections 96
3.3
Maximum Interest Rate 97
3.4
Closing Fees and Other Fees 97

ARTICLE IV PAYMENTS AND PREPAYMENTS

4.1
Payments and Prepayments 97
4.2
Prepayment Premium 98
4.3
Mandatory Prepayments 99
4.4
SOFR Rate Loan Prepayments 101
4.5
Payments by the Borrower 101

-i-

4.6
Apportionment, Application and Reversal of Payments 102
4.7
Indemnity for Returned Payments 102
4.8
Agent’s and Lenders’ Books and Records 103

ARTICLE V

TAXES, YIELD PROTECTION AND ILLEGALITY

 


5.1
Taxes 103
5.2
Illegality 106
5.3
Increased Costs and Reduction of Return 107
5.4
Funding Losses 107
5.5
Inability to Determine Rates 108
5.6
Certificates of Agent 110
5.7
Survival 110
5.8
Assignment of Term Loan Commitments Under Certain Circumstances 110

ARTICLE VI

BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES

6.1
Books and Records 111
6.2
Financial Information 111
6.3
Notices to the Agent 113

ARTICLE VII

GENERAL WARRANTIES AND REPRESENTATIONS

7.1
Authorization, Validity, and Enforceability of this Agreement and the Loan Documents 115
7.2
Validity and Priority of Security Interest 116
7.3
Organization and Qualification 116
7.4
Subsidiaries; Stock 116
7.5
Financial Statements 117
7.6
Solvency 117
7.7
Property 117
7.8
Intellectual Property 117
7.9
Litigation 118
7.10
Labor Disputes 118
7.11
Environmental Laws 118
7.12
No Violation of Law 118
7.13
No Default 118
7.14
ERISA Compliance 119
7.15
Taxes 119
7.16
Investment Company Act 119
7.17
Use of Proceeds 119
7.18
Margin Regulations 119
7.19
No Material Adverse Change 119
7.20
Full Disclosure 120
7.21
Government Authorization 120
7.22
Anti-Terrorism Laws 120
7.23
FCPA 120
7.24
Sanctioned Persons 121
7.25
Designation of Senior Debt 121
7.26
Insurance 121
7.27
FTS Assets 121

ARTICLE VIII

AFFIRMATIVE AND NEGATIVE COVENANTS

 


8.1
Taxes 121
8.2
Legal Existence and Good Standing 121
8.3
Compliance with Law; Maintenance of Licenses 122
8.4
Maintenance of Property, Inspection 122
8.5
Insurance 123
8.6
Environmental Laws 124
8.7
Compliance with ERISA 124
8.8
Dispositions 124
8.9
Mergers, Consolidations, etc 124
8.10
Distributions 125
8.11
Investments 129
8.12
Debt 129
8.13
Prepayments of Debt 133
8.14
Transactions with Affiliates 134
8.15
Business Conducted 137
8.16
Liens 137
8.17
Restrictive Agreements 137
8.18
Restrictions on FTS Acquisition Transactions 140
8.19
Fiscal Year; Accounting 140
8.20
Financial Covenants 140
8.21
Information Regarding Collateral 141
8.22
Ratings 141
8.23
Additional Obligors; Covenant to Give Security 141
8.24
Use of Proceeds 143
8.25
Further Assurances 143
8.26
Designation of Subsidiaries; Monarch Subsidiary; REV Energy Entities 144
8.27
Passive Holding Company; Etc 147
8.28
Amendments to Certain Documents 149
8.29
Certain Post-Closing Obligations 149

ARTICLE IX CONDITIONS OF LENDING

9.1
Conditions Precedent to Effectiveness of Agreement and Making of Term Loans on the

Closing Date 150

ARTICLE X DEFAULT; REMEDIES

10.1
Events of Default 153
10.2
Remedies 155
10.3
Application of Funds 156
10.4
Permitted Holders’ Right to Cure 157

ARTICLE XI

TERM AND TERMINATION

 


11.1
Term and Termination 158

ARTICLE XII

AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS

12.1
Amendments and Waivers 159
12.2
Assignments; Participations 161

ARTICLE XIII

THE APPOINTED AGENTS

13.1
Appointment and Authorization 164
13.2
Delegation of Duties 165
13.3
Liability of Appointed Agents 165
13.4
Reliance by Appointed Agent 165
13.5
Notice of Default 166
13.6
Credit Decision 166
13.7
Indemnification 166
13.8
Appointed Agents in Individual Capacity 167
13.9
Successor Agents 167
13.10
Collateral Matters 167
13.11
Restrictions on Actions by Lenders; Sharing of Payments 169
13.12
Agency for Perfection 170
13.13
Payments by Agent to Lenders 170
13.14
Intercreditor Agreements 170
13.15
Concerning the Collateral and the Related Loan Documents 171
13.16
Relation Among Lenders 171
13.17
Arrangers 171
13.18
The Register 171
13.19
Secured Cash Management Agreements and Secured Hedge Agreements 172
13.20
Withholding Taxes 173
13.21
Certain ERISA Matters 173
13.22
Erroneous Payments 175

ARTICLE XIV MISCELLANEOUS

14.1
No Waivers; Cumulative Remedies 176
14.2
Severability 176
14.3
Governing Law; Choice of Forum; Service of Process 176
14.4
WAIVER OF JURY TRIAL 177
14.5
Survival of Representations and Warranties 177
14.6
Other Security and Guarantees 177
14.7
Fees and Expenses 177
14.8
Notices 178
14.9
Binding Effect 179
14.10
Indemnity of the Agent, the Collateral Agent, the Arrangers and the Lenders 179

 


14.11
Limitation of Liability 180
14.12
Final Agreement 180
14.13
Counterparts; Facsimile Signatures 180
14.14
Captions 181
14.15
Right of Setoff 181
14.16
Confidentiality 181
14.17
Conflicts with Other Loan Documents 182
14.18
No Fiduciary Relationship 182
14.19
Judgment Currency 183
14.20
USA PATRIOT Act 183
14.21
Acknowledgement and Consent to Bail-In of Affected Financial Institutions 183
14.22
Acknowledgement Regarding Any Supported QFCs 184

 

 


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

 

 

-vi-


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

 

1.1
Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below unless the context otherwise requires:

 

“[**]” 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.

 

 

-2-


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,

 

-4-


 

 

-5-


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:

 

(a)
The Applicable Margin shall be set at Level I in the table above (i) upon the occurrence and during the continuation of an Event of Default, or (ii) if for any period, the Agent does not receive the Financial Statements required to be delivered pursuant to Section 6.2(b) for such period, for

 

-6-


 

 

-7-


the period commencing on the Adjustment Date for such period through the date on which such Financial Statements are delivered.

 

(b)
In the event that any Financial Statement or certificate delivered pursuant to Section 6.2(b) is inaccurate (at a time when this Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than indemnities and other contingent obligations not yet due and payable)), and such inaccuracy, if corrected, would have led to the application of a different Applicable Margin for any fiscal period, then the Applicable Margin for such fiscal period shall be determined by reference to the applicable Level in the above table for such fiscal period which would have applied if a correct financial statement or certificate had been delivered, and the Borrower shall promptly pay to the Agent any additional accrued interest owing as a result of such increased Applicable Margin for such fiscal period or the Agent shall promptly issue the Borrower a credit against the next succeeding interest payment due in the amount of the additional interest paid in excess of the interest which would have been due if the lower Applicable Margin had been in effect for such Test Period.

 

(c)
[**].

 

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:

 

(a)
the Cumulative Retained Excess Cash Flow Amount (for the avoidance of doubt, taking into effect any applicable ECF True-up Amount); plus

 

(b)
the proceeds from the issuance of any Qualified Stock after the Closing Date (including upon conversion of Debt of the Borrower incurred after the Closing Date) (other than (i) the proceeds from equity investments received as cash applied as a Cure Amount hereunder or a Cure Amount (as defined under the ABL Credit Agreement or (ii) the proceeds from the IPO)); plus

 

(c)
the aggregate amount of cash and Cash Equivalents contributed to the Borrower (other than from a Restricted Subsidiary and other than in the form of Disqualified Stock); plus

 

(d)
Investments of the Borrower or any Restricted Subsidiaries in any Unrestricted Subsidiary to the extent made using the Available Amount (up to the amount of the original cash investment in such Unrestricted Subsidiary) that has been re-designated as a Restricted Subsidiary (which cannot thereafter be re-designated as an Unrestricted Subsidiary if used to build the Available Amount, unless such re-designation also reduces the Available Amount) or that has been merged or consolidated into the Borrower or any of its Restricted Subsidiaries; plus

 

(e)
Declined Proceeds from any Disposition following an offer pursuant to Section

4.3 hereof; plus

 

(f)
[reserved]; plus

 

(g)
(i) the aggregate amount received by Borrower after the Closing Date from cash dividends and distributions made by any Unrestricted Subsidiary (up to the original amount of the cash Investments to such Unrestricted Subsidiary made out of the Available Amount) and (ii) the Net Cash Proceeds in connection with the sale, transfer or other dispositions of assets or the Stock of any Unrestricted Subsidiary that was previously a Restricted Subsidiary and designated as an Unrestricted Subsidiary at any time prior to such sale, transfer or other dispositions of assets or the Stock (up to the original cash amount of such Investment to such Unrestricted Subsidiary made out of the Available Amount); plus

 

(h)
returns, profits, distributions and similar amounts received in cash or Permitted Investments made using the Available Amount and not in excess of the original amount invested using the Available Amount.

 

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.

 

 

-10-


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:

 

(a)
the sum of (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis points); or

 

(b)
the sum of: (i) the alternate benchmark rate that has been selected by the Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.

 

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:

 

(a)
in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

 

(b)
in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be

 

-11-


 

 

-12-


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:

 

(a)
a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

(b)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

 

(c)
a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

 

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.

 

-13-


 

 

-14-


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