UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): April 3, 2017

 

 

Nuverra Environmental Solutions, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   001-33816   26-0287117

(State or Other Jurisdiction

of Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

14624 N. Scottsdale Road, Suite #300, Scottsdale, Arizona   85254
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (602) 903-7802

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions ( see General Instruction A.2.):

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

Term Loan Credit Agreement Amendment

On April 3, 2017 (the “Effective Date”), Nuverra Environmental Solutions, Inc. (the “Company”) entered into a Fifth Amendment (Increase Amendment) to Term Loan Credit Agreement (the “Term Loan Agreement Amendment”) by and among the lenders named therein (the “Lenders”), Wilmington Savings Fund Society, FSB (“Wilmington”), as administrative agent, Wells Fargo Bank, National Association (“Wells Fargo”), as collateral agent, the Company, and the guarantors named therein, which further amends the Term Loan Credit Agreement, dated April 15, 2016, by and among Wilmington, the Lenders, and the Company (the “Term Loan Agreement”) by increasing the Lenders’ commitment, and the principal amount borrowed by the Company, under the Term Loan Agreement from $58,100,000 to $59,200,000 (the “Additional Term Commitment”) and amending the EBITDA financial maintenance covenant.

Pursuant to the Term Loan Agreement Amendment, the Company is required to use a portion of the net cash proceeds of the Additional Term Commitment of $1.1 million to pay the fees, costs and expenses incurred in connection with the Term Loan Agreement Amendment. The remaining net cash proceeds, subject to satisfaction of certain release conditions, will be available for general operating, working capital and other general corporate purposes.

As a condition to the effectiveness of the Term Loan Agreement Amendment, the Company was required to enter into a letter agreement with the agent under the Company’s asset-based lending facility (the “ABL Facility”) providing that the agent under the ABL Facility would not exercise any remedies with respect to the Additional Term Commitment deposited in the Company’s Master Account (as defined in the ABL Facility).

The Term Loan Agreement Amendment requires the Company to (i) on or before April 7, 2017, enter into a restructuring support agreement (the “RSA”) and other documentation required by the Lenders in connection with the restructuring of the indebtedness of the Company and its subsidiaries; (ii) appoint Robert D. Albergotti to serve as the Chief Restructuring Officer of the Company; and (iii) within five days of the Effective Date, cause mortgage title policies to be issued for all real property collateral under the Company’s ABL Facility and to pay all premiums for such title policies.

In addition, each Lender agreed to provide additional term loans to the Company for the purpose of providing the Company with sufficient liquidity to continue to fund its operations and implement the restructuring transactions contemplated by the RSA.

The foregoing description of the Term Loan Agreement Amendment is only a summary and does not purport to be a complete description of the terms and conditions under the Term Loan Agreement Amendment, and such description is qualified in its entirety by reference to the full text of the Term Loan Agreement Amendment, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 1.01.

Letter Agreement Regarding Additional Term Commitment

On April 3, 2017, in connection with the Term Loan Agreement Amendment, the Company and Wells Fargo entered into a letter agreement regarding the Additional Term Commitment (the “Letter Agreement”). Pursuant to the Letter Agreement, Wells Fargo agreed to not exercise any remedies with respect to the cash proceeds received from the Additional Term Commitment or any additional Term Loans that are deposited in the Company’s Master Account. In addition, the Letter Agreement provides


that in the event Wells Fargo or the lenders under the ABL Facility foreclose or otherwise obtain direct control over the Additional Term Commitment, such Additional Term Commitment shall be deemed to be held in trust by Wells Fargo or the lenders under the ABL Facility for the benefit of the Term Loan Lenders.

The foregoing description of the Letter Agreement is only a summary and does not purport to be a complete description of the terms and conditions under the Letter Agreement, and such description is qualified in its entirety by reference to the full text of the Letter Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference into this Item 1.01.

Intercreditor Agreement Amendments

On April 3, 2017, in connection with the Term Loan Agreement Amendment, the Company acknowledged and agreed to the terms and conditions under Amendment No. 3 to Intercreditor Agreement (the “Pari Passu Intercreditor Agreement Amendment”), dated April 3, 2017, by and among Wells Fargo, as pari passu collateral agent, Wells Fargo, as revolving credit agreement agent under the ABL Facility, and Wilmington, as administrative agent under the Term Loan Agreement, which further amends the Intercreditor Agreement, dated as of April 15, 2016, between Wells Fargo, as pari passu collateral agent, Wells Fargo, as administrative agent under the ABL Facility, and Wilmington, as administrative agent under the Term Loan Agreement. On April 3, 2017, in connection with the Term Loan Agreement Amendment, the Company acknowledged and agreed to the terms and conditions under Amendment No. 3 to Intercreditor Agreement (the “Second Lien Intercreditor Agreement Amendment”), dated April 3, 2017, by and among Wells Fargo, as revolving credit agreement agent under the ABL Facility, Wilmington, as administrative agent under the Term Loan Agreement, and Wilmington, as second lien agent under the Second Lien Intercreditor Agreement, which further amends the Intercreditor Agreement, dated as of April 15, 2016, between Wells Fargo, as administrative agent under the ABL Facility, Wilmington, as administrative agent under the Term Loan Agreement, and Wilmington, as collateral agent under the indenture governing the Company’s 12.5%/10.0% Senior Secured Second Lien Notes due 2021 (the “2021 Notes”). The Pari Passu Intercreditor Agreement Amendment and the Second Lien Intercreditor Agreement Amendment permit the Additional Term Commitment by amending the Term Loan Cap (as defined therein) to increase it from $63,910,000 to $65,120,000. The Term Loan Cap is higher than the commitment under the Term Loan, as it includes, in addition to the Lenders’ commitment under the Term Loan Agreement, origination fees paid in kind and a 10% cushion.

The foregoing descriptions of the Pari Passu Intercreditor Agreement Amendment and Second Lien Intercreditor Agreement Amendment are only summaries and do not purport to be a complete description of the terms and conditions under the Pari Passu Intercreditor Agreement Amendment and Second Lien Intercreditor Agreement Amendment, and such descriptions are qualified in their entirety by reference to the full text of the Pari Passu Intercreditor Agreement Amendment and Second Lien Intercreditor Agreement Amendment, copies of which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 1.01.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an off-Balance Sheet Arrangement of a Registrant.

The information set forth in Item 1.01 is incorporated by reference into this Item 2.03.


Item 8.01. Other Events.

On April 3, 2017, the Company received a letter from Wells Fargo notifying the Company that the maturity date of the ABL Facility occurred on March 31, 2017, and that, as a result, all commitments under the ABL Facility are automatically terminated and all obligations under the ABL Facility are currently due and payable, and have been due and payable since March 31, 2017. As the Company has not repaid all outstanding obligations under the ABL Facility, the letter notified the Company that it is in default under the ABL Facility. As a result, the lenders under the ABL Facility are entitled to exercise their rights and remedies under the ABL Facility, the other Loan Documents (as defined in the ABL Facility), and applicable law. In addition, the default under the ABL Facility constitutes an event of cross-default under the Term Loan Agreement and indentures governing the Company’s 9.875% Senior Notes due 2018 (the “2018 Notes”) and 2021 Notes. Wells Fargo and the other lenders under the ABL Facility are considering their rights and remedies and have not determined whether they will exercise such rights and remedies; however, they may choose to do so at any time. The Company does not currently have sufficient liquidity to repay the obligations under the ABL Facility, Term Loan, or indentures governing the 2018 Notes and 2021 Notes. As such, the holders of the Company’s indebtedness may initiate foreclosure actions at any time and it is possible that the Company may become subject to bankruptcy proceedings. The Company anticipates it will have sufficient liquidity from the Additional Term Commitment and the additional Term Loans to fund its operations, but there can be no assurances to that effect. The Company continues to engage in discussions with its debtholders regarding strategic restructuring transactions aimed at recapitalizing the Company to address its liquidity, capital structure, and debt service obligations.

 

Item 9.01. Financial Statements and Exhibits.

(d)

 

Exhibit

Number

  

Description

  4.1    Amendment No. 3 to Intercreditor Agreement, dated April 3, 2017, by and among Wells Fargo, as pari passu collateral agent, Wells Fargo, as revolving credit agreement agent under the ABL Facility, and Wilmington, as administrative agent under the Term Loan Agreement
  4.2    Amendment No. 3 to Intercreditor Agreement, dated April 3, 2017, by and among Wells Fargo, as revolving credit agreement agent under the ABL Facility, Wilmington, as administrative agent under the Term Loan Agreement, and Wilmington, as second lien agent under the Second Lien Intercreditor Agreement
10.1    Fifth Amendment (Increase Amendment) to Term Loan Credit Agreement, dated April 3, 2017, by and among the Lenders, Wilmington, Wells Fargo, the Company and the guarantors named therein
10.2    Letter Agreement, dated April 3, 2017, between the Company and Wells Fargo


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  NUVERRA ENVIRONMENTAL SOLUTIONS, INC.
Date: April 7, 2017   By:  

/s/ Joseph M. Crabb

    Name:   Joseph M. Crabb
    Title:   Executive Vice President and Chief Legal Officer


EXHIBIT INDEX

 

Exhibit

Number

  

Description

  4.1    Amendment No. 3 to Intercreditor Agreement, dated April 3, 2017, by and among Wells Fargo, as pari passu collateral agent, Wells Fargo, as revolving credit agreement agent under the ABL Facility, and Wilmington, as administrative agent under the Term Loan Agreement
  4.2    Amendment No. 3 to Intercreditor Agreement, dated April 3, 2017, by and among Wells Fargo, as revolving credit agreement agent under the ABL Facility, Wilmington, as administrative agent under the Term Loan Agreement, and Wilmington, as second lien agent under the Second Lien Intercreditor Agreement
10.1    Fifth Amendment (Increase Amendment) to Term Loan Credit Agreement, dated April 3, 2017, by and among the Lenders, Wilmington, Wells Fargo, the Company and the guarantors named therein
10.2    Letter Agreement, dated April 3, 2017, between the Company and Wells Fargo

Exhibit 4.1

AMENDMENT NO. 3 TO INTERCREDITOR AGREEMENT

THIS AMENDMENT NO. 3 TO INTERCREDITOR AGREEMENT (“ Amendment ”) is entered into as of April 3, 2017, by and among WELLS FARGO BANK, NATIONAL ASSOCIATION, as Pari Passu Collateral Agent for the Pari Passu Secured Parties, WELLS FARGO BANK, NATIONAL ASSOCIATION , as Revolving Credit Agreement Agent for the Revolving Credit Agreement Secured Parties, and WILMINGTON SAVINGS FUND SOCIETY, FSB , as Term Loan Agent for the Term Loan Secured Parties.

WHEREAS, Pari Passu Collateral Agent, Revolving Credit Agreement Agent, and Term Loan Agent are parties to that certain Intercreditor Agreement, dated as of April 15, 2016 (as amended, supplemented or otherwise modified, the “ Intercreditor Agreement ”);

WHEREAS, on the date hereof, certain Term Loan Lenders intend to provide the Company with additional term loans under the Term Loan Agreement subject to the terms of the Intercreditor Agreement; and

WHEREAS, Pari Passu Collateral Agent, Revolving Credit Agreement Agent, and Term Loan Agent desire to amend the Intercreditor Agreement to amend certain of the provisions of the Intercreditor Agreement pursuant to the terms and conditions herein.

NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

1.     Defined Terms . Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Intercreditor Agreement.

2.     Amendments to Intercreditor Agreement . Subject to the conditions to effectiveness set forth in Section 3 below, the Intercreditor Agreement is hereby amended as follows:

(a)    Section 1.1 of the Intercreditor Agreement is hereby amended by amending section (i) of the definition of “Term Loan Cap” by deleting “$63,910,000” and inserting “$65,120,000” in lieu thereof.

3.     Conditions to Effectiveness . The amendments set forth in Section  2 shall become effective upon the satisfaction of each of the following conditions precedent:

(a)    The parties hereto shall have each executed this Amendment and

(b)    all conditions precedent to the effectiveness set forth in Section 4 (other than the condition to deliver this Amendment) of that certain Fifth Amendment to Term Loan Credit Agreement, dated as of the date hereof, by and among Company, Term Loan Agent and Term Loan Lenders shall have been met.

4.     Continuing Effect . Except as expressly set forth herein, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Intercreditor Agreement, or a waiver of any other terms or provisions thereof, and the Intercreditor Agreement shall remain unchanged and shall continue in full force and effect, in each case as amended hereby.


5.     Miscellaneous .

(a)     Governing Law . This Amendment shall be a contract made under and governed by the internal laws of the State of New York applicable to contracts made and to be performed entirely within such State, without regard to conflict of law principles.

(b)     Counterparts . This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Amendment.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Pari Passu Collateral Agent
By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Revolving Credit Agreement Agent
By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory


WILMINGTON SAVINGS FUND SOCIETY, FSB , as Term Loan Agent
By:  

/s/ Geoffrey J. Lewis

Name:   Geoffrey J. Lewis
Title:   Vice President


ACKNOWLEDGMENT

Borrower and each of Borrower’s undersigned Subsidiaries each hereby acknowledge that they have received a copy of the foregoing Amendment No. 3 to Intercreditor Agreement and agree to recognize all rights granted by the Amendment No. 3 to Intercreditor Agreement and the Intercreditor Agreement to Pari Passu Collateral Agent, each Authorized Representative, the Pari Passu Secured Parties, waive the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of the Amendment No. 3 to Intercreditor Agreement and Intercreditor Agreement, agree that they will not do any act or perform any obligation which is not in accordance with the agreements set forth in the Amendment No. 3 to Intercreditor Agreement and Intercreditor Agreement. Borrower and each of Borrower’s undersigned Subsidiaries each further acknowledge and agree that they are not an intended beneficiary or third party beneficiary under the Amendment to No. 3 Intercreditor Agreement or the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

 

NUVERRA ENVIRONMENTAL SOLUTIONS, INC. , as Borrower
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   Chairman and Chief Executive Officer
HECKMANN WATER RESOURCES CORPORATION
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HECKMANN WATER RESOURCES (CVR), INC.
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President


1960 WELL SERVICES, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HEK WATER SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
APPALACHIAN WATER SERVICES, LLC
By: HEK Water Solutions, LLC, its managing member
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS POWER FUELS, LLC , a Delaware limited liability company
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS POWER FUELS, LLC , a North Dakota limited liability company
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President


LANDTECH ENTERPRISES, L.L.C.
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS LEASING, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
IDEAL OILFIELD DISPOSAL, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
NUVERRA TOTAL SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
NES WATER SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HECKMANN WOODS CROSS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President

Exhibit 4.2

AMENDMENT NO. 3 TO INTERCREDITOR AGREEMENT

THIS AMENDMENT NO. 3 TO INTERCREDITOR AGREEMENT (“ Amendment ”) is entered into as of April 3, 2017, by and among WELLS FARGO BANK, NATIONAL ASSOCIATION, as Revolving Credit Agreement Agent, WILMINGTON SAVINGS FUND SOCIETY, FSB , as Term Loan Agent, and WILMINGTON SAVINGS FUND SOCIETY, FSB , as Second Lien Agent.

WHEREAS, Revolving Credit Agreement Agent, Term Loan Agent, and Second Lien Agent are parties to that certain Intercreditor Agreement, dated as of April 15, 2016 (as amended, supplemented or otherwise modified, the “ Intercreditor Agreement ”);

WHEREAS, on the date hereof, certain Term Lenders intend to provide the Company with additional term loans under the Term Loan Agreement subject to the terms of the Intercreditor Agreement; and

WHEREAS, Revolving Credit Agreement Agent, Term Loan Agent, and Second Lien Agent desire to amend the Intercreditor Agreement to amend certain of the provisions of the Intercreditor Agreement pursuant to the terms and conditions herein.

NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

1. Defined Terms . Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Intercreditor Agreement.

2. Amendments to Intercreditor Agreement . Subject to the conditions to effectiveness set forth in Section 3 below, the Intercreditor Agreement is hereby amended as follows”

(a) Section 1.1 of the Intercreditor Agreement is hereby amended by amending section (i) of the definition of “Term Loan Cap” by deleting “$63,910,000” and inserting “$65,120,000” in lieu thereof.

3. Conditions to Effectiveness . The amendments set forth in Section 2 shall become effective upon the satisfaction of each of the following conditions precedent:

(a) The parties hereto shall have each executed this Amendment and

(b) all conditions precedent to the effectiveness set forth in Section 4 (other than the condition to deliver this Amendment) of that certain Fifth Amendment to Term Loan Credit Agreement, dated as of the date hereof, by and among Company, Term Loan Agent and Term Loan Lenders shall have been met.

4. Continuing Effect . Except as expressly set forth herein, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Intercreditor Agreement, or a waiver of any other terms or provisions thereof, and the Intercreditor Agreement shall remain unchanged and shall continue in full force and effect, in each case as amended hereby.


5. Miscellaneous .

(a) Governing Law . This Amendment shall be a contract made under and governed by the internal laws of the State of New York applicable to contracts made and to be performed entirely within such State, without regard to conflict of law principles.

(b) Counterparts . This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Amendment.

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Pari Passu Collateral Agent
By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Revolving Credit Agreement Agent

By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory


WILMINGTON SAVINGS FUND SOCIETY, FSB , as Term Loan Agent
By:  

/s/ Geoffrey J. Lewis

Name:   Geoffrey J. Lewis
Title:   Vice President
WILMINGTON SAVINGS FUND SOCIETY, FSB , as Second Lien Agent
By:  

/s/ Geoffrey J. Lewis

Name:   Geoffrey J. Lewis
Title:   Vice President


ACKNOWLEDGMENT

Borrower and each of Borrower’s undersigned Subsidiaries each hereby acknowledge that they have received a copy of the foregoing Amendment No. 3 to Intercreditor Agreement and agree to recognize all rights granted by the Amendment No. 3 to Intercreditor Agreement and the Intercreditor Agreement to First Lien Agent, the other First Lien Claimholders, Second Lien Agent, and the other Second Lien Claimholders, waive the provisions of Section 9-615(a) of the UCC in connection with the application of proceeds of Collateral in accordance with the provisions of the Amendment No. 3 to Intercreditor Agreement and Intercreditor Agreement, agree that they will not do any act or perform any obligation which is not in accordance with the agreements set forth in the Amendment No. 3 to Intercreditor Agreement and Intercreditor Agreement. Borrower and each of Borrower’s undersigned Subsidiaries each further acknowledge and agree that they are not an intended beneficiary or third party beneficiary under the Amendment No. 3 to Intercreditor Agreement or the Intercreditor Agreement, as amended, restated, supplemented, or otherwise modified hereafter.

 

NUVERRA ENVIRONMENTAL SOLUTIONS, INC. , as Borrower
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   Chairman and Chief Executive Officer
HECKMANN WATER RESOURCES CORPORATION
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HECKMANN WATER RESOURCES (CVR), INC.
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President


1960 WELL SERVICES, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HEK WATER SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
APPALACHIAN WATER SERVICES, LLC
By: HEK Water Solutions, LLC, its managing member
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS POWER FUELS, LLC , a Delaware limited liability company
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS POWER FUELS, LLC , a North Dakota limited liability company
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President


LANDTECH ENTERPRISES, L.L.C.
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
BADLANDS LEASING, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
IDEAL OILFIELD DISPOSAL, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
NUVERRA TOTAL SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
NES WATER SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
HECKMANN WOODS CROSS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President

Exhibit 10.1

FIFTH AMENDMENT (INCREASE AMENDMENT)

TO

TERM LOAN CREDIT AGREEMENT

THIS FIFTH AMENDMENT (INCREASE AMENDMENT) TO TERM LOAN CREDIT AGREEMENT (this “ Amendment ”) is entered into as of April 3, 2017, by and among the lenders identified on the signature pages hereof, WILMINGTON SAVINGS FUND SOCIETY, FSB, as administrative agent (in such capacity, “ Administrative Agent ”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as collateral agent (in such capacity, “ Collateral Agent ”), NUVERRA ENVIRONMENTAL SOLUTIONS, INC., a Delaware corporation (“ Borrower ”), and the entities listed on Schedule 1 (“ Guarantors ”).

W I T N E S S E T H:

WHEREAS, Borrower, the Administrative Agent and Lenders are parties to that certain Term Loan Credit Agreement, dated as of April 15, 2016 (as amended by that certain First Amendment to Term Loan Credit Agreement, dated as of June 30, 2016, as further amended by that certain Second Amendment to Term Loan Credit Agreement, dated as of September 22, 2016, as further amended by that certain Third Amendment (Increase Amendment) to Term Loan Credit Agreement, dated as of November 14, 2016, and as further amended by that certain Fourth Amendment (Increase Amendment) to Term Loan Credit Agreement, dated as of December 16, 2016, and as amended, restated, modified or supplemented from time to time prior to the date hereof, the “ Existing Credit Agreement ;” the Existing Credit Agreement, as amended by this Amendment and as may be further amended, restated, modified or supplemented from time to time after the date hereof, is herein referred to as the “ Amended Credit Agreement ”);

WHEREAS, Borrower has requested that certain Lenders extend April 3, 2017 Additional Term Loans (as defined) to Borrower, and each April 3, 2017 Additional Term Loan Lender (as defined) party hereto has agreed to provide such April 3, 2017 Additional Term Loans to Borrower on the terms and conditions set forth herein and in the Amended Credit Agreement; and

WHEREAS, the Lenders are willing to provide the April 3, 2017 Additional Term Loans to Borrower in order to address Borrower’s short-term liquidity needs and to provide sufficient financing to bridge to an agreement on the terms of a long-term solution and consensual restructuring transaction for Borrower;

NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

1.     Defined Terms . Unless otherwise defined herein, capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Amended Credit Agreement.

2.     Amendments to Existing Credit Agreement . In reliance upon the representations and warranties of Borrower set forth in Section  6 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section  4 below, the Existing Credit Agreement is hereby amended as follows:

(a)     Schedule 1.1 thereof shall be amended by adding the following definitions in appropriate alphabetical order:

April  3, 2017 Additional Term Commitment ” means, with respect to each April 3, 2017 Additional Term Loan Lender, its April 3, 2017 Additional Term Commitment,


and, with respect to all April 3, 2017 Additional Term Loan Lenders, their April 3, 2017 Additional Term Commitments, in each case as such Dollar amounts are set forth beside such April 3, 2017 Additional Term Loan Lender’s name under the applicable heading on Schedule C-1 to the Fifth Amendment.

April  3, 2017 Additional Term Loan ” means the Term Loans made pursuant to the Fifth Amendment.

April  3, 2017 Additional Term Loan Lender ” means each Lender party to the Fifth Amendment that has an April 3, 2017 Additional Term Commitment.

Fifth Amendment ” means the Fifth Amendment (Increase Amendment) to Term Loan Credit Agreement in respect of this Agreement, dated as of April 3, 2017, among Borrower, the Guarantors, party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.

Fifth Amendment Effective Date ” means April 3, 2017, which is the date on which each of the conditions set forth in Section  4 of the Fifth Amendment has been satisfied and the April 3, 2017 Additional Term Loans have been funded by the April 3, 2017 Additional Term Loan Lenders.

(b)     Schedule 1.1 thereof shall be amended by deleting the definitions set forth below in their entirety and replacing them with the following:

Rolling Budget ” means a projected statement of sources and uses of cash for the Loan Parties and their Subsidiaries on a weekly basis, for the following 13 calendar weeks, including any anticipated use of the proceeds of Additional Term Loans, December 2016 Additional Term Loans and/or April 3, 2017 Additional Term Loans held in the Master Account for each week during such period and setting forth on a cumulative roll-forward basis, the projected cash disbursements and projected cash receipts for each applicable week, in form and substance reasonably satisfactory to the Lenders.

Term Commitment ” means an Original Term Commitment, an Additional Term Commitment, a December 2016 Additional Term Commitment, or an April 3, 2017 Additional Term Commitment, or all of them, as the context may require.

Term Loan ” means an Original Term Loan, an Additional Term Loan, a December 2016 Additional Term Loan, or an April 3, 2017 Additional Term Loan, or all of them, as the context may require.

(c)     Schedule C-1 thereof shall be amended and restated in its entirety by Schedule C-1 attached to this Amendment.

(d)     Section 2.1(a) thereof shall be amended and restated in its entirety as follows:

“(a) Subject to the terms and conditions of this Agreement, each Term Lender agrees (severally, not jointly or jointly and severally) to make a simultaneous loan or loans to Borrower on the Closing Date in an amount not to exceed such Lender’s Original Term Commitment. Subject to the terms and conditions of this Agreement, each Additional Term Loan Lender agrees (severally, not jointly or jointly and severally) to

 

2


make a simultaneous loan or loans to Borrower on the Third Amendment Effective Date in an amount not to exceed such Additional Term Loan Lender’s Additional Term Commitment. Subject to the terms and conditions of this Agreement, each December 2016 Additional Term Loan Lender agrees (severally, not jointly or jointly and severally) to make a simultaneous loan or loans to Borrower on the Fourth Amendment Effective Date in an amount not to exceed such December 2016 Additional Term Loan Lender’s December 2016 Additional Term Commitment. Subject to the terms and conditions of this Agreement, each April 3, 2017 Additional Term Loan Lender agrees (severally, not jointly or jointly and severally) to make a simultaneous loan or loans to Borrower on the Fifth Amendment Effective Date in an amount not to exceed such April 3, 2017 Additional Term Loan Lender’s April 3, 2017 Additional Term Commitment.”

(e)     Section 6.11 thereof shall be amended and restated in its entirety as follows:

“6.11     Use of Proceeds .

(a)    Borrower will not, and will not permit any of its Subsidiaries to use the proceeds of any Original Term Loan made hereunder on the Closing Date for any purpose other than (i) on the Closing Date, to pay the fees, costs, and expenses incurred in connection with this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and (ii) thereafter, consistent with the terms and conditions hereof, for their lawful and permitted purposes (including the repurchase, redemption, prepayment or other acquisition of any Bond Debt). Borrower will not, and will not permit any of its Subsidiaries to use the proceeds of any Additional Term Loan made under the Third Amendment on the Third Amendment Effective Date for any purpose other than (i) on the Third Amendment Effective Date, to pay (A) the fees, costs and expenses incurred in connection with the Third Amendment and (B) interest and other amounts accrued under the Bond Debt in an amount not to exceed $2,014,621.03 and (ii) thereafter, subject to satisfaction of the Release Conditions and Section 6.11(b) , for general operating, working capital and other general corporate purposes of Borrower not otherwise prohibited by the terms hereof. Borrower will not, and will not permit any of its Subsidiaries to use the proceeds of any December 2016 Additional Term Loan made under the Fourth Amendment on the Fourth Amendment Effective Date for any purpose other than (i) on the Fourth Amendment Effective Date, to pay (A) the fees, costs and expenses incurred in connection with the Fourth Amendment and (B) an aggregate principal amount of loans outstanding under the Revolving Credit Agreement in the amount of $22,000,000 and (ii) thereafter, subject to satisfaction of the Release Conditions and Section 6.11(b) , for general operating, working capital and other general corporate purposes of Borrower not otherwise prohibited by the terms hereof. Borrower will not, and will not permit any of its Subsidiaries to use the proceeds of any April 3, 2017 Additional Term Loan made under the Fifth Amendment on the Fifth Amendment Effective Date for any purpose other than (i) on the Fifth Amendment Effective Date, to pay the fees, costs and expenses incurred in connection with the Fifth Amendment and (ii) thereafter, subject to satisfaction of the Release Conditions and Section 6.11(b) , for general operating, working capital and other general corporate purposes of Borrower not otherwise prohibited by the terms hereof.

(b)    Notwithstanding anything to the contrary contained herein, the proceeds of Additional Term Loans which are not used on the Third Amendment Effective Date for the purposes described in the second sentence of Section 6.11(a) , the proceeds of

 

3


December 2016 Additional Term Loans which are not used on the Fourth Amendment Effective Date for the purposes described in the third sentence of Section 6.11(a) , and the proceeds of April 3, 2017 Additional Term Loans which are not used on the Fifth Amendment Effective Date for the purposes described in the fourth sentence of Section 6.11(a) , shall each be deposited solely into the Master Account and held in such account subject to satisfaction of the Release Conditions. Upon satisfaction of the Release Conditions, Borrower may withdraw funds as set forth in the appropriate Notice of Release Request; provided that, upon release from the Master Account, such released funds may not be used for any purpose other than as set forth in the most recent Rolling Budget delivered to the Lenders pursuant to Section  5.1 .

(c)    It is agreed that no part of the proceeds of the loans made to Borrower will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors.”

(f)     Section 7(a) thereof shall be amended by replacing the final two rows therefrom with the following two rows:

 

$2,500,000    For the 12 month period
ending December 31, 2016
$2,500,000    For the 12 month period
ending January 31, 2017 and for each 12 month
period ending each month thereafter

(g)     Section 8.2(a) thereof shall be amended and restated in its entirety as follows:

“(a)    fails to perform or observe any covenant or other agreement contained in any of (i)  Sections 3.6 , 5.1 , 5.2 , 5.3 (solely if Borrower is not in good standing in its jurisdiction of organization), 5.6 , 5.7 (solely if Borrower refuses to allow Administrative Agent or its representatives or agents to visit Borrower’s properties, inspect its assets or books or records, examine and make copies of its books and records, or discuss Borrower’s affairs, finances, and accounts with officers and employees of Borrower), 5.10 , 5.11 , 5.13 , 5.14 or 5.17 of this Agreement, (ii) Section 6 of this Agreement, (iii) Section 7 of this Agreement, (iv) Section 7 of the Guaranty and Security Agreement or (v) Section 5 of the Fifth Amendment;”

3.     April  3, 2017 Additional Term Loans .

(a)    On the Fifth Amendment Effective Date, each April 3, 2017 Additional Term Loan Lender agrees (severally, not jointly or jointly and severally) to make a simultaneous April 3, 2017 Additional Term Loan to Borrower on the Fifth Amendment Effective Date in an amount not to exceed such April 3, 2017 Additional Term Loan Lender’s April 3, 2017 Additional Term Commitment.

(b)    The proceeds of the April 3, 2017 Additional Term Loans shall, to the extent not utilized on the Fifth Amendment Effective Date for the purposes described in clause (i) of the fourth sentence of Section 6.11(a) of the Amended Credit Agreement, be deposited solely into the

 

4


Master Account and released solely upon satisfaction of the Release Conditions as set forth in the Amended Credit Agreement.

(c)    The April 3, 2017 Additional Term Loans shall be “Term Loans” under the Amended Credit Agreement and shall have the same terms (including with respect to maturity, pricing, prepayments, events of default and assignability) as the Term Loans made under the Existing Credit Agreement.

4.     Conditions to Effectiveness of Effective Date Amendments . The amendments set forth in Section  2 shall become effective upon the satisfaction of each of the following conditions precedent, in each case satisfactory to the Administrative Agent in all respects (the “ Fifth Amendment Effective Date ”):

(a)    The Administrative Agent shall have received a copy of this Amendment executed and delivered by the Administrative Agent, the Lenders party hereto, and the Loan Parties;

(b)    Borrower shall have executed and delivered a letter agreement, in form and substance satisfactory to the Administrative Agent and the Lenders, pertaining to the treatment of the April 3, 2017 Additional Term Loans under that certain Amended and Restated Credit Agreement, dated as of February 3, 2014, by Borrower, Wells Fargo Bank, National Association, as administrative agent, and the lenders party thereto;

(c)    Borrower shall have executed and delivered amendments, in form and substance satisfactory to the Administrative Agent and each of the Lenders, to each of the Pari Passu Intercreditor Agreement and the Second Lien Intercreditor Agreement, pertaining to this Amendment and the April 3, 2017 Additional Term Loans made hereunder (collectively, the “ Intercreditor Amendments ”);

(d)    The Collateral Agent shall have received evidence that appropriate financing statements have been duly filed in such office or offices as may be necessary or, in the opinion of any Agent, desirable to perfect the Collateral Agent’s Liens in and to the Collateral, and Collateral Agent shall have received searches reflecting the filing of all such financing statements;

(e)    The Administrative Agent shall have received a certificate from the Secretary of each Loan Party (i) attesting to the resolutions of such Loan Party’s board of directors authorizing its execution, delivery, and performance of this Amendment and the other Loan Documents to which it is a party, (ii) authorizing specific officers of such Loan Party to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of such Loan Party;

(f)    The Administrative Agent shall have received confirmation that each Loan Party’s Governing Documents have not been amended, supplemented or otherwise modified since the Closing Date;

(g)    The Administrative Agent shall have received a certificate of status with respect to each Loan Party, dated prior to the Fifth Amendment Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Loan Party, which certificate shall indicate that such Loan Party is in good standing in such jurisdiction;

 

5


(h)    Each Agent shall have received an opinion of the Loan Parties’ counsel (including an opinion of counsel in respect of each of such Loan Parties’ jurisdiction of organization) in form and substance satisfactory to each Agent;

(i)    Borrower shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by this Amendment and the other Loan Documents;

(j)    The Administrative Agent shall have received from Borrower, for the benefit of the Lenders party hereto, the Amendment Fee;

(k)    Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of this Amendment and the other Loan Documents or with the consummation of the transactions contemplated thereby;

(l)    After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing on the date hereof or as of the Fifth Amendment Effective Date (except as described in clauses (i) through (iii) of Section 6(e) of this Amendment);

(m)    The Administrative Agent shall have received a Borrowing request from Borrower in compliance with the provisions of Section 2.3(a) of the Existing Credit Agreement;

(n)    Borrower shall have delivered to the Administrative Agent a certificate setting forth the amount held in the Master Account immediately prior to the funding of the April 3, 2017 Additional Term Loans on the Fifth Amendment Effective Date;

(o)    Borrower shall confirm that Robert Albergotti has been appointed as the Chief Restructuring Officer of Borrower with the authority customarily associated with such role; and

(p)    All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Amendment shall be satisfactory in form and substance to the Administrative Agent and its counsel.

5.     Covenants . Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations:

(a)    It shall cooperate with the Lenders and exercise its commercially reasonable efforts to enter into a restructuring support agreement and other documentation requested by the Lenders (collectively, the “ Restructuring Support Agreement ”) in connection with the restructuring of the Indebtedness of Borrower and its Subsidiaries, in each case in form and substance satisfactory to Borrower and the Lenders by no later than April 7, 2017;

(b)    The appointment of Robert Albergotti as the Chief Restructuring Officer of Borrower shall not be terminated without the prior written consent of each Lender;

(c)    Within 5 days of the Fifth Amendment Effective Date (or such later date as the Administrative Agent or the Required Lenders may determine in their sole discretion), Borrower shall cause each Agent to receive an opinion of the Loan Parties’ counsel (including an opinion of counsel in respect of each of such Loan Parties’ jurisdiction of organization) with respect to the original mortgages for the following states: (i) Louisiana, (ii) Montana, (iii) Ohio and (iv) Texas, in form and substance satisfactory to each Agent;

 

6


(d)    Within 5 days of the Fifth Amendment Effective Date (or such later date as the Administrative Agent or the Required Lenders may determine in their sole discretion), Borrower shall cause mortgagee title policies to be issued for all of the properties constituting Real Property Collateral under the Amended Credit Agreement in the amount of the fair market value of such properties, containing exceptions reasonably approved by each Agent; and

(e)    Within 5 days of the Fifth Amendment Effective Date, Borrower shall pay all title premiums.

6.     Representations and Warranties . In order to induce the Agents and Lenders to enter into this Amendment, Borrower hereby represents and warrants to the Agents and Lenders that:

(a)    as to each Loan Party, the execution, delivery, and performance by such Loan Party of this Amendment to which it is a party have been duly authorized by all necessary action on the part of such Loan Party;

(b)    as to each Loan Party, the execution, delivery, and performance by such Loan Party of this Amendment does not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, the Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on any Loan Party or its Subsidiaries, (ii) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material agreement of any Loan Party or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any approval of any holder of Equity Interests of a Loan Party or any approval or consent of any Person under any material agreement of any Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the case of material agreements, for consents or approvals, the failure to obtain which could not individually or in the aggregate reasonably be expected to cause a Material Adverse Effect;

(c)    this Amendment has been duly executed and delivered by each Loan Party that is a party hereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally;

(d)    after giving effect to this Amendment, except for the representation and warranty set forth in Section 4.9(a) of the Amended Credit Agreement, all representations and warranties contained in the Loan Documents to which Borrower is a party are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of such earlier date); and

 

7


(e)    after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing, except pursuant to:

(i)    Section 5.1 of the Amended Credit Agreement with respect to the delivery of a Compliance Certificate for the periods ended December 31, 2016 and February 28, 2017;

(ii)    Section 7(a) of the Amended Credit Agreement; and

(iii)    Section 8.6 of the Amended Credit Agreement with respect to the Revolving Credit Documents and Events of Default arising under other agreements from the event of default under the Revolving Credit Documents.

7.     Amendment Fee . In connection with this Amendment, Borrower agrees to pay to the Agents, for the ratable account of the April 3, 2017 Additional Term Loan Lenders party to this Amendment (such ratable amount based on each such April 3, 2017 Additional Term Loan Lender’s April 3, 2017 Additional Term Commitment as a percentage of the April 3, 2017 Additional Term Commitments of all such April 3, 2017 Additional Term Loan Lenders party to this Amendment), an amendment fee (the “ Amendment Fee ”) of $100,000, which fee is due and payable on the Fifth Amendment Effective Date, and fully earned and non-refundable on the Fifth Amendment Effective Date. The Amendment Fee is in addition to and not net of any fees previously paid by Borrower or any Loan Party pursuant to any Loan Document.

8.     Supplemental Term Loans . Each Lender party hereto hereby agrees, subject to the Supplemental Funding Conditions, to provide additional Term Loans (the “ Supplemental Term Loans ”) for purposes of implementing the restructuring transactions contemplated by the Restructuring Support Agreement. The terms and conditions of the Supplemental Term Loans shall be acceptable to the Lenders in their sole discretion and shall include, without limitation, a requirement that each of the Loan Parties complies with the Restructuring Support Agreement in all respects. As used herein, the “ Supplemental Funding Conditions ” shall mean (a) the receipt by the Lenders of a projected statement of sources and uses of cash for the Loan Parties and their Subsidiaries on a weekly basis, for the following 13 calendar weeks, including any anticipated use of the proceeds of the Supplemental Term Loans, in form and substance reasonably satisfactory to the Lenders, (b) the timely execution and delivery of the Restructuring Support Agreement, (c) the execution of an amendment to the Amended Credit Agreement providing for the Supplemental Term Loans and delivery by the Loan Parties of related documentation reasonably requested by the Lenders and (d) such other conditions as shall be specified by the Lenders in their reasonable discretion.

9.     Reference to and Effect on the Amended Credit Agreement and the other Loan Documents .

(a)    On and after the Fifth Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.

(b)    The Existing Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.

(c)    The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the

 

8


Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. On and after the Fifth Amendment Effective Date, this Amendment shall for all purposes constitute a Loan Document.

10.     Acknowledgment; Liens Unimpaired . Each Loan Party hereby acknowledges that it has read this Amendment and consents to its terms, and further hereby affirms, confirms, represents, warrants and agrees that (a) notwithstanding the effectiveness of this Amendment, the obligations of such Loan Party under each of the Loan Documents to which such Loan Party is a party shall not be impaired and each of the Loan Documents to which such Loan Party is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects and (b) after giving effect to this Amendment, (i) the execution, delivery, performance or effectiveness of this Amendment shall not impair the validity, effectiveness or priority of the Liens granted pursuant to the Loan Documents and such Liens shall continue unimpaired with the same priority to secure repayment of all Obligations, whether heretofore or hereafter incurred, including, without limitation, the April 3, 2017 Additional Term Loans to be made by the April 3, 2017 Additional Term Loan Lenders on the Fifth Amendment Effective Date, (ii) the Guaranty and Security Agreement, as and to the extent provided in the Loan Documents, shall continue in full force and effect in respect of the Obligations under the Amended Credit Agreement and the other Loan Documents, including, without limitation, the April 3, 2017 Additional Term Loans to be made by the April 3, 2017 Additional Term Loan Lenders on the Fifth Amendment Effective Date, and (iii) each Control Agreement previously delivered by Borrower in connection with the Existing Credit Agreement shall not be impaired and each Control Agreement continues in full force and effect in respect of the Obligations under the Amended Credit Agreement and the other Loan Documents, including, without limitation, the April 3, 2017 Additional Term Loans to be made by the April 3, 2017 Additional Term Loan Lenders on the Fifth Amendment Effective Date. For the avoidance of doubt, each Loan Party hereby acknowledges and affirms that the April 3, 2017 Additional Term Loans made pursuant to this Amendment or the Amended Credit Agreement constitute “Obligations” (as defined in the Guaranty and Security Agreement) and similar defined terms used in the Loan Documents.

11.     Authorization of Administrative Agent . By signing below, the Lenders party hereto (which Lenders constitute the “Required Lenders” under and as defined in the Existing Credit Agreement) hereby authorize and direct the Administrative Agent to execute and deliver each of (a) this Amendment, (b) the Intercreditor Amendments and (c) each other certificate, filing, agreement or other document relating to this Amendment and the transactions contemplated hereby.

12.     Miscellaneous.

(a)     Expenses. Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses of any Agent (including reasonable attorneys’ fees) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Existing Credit Agreement as amended hereby.

(b)     Choice of Law and Venue; Jury Trial Waiver; Reference Provision. Without limiting the applicability of any other provision of the Existing Credit Agreement or any other Loan Document, the terms and provisions set forth in Section 12 of the Existing Credit Agreement are expressly incorporated herein by reference.

(c)     Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and

 

9


delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally effective as delivery of an original executed counterpart of this Agreement.

(d)     Severability. Each provision of this Amendment shall be severable from every other provision of this Amendment for the purpose of determining the legal enforceability of any specific provision.

13.     Release.

(a)    In consideration of the agreements of the Agents and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of Borrower and each Guarantor that executes this Amendment, on behalf of itself and its successors, assigns, and other legal representatives (Borrower, each Guarantor and all such other Persons being hereinafter referred to collectively as the “ Releasors ” and individually as a “ Releasor ”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Agents, and Lenders, and their successors and assigns, and their present and former shareholders, Affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agents, each Lender and all such other Persons being hereinafter referred to collectively as the “ Releasees ” and individually as a “ Releasee ”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any Releasor may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, in any way related to or in connection with this Amendment, the Existing Credit Agreement, the Amended Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.

(b)    Each of Borrower and each Guarantor that executes this Amendment understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.

(c)    Each of Borrower and each Guarantor that executes this Amendment agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

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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.

 

NUVERRA ENVIRONMENTAL SOLUTIONS, INC.
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   Chairman and Chief Executive Officer
1960 WELL SERVICES, LLC
BADLANDS LEASING, LLC
BADLANDS POWER FUELS, LLC (DE)
BADLANDS POWER FUELS, LLC (ND)
HECKMANN WATER RESOURCES CORPORATION
HECKMANN WATER RESOURCES (CVR), INC.
HECKMANN WOODS CROSS, LLC
HEK WATER SOLUTIONS, LLC
IDEAL OILFIELD DISPOSAL, LLC
LANDTECH ENTERPRISES, L.L.C.
NES WATER SOLUTIONS, LLC
NUVERRA TOTAL SOLUTIONS, LLC
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President
APPALACHIAN WATER SERVICES, LLC
By:   HEK Water Solutions, LLC, its managing member
By:  

/s/ Mark D. Johnsrud

Name:   Mark D. Johnsrud
Title:   President


WILMINGTON SAVINGS FUND SOCIETY, FSB , as Administrative Agent
By:  

/s/ Geoffrey J. Lewis

Name:   Geoffrey J. Lewis
Title:   Vice President
WELLS FARGO BANK, NATIONAL ASSOCIATION , as Collateral Agent
By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory


ASCRIBE II INVESTMENTS LLC , as a Lender
By:  

/s/ Lawrence First

Name:   Lawrence First
Title:   Managing Director
ASCRIBE III INVESTMENTS LLC , as a Lender
By:  

/s/ Lawrence First

Name:   Lawrence First
Title:   Managing Director


ECF VALUE FUND, LP, as a Lender
By:  

/s/ Jeff Gates

Name:   Jeff Gates
Title:   Managing Partner of the General Partner
ECF VALUE FUND II, LP , as a Lender
By:  

/s/ Jeff Gates

Name:   Jeff Gates
Title:   Managing Partner of the General Partner
ECF VALUE FUND INTERNATIONAL MASTER, LP , as a Lender
By:  

/s/ Jeff Gates

Name:   Jeff Gates
Title:   President of the Investment Manager


SCHEDULE 1

GUARANTORS

 

    

Subsidiary Guarantor

  

Jurisdiction of Formation

1.   

Nuverra Environmental Solutions, Inc.

  

Delaware

2.   

1960 Well Services, LLC

  

Ohio

3.   

Appalachian Water Services, LLC

  

Pennsylvania

4.   

Badlands Leasing, LLC

  

North Dakota

5.   

Badlands Power Fuels, LLC

  

Delaware

6.   

Badlands Power Fuels, LLC

  

North Dakota

7.   

Heckmann Water Resources Corporation

  

Texas

8.   

Heckmann Water Resources (CVR), Inc.

  

Texas

9.   

Heckmann Woods Cross, LLC

  

Utah

10.   

HEK Water Solutions, LLC

  

Delaware

11.   

Ideal Oilfield Disposal, LLC

  

North Dakota

12.   

Landtech Enterprises, L.L.C.

  

North Dakota

13.   

NES Water Solutions, LLC

  

Delaware

14.   

Nuverra Total Solutions, LLC

  

Delaware


Schedule C-1

Commitments

 

Lender

   Original Term
Commitment
     Additional
Term
Commitment
     December 2016
Additional

Term
Commitment
     April 3, 2017
Additional

Term
Commitment
 

ASCRIBE II INVESTMENTS LLC

   $ 1,020,000.00      $ 280,500.00      $ 1,168,750      $ 46,750  

ASCRIBE III INVESTMENTS LLC

   $ 11,409,600.00      $ 3,137,640.00      $ 13,073,500      $ 522,940  

ECF VALUE FUND, LP

   $ 2,731,200.00      $ 803,660.00      $ 3,173,750      $ 131,142  

ECF VALUE FUND II, LP

   $ 6,201,600.00      $ 1,808,400.00      $ 7,171,000      $ 313,452  

ECF VALUE FUND INTERNATIONAL MASTER, LP

   $ 2,637,600.00      $ 569,800.00      $ 2,913,000      $ 85,716  
  

 

 

    

 

 

    

 

 

    

 

 

 

All Lenders

   $ 24,000,000.00      $ 6,600,000.00      $ 27,500,000.00      $ 1,100,000.00  
  

 

 

    

 

 

    

 

 

    

 

 

 


Exhibit A

Notice of Release Request

Exhibit 10.2

April 3, 2017

ASCRIBE II INVESTMENTS LLC

ASCRIBE III INVESTMENTS LLC

ECF VALUE FUND, LP

ECF VALUE FUND II, LP

ECF VALUE FUND INTERNATIONAL MASTER, LP

 

  Re: Fifth Amendment (Increase Amendment) to Term Loan Credit Agreement

Ladies and Gentlemen:

Reference is made to that certain Amended and Restated Credit Agreement dated as of February 3, 2014 (as amended, restated, modified or supplemented from time to time, the “ Credit Agreement ”) by and among Wells Fargo Bank, National Association, as agent (“ Agent ”) for the Lenders (as defined in the Credit Agreement) (the “ Lenders ”), and Nuverra Environmental Solutions, Inc., a Delaware corporation (“ Borrower ”).

Reference is also made to the Fifth Amendment (Increase Amount) to Term Loan Credit Agreement (the “ Fifth Amendment ”), dated as of the date hereof, by and among Wilmington Savings Fund Society, FSB, as Administrative Agent, Wells Fargo Bank, National Association, as Collateral Agent, Borrower, certain affiliates of Borrower as guarantors, and the addressees of this letter as lenders (the “ Term Lenders ”). Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Fifth Amendment or the Existing Credit Agreement (as defined in the Fifth Amendment).

Agent and Lenders hereby agree not to exercise any remedies with respect to the cash proceeds of the April 3, 2017 Additional Term Loans or the cash proceeds on any Supplemental Term Loans that are deposited in the Master Account (collectively the “ Additional Term Loan Proceeds ”), including but not limited to exercising rights of setoff or exerting control over such Additional Term Loan Proceeds pursuant any Control Agreement unless (i) the administrative agent for the Additional Term Loan Debt (the “ Term Loan Agent ”) consents to such exercise of remedies or (ii) such Additional Term Loan Proceeds are turned over to Term Loan Agent for application to the Obligations under the Existing Credit Agreement in accordance with the paragraph below.

In the event that Agent and/or Lenders foreclose on or otherwise obtain direct control over the Additional Term Loan Proceeds, such Additional Term Loan Proceeds shall be deemed to be held in trust by the Agent, Lenders or other custodian of such funds (as applicable) for the benefit solely of the Term Lenders that funded the April 3, 2017 Additional Term Loans and the Supplemental Term Loans (collectively, the “ Additional Term Loan Debt ”), and such Additional Term Loan Proceeds shall be turned over to Term Loan Agent on demand and in the form received for


distribution by Term Loan Agent to the Term Lenders that funded the Additional Term Loan Debt. For the avoidance of doubt, as between the Term Lenders that funded the Additional Term Loan Debt and the Agent, this letter agreement shall constitute a subordination agreement among lenders for purposes of applying 11 U.S.C. § 510(a).

[signature page follows]

 

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Sincerely,
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent
By:  

/s/ Zachary S. Buchanan

Name:   Zachary S. Buchanan
Title:   Authorized Signatory

 

Acknowledged and Accepted this 3rd day of April, 2017
NUVERRA ENVIRONMENTAL SOLUTIONS, INC.
By:  

/s/ Joseph M. Crabb

Name:   Joseph M. Crabb
Title:   Executive Vice President

 

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