U.S. WELL SERVICES, INC. (Form: 8-K, Received: 06/28/2021 17:29:34)

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): June 24, 2021

U.S. WELL SERVICES, INC.

(Exact name of registrant as specified in its charter)

Delaware

001-38025

81-1847117

(State or other jurisdiction

of incorporation)

(Commission

File No.)

(IRS Employer

Identification No.)


1360 Post Oak Boulevard Suite 1800 Houston, Texas		77056
(Address of principal executive offices)		(Zip Code)

(832) 562-3730

(Registrant’s telephone number, including area code)

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 obligation of the Registrant under any of the following provisions:

☐	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))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Ticker Symbol(s)	Name of each exchange on which registered
CLASS A COMMON STOCK $0.0001, par value per share	USWS	NASDAQ Capital Market
WARRANTS	USWSW	NASDAQ Capital Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01

Entry into a Material Definitive Agreement.

Purchase Agreement and Notes

On June 24, 2021, U.S. Well Services, Inc. (the “Company”) entered into a Note Purchase Agreement (the “Purchase Agreement”), by and among the Company, ProFrac Holdings, LLC, THRC Holdings, L.P., Crestview III USWS, Crestview III USWS TE, LLC (collectively, the “Initial Purchasers”), and Wilmington Savings Fund Society, FSB, as collateral agent for the Purchasers (the “Notes Agent”), pursuant to which the Company issued and sold (a) an aggregate of $45,000,000 in principal amount of 16.0% Convertible Senior Secured (Third Lien) PIK Notes that are convertible into shares of the Company’s common stock, par value $0.0001 per share (the “Class A Common Stock”), to certain Initial Purchasers for cash (the “Cash Notes”), (b) an aggregate of $20,000,000 in principal amount of 16.0% Convertible Senior Secured (Third Lien) PIK Notes to certain Initial Purchasers in exchange for shares of the Company’s Series A Redeemable Convertible Preferred Stock, par value $0.0001 per share (the “Series A Preferred Stock”), that are convertible into shares of Class A Common Stock (the “Exchange Notes” and together with the Cash Notes, the “Equity Linked Notes”), and (c) a 16.0% Convertible Senior Secured (Third Lien) PIK Notes in the principal amount of $22,500,000 that is convertible into a license agreement (the “License Linked Note”), which provides certain licensors a non-exclusive license to make and/or to offer to lease or to lease certain licensed products of the Company for three electric frac fleets (the “License Agreement”). The Purchase Agreement contemplates that, within 90 days of the Initial Equity Linked Notes Closing Date (as defined in the Purchase Agreement), the Company may issue and sell additional Cash Notes and/or Exchange Notes (collectively, the “Additional Notes”) to certain additional investors for cash or to participating holders of the Series A Preferred Stock, as applicable.

On June 25, 2021, the Company entered into a First Amendment to the Purchase Agreement (the “Purchase Agreement Amendment”) with AG Energy Funding, LLC (the “Additional Purchaser” and, together with the Initial Purchasers, the “Purchasers”) and the Notes Agent, pursuant to which it issued and sold Additional Notes as follows: (a) a $16.0% Convertible Senior Secured (Third Lien) PIK Note in the principal amount of $19,000,000 that is convertible into shares of Class A Common Stock (the “Additional Equity Note”) and (b) a 16.0% Convertible Senior Secured (Third Lien) PIK Note in the principal amount of $19,000,000 that is convertible into shares of Class A Common Stock in exchange for shares of Series A Preferred Stock (the “Additional Exchange Note” and, together with the Equity Linked Notes, the License Linked Note and the Additional Equity Note, the “Notes”).

The Notes bear interest at the rate of 16.0% per annum. Accrued and unpaid interest is calculated on the Notes on the last day of each March, June, September and December, commencing September 30, 2021, and will be added on such date to the unpaid principal balance of the Notes (rounded up to the nearest $1.00). Subject to the conversion of the Notes, the entire outstanding and unpaid principal balance of the Notes, plus any accrued and unpaid interest thereon, will be due and payable on June 5, 2026 in, with respect to the Equity Linked Notes, the Additional Equity Note and the Additional Exchange Note, shares of Class A Common Stock.

Each Note is convertible at the option of the Holder, with the Equity Linked Notes, the Additional Equity Note and the Additional Exchange Note being convertible into a number of shares of Class A Common Stock equal to the principal amount of such Note then outstanding plus accrued and unpaid interest through the conversion date divided by the then applicable conversion price, which is equal to $0.98 in the case of the Cash Notes, $2.00 in the case of the Exchange Notes and the Additional Exchange Note and $1.25 in the case of the Additional Equity Note, in each case subject to adjustment. Additionally, following the first anniversary of the date of the Purchase Agreement, and at any time in which there are no issued and outstanding shares of Series A Preferred Stock, if the twenty-day volume weighted average price of the Class A Common Stock is greater than $2.00 for ten trading days during any twenty consecutive trading day period, the Company may deliver a notice to the holder of a Note to convert such Note at the conversion prices set forth above.

The Notes are secured by a third priority security interest in the collateral that secures the Company’s obligations under the Term Loan Facility, which is substantially all of the Company’s assets other than certain permitted liens, and such third priority security interest is subject in all respects to an intercreditor agreement with the ABL Agent, the Term Loan Agent, and the Notes Agent.

The Company intends to use the net proceeds from the issuance and sale of the Notes to pay the cash settlement amount under the Settlement Agreement (as described below) and for general corporate purposes, including growth capital.

The foregoing descriptions of the Purchase Agreement, the Notes and the Purchase Agreement Amendment, do not purport to be complete and are qualified in their entirety by reference to the complete text of the Purchase Agreement, the form of Cash Note, the form of Exchange Note, the form of License Linked Note and the Purchase Agreement Amendment, which are filed herewith as Exhibit 10.1, Exhibit 4.1, Exhibit 4.2, Exhibit 4.3 and Exhibit 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Registration Rights Agreement

On June 24, 2021, in connection with the issuance and sale of the Notes and pursuant to the Purchase Agreement, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the Initial Purchasers, and on June 25, 2021, in connection with the issuance and sale of the Additional Equity Note and the Additional Exchange Note, the Company entered into an amendment to the Registration Rights Agreement (the “Registration Rights Agreement Amendment”) with the Purchasers, relating to the registration of the Class A Common Stock issued or issuable upon conversion of the Equity Linked Notes, the Additional Equity Note, and the Additional Exchange Note, as well as any other Additional Notes that may be issued in the future (collectively, the “Registrable Securities”). Pursuant to the Registration Rights Agreement, the Company is required, so long as it remains subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to use its commercially reasonable efforts (i) to file a shelf registration statement (the “Initial Shelf Registration Statement”) on or before the Shelf Registration Filing Deadline (as defined in the Registration Rights Agreement), and to cause the Initial Shelf Registration Statement to become effective no later than four months following the filing of the Initial Shelf Registration Statement, and (ii) if, by the third anniversary (the “Renewal Deadline”) of the effective date of the Initial Shelf Registration Statement, any of the Registrable Securities remain unsold by any holder of the Registrable Securities, to file a new shelf registration statement (the “New Shelf Registration Statement”) covering the Registrable Securities included on the Initial Shelf Registration Statement and to cause the New Shelf Registration Statement to become effective within 180 days after the Renewal Deadline. In the event that the Company ceases to be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act prior to the filing of the Initial Registration Statement, the Registration Rights Agreement requires the Company to use its commercially reasonable efforts to file a registration statement within four months after the day it again becomes subject to Section 13 or 15(d) of the Exchange Act. In certain circumstances, including in the context of a future initial public offering following a period in which the Company has no longer been subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and subject to customary qualifications and limitations, the holders of Registrable Securities will have piggyback registration rights on offerings of Class A Common Stock initiated by the Company, and selling Purchasers will have rights to request that the Company initiate up to two underwritten offerings of Registrable Securities in any 365-day period.

The foregoing descriptions of the Registration Rights Agreement and the Registration Rights Agreement Amendment, do not purport to be complete and are qualified in their entirety by reference to the complete text of the Registration Rights Agreement and the Registration Rights Agreement Amendment, which are filed herewith as Exhibit 4.4 and Exhibit 4.5, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Settlement Agreement

As previously disclosed, U.S. Well Services LLC (“USWS”), a subsidiary of the Company, was named a defendant in a case filed on January 14, 2019 in the Superior Court of Delaware (the “Court”) styled Smart Sand, Inc. v. U.S. Well Services LLC, C.A. 19C-01-144-PRW. On June 1, 2021, the Court ruled against USWS, found in favor of Smart Sand, Inc. (“Smart Sand”) on its clam for breach of contract, and, on June 17, 2021 entered judgment in favor of Smart Sand in the amount of $50,897,534.40 (the “Smart Sand Litigation”).

On June 28, 2021, USWS and the Company entered into a Settlement Agreement and Release (the “Settlement Agreement”) with Smart Sand, pursuant to which USWS, the Company and Smart Sand reached a settlement of all matters in dispute and potentially in dispute between them in the Smart Sand Litigation. Pursuant to the Settlement Agreement, USWS will pay $35,000,000 in cash to Smart Sand. In connection with the Settlement Agreement, the

parties have also entered into a right of first refusal agreement that grants to Smart Sand the right to participate in certain requests for proposal initiated by USWS (or its affiliates), and the right to match the terms of certain third party offers, related to the supply of frac sand in the continental United States for a period of 2 years. The parties to the Settlement Agreement also released each other from claims arising from or related to the Smart Sand Litigation or the final judgment of the Court.

The foregoing description of the Settlement Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Settlement Agreement, which is filed herewith as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.

Amendments to Credit Facilities

On June 24, 2021, the Company, USWS and the other subsidiaries of the Company party thereto (collectively, the “Term Loan Parties”) entered into a Consent and Fifth Amendment (the “Term Loan Amendment”) to the Senior Secured Term Loan Credit Agreement (as amended, amended and restated, supplemented, or otherwise modified, the “Term Loan Facility”) with CLMG Corp., as administrative and collateral agent (the “Term Loan Agent”), and the lenders party thereto (the “Term Loan Lenders”).

In addition, on June 24, 2021, the Company, USWS and the other subsidiaries of the Company party thereto (collectively, the “ABL Loan Parties”), entered into a Fourth Amendment and Limited Consent (the “ABL Amendment”) to the ABL Credit Agreement (as amended, amended and restated, supplemented, or otherwise modified, the “ABL Facility” and, together with the Term Loan Facility, the “Credit Facilities”) with Bank of America, N.A., as administrative agent and collateral agent (in such capacity, the “ABL Agent”), and the lenders party thereto (the “ABL Lenders”).

Each of the Credit Facilities was amended in order to (i) permit the incurrence of debt and liens in connection with the Purchase Agreement, Purchase Agreement Amendment, and the issuance of the Notes, and the documents and transactions contemplated thereby, and (ii) make certain modifications to each of the ABL Facility and the Term Loan Facility, in each case, on the terms and conditions set forth in the ABL Amendment and the Term Loan Amendment.

Pursuant to the Term Loan Amendment, the deferral period for interest on the term loans was shortened by three months, to January 1, 2022, and the term loans will resume incurring interest at the applicable benchmark rate, subject to a 2.0% floor, plus the applicable margin of 8.25% per annum, subject to the following exceptions. If on December 31, 2021, either:

(i)

the outstanding principal amount of the term loans is equal to or less than $132,000,000 but greater than $110,000,000 then solely during the period between January 1, 2022 and March 31, 2022, the interest rate shall be 0.0% per annum; and

(ii)

the outstanding principal amount of the term loans is equal to or less than $110,000,000 then solely during the period between January 1, 2022 and March 31, 2022, the interest rate shall be 0.0% and solely during the period between April 1, 2022 and December 31, 2022, the interest rate shall be 2.0% per annum (subject to the following sentence).

If on April 1, 2022, the outstanding principal amount of the term loans is equal to or less than $103,000,000 then solely during the period between April 1, 2022 and December 31, 2022, the interest rate shall be 1.0% per annum (notwithstanding preceding clause (ii) above).

Additionally, pursuant to the Term Loan Amendment, other covenants were amended including, but not limited to, certain covenants relating to collateral, mandatory prepayments, asset dispositions, and special purpose entities used for stand-alone equipment financings.

The foregoing descriptions of the Term Loan Amendment and ABL Amendment do not purport to be complete and are qualified in their entirety by reference to the complete text of such agreements, which are filed herewith as Exhibit 10.4 and Exhibit 10.5, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information regarding the Purchase Agreement, the Purchase Agreement Amendment, the Notes, the Term Loan Amendment and the ABL Amendment set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

Item 3.02

Unregistered Sale of Equity Securities.

The information regarding the private placement of the Notes, and the Class A Common Stock issuable upon conversion thereof, pursuant to the Purchase Agreement and the Purchase Agreement Amendment set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02. The private placement of the Notes pursuant to the Purchase Agreement and the Purchase Agreement Amendment was undertaken in reliance upon an exemption from the registration requirements of the Securities Act pursuant to Section 4(a)(2) thereof.

Item 7.01

Regulation FD Disclosure

On June 28, 2021, the Company issued a press release announcing the closing of the private placement of the Notes, the entry into the Settlement Agreement and the ABL Amendment and Term Loan Amendment. The press release is filed as Exhibit 99.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

In accordance with General Instruction B.2 of Form 8-K, the foregoing information, including Exhibit 99.1, shall not be deemed “filed” for the purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall such information and Exhibit 99.1 be deemed incorporated by reference in any filing under the Securities Act, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

The Notes issued pursuant to the Purchase Agreement and the Purchase Agreement Amendment were offered in a private offering that is exempt from registration under the Securities Act, and may not be offered or sold in the United States absent such registration or an exemption from the registration requirements of the Securities Act. Neither this Current Report on Form 8-K nor Exhibit 99.1 incorporated herein by reference, constitutes an offer to sell, or a solicitation of an offer to buy, any security and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offering would be unlawful.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.


Exhibit Number		Description

4.1		Form of Cash Note (included as Exhibit B-1 to the Note Purchase Agreement filed as Exhibit 10.1).

4.2		Form of Exchange Note (included as Exhibit B-2 to the Note Purchase Agreement filed as Exhibit 10.1).

4.3		Form of License Linked Note (included as Exhibit B-3 to the Note Purchase Agreement filed as Exhibit 10.1).

4.4		Registration Rights Agreement, dated June 24, 2021, by and among U.S. Well Services, Inc. and the Purchasers party thereto.

4.5		First Amendment to Registration Rights Agreement, dated June 25, 2021, by and among U.S. Well Services, Inc. and the Purchasers party thereto.

10.1		Note Purchase Agreement, dated June 24, 2021, by and among U.S. Well Services, Inc. and the Purchasers party thereto, and Wilmington Savings Fund Society, FSB, as collateral agent for the Purchasers.



10.2		First Amendment to Note Purchase Agreement, dated June 25, 2021, by and among U.S. Well Services, Inc. and the Purchasers party thereto, and Wilmington Savings Fund Society, FSB, as collateral agent for the Purchasers

10.3		Settlement Agreement and Release by and among Smart Sand, Inc., U.S. Well Services, LLC and U.S. Well Services, Inc., dated June 28, 2021.

10.4		Consent and Fifth Amendment to the Senior Secured Term Loan Credit Agreement, dated June 24, 2021, among U.S. Well Services, LLC, U.S. Well Services, Inc., USWS Fleet 10, LLC, USWS Fleet 11, LLC, USWS Holdings LLC, CLMG Corp., as administrative agent and collateral agent, and the lenders party thereto.

10.5		Fourth Amendment and Limited Consent to ABL Credit Agreement dated as of June 24, 2021, by and among U.S. Well Services, LLC, U.S. Well Services, Inc., USWS Fleet 10, LLC, USWS Fleet 11, LLC, USWS Holdings LLC, the lenders party thereto, and Bank of America, N.A., as administrative agent, lender, swing line lender and letter of credit issuer.

10.6		Guarantee and Third Lien Collateral Agreement, dated as of June 24, 2021, among U.S. Well Services, Inc., U.S. Well Services LLC, USWS Holdings LLC, and the other grantors referred to therein, in favor of Wilmington Savings Fund Society, FSB, as notes agent.

10.7		Amended and Restated Intercreditor Agreement by and among Bank of America, N.A., CLMG Corp., Wilmington Savings Fund Society, FSB, and U.S. Well Services, LLC, dated June 24, 2021.

99.1		Press Release, dated as of June 28, 2021.

SIGNATURES

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


U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

June 28, 2021

Exhibit 4.4

REGISTRATION RIGHTS AGREEMENT

by and among

U.S. WELL SERVICES, INC.

and

THE PURCHASERS PARTY HERETO

Table of Contents


ARTICLE I DEFINITIONS		1

Section 1.1	Definitions	1
Section 1.2	Registrable Securities	4

ARTICLE II REGISTRATION RIGHTS		4

Section 2.1	Shelf Registration	4
Section 2.2	Piggyback Registration	6
Section 2.3	Secondary Underwritten Offering	8
Section 2.4	Sale Procedures	9
Section 2.5	Cooperation by Holders	13
Section 2.6	Restrictions on Public Sale by Holders of Registrable Securities	13
Section 2.7	Expenses	13
Section 2.8	Indemnification	14
Section 2.9	Rule 144 Reporting	16
Section 2.10	Transfer or Assignment of Registration Rights	17
Section 2.11	Aggregation of Registrable Securities	17
Section 2.12	Going Dark Period	17
Section 2.13	IPO Registration	17

ARTICLE III MISCELLANEOUS		18

Section 3.1	Communications	18
Section 3.2	Successors and Assigns	19
Section 3.3	Assignment of Rights	19
Section 3.4	Recapitalization (Exchanges, etc. Affecting the Registrable Securities)	19
Section 3.5	Specific Performance	19
Section 3.6	Counterparts	19
Section 3.7	Headings	20
Section 3.8	Governing Law, Submission to Jurisdiction	20
Section 3.9	Waiver of Jury Trial	20
Section 3.10	Severability of Provisions	20
Section 3.11	Entire Agreement	20
Section 3.12	Term; Amendment	20
Section 3.13	No Presumption	21
Section 3.14	Obligations Limited to Parties to Agreement	21
Section 3.15	Interpretation	21
Section 3.16	No Inconsistent Agreements; Additional Rights	21

REGISTRATION RIGHTS AGREEMENT

THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of June 24, 2021 by and between U.S. Well Services, Inc., a Delaware corporation (“USWS”), and the parties set forth on Schedule A hereto (each, a “Purchaser” and collectively, the “Purchasers”).

WHEREAS, this Agreement is made in connection with the closing of the issuance and sale of the Purchased Securities pursuant to the Note Purchase Agreement, dated as of June 24, 2021, by and between USWS and the Purchasers (the “Purchase Agreement”); and

WHEREAS, USWS has agreed to provide the registration and other rights set forth in this Agreement for the benefit of the Purchasers pursuant to the Purchase Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. The terms set forth below are used herein as so defined:

“Affiliate” means, with respect to a specified Person, any other Person, directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, “controlling,” “controlled by,” and “under common control with”) means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning specified therefor in the introductory paragraph.

“Business Day” means any day other than a Saturday, Sunday, any federal legal holiday or day on which banking institutions in the State of New York or State of Texas are authorized or required by law or other governmental action to close.

“Class A Common Stock” means the Class A common stock, par value $0.0001 per share, of USWS.

“Commission” means the United States Securities and Exchange Commission.

“Effective Date” means the initial date of effectiveness of the Shelf Registration Statement.

“Effectiveness Period” has the meaning specified therefor in Section 2.1(a) of this Agreement.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Existing Preferred RRAs” means the Registration Rights Agreement of USWS, dated May 24, 2019, as amended as of the date hereof, and the Registration Rights Agreement of USWS, dated as of April 1, 2020, as amended as of the date hereof.

“Existing RRA” has the meaning specified therefor in Section 2.2(b).

“Going Dark Period” has the meaning specified therefor in Section 2.12.

“Holder” means the record holder of any Registrable Securities.

“Included Registrable Securities” has the meaning specified therefor in Section 2.2(a) of this Agreement.

“IPO Registration Statement” has the meaning specified therefor in Section 2.13(a).

“Law” shall have the meaning set forth in the Purchase Agreement.

“Losses” has the meaning specified therefor in Section 2.8(a) of this Agreement.

“Managing Underwriter” means, with respect to any Underwritten Offering, the left lead book running manager of such Underwritten Offering.

“Other Holder” has the meaning specified in Section 2.2(b).

“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, government or any agency, instrumentality or political subdivision thereof, or any other form of entity.

“Piggyback Opt-Out Notice” has the meaning specified therefor in Section 2.2(a) of this Agreement.

“Piggyback Registration” has the meaning specified therefor in Section 2.2(a) of this Agreement.

“Purchase Agreement” has the meaning specified therefor in the Recitals of this Agreement.

“Purchased Securities” means the 16.0% Convertible Senior Secured (Third Lien) PIK Notes to be issued and sold to the Purchasers pursuant to the Purchase Agreement.

“Purchaser” or “Purchasers” has the meaning set forth in the introductory paragraph of this Agreement.

“Registrable Securities” means, subject to Section 1.2 of this Agreement, (i) the shares of Class A Common Stock issued or issuable upon conversion of the Purchased Securities in accordance with the terms of the Purchased Securities, and (ii) any shares of Class A Common Stock issued as (or issuable upon the conversion, redemption or exercise of) any warrant, option, right or other security that is issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, any such shares of Class A Common Stock described in clause

(i) or the Purchased Securities. The number of Registrable Securities held by any Holder shall mean the number of Registrable Securities such Holder would hold after the full conversion, redemption or exercise of any security held by such Holder that is convertible into or redeemable or exercisable for Registrable Securities (including the Purchased Securities) and the value of such Registrable Securities for purposes of determining whether any threshold set forth in this Agreement shall be calculated by multiplying such fully diluted number of shares of Registrable Securities by the average of the closing price on each securities exchange or nationally recognized quotation system on which the Class A Common Stock is then listed for the ten (10) trading days preceding the date on which such value is being determined.

“Registration” means any registration pursuant to this Agreement, including pursuant to the Shelf Registration Statement, IPO Registration Statement or a Piggyback Registration.

“Registration Expenses” has the meaning specified therefor in Section 2.7(a) of this Agreement.

“Resale Opt-Out Notice” has the meaning specified therefor in Section 2.1(b) of this Agreement.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Selling Expenses” has the meaning specified therefor in Section 2.7(a) of this Agreement.

“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a Registration.

“Selling Holder Election Notice” has the meaning specified therefor in Section 2.3(a) of this Agreement.

“Shelf Registration Filing Deadline” means, prior to a Going Dark Period, four months from the date of this Agreement, and, following a Going Dark Period, four months after the first day on which USWS becomes subject to Section 13 or 15(d) of the Exchange Act after a Going Dark Period.

“Shelf Registration Statement” means a registration statement under the Securities Act to permit the public resale of the Registrable Securities from time to time as permitted by Rule 415 of the Securities Act (or any similar provision then in force under the Securities Act).

“Underwritten Offering” means an offering (including an offering pursuant to a Shelf Registration Statement or IPO Registration Statement) in which Class A Common Stock is sold to an underwriter on a firm commitment basis for reoffering to the public or an offering that is a “bought deal” with one or more investment banks.

“USWS” has the meaning specified therefor in the introductory paragraph of this Agreement.

“WKSI” means a well-known seasoned issuer (as defined in Rule 405 under the Securities Act).

Section 1.2 Registrable Securities. Any Registrable Security will cease to be a Registrable Security at the earliest of the following: (a) when a registration statement covering such Registrable Security has been declared effective by the Commission and such Registrable Security has been sold or disposed of pursuant to such effective registration statement; (b) when such Registrable Security is held by USWS or one of its subsidiaries; (c) when such Registrable Security has been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of such securities; and (d) the date on which such Registrable Security has been sold pursuant to any section of Rule 144 under the Securities Act (or any similar provision then in force under the Securities Act, “Rule 144”) or any other exemption from the registration requirements of the Securities Act as a result of which the legend on any certificate or book-entry notation representing such Registrable Security restricting transfer of such Registrable Security has been removed.

ARTICLE II

REGISTRATION RIGHTS

Section 2.1 Shelf Registration.

(a) Shelf Registration. USWS shall use its commercially reasonable efforts to prepare and file an initial Shelf Registration Statement under the Securities Act covering 71,428,572 shares of the Registrable Securities on or before the Shelf Registration Filing Deadline. The initial Shelf Registration Statement shall allocate such Registrable Securities among the Holders on a pro rata basis. USWS shall use its commercially reasonable efforts to cause such initial Shelf Registration Statement to become effective no later than four months following the initial filing of a Shelf Registration Statement. USWS will use its commercially reasonable efforts to cause such initial Shelf Registration Statement filed pursuant to this Section 2.1(a) to be continuously effective under the Securities Act until the earliest of (i) all Registrable Securities covered by the Shelf Registration Statement have been distributed in the manner set forth and as contemplated in such Shelf Registration Statement, and (ii) there are no longer any Registrable Securities outstanding (the “Effectiveness Period”). Any Holder or Holders shall have the option and right from time to time, exercisable by delivering a written notice to USWS (a “Demand Notice”), to require registration of a minimum of $10 million of additional Registrable Securities not covered by a Shelf Registration Statement at the time of the Demand Notice. USWS shall use its commercially reasonable efforts to amend the initial Shelf Registration Statement or file a new Shelf Registration Statement, within 10 Business Days of the Demand Notice to include such additional Registrable Securities. USWS will use its commercially reasonable efforts to cause such amendment to the initial Shelf Registration Statement or subsequent Shelf Registration Statement, as applicable, to be continuously effective under the Securities Act during the Effectiveness Period. A Shelf Registration Statement filed pursuant to this Section 2.1(a) shall be on such appropriate registration form of the Commission as shall be selected by USWS. A Shelf Registration Statement when declared effective (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in

the case of any prospectus contained in such Shelf Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the date that a Shelf Registration Statement becomes effective, but in any event within five (5) Business Days of such date, USWS shall provide the Holders with written notice of the effectiveness of a Shelf Registration Statement.

(b) Resale Registration Opt-Out. At least five (5) Business Days before the initial filing of the Shelf Registration Statement required by Section 2.1(a), USWS shall provide advance written notice to each Holder that it plans to file a Shelf Registration Statement. Any Holder may deliver advance written notice (a “Resale Opt-Out Notice”) to USWS requesting that such Holder not be included in a Shelf Registration Statement prior to its initial filing. Following receipt of a Resale Opt-Out Notice from a Holder, USWS shall not be required to include the Registrable Securities of such Holder in such Shelf Registration Statement.

(c) Delay Rights. Notwithstanding anything to the contrary contained herein, USWS may, upon written notice to any Selling Holder whose Registrable Securities are included in the Shelf Registration Statement, suspend such Selling Holder’s use of any prospectus which is a part of the Shelf Registration Statement (in which event the Selling Holder shall discontinue sales of the Registrable Securities pursuant to the Shelf Registration Statement) if (i) USWS is pursuing an acquisition, merger, reorganization, disposition or other similar transaction and USWS determines in good faith that USWS’s ability to pursue or consummate such a transaction would be materially and adversely affected by any required disclosure of such transaction in the Shelf Registration Statement or (ii) USWS has experienced some other material non-public event the disclosure of which at such time, in the good faith judgment of USWS, would materially and adversely affect USWS; provided, however, that in no event shall the Selling Holders be suspended from selling Registrable Securities pursuant to the Shelf Registration Statement for a period of sixty (60) consecutive days or an aggregate of one-hundred and twenty (120) days in any 365-day period. Upon disclosure of such information or the termination of the condition described above, USWS shall provide prompt notice to the Selling Holders whose Registrable Securities are included in the Shelf Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and shall take such other actions necessary or appropriate to permit registered sales of Registrable Securities as contemplated in this Agreement.

(d) Renewal. If, by the third anniversary (the “Renewal Deadline”) of the initial effective date of a Shelf Registration Statement filed pursuant to this Section 2.1, any of the Registrable Securities remain unsold by a Holder included on such Registration, USWS shall file, if it has not already done so and is eligible to do so, a new Shelf Registration Statement covering the Registrable Securities included on the prior Shelf Registration Statement and shall use its commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective within 180 days after the Renewal Deadline; and USWS shall take all other action necessary or appropriate to permit the public offering and sale of the Registrable Securities to continue as contemplated in the expired Shelf Registration Statement. References herein to Shelf Registration Statement shall include such new shelf registration statement.

Section 2.2 Piggyback Registration.

(a) Participation. If at any time USWS proposes to file (i) at a time when USWS is not a WKSI, a registration statement and such Holder has not previously included its Registrable Securities in a Shelf Registration Statement contemplated by Section 2.1(a) of this Agreement that is currently effective, or (ii) a prospectus supplement to an effective “automatic shelf registration statement” (as defined in Rule 405 under the Securities Act), so long as USWS is a WKSI at such time or, whether or not USWS is a WKSI, so long as the Registrable Securities were previously included in the underlying Shelf Registration Statement or are included in an effective Shelf Registration Statement, or in any case in which Holders may participate in such offering without the filing of a post-effective amendment, in each case, for the sale of Class A Common Stock in an Underwritten Offering for its own account and/or another Person, other than (a) a registration relating solely to employee benefit plans, (b) a registration relating solely to a Rule 145 transaction, or (c) a registration statement on any registration form which does not permit secondary sales, then USWS shall give not less than three (3) Business Days advance notice (including, but not limited to, notification by e-mail; such notice, a “Piggyback Notice”) of such proposed Underwritten Offering to each Holder that, together with its Affiliates, owns more than $5.0 million of Registrable Securities, and such notice shall offer such Holder the opportunity to participate in any Underwritten Offering and to include in such Underwritten Offering such number of Registrable Securities (the “Included Registrable Securities”) as each such Holder may request in writing (a “Piggyback Registration”); provided, however, that USWS (A) shall not be required to include the Registrable Securities of the Holders in such Registration if the Holders do not offer a minimum of $5.0 million of Registrable Securities, or (B) if USWS has been advised by the Managing Underwriter that the inclusion of Registrable Securities for sale for the benefit of the Holders will have an adverse effect on the offering price, timing or probability of success of the distribution of the Class A Common Stock in the Underwritten Offering, then the amount of Registrable Securities to be offered for the accounts of Holders shall be determined based on the provisions of Section 2.2(b). If USWS is not required to offer the opportunity for a Piggyback Registration in respect of a proposed Underwritten Offering as a result of the circumstance described in clause (B) of the proviso of the immediately preceding sentence, then USWS shall nevertheless be required to furnish to such Holders the Piggyback Notice in respect of such proposed Underwritten Offering, which notice shall describe USWS’s intention to conduct an Underwritten Offering and, if the determination described in clause (B) of the proviso of the immediately preceding sentence has been made at the time that the Piggyback Notice is required to be given by USWS, shall include notification that the Holders do not have the opportunity to include Registrable Securities in such Underwritten Offering because USWS has been advised by the Managing Underwriter that the inclusion of Registrable Securities for sale for the benefit of the Holders will have an adverse effect on the offering price, timing or probability of success of the distribution of the Class A Common Stock in the Underwritten Offering. If the circumstance described in clause (B) of the proviso of the immediately preceding sentence is made after the Piggyback Notice has been given, then USWS shall notify the Holders who were provided such Piggyback Notice (or if the two Business Day period referred to in the next sentence has lapsed, the Holders who have timely elected to include Registrable Securities in such offering) in writing of such circumstance and the aggregate number of Registrable Securities, if any, that can be included in such offering. Each Piggyback Notice shall be provided to Holders on a Business Day pursuant to Section 3.1 hereof and confirmation of receipt of such notice shall be requested in the notice. The Holder will have two Business Days after notice has been delivered to request in writing the inclusion of Registrable Securities in the Underwritten Offering. If no request for inclusion from a Holder is received within

the specified time, such Holder shall have no further right to participate in such Piggyback Registration. If, at any time after giving written notice of its intention to undertake an Underwritten Offering and prior to the closing of such Underwritten Offering, USWS shall determine for any reason not to undertake or to delay such Underwritten Offering, USWS may, at its election, give written notice of such determination to the Selling Holders and, (x) in the case of a determination not to undertake such Underwritten Offering, shall be relieved of its obligation to sell any Included Registrable Securities in connection with such terminated Underwritten Offering, and (y) in the case of a determination to delay such Underwritten Offering, shall be permitted to delay offering any Included Registrable Securities for the same period as the delay in the Underwritten Offering. Any Selling Holder shall have the right to withdraw such Selling Holder’s request for inclusion of such Selling Holder’s Registrable Securities in such Underwritten Offering by giving written notice to USWS of such withdrawal up to and including the time of pricing of such offering. Any Holder may deliver written notice (a “Piggyback Opt-Out Notice”) to USWS requesting that such Holder not receive notice from USWS of any proposed Underwritten Offering; provided, however, that such Holder may later revoke any such Piggyback Opt-Out Notice in writing. Following receipt of a Piggyback Opt-Out Notice from a Holder (unless subsequently revoked), USWS shall not be required to deliver any notice to such Holder pursuant to this Section 2.2(a) and such Holder shall no longer be entitled to participate in Underwritten Offerings by USWS pursuant to this Section 2.2(a), unless such Piggyback Opt-Out Notice is revoked by such Holder.

(b) Priority of Piggyback Registration. If the Managing Underwriter or Underwriters of any proposed Underwritten Offering of shares of Class A Common Stock included in a Piggyback Registration advises USWS that the total shares of Class A Common Stock which the Selling Holders and any other Persons intend to include in such offering exceeds the number which can be sold in such offering without being likely to have an adverse effect on the offering price, timing or probability of success of the distribution of the Class A Common Stock offered or the market for the Class A Common Stock, then the Piggyback Notice provided by USWS pursuant to Section 2.2(a) shall include notification of such determination or, if such determination is made after the Piggyback Notice has been given, then USWS shall furnish notice in writing (including by e-mail) to the Holders (or to those who have timely elected to participate in such Underwritten Offering), and the Class A Common Stock to be included in such Underwritten Offering shall include the number of shares of Class A Common Stock that such Managing Underwriter or Underwriters advises USWS can be sold without having such adverse effect, with such number to be allocated (i) if such Piggyback Registration was initiated by USWS, (A) first, to USWS, (B) second, pro rata among the Selling Holders and any other Persons who have been or after the date hereof are granted registration rights on parity (including pursuant to the Existing Preferred RRAs) with the registration rights granted under this Agreement (the “Other Holders”) who have requested participation in the Piggyback Registration (based, for each such Selling Holder or Other Holder, on the percentage derived by dividing (1) the number of shares of Class A Common Stock proposed to be sold by such Selling Holder or such Other Holder in such offering; by (2) the aggregate number of shares of Class A Common Stock proposed to be sold by all Selling Holders and all Other Holders in the Piggyback Registration), and (C) third, to any other holder of shares of Class A Common Stock with registration rights that are subordinate to the rights of the Holders hereunder and (ii) if such Piggyback Registration was not initiated by USWS, (A) first, to the Persons initiating such Registration, (B) second, pro rata among the Selling Holders and any Other Holders who have requested participation in the Piggyback Registration (based, for each such Selling Holder or Other Holder, on the percentage derived by dividing (1) the number of shares of

Class A Common Stock proposed to be sold by such Selling Holder or such Other Holder in such offering; by (2) the aggregate number of shares of Class A Common Stock proposed to be sold by all Selling Holders and all Other Holders in the Piggyback Registration other than the Persons initiating such Registration), except that in the case of a Shelf Underwritten Offering (as defined in the Registration Rights Agreement of USWS dated November 9, 2018 (the “Existing RRA”)) the Holders shall only be permitted to participate in such Shelf Underwritten Offering after all of the securities that Other Holders have requested to be included in such Shelf Underwritten Offering pursuant to the Existing RRA have been so included, and (C) third, to any other holder of shares of Class A Common Stock with registration rights that are subordinate to the rights of the Holders hereunder.

Section 2.3 Secondary Underwritten Offering.

(a) S-3 Registration. In the event that a Selling Holder (together with any Affiliates that are Selling Holders) elects to dispose of Registrable Securities under the Shelf Registration Statement pursuant to an Underwritten Offering for its own account of at least $10.0 million, such Selling Holder shall give notice of such election in writing (including, but not limited to, notification by e-mail; such notice, the “Selling Holder Election Notice”) to USWS not less than twenty (20) Business Days before the date such Selling Holder intends for such Underwritten Offering to commence marketing (whether on a confidential basis or on a public basis); provided that USWS shall not be required to conduct more than two Underwritten Offerings pursuant to this Section 2.3 in any 365-day period pursuant to Selling Holder Election Notices. The Selling Holder Election Notice shall specify the number of Registrable Securities that the Selling Holder intends to offer in such Underwritten Offering and the expected commencement date thereof. USWS shall, at the request of such Selling Holder, enter into an underwriting agreement in customary form with the Managing Underwriter or Underwriters, which shall include, among other provisions, indemnities to the effect and to the extent provided in Section 2.8, and shall take all such other reasonable actions as are requested by the Managing Underwriter in order to expedite or facilitate the disposition of the Registrable Securities.

(b) Notice to Holders. Not later than two (2) Business Days after receipt by USWS of the Selling Holder Election Notice, unless USWS determines in accordance with Section 2.1(c) to delay such Underwritten Offering (in which event USWS shall promptly notify the initiating Selling Holder in writing of such determination), then USWS shall provide written notice (including, but not limited to, notification by e-mail) to the other Holders of Registrable Securities of the Selling Holder’s intention to conduct an Underwritten Offering and such notice shall offer such other Holders the opportunity to participate in such Underwritten Offering and to include in such Underwritten Offering such number of Registrable Securities as each such Holder may request in writing. Each such other Holder will have five (5) Business Days after notice has been delivered to request in writing submitted to USWS the inclusion of Registrable Securities in the Underwritten Offering. If no request for inclusion from a Holder is received by USWS within the specified time, such Holder shall have no further right to participate in such Underwritten Offering. If, at any time after giving written notice of its intention to undertake an Underwritten Offering and prior to the closing of such Underwritten Offering, the Selling Holder giving the notice shall determine for any reason not to undertake or to delay such Underwritten Offering, such Selling Holder may, at its election, give written notice of such determination to USWS and USWS shall notify the other Holders and, (x) in the case of a determination not to undertake such

Underwritten Offering, shall be relieved of its obligation to include Registrable Securities of any other Holder, and (y) in the case of a determination to delay such Underwritten Offering, shall be permitted to delay offering any Registrable Securities of any other Holder for the same period as the delay in the Underwritten Offering. Any other Holder shall have the right to withdraw such Holder’s request for inclusion of such Holder’s Registrable Securities in such Underwritten Offering by giving written notice to USWS of such withdrawal up to and including the time of pricing of such offering. If the Managing Underwriter or Underwriters of any proposed Underwritten Offering of Registrable Securities under a Shelf Registration Statement advises USWS that the total amount of Registrable Securities which the Selling Holders and any other Persons intend to include in such offering exceeds the number which can be sold in such offering without being likely to have an adverse effect on the offering price, timing or probability of success of the distribution of the Registrable Securities offered or the market for the Registrable Securities, then the Registrable Securities to be included in such Underwritten Offering shall include the number of Registrable Securities that such Managing Underwriter or Underwriters advises USWS can be sold without having such adverse effect, with such number to be allocated pro rata among the Selling Holders and the other Holders who have requested participation in the Underwritten Offering (based, for each such Selling Holder or other Holder, on the percentage derived by dividing (A) the number of Registrable Securities proposed to be sold by such Selling Holder or such other Holder in such offering; by (B) the aggregate number of Registrable Securities proposed to be sold by all Selling Holders and all other Holders in such Underwritten Offering).

Section 2.4 Sale Procedures.

(a) General Procedures. In connection with any Underwritten Offering (i) under Section 2.2 or Section 2.13 of this Agreement, USWS shall be entitled to select the Managing Underwriter or Underwriters, and (ii) under Section 2.3 of this Agreement, the Selling Holders shall be entitled to select the Managing Underwriter or Underwriters. In connection with an Underwritten Offering contemplated by this Agreement in which a Selling Holder participates, each Selling Holder and USWS shall be obligated to enter into an underwriting agreement with the Managing Underwriter or Underwriters which contains such representations, covenants, indemnities and other rights and obligations as are customary in underwriting agreements for firm commitment offerings of equity securities. No Selling Holder may participate in such Underwritten Offering unless such Selling Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. Each Selling Holder may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, USWS to and for the benefit of such underwriters also be made to and for such Selling Holder’s benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also be conditions precedent to its obligations. No Selling Holder shall be required to make any representations or warranties to or agreements with USWS or the underwriters other than representations, warranties or agreements regarding such Selling Holder’s ownership of the securities being registered on its behalf and its intended method of distribution and any other representation required by law. If any Selling Holder disapproves of the terms of an underwriting, such Selling Holder may elect to withdraw therefrom by notice to USWS and the Managing Underwriter; provided, however, that such withdrawal must be made at least one Business Day prior to the time of pricing of such Underwritten Offering to be effective. No such withdrawal or

abandonment shall affect USWS’s obligation to pay Registration Expenses. Upon the receipt by USWS of a written request from the Holders of at least $10.0 million dollars of Registrable Securities that are participating in any Underwritten Offering contemplated by this Agreement, USWS’s management shall be required to participate in a roadshow or similar marketing effort in connection with any Underwritten Offering.

(b) In connection with its obligations under this Article II, USWS will, as expeditiously as possible:

(i) prepare and file with the Commission such amendments and supplements to the Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to keep a Shelf Registration Statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by a Shelf Registration Statement;

(ii) if a prospectus supplement will be used in connection with the marketing of an Underwritten Offering from a Shelf Registration Statement and the Managing Underwriter at any time shall notify USWS in writing that, in the sole judgment of such Managing Underwriter, the inclusion of detailed information to be used in such prospectus supplement is of material importance to the success of the Underwritten Offering of such Registrable Securities, USWS shall use its commercially reasonable efforts to include such information in the prospectus supplement;

(iii) furnish to each Selling Holder (A) as far in advance as reasonably practicable before filing a Shelf Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission), and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing such Shelf Registration Statement or such other registration statement and the prospectus included therein or any supplement or amendment thereto, and (B) such number of copies of such Shelf Registration Statement or such other registration statement and the prospectus included therein and any supplements and amendments thereto as such Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Shelf Registration Statement or other registration statement;

(iv) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities covered by a Shelf Registration Statement or any other registration statement contemplated by this Agreement under the securities or blue sky laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter, shall reasonably request, provided that USWS will not be required to qualify generally to transact business in any jurisdiction where it is not then required to so qualify or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;

(v) promptly notify each Selling Holder and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (A) the filing of a Shelf Registration Statement or any other registration statement contemplated by this Agreement or any prospectus included therein or any amendment or supplement thereto (other than any amendment or supplement resulting from the filing of a document incorporated by reference therein), and, with respect to such Shelf Registration Statement or any other registration statement or any post-effective amendment thereto, when the same has become effective; and (B) the receipt of any written comments from the Commission with respect to any filing referred to in clause (A) and any written request by the Commission for amendments or supplements to such Shelf Registration Statement or any other registration statement or any prospectus or prospectus supplement thereto;

(vi) immediately notify each Selling Holder and each underwriter, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (A) the happening of any event as a result of which the prospectus contained in a Shelf Registration Statement or any other registration statement contemplated by this Agreement or any supplemental amendment thereto, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (B) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (C) the receipt by USWS of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, USWS agrees to as promptly as practicable amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and to take such other action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;

(vii) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities;

(viii) in the case of an Underwritten Offering, furnish upon request, (A) an opinion of counsel for USWS, dated the effective date of the applicable registration statement or the date of any amendment or supplement thereto (other than any amendment or supplement resulting from the filing of a document incorporated by reference therein), preliminary or prospectus supplement, and a letter of like kind dated the date of the closing under the underwriting agreement, and (B) a “comfort” letter, dated the pricing date of such Underwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have certified USWS’s financial statements included or incorporated by reference into the

applicable registration statement, and each of the opinion and the “comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus included therein and any supplement thereto) and as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten offerings of securities, such other matters as such underwriters may reasonably request;

(ix) except during a Going Dark Period, otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;

(x) make available to the appropriate representatives of the underwriters access to such information and USWS personnel as is reasonable and customary to enable such parties and their representatives to establish a due diligence defense under the Securities Act; provided that USWS need not disclose any non-public information to any such representative unless and until such representative has entered into a confidentiality agreement with USWS;

(xi) cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by USWS are then listed;

(xii) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of USWS to enable the Selling Holders to consummate the disposition of such Registrable Securities;

(xiii) provide a transfer agent and registrar for all Registrable Securities covered by such registration statement; and

(xiv) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities.

(c) Each Selling Holder, upon receipt of notice from USWS of the happening of any event of the kind described in Section 2.4(b)(vi), shall forthwith discontinue disposition of the Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.4(b)(vi) or until it is advised in writing by USWS that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings incorporated by reference in the prospectus, and, if so directed by USWS, such Selling Holder will, or will request the Managing Underwriter or underwriters, if any, to deliver to USWS (at USWS’s expense) all copies in their possession or control, other than permanent file copies then in such Selling Holder’s possession, of the prospectus and any prospectus supplement covering such Registrable Securities current at the time of receipt of such notice.

Section 2.5 Cooperation by Holders. USWS shall have no obligation to include Registrable Securities of a Holder in the Shelf Registration Statement, IPO Registration Statement or in an Underwritten Offering under Article II of this Agreement if such Selling Holder has failed to timely furnish such information which, in the opinion of counsel to USWS, is reasonably required in order for the registration statement or prospectus supplement, as applicable, to comply with the Securities Act.

Section 2.6 Restrictions on Public Sale by Holders of Registrable Securities. For a period of one year following the Effective Date, each Holder of Registrable Securities who is included in the Shelf Registration Statement agrees not to effect any public sale or distribution of the Registrable Securities during the forty-five (45) calendar day period beginning on the date of a prospectus supplement filed with the Commission with respect to the pricing of an Underwritten Offering, or other prospectus (including any free writing prospectus) containing the terms of the pricing of such Underwritten Offering; provided that (a) USWS gives written notice to such Holder of the date of the commencement and termination of such period with respect to any such Underwritten Offering and (b) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the officers or directors or any other stockholder of USWS on whom a restriction is imposed; and provided further that this Section 2.6 shall only be applicable to Holders of Registrable Securities included in the Shelf Registration Statement who (together with their Affiliates that hold Registrable Securities) (y) own at least $5.0 million of Registrable Securities and (z) have not delivered (or delivered and subsequently revoked) a Piggyback Opt-Out Notice.

Section 2.7 Expenses.

(a) Certain Definitions. “Registration Expenses” means all expenses incident to USWS’s performance under or compliance with this Agreement to effect the registration of Registrable Securities in a Shelf Registration Statement pursuant to Section 2.1, a Piggyback Registration pursuant to Section 2.2, an Underwritten Offering pursuant to Section 2.3 or an IPO Registration Statement pursuant to Section 2.13 and the disposition of such securities, including, without limitation, all registration, filing, securities exchange listing and fees, all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws, fees of the Financial Industry Regulatory Authority, transfer taxes and fees of transfer agents and registrars, all word processing, duplicating and printing expenses, all roadshow expenses borne by it and the fees and disbursements of counsel and independent public accountants for USWS, including the expenses of any special audits or “comfort” letters required by or incident to such performance and compliance. Except as otherwise provided in Section 2.8 hereof, USWS shall not be responsible for legal fees incurred by Holders in connection with the exercise of such Holders’ rights hereunder. In addition, USWS shall not be responsible for any “Selling Expenses,” which means all underwriting fees, discounts and selling commissions, transfer taxes and fees of counsel allocable to the sale of the Registrable Securities.

(b) Expenses. USWS will pay all reasonable Registration Expenses in connection with a Shelf Registration Statement, a Piggyback Registration, an IPO Registration

Statement or Underwritten Offering, whether or not any sale is made pursuant to such Shelf Registration Statement, Piggyback Registration or Underwritten Offering. Each Selling Holder shall pay its pro rata share of all Selling Expenses in connection with any sale of its Registrable Securities hereunder.

Section 2.8 Indemnification.

(a) By USWS. In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, USWS will indemnify and hold harmless each Selling Holder thereunder, its directors, officers, employees, agents and managers, and each underwriter, pursuant to the applicable underwriting agreement with such underwriter, of Registrable Securities thereunder and each Person, if any, who controls such Selling Holder or underwriter within the meaning of the Securities Act and the Exchange Act, and its directors, officers, employees, agents and managers, against any losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or several, to which such Selling Holder or underwriter or controlling Person or directors, officers, employees, agents or managers may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in the Shelf Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus or final prospectus contained therein, or any free writing prospectus related thereto, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and will reimburse each such Selling Holder, its directors and officers, each such underwriter and each such controlling Person and each such director, officer, employee, agent or manager for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings; provided, however, that USWS will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Selling Holder, such underwriter or such controlling Person in writing specifically for use in the Shelf Registration Statement or such other registration statement, or prospectus supplement, as applicable. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder or any such director, officer, employee, agent, manager or controlling Person, and shall survive the transfer of such securities by such Selling Holder.

(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to indemnify and hold harmless USWS, its directors, officers, employees and agents and each Person, if any, who controls USWS within the meaning of the Securities Act or of the Exchange Act to the same extent as the foregoing indemnity from USWS to the Selling Holders, but only with respect to information regarding such Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in the Shelf Registration Statement, any other registration statement contemplated by this Agreement or prospectus supplement relating to the Registrable Securities, or any amendment or supplement thereto; provided, however, that the

liability of each Selling Holder shall not be greater in amount than the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification less the amount of any damages that such Selling Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.

(c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party other than under this Section 2.8(c) except to the extent that the indemnifying party is materially prejudiced by such failure. In any action brought against any indemnified party, it shall notify the indemnifying party of the commencement thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.8 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however, that, (i) if the indemnifying party has failed to assume the defense and employ counsel reasonably satisfactory to the indemnified party or (ii) if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the indemnified party shall have concluded that there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party or representation by both parties by the same counsel is otherwise inappropriate under the applicable standards of professional conduct, then the indemnified party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, the indemnifying party shall not settle any indemnified claim without the consent of the indemnified party, unless the settlement thereof imposes no liability or obligation on, includes a complete release from liability of, and does not contain any admission of wrong doing by, the indemnified party.

(d) Contribution. If the indemnification provided for in this Section 2.8 is held by a court or government agency of competent jurisdiction to be unavailable to USWS or any Selling Holder or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of USWS on the one hand and of such Selling Holder on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that in no event shall such Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable Securities giving rise to such indemnification less the amount of any damages that such Selling Holder has

otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. The relative fault of USWS on the one hand and each Selling Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the first sentence of this paragraph. The amount paid by an indemnified party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such indemnified party in connection with investigating or defending any Loss which is the subject of this paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.

(e) Other Indemnification. The provisions of this Section 2.8 shall be in addition to any other rights to indemnification or contribution which an indemnified party may have pursuant to law, equity, contract or otherwise.

Section 2.9 Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the Commission that may permit the sale of the Registrable Securities to the public without registration, USWS agrees to use its commercially reasonable efforts to:

(a) Make and keep public information regarding USWS available, as those terms are understood and defined in Rule 144, at all times from and after the date hereof;

(b) File with the Commission in a timely manner all reports and other documents required of USWS under the Securities Act and the Exchange Act at all times from and after the date hereof;

(c) So long as a Holder, together with its Affiliates, owns any Registrable Securities, (i) unless otherwise available at no charge by access electronically to the Commission’s EDGAR filing system (or any successor system), furnish to such Holder forthwith upon request a copy of the most recent annual or quarterly report of USWS, and such other reports and documents so filed as such Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing such Holder to sell any such securities without registration and (ii) to the extent accurate, furnish to such Holder upon reasonable request a written statement of USWS that it has complied with the reporting requirements of Rule 144; and

(d) Provide opinion(s) of counsel as may be reasonably necessary in order for a Holder to avail itself of Rule 144 to allow such Holder to sell any Registrable Securities without registration, and remove, or cause to be removed, the notation of any restrictive legend on such Holder’s book-entry account maintained by USWS’s transfer agent, and bear all costs associated with the removal of such legend in USWS’s books.

Section 2.10 Transfer or Assignment of Registration Rights. The rights to cause USWS to register Registrable Securities granted to the Purchasers by USWS under this Article II may be transferred or assigned by each Purchaser to one or more transferee(s) or assignee(s) of such Registrable Securities or securities convertible, redeemable or exchangeable for Registrable Securities (including the Purchased Securities), in each case, who (a) (i) are Affiliates of such Purchaser, or (ii) hold, collectively with its or their Affiliates, after giving effect to such transfer or assignment, at least $10.0 million of Registrable Securities, and (b) who assume in writing responsibility for the obligations of such Purchaser under this Agreement with respect to the securities so transferred. USWS shall be given written notice prior to any said transfer or assignment, stating the name and address of each such transferee and identifying the securities with respect to which such registration rights are being transferred or assigned.

Section 2.11 Aggregation of Registrable Securities. All Registrable Securities held or acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. In addition, all other shares of Class A Common Stock held by a Person and for which such Person has similar registration rights pursuant to an agreement between such Person and USWS shall be aggregated together for the purpose of determining such Person’s rights under this Agreement solely as such shares relate to minimum quantity requirements contemplated herein; provided that, for the avoidance of doubt, such Class A Common Stock shall not otherwise be deemed Registrable Securities for any other purpose under this Agreement.

Section 2.12 Going Dark Period. Notwithstanding anything to the contrary in this Agreement, all rights and obligations under Section 2.1, Section 2.2 and Section 2.3 shall have no force and effect while USWS is not subject to Section 13 or 15(d) of the Exchange Act (“Going Dark Period”).

Section 2.13 IPO Registration.IPO Registration Statement. At any time following a Going Dark Period, if USWS proposes to file a registration statement on Form S-1 or such other form under the Securities Act providing for the initial public offering of the Class A Common Stock (the “IPO Registration Statement”), USWS will notify in writing each Holder of the filing at least five (5) Business Days before the initial filing and afford each Holder an opportunity to include in the IPO Registration Statement all or any part of the Registrable Securities then held by such Holder; provided, however, that USWS shall not be required to include the Registrable Securities of the Holders in such Registration if the Holders do not offer a minimum of $5.0 million of Registrable Securities. Each Holder desiring to include in the IPO Registration Statement all or part of the Registrable Securities held by such Holder shall, within twenty (20) days after receipt of the above-described notice from USWS, so notify USWS in writing, and in such notice shall inform USWS of the number of Registrable Securities such Holder wishes to include in the IPO Registration Statement. Any election by any Holder to include any Registrable Securities in the IPO Registration Statement will not affect the inclusion of such Registrable Securities in the IPO Registration Statement until such Registrable Securities have been sold under the IPO Registration Statement.

(b) Right to Terminate IPO Registration. USWS shall have the right to terminate or withdraw the IPO Registration Statement initiated by it and referred to in this Section 2.13(b) prior to the effectiveness of such Registration whether or not any Holder has elected to include

Registrable Securities in such Registration; provided, however, USWS must provide each Holder that elected to include any Registrable Securities in such IPO Registration Statement prompt written notice of such termination or withdrawal. Furthermore, in the event the IPO Registration Statement is not declared effective within one hundred twenty (120) days following the initial filing of the IPO Registration Statement, unless a road show for the Underwritten Offering pursuant to the IPO Registration Statement is actually in progress at such time or such IPO Registration Statement has been terminated or withdrawn pursuant to this Section 2.13(b), USWS shall promptly provide a new written notice to all Holders giving them another opportunity to elect to include Registrable Securities in the pending IPO Registration Statement. Each Holder receiving such notice shall have the same election rights afforded such Holder as described above in this Section 2.13.

(c) Priority of Piggyback Registration. If the Managing Underwriter or Underwriters advises USWS that the total shares of Class A Common Stock which the Selling Holders and any other Persons intend to include in the IPO Registration Statement exceeds the number which can be sold in such offering without being likely to have an adverse effect on the offering price, timing or probability of success of the distribution of the Class A Common Stock offered or the market for the Class A Common Stock, then USWS shall furnish notice in writing (including by e-mail) to the Holders that elected to include any Registrable Securities in such IPO Registration Statement, and the Class A Common Stock to be included in such IPO Registration Statement shall include the number of shares of Class A Common Stock that such Managing Underwriter or Underwriters advises USWS can be sold without having such adverse effect, with such number to be allocated (i) first, to USWS, (ii) second, pro rata among the Selling Holders and any Other Holders who have requested participation in the IPO Registration Statement (based, for each such Selling Holder or Other Holder, on the percentage derived by dividing (1) the number of shares of Class A Common Stock proposed to be sold by such Selling Holder or such Other Holder in such offering; by (2) the aggregate number of shares of Class A Common Stock proposed to be sold by all Selling Holders and all Other Holders in the Piggyback Registration), and (iii) third, to any other holder of shares of Class A Common Stock with registration rights that are subordinate to the rights of the Holders hereunder.

ARTICLE III

MISCELLANEOUS

Section 3.1 Communications. All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, e-mail, air courier guaranteeing overnight delivery or personal delivery to the following addresses:

(a) If to a Purchaser, to such addresses indicated on Schedule A attached hereto.

(b) If to USWS:

U.S. Well Services, Inc.

1360 Post Oak Blvd., Suite 1800

Houston, Texas 77056

Attention: Kyle O’Neill

E-mail: KONeill@uswellservices.com

with a copy (which shall not constitute notice) to:

Porter Hedges LLP

Main St., 36th Floor

Houston, Texas 77002

Attention: Corey C. Brown

E-mail: cbrown@porterhedges.com

or, if to a transferee of a Purchaser, to the transferee at the address provided pursuant to Section 2.10 above. All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; upon actual receipt if sent by certified or registered mail, return receipt requested, or regular mail, if mailed; upon actual receipt of the e-mail, if sent via e-mail; and upon actual receipt when delivered to an air courier guaranteeing overnight delivery.

Section 3.2 Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including subsequent Holders of Registrable Securities to the extent permitted herein.

Section 3.3 Assignment of Rights. All or any portion of the rights and obligations of any Purchaser under this Agreement may be transferred or assigned by such Purchaser in accordance with Section 2.10 hereof.

Section 3.4 Recapitalization (Exchanges, etc. Affecting the Registrable Securities). The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares of capital stock of USWS or any successor or assign of USWS (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, recapitalizations and the like occurring after the date of this Agreement.

Section 3.5 Specific Performance. Damages in the event of breach of this Agreement by a party hereto would be difficult, if not impossible, to ascertain, and it is therefore agreed that each such Person, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto hereby waives (a) any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief or that a remedy at law would be adequate and (b) any requirement under any law to post securities as a prerequisite to obtaining equitable relief. The existence of this right will not preclude any such Person from pursuing any other rights and remedies at law or in equity which such Person may have.

Section 3.6 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.

Section 3.7 Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

Section 3.8 Governing Law, Submission to Jurisdiction. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement or the Transactions shall be brought and determined by courts of the State of New York located in the Borough of Manhattan, City of New York and the federal courts of the United States of America located in the State of New York, Southern District, and each of the parties hereto irrevocably submits to the exclusive jurisdiction of such courts solely in respect of any legal proceeding arising out of or related to this Agreement.

Section 3.9 Waiver of Jury Trial. THE PARTIES TO THIS AGREEMENT EACH HEREBY WAIVE, AND AGREE TO CAUSE THEIR AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS AGREEMENT OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 3.10 Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.

Section 3.11 Entire Agreement. This Agreement and the Purchase Agreement are intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein or therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein with respect to the rights granted by USWS set forth herein or therein. This Agreement and the Purchase Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter.

Section 3.12 Term; Amendment. This Agreement shall automatically terminate and be of no further force and effect on the date on which there are no Registrable Securities. This Agreement may be amended only by means of a written amendment signed by USWS and the

Holders of a majority of the then outstanding Registrable Securities; provided, however, that no such amendment shall materially and adversely affect the rights of any Holder hereunder without the consent of such Holder.

Section 3.13 No Presumption. In the event any claim is made by a party relating to any conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or its counsel.

Section 3.14 Obligations Limited to Parties to Agreement. Each of the parties hereto covenants, agrees and acknowledges that no Person other than the Purchasers, Selling Holders, their respective permitted assignees and USWS shall have any obligation hereunder and that, notwithstanding that one or more of USWS and the Purchasers may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith or therewith shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of USWS, the Purchasers, Selling Holders or their respective permitted assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise by incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of USWS, the Purchasers, Selling Holders or any of their respective assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of USWS, the Purchasers, Selling Holders or their respective permitted assignees under this Agreement or any documents or instruments delivered in connection herewith or therewith or for any claim based on, in respect of or by reason of such obligation or its creation, except in each case for any assignee of the Purchasers or a Selling Holder hereunder.

Section 3.15 Interpretation. Article and Section references in this Agreement are references to the corresponding Article and Section to this Agreement, unless otherwise specified. All references to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever any determination, consent or approval is to be made or given by a Purchaser under this Agreement, such action shall be in such Purchaser’s sole discretion unless otherwise specified.

Section 3.16 No Inconsistent Agreements; Additional Rights. If USWS hereafter enters into a registration rights agreement with a third party with terms more favorable than those set forth herein with respect to Holders of shares of Class A Common Stock, this Agreement shall, to the extent so requested by any such Holders, be amended so as to provide such Holders with substantially the same material terms as provided to such other third party.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


USWS:

U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

[Signatures continue on following page.]

Signature Page to Registration Rights Agreement


PURCHASERS:

PROFRAC HOLDINGS, LLC

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		President and CFO



Address:

333 Shops Boulevard, Suite 301
Willow Park, TX 76087
Attention: Matthew D. Wilks; Robert J. Willette; Brian L. Von Hatten
Email: matt.wilks@profrac.com; robert.willette@wilksbrothers.com; brian.vonhatten@profrac.com

with a copy to:

Alston & Bird LLP
Chase Tower
2200 Ross Avenue, Suite 2300
Dallas, TX 75201
Attention: Mitchell L. Griffith
Email: mitchell.griffith@alston.com

[Signatures continue on following page.]

Signature Page to Registration Rights Agreement


THRC HOLDINGS, LP

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		VP, Investments


Address:

THRC Holdings, LP
16858 IH 20
Cisco, TX 76437
Attention: Matthew D. Wilks; Robert Willette
Email: matt.wilks@profrac.com; robert.willette@wilksbrothers.com

with a copy to:

Alston & Bird LLP
Chase Tower
2200 Ross Avenue, Suite 2300
Dallas, TX 75201
Attention: Mitchell L. Griffith
Email: mitchell.griffith@alston.com

[Signatures continue on following page.]

Signature Page to Registration Rights Agreement


CRESTVIEW III USWS, L.P.

By: Crestview III USWS GenPar, LLC, its general partner

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel


Address:

Crestview III USWS, L.P.
c/o Crestview Advisors, L.L.C.
590 Madison Avenue, 42nd Floor
New York, New York 10022
Attention: Adam J. Klein, Ross A. Oliver
E-mail: aklein@crestview.com;
roliver@crestview.com

with a copy (which shall not constitute notice) to:

Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Attention: E. Ramey Layne, Crosby Scofield
Email: rlayne@velaw.com; cscofield@velaw.com

[Signatures continue on following page.]

Signature Page to Registration Rights Agreement


CRESTVIEW III USWS TE, LLC

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel


Address:

Crestview III USWS TE, LLC
c/o Crestview Advisors, L.L.C.
590 Madison Avenue, 42nd Floor
New York, New York 10022
Attention: Adam J. Klein, Ross A. Oliver
E-mail: aklein@crestview.com;
roliver@crestview.com

with a copy (which shall not constitute notice) to:

Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Attention: E. Ramey Layne, Crosby Scofield
Email: rlayne@velaw.com; cscofield@velaw.com

[Signatures continue on following page.]

Signature Page to Registration Rights Agreement

Exhibit 4.5

Execution Version

FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT

This FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT, dated as of June 25 2021 (this “Amendment”), is by and among U.S. WELL SERVICES, INC., a Delaware corporation (the “Company”), and each of the holders of registrable securities listed on the signature pages hereto (collectively, the “Holders”).

WHEREAS, on June 24, 2021, the Company entered into that certain Note Purchase Agreement (the “Note Purchase Agreement,”) with certain initial purchasers pursuant to which the Company sold on such date to such initial purchasers certain notes which are convertible into shares of Class A common stock, par value $0.0001 per share, of the Company;

WHEREAS, on June 24, 2021, the Company entered into a registration rights agreement with such initial purchasers (the “Registration Rights Agreement”) to provide certain registration and other rights for the benefit of the initial pursuant to the Note Purchase Agreement;

WHEREAS, on the date hereof, the Company issued and sold additional convertible notes to AG Energy Funding, LLC (“AG”);

WHEREAS, the Company desires to amend the Registration Rights Agreement in order for AG to join the Registration Rights Agreement as a “Holder” and to amend Section 2.1(a) of the Registration Rights Agreement;

WHEREAS, pursuant to Section 3.12 of the Registration Rights Agreement, the Registration Rights Agreement may be amended or modified by the Company and the holders of a majority of the Registrable Securities (as defined in the Registration Rights Agreement); and

WHEREAS, the Holders hold a majority of the Registrable Securities.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Amendment to Registration Rights Agreement. Section 2.1(a) of the Registration Rights Agreement is hereby amended and restated in its entirety and replaced with the following:

Shelf Registration. USWS shall use its commercially reasonable efforts to prepare and file an initial Shelf Registration Statement under the Securities Act covering 96,128,572 shares of the Registrable Securities on or before the Shelf Registration Filing Deadline. The initial Shelf Registration Statement shall allocate such Registrable Securities among the Holders on a pro rata basis. USWS shall use its commercially reasonable efforts to cause such initial Shelf Registration Statement to become effective no later than four months following the initial filing of a Shelf Registration Statement. USWS will use its commercially reasonable efforts to cause such initial Shelf Registration Statement filed pursuant to this Section 2.1(a) to be continuously effective under the Securities Act until the earliest of (i) all Registrable Securities covered by the Shelf Registration Statement have been distributed in the manner set forth and as contemplated in such Shelf Registration Statement, and (ii) there are no longer any Registrable Securities outstanding (the

“Effectiveness Period”). Any Holder or Holders shall have the option and right from time to time, exercisable by delivering a written notice to USWS (a “Demand Notice”), to require registration of a minimum of $10 million of additional Registrable Securities not covered by a Shelf Registration Statement at the time of the Demand Notice. USWS shall use its commercially reasonable efforts to amend the initial Shelf Registration Statement or file a new Shelf Registration Statement, within 10 Business Days of the Demand Notice to include such additional Registrable Securities. USWS will use its commercially reasonable efforts to cause such amendment to the initial Shelf Registration Statement or subsequent Shelf Registration Statement, as applicable, to be continuously effective under the Securities Act during the Effectiveness Period. A Shelf Registration Statement filed pursuant to this Section 2.1(a) shall be on such appropriate registration form of the Commission as shall be selected by USWS. A Shelf Registration Statement when declared effective (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Shelf Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the date that a Shelf Registration Statement becomes effective, but in any event within five (5) Business Days of such date, USWS shall provide the Holders with written notice of the effectiveness of a Shelf Registration Statement.

2. Joinder. AG hereby joins in, and agrees to be bound by, and each of the Company and the Holders hereby agrees that AG shall have the benefit of, all of rights and obligations under the Registration Rights Agreement as a holder of Registrable Securities.

3. Effect of Amendment. This Amendment shall be construed in connection with and as part of the Registration Rights Agreement. Except as hereby expressly amended by this Amendment, all terms of the Registration Rights Agreement are hereby ratified and shall remain in full force and effect. None of the rights, interests and obligations existing and to exist under the Registration Rights Agreement are hereby released, diminished or impaired. The provisions of Section 3.8 and Section 3.9 of the Registration Rights Agreement captioned “Governing Law, Submission to Jurisdiction” and “Waiver of Jury Trial,” are incorporated herein by reference as though such provisions were fully set forth verbatim herein and shall apply to this Amendment mutatis mutandis.

4. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Amendment.

[The remainder of this page is intentionally left blank.]

-2-

IN WITNESS WHEREOF, the Parties hereto execute this Amendment, effective as of the date first above written.


COMPANY:

U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
		Kyle O’Neill
		Chief Financial Officer

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Signature Page to First Amendment to Registration Rights Agreement


HOLDERS:

PROFRAC HOLDINGS, LLC

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		President and CFO

THRC HOLDINGS, LP

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		VP, Investments

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Signature Page to First Amendment to Registration Rights Agreement


CRESTVIEW III USWS, L.P.

By: Crestview III USWS GenPar, LLC, its general partner

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

CRESTVIEW III USWS TE, LLC

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

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Signature Page to First Amendment to Registration Rights Agreement


AG ENERGY FUNDING, LLC

By: Angelo, Gordon & Co., L.P., as its Manager

By:		/s/ Todd Dittmann


Name:		Todd Dittmann
Title:		Authorized Person


Address:

AG ENERGY FUNDING, LLC
AG Energy Funding, LLC
245 Park Avenue, 26^th Floor
New York, NY 10167
Attention: Chad Hanover
E-mail: chanover@angelogordon.com

with a copy (which shall not constitute notice) to:

Davis Polk & Wardell LLP
450 Lexington Ave
New York, NY 10017
Attention: Ray Ibrahim
Email: ray.ibrahim@davispolk.com

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Signature Page to First Amendment to Registration Rights Agreement

Exhibit 10.1

Execution Version

NOTE PURCHASE AGREEMENT

BY AND AMONG

U.S. WELL SERVICES, INC.,

THE PURCHASERS NAMED HEREIN,

AND

WILMINGTON SAVINGS FUND SOCIETY, FSB, AS NOTES AGENT

JUNE 24, 2021

TABLE OF CONTENTS


		Page
ARTICLE I DEFINITIONS			2

Section 1.1	Definitions		2
Section 1.2	Accounting Procedures and Interpretation		9

ARTICLE II SALE AND PURCHASE			9

Section 2.1	Sale and Purchase		9
Section 2.2	Private Placement		10
Section 2.3	Closings		10
Section 2.4	Form of Notes		11
Section 2.5	Ranking of the Notes; Subordination		11
Section 2.6	Nature of Purchasers’ Obligations and Rights		12
Section 2.7	Additional Purchasers		12

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY			12

Section 3.1	Corporate Existence		12
Section 3.2	Capitalization and Valid Issuance of Notes		13
Section 3.3	Company SEC Documents		15
Section 3.4	Operations in the Ordinary Course		15
Section 3.5	Litigation		16
Section 3.6	No Breach		16
Section 3.7	Authority and Enforceability		17
Section 3.8	Approvals		17
Section 3.9	Investment Company Status		17
Section 3.10	Offering		17
Section 3.11	Certain Fees		18
Section 3.12	Insurance		18
Section 3.13	No Side Agreements		18

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER			19

Section 4.1	Valid Existence		19
Section 4.2	Authority and Enforceability		19
Section 4.3	No Breach		19
Section 4.4	Certain Fees		19
Section 4.5	Investment Representations		20
Section 4.6	Short Selling		22

ARTICLE V POST-CLOSING COVENANTS			22

Section 5.1	Covenants of the Company		22
Section 5.2	Covenants of the Purchasers		25

TABLE OF CONTENTS

(cont’d)


		Page
ARTICLE VI DEFAULTS AND REMEDIES			26

Section 6.1	Events of Default		26
Section 6.2	Acceleration; Waiver of Past Defaults and Recission		27
Section 6.3	Holders May File Proofs of Claim		27
Section 6.4	Restoration of Rights and Remedies		27
Section 6.5	Rights and Remedies Cumulative		28
Section 6.6	Delay or Omission Not Waiver		28

ARTICLE VII CLOSING CONDITIONS			28

Section 7.1	Conditions to the Closing		28
Section 7.2	Company Deliveries		30
Section 7.3	Purchaser Deliveries		31

ARTICLE VIII INDEMNIFICATION, COSTS AND EXPENSES			31

Section 8.1	Indemnification by the Company		31
Section 8.2	Indemnification by Purchasers		32
Section 8.3	Conduct of Indemnification Proceedings		32

ARTICLE IX REGISTRATION, EXCHANGE AND REPLACEMENT OF NOTES			33

Section 9.1	Registration of Notes		33
Section 9.2	Transfer and Exchange of Notes		33
Section 9.3	Replacement of Notes		35

ARTICLE X NOTES AGENT			35

Section 10.1	Appointment and Authorization of the Administrative Agent		35
Section 10.2	Rights as a Holder		36
Section 10.3	Exculpatory Provisions		36
Section 10.4	Lack of Reliance on the Notes Agent		38
Section 10.5	Certain Rights of the Notes Agent		39
Section 10.6	Reliance by the Notes Agent		40
Section 10.7	Delegation of Duties		40
Section 10.8	Costs and Expenses; Indemnification		41
Section 10.9	Resignation by the Notes Agent		43
Section 10.10	Collateral Matters		44
Section 10.11	Intercreditor Agreements		46

ARTICLE XI MISCELLANEOUS			46

Section 11.1	Interpretation		46
Section 11.2	Survival of Provisions		46
Section 11.3	No Waiver; Modifications in Writing		47
Section 11.4	Binding Effect; Assignment		47
Section 11.5	Confidentiality and Non-Disclosure		47

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TABLE OF CONTENTS

(cont’d)


		Page
Section 11.6	Communications		48
Section 11.7	Removal of Legend		48
Section 11.8	Entire Agreement		49
Section 11.9	Governing Law and Venue; Waiver of Jury Trial; Waiver of Certain Damages		49
Section 11.10	Execution in Counterparts		50
Section 11.11	Obligations Limited to Parties to Agreement		50
Section 11.12	Remedies		51

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TABLE OF CONTENTS

(cont’d)


		Page
Schedules and Exhibits:

Schedule 2.1 Purchasers and Notes Purchase Price

Exhibit A – Registration Rights Agreement
Exhibit B-1 – Form of Cash Note
Exhibit B-2 – Form of Exchange Note
Exhibit B-3 – Form of License Linked Note
Exhibit C – Secretary’s Certificate
Exhibit D-1 – Cross Receipt (Company)
Exhibit D-2 – Cross Receipt (Purchaser)
Exhibit E – License Agreement

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NOTE PURCHASE AGREEMENT

This NOTE PURCHASE AGREEMENT, dated as of June 24, 2021 (this “Agreement”), is by and among U.S. WELL SERVICES, INC., a Delaware corporation (the “Company” or “USWS”), each of the purchasers named in Schedule 2.1 to this Agreement (each such purchaser, including any additional purchasers made a party to this Agreement and added to such Schedule, a “Purchaser” and, collectively, the “Purchasers”), and Wilmington Savings Fund Society, FSB, as collateral agent for the Purchasers (in such capacity, “Notes Agent”).

WHEREAS, on June 17, 2021, U.S. Well Services, LLC, a Delaware limited liability company (“US LLC”) and a direct wholly-owned Subsidiary of USWS Holdings (as defined below), a wholly-owned Subsidiary of the Company suffered an adverse judgment in that certain lawsuit (the “Lawsuit”) filed on January 14, 2019 in the Superior Court of the State of Delaware (the “Court”) styled Smart Sand, Inc. v. U.S. Well Services LLC, C.A. No. N19C-01-144-PRW CCLD (the “Judgment”);

WHEREAS, in order to raise funds to settle the Lawsuit, to provide the cash deposit necessary to stay execution on the Judgment and/or for general corporate purposes, including growth capital, the Company desires to sell, and the Purchasers desire to purchase from the Company, (i) $45,000,000 in principal amount of 16.0% Convertible Senior Secured (Third Lien) PIK Notes to be sold for cash that will be convertible into shares of Class A Common Stock (each, a “Cash Note” and, collectively, the “Cash Notes”), (ii) subject to the conditions set forth herein, up to an aggregate of $20,000,000 in principal amount of 16.0% Convertible Senior Secured (Third Lien) PIK Notes issued to Purchasers in exchange for shares of Series A Preferred Stock that will be convertible into shares of Class A Common Stock (each, an “Exchange Note” and, collectively, the “Exchange Notes” and together with the Cash Notes and any Additional Notes, the “Equity Linked Notes”), and (iii) an aggregate of $22,500,000 in principal amount of 16.0% Convertible Senior Secured (Third Lien) PIK Notes that will be convertible into the License Agreement (the “License Linked Note”);

WHEREAS, from time to time from and after the date hereof until the date that is 90 days after the Initial Equity Linked Notes Closing Date (as defined below) (the “Offering Period”), the Company may issue up to an aggregate of $30,000,000 in principal amount of additional Cash Notes (each, an “Additional Cash Note” and, collectively, the “Additional Cash Notes”) and/or up to an aggregate of $5,000,000 in principal amount of additional Exchange Notes (each, an “Additional Exchange Note” and, collectively, the “Additional Exchange Notes” and together with the additional Cash Notes, the “Additional Notes”, and, together with the Cash Notes and/or Exchange Notes, as applicable, issued at the Initial Equity Linked Notes Closing and the License Linked Note, the “Notes”) to certain additional investors for cash or to participating holders of the Series A Preferred Stock; and

WHEREAS, contemporaneous with the consummation of the transactions contemplated under this Agreement, the Purchaser Parties will execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit A (the “Registration Rights Agreement”), pursuant to which the Company will agree to provide certain registration rights under the Securities Act and applicable state securities Laws.

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:

“ABL Credit Agreement” means that certain ABL Credit Agreement dated as of May 7, 2019 among the Company, USWS Holdings, US LLC, the lenders party thereto, and Bank of America, N.A., as collateral agent and administrative agent, as the same may be amended, supplemented or otherwise modified from time to time.

“Action” against a Person means any lawsuit, action, proceeding, investigation or complaint before any Governmental Authority, mediator or arbitrator.

“Additional Cash Note” and “Additional Cash Notes” have the meaning specified in the recitals.

“Additional Cash Notes Purchase Price” has the meaning specified in Section 2.1(c).

“Additional Exchange Note” and “Additional Exchange Notes” have the meaning specified in the recitals.

“Additional Exchange Notes Purchase Price” has the meaning specified in Section 2.1(c).

“Additional Notes” has the meaning specified in the recitals.

“Additional Notes Closing” has the meaning specified in Section 2.3(c).

“Additional Notes Closing Date” has the meaning specified in Section 2.3(c).

“Agent-Related Persons” means the Notes Agent, together with its Affiliates, and the officers, directors, employees, agents, attorney-in-fact, partners, trustees and advisors of such the Notes Agent and its Affiliates.

“Affiliate” means, with respect to a specified Person, any other Person, whether now in existence or hereafter created, directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, “controlling,” “controlled by” and “under common control with”) means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided, however, that the Company and the Purchasers shall not be considered Affiliates for purposes of this Agreement.

“Agreement” has the meaning specified in the introductory paragraph.

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“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors as now or hereinafter constituted.

“Board” means the board of directors of the Company.

“Cash Note” and “Cash Notes” have the meaning specified in the recitals.

“Cash Notes Purchase Price” has the meaning specified in Section 2.1(a).

“Class A Common Stock” means the Class A Common Stock, par value $0.0001 per share, of the Company.

“Class B Common Stock” means the Class B Common Stock, par value $0.0001 per share, of the Company.

“Class F Common Stock” has the meaning specified in Section 3.2(a).

“Closing” means the Initial Equity Linked Notes Closing, the License Linked Note Closing or the Additional Notes Closings, as applicable.

“Closing Date” means the Initial Equity Linked Notes Closing Date, the License Linked Note Closing Date or any Additional Notes Closing Date, as applicable.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” means the collateral described as such in the Security Documents.

“Commission” means the United States Securities and Exchange Commission.

“Company” or “USWS” has the meaning specified in the introductory paragraph.

“Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).

“Company Financial Statements” has the meaning specified in Section 3.3.

“Company Indemnitee” has the meaning specified in Section 8.2.

“Company Material Adverse Effect” means any material and adverse effect on (i) the assets, liabilities, financial condition, business or operations of the Company and its Subsidiaries, taken as a whole, other than those occurring as a result of general economic or financial conditions or other developments that are not unique to and do not have a material disproportionate impact on the Company and its Subsidiaries but also affect other Persons who participate in or are engaged in the lines of business of which the Company and its Subsidiaries

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participate or are engaged, (ii) the ability of the Company and its Subsidiaries, taken as a whole, to carry out their businesses as of the date of this Agreement, (iii) the legality, validity or enforceability of any Transaction Document or (iv) the ability of the Company to consummate the transactions, or perform its obligations, under any Transaction Document on a timely basis.

“Company SEC Documents” has the meaning specified in Section 3.3.

“Company’s Knowledge” means the actual knowledge of the executive officers (as defined in Rule 405 under the Securities Act) of the Company, after due inquiry.

“Court” has the meaning specified in the recitals.

“Credit Facilities” means all of the credit facilities established under the Term Loan Credit Agreement and the ABL Credit Agreement.

“Custodian” means any receiver, trustee, assignee, liquidator, sequester or similar official under any Bankruptcy Law.

“Delaware LLC Act” has the meaning specified in Section 3.2(d).

“Disqualification Event” has the meaning specified in Section 3.10.

“Equity Linked Notes” has the meaning specified in the recitals.

“Event of Default” has the meaning specified in Section 6.1.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Exchange Note” and “Exchange Notes” have the meaning specified in the recitals.

“Exchange Notes Purchase Price” has the meaning specified in Section 2.1(a).

“Existing Security Agreement” means those certain guarantee and collateral agreements executed and delivered by the Company and the Guarantors party thereto in connection with the Term Loan Credit Agreement and ABL Credit Agreement, and as in effect on the date hereof.

“GAAP” means generally accepted accounting principles in the United States of America in effect from time to time; provided, however, that for purposes of the Company Financial Statements prepared as of a certain date, GAAP referenced therein shall be GAAP as of the date of the Company Financial Statements.

“Governmental Authority” includes the country, state, county, city and political subdivisions in which any Person or such Person’s Property is located or that exercises valid jurisdiction over any such Person or such Person’s Property, and any court, agency, department, commission, board, bureau or instrumentality of any of them and any monetary authorities, stock exchanges and self-regulatory organizations that exercise valid jurisdiction over any such Person or such Person’s Property. Unless otherwise specified, all references to Governmental Authority in this Agreement mean a Governmental Authority having jurisdiction over, where applicable, the Company, its Subsidiaries or any of their Property or any of the Purchasers.

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“Guarantors” means USWS Holdings, US LLC, and any Subsidiary of the Company that is organized under the laws of the U.S. and that is also a subsidiary guarantor under the ABL Agreement and Term Loan Credit Agreement.

“Holder” means a Purchaser or any subsequent transferee who is a registered holder of the Notes.

“Initial Equity Linked Notes Closing” has the meaning specified in Section 2.3(a).

“Initial Equity Linked Notes Closing Date” has the meaning specified in Section 2.3(a).

“Institutional Accredited Investor” means an institutional “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act.

“Intercreditor Agreement” means that certain Amended and Restated Intercreditor Agreement to be entered into on the Initial Equity Linked Notes Closing Date by and among, Bank of America, N.A., as ABL Agent, CLMG Corp., as Term Loan Agent, Notes Agent, and US LLC, as the same may be amended, supplemented or otherwise modified from time to time.

“Judgment” has the meaning specified in the recitals.

“Law” or “Laws” means any federal, state, local or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law, rule or regulation.

“Lawsuit” has the meaning specified in the recitals.

“Letter Agreement” means that certain Letter Agreement executed as of June 24, 2021 by Crestview III USWS, L.P. and Crestview III USWS TE, LLC.

“License Agreement” means that certain License Agreement providing the licensor a non-exclusive license to make and or to offer to lease or to lease certain licensed products for three (3) electric frac fleets substantially in the form attached to this Agreement as Exhibit E.

“License Linked Note” has the meaning specified in the recitals.

“License Linked Note Closing” has the meaning specified in Section 2.3(b).

“License Linked Note Closing Date” has the meaning specified in Section 2.3(b).

“License Linked Note Purchase Price” has the meaning specified in Section 2.1(b).

“Lien” means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes.

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“LLC Units” has the meaning specified in Section 3.2(d).

“Losses” has the meaning specified in Section 8.1.

“Maturity Date” has the meaning specified in the Notes.

“NASDAQ” means the NASDAQ Capital Market.

“Notes” has the meaning specified in the recitals.

“Notes Agent” has the meaning specified in the introductory paragraph.

“Notes Agent Fee Letter” means that certain Collateral Agent Fee Letter, dated as of the date hereof, by and among the Notes Agent and the Company.

“Note Obligations” means (i) all principal of, and interest on or in respect of (including, without limitation, any interest which accrues after the commencement of any proceeding under any Bankruptcy Law with respect to any of the Company, whether or not allowed or allowable as a claim in any such proceeding), the Notes, and (ii) all fees (including, without limitation, all fees pursuant to the Notes Agent Fee Letter), expenses, indemnification obligations and other amounts of whatever nature now or hereafter payable by the Company to the Holders and/or the Notes Agent, as applicable (including, without limitation, any amounts which accrue after the commencement of any proceeding under any Bankruptcy Law with respect to the Company, whether or not allowed or allowable as a claim in any such proceeding, and any enforcement or other costs incurred or associated with the Notes), pursuant to this Agreement or the other Transaction Documents.

“Notes Purchase Price” means the Cash Notes Purchase Price, the Exchange Notes Purchase Price, the License Linked Note Purchase Price, the Additional Cash Notes Purchase Price or the Additional Exchange Notes Purchase Price, as applicable.

“Notes Register” has the meaning specified in Section 9.1.

“Offering Period” has the meaning specified in the recitals.

“Organizational Documents” means, as the context requires, (i) the Second Amended and Restated Certificate of Incorporation of the Company and the Amended and Restated Bylaws of the Company, each as amended to date, and/or (ii) the certificate of formation and limited liability company agreement or other equivalent charter documents of the Company’s Subsidiaries, as amended to date.

“Party” or “Parties” means the Company, the Notes Agent and the Purchasers, individually or collectively, as the case may be.

“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, business trust, joint stock company, sole proprietorship, unincorporated organization, Governmental Authority or any agency, instrumentality or political subdivision thereof, or any other form of entity.

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“PIK Interest” has the meaning given to such term in the Notes.

“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

“Purchaser” or “Purchasers” has the meaning specified in the introductory paragraph.

“Purchaser Indemnitee” has the meaning specified in Section 8.1.

“Purchaser Material Adverse Effect” means any material and adverse effect on the ability of a Purchaser to consummate the transactions, or perform its obligations, under any Transaction Document on a timely basis.

“Purchaser Party” or “Purchaser Parties” means the Company and the Purchasers, individually or collectively, as the case may be.

“Registration Rights Agreement” has the meaning specified in the recitals.

“Representatives” of any Person means the officers, members, managers, directors, employees, agents, legal counsel, accountants, financial advisors or any other representatives of such Person.

“Requisite Holders” means, at any time and with respect to the Holders or the Holders of the Equity Linked Notes, as applicable, at least 50.1% in principal amount of such Notes at the time outstanding (which, for the avoidance of doubt, shall include any increase in the principal amount thereof in respect of PIK Interest).

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.

“Security Agreement” means that certain Guarantee and Third Lien Collateral Agreement executed by the Company and the Guarantors party thereto, as debtors, and the Notes Agent, as secured party, granting the Notes Agent for the ratable benefit of the Holders a Lien on and security interest in, substantially all of each debtor’s personal Property on substantially similar terms as the Existing Security Agreement (and in any event, on terms which are no more restrictive or burdensome for the Company and the Guarantors than the Existing Security Agreements, and as such Existing Security Agreements may be amended, restated or modified from time to time after the date hereof), and which Lien and security interest are subordinated to the rights and interests of the secured parties under the ABL Credit Agreement and the Term Loan Credit Agreement pursuant to the Intercreditor Agreement.

“Security Documents” means the Intercreditor Agreement, the Security Agreement and all documents executed in connection therewith to create or perfect a Lien on the Collateral.

“Series A Certificate of Designations” means that certain Certificate of Designations of the Series A Preferred Stock, dated May 24, 2019.

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“Series A Preferred Stock” means the Series A Redeemable Convertible Preferred Stock having the terms set forth in the Series A Certificate of Designations.

“Series B Certificate of Designations” means that certain Certificate of Designations of the Series B Preferred Stock, dated March 31, 2020.

“Series B Preferred Stock” means the Series B Redeemable Convertible Preferred Stock having the terms set forth in the Series B Certificate of Designations.

“Series B Purchase Agreement” means that certain Purchase Agreement dated March 31, 2020 by and among the Company, the purchasers set forth therein and others.

“Short Sales” means all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and forward sale contracts, options, puts, calls, short sales, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements, and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.

“Significant Subsidiary” means any Subsidiary of the Company that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the Commission, determined as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries.

“Stated Maturity” means the Maturity Date as such term is defined in the Note.

“Subsidiary” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests sufficient to elect at least a majority of its Board of Directors or other governing body or, if there are no such voting interests, 50% or more of the equity interests, of which is owned directly or indirectly by such first Person.

“Term Loan Credit Agreement” means that certain Senior Secured Term Loan Credit Agreement dated May 7, 2019, among the Company, USWS Holdings, US LLC, the lenders party thereto, and CLMG Corp., as term loan collateral agent and as administrative agent, as the same may be amended, supplemented or otherwise modified from time to time.

“Trading Market” means The NASDAQ Global Select Market, the NASDAQ, The New York Stock Exchange or the NYSE American (or any of their respective successors).

“Transaction Documents” means, collectively, this Agreement, the Notes Agent Fee Letter, the Registration Rights Agreement, the Security Documents, the Letter Agreement, the Written Consent and Voting Agreement and any and all other material agreements or instruments executed and delivered by the Parties to evidence the execution, delivery and performance of this Agreement, and any amendments, supplements, continuations or modifications thereto.

“Transfer Agent” means Continental Stock Transfer & Trust Company in its capacity as transfer agent for the Class A Common Stock.

“US LLC” has the meaning specified in the recitals.

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“USWS Holdings” has the meaning specified in Section 3.2(d).

“USWS Holdings LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of USWS Holdings, LLC, dated as of November 9, 2018, as amended.

“Warrants” has the specified in Section 3.2(b).

“Written Consent and Voting Agreement” means that certain Written Consent and Voting Agreement executed as of June 24, 2021 by the Company and certain holders of the Series B Preferred Stock.

Section 1.2 Accounting Procedures and Interpretation. Unless otherwise specified in this Agreement, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters under this Agreement shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to the Purchasers under this Agreement shall be prepared, in conformity with GAAP applied on a consistent basis during the periods involved (except, in the case of unaudited financial statements, as permitted by Form 10-Q promulgated by the Commission) and in compliance as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto.

ARTICLE II

SALE AND PURCHASE

Section 2.1 Sale and Purchase. On the basis of the representations, warranties, agreements and covenants set forth in this Agreement and subject to the terms and conditions of this Agreement:

(a) At the Initial Equity Linked Notes Closing, the Company hereby agrees to issue and sell to the applicable Purchasers, and each such Purchaser hereby agrees, to purchase from the Company, (i) the aggregate principal amount of Cash Note(s) set forth opposite such Purchaser’s name on Schedule 2.1 to this Agreement under the title “Principal Amount of Cash Notes” at the cash purchase price set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded” (such purchase price, the “Cash Notes Purchase Price”), and (ii) with respect to each Purchaser (or its designee) that (A) holds Series A Preferred Stock as of such date and (B) has agreed to a purchase Cash Note(s) as set forth in subsection (i) above, the aggregate principal amount of Exchange Notes set forth opposite such Purchaser’s name on Schedule 2.1 to this Agreement under the title “Principal Amount of Exchange Notes” in exchange for a number of shares of Series A Preferred Stock valued for purposes of such exchange at their liquidation preference as of the day immediately prior to such date as set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded” (such purchase price, the “Exchange Notes Purchase Price”); provided that the “Principal Amount of Exchange Notes” with respect to any such Purchaser shall not exceed the Cash Notes Purchase Price paid by such Purchaser under subsection (i) above;

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(b) At the License Linked Note Closing, the Company hereby agrees to issue and sell to the applicable Purchaser, and such Purchaser hereby agrees, to purchase from the Company, the aggregate principal amount of the License Linked Note set forth opposite such Purchaser’s name on Schedule 2.1 to this Agreement under the title “Principal Amount of License Linked Note” at the purchase price set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded” (such purchase price, the “License Linked Note Purchase Price”); and

(c) At each Additional Notes Closing, the Company hereby agrees to issue and sell to each additional Purchaser, and each additional Purchaser hereby agrees to purchase from the Company, (i) the aggregate principal amount of Cash Note(s) set forth opposite such Purchaser’s name on Schedule 2.1 to this Agreement (as such Schedule 2.1 is amended in connection with such Additional Notes Closing) under the title “Principal Amount of Additional Cash Notes”, at the purchase price set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded” (such purchase price, the “Additional Cash Notes Purchase Price”), and (ii) with respect to each such Purchaser (or its designee) that (A) holds Series A Preferred Stock as of such date and (B) has agreed to a purchase Additional Cash Note(s) as set forth in subsection (i) above, the aggregate principal amount of Additional Exchange Notes set forth opposite such Purchaser’s name on Schedule 2.1 to this Agreement under the title “Principal Amount of Additional Exchange Notes” in exchange for a number of shares of Series A Preferred Stock valued for purposes of such exchange at their liquidation preference as of the day immediately prior to such date as set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded” (such purchase price, the “Additional Exchange Notes Purchase Price”); provided that the “Principal Amount of Additional Exchange Notes” with respect to any such Purchaser shall not exceed the Additional Cash Notes Purchase Price paid by such Purchaser under subsection (i) above.

Section 2.2 Private Placement. The Notes will be sold to the Purchasers pursuant to the exemption from registration afforded by Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act and the rules and regulations of the Commission thereunder. Upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes shall bear the legends applicable to each such Note as set forth in this Agreement.

Section 2.3 Closings.

(a) With respect to each Purchaser of Equity Linked Notes as named in Schedule 2.1 to this Agreement as of the date hereof, the execution and delivery of the Transaction Documents to be delivered to or by such Purchasers, the delivery of the Equity Linked Notes to such Purchasers, the payment of the Cash Notes Purchase Price for each such Cash Notes and/or the Exchange Notes Purchase Price for each such Exchange Notes, as applicable, and the execution and delivery of all other instruments, agreements and other documents required by this Agreement for the issuance of such Equity Linked Notes (the “Initial Equity Linked Notes Closing”) shall take place on the date hereof (the date of such closing, the “Initial Equity Linked Notes Closing Date”) at the offices of Porter Hedges LLP, 1000 Main Street, 36^th Floor, Houston, Texas 77002.

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(b) With respect to the Purchaser of the License Linked Note as named in Schedule 2.1 to this Agreement as of the date hereof, the execution and delivery of the Transaction Documents to be delivered to or by such Purchaser, the delivery of the License Linked Note to such Purchaser, the payment of the License Linked Note Purchase Price by such Purchaser and the execution and delivery of all other instruments, agreements and other documents required by this Agreement for the issuance of such License Linked Note (the “License Linked Note Closing”) shall take place on the date hereof (the “License Linked Note Closing Date”) at the offices of Porter Hedges LLP, 1000 Main Street, 36^th Floor, Houston, Texas 77002.

(c) With respect to each Purchaser of Additional Notes as named in Schedule 2.1 to this Agreement (as such schedule may be amended from time to time during the Offering Period), the execution and delivery of the additional Transaction Documents to be delivered to or by such Purchaser, the delivery of Additional Notes to such Purchasers, the payment of the Additional Cash Notes Purchase Price for each such Additional Cash Note and/or the Additional Exchange Notes Purchase Price for each such Additional Exchange Note, as applicable, and the execution and delivery of all other instruments, agreements and other documents required by this Agreement for the issuance of any such Additional Notes (each, an “Additional Notes Closing”) shall take place on the date(s) agreed upon by both the Company and such Purchasers within the Offering Period (each, an “Additional Notes Closing Date”) at the offices of Porter Hedges LLP, 1000 Main Street, 36^th Floor, Houston, Texas 77002.

Section 2.4 Form of Notes.

(a) The Cash Notes shall be substantially in the form included in Exhibit B-1, the Exchange Notes shall be substantially in the form included in Exhibit B-2 and the License Linked Note shall be in substantially in the form of Exhibit B-3 hereto, each of which is incorporated in and expressly made a part of this Agreement. The Notes may have notations, legends or endorsements required by Law. The Notes shall be in minimum denominations of $1.00 and integral multiples of $1.00 in excess thereof.

(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Agreement and the Company, by its execution and delivery of this Agreement, expressly agrees to such terms and provisions and agrees to be bound thereby. However, to the extent any Note conflicts with the express provisions of this Agreement, the provisions of this Agreement shall govern and be controlling.

Section 2.5 Ranking of the Notes; Subordination. The Company agrees and each Holder, by accepting a Note, agrees, that payments of the Note Obligations will be (i) junior and subordinated to the secured indebtedness under the Credit Facilities, to the extent of the value of the collateral securing the Credit Facilities, (ii) effectively senior to all unsecured indebtedness of the Company and the Guarantors to the extent of the value of the Collateral, (iii) senior in right of payment to any indebtedness of the Company that is expressly subordinated in right of payment to the Notes, and (iv) effectively subordinated to any existing or future indebtedness of the Company and the Guarantors that is secured by Liens on assets that do not constitute part of the Collateral securing the Notes to the extent of the value of such assets.

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Section 2.6 Nature of Purchasers’ Obligations and Rights. The respective obligations of each Purchaser under the Transaction Documents to which the Purchasers are party to are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under the Transaction Documents. The failure or waiver of performance under this Agreement by any Purchaser, or on its behalf, does not excuse performance by any other Purchaser. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by any Transaction Document. Except as otherwise provided in the Transaction Documents, each Purchaser shall be entitled to independently protect and enforce its rights, including the rights arising out of the Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. The decision of each Purchaser to purchase Notes pursuant to the Transaction Documents has been made by such Purchaser independently of any other Purchaser. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Notes or enforcing its rights under the Transaction Documents. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents.

Section 2.7 Additional Purchasers. The Company may in its discretion add additional Purchasers to this Agreement with all the rights and obligations of a Purchaser if such additional Purchaser, if not already a party to this Agreement, shall have executed and delivered to the Company a joinder agreement in the form approved by the Company and such other documents or instruments as may be required in the Company’s reasonable judgment to effect such admission. The Company shall amend Schedule 2.1 to this Agreement to reflect the admission of any additional Purchaser or the purchase of Additional Notes by any existing Purchaser.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants (a) on and as of the date of this Agreement and each Closing Date, to Piper Sandler & Co., through its Simmons Energy division, in its capacity as the financial advisor to the Board for the offering contemplated hereby, (b) on and as of the date of this Agreement, to Notes Agent and (c) with respect to each Purchaser, on and as of the date such holder signs this Agreement and as of the applicable Closing Date upon which such Purchaser acquires Notes under the terms hereof:

Section 3.1 Corporate Existence. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware, and each of the Company’s Subsidiaries is an entity duly formed, validly existing and in good standing under the Laws of the jurisdiction under which it was formed. The Company and each of its Subsidiaries has all requisite power and authority to conduct its business as currently conducted and to own and lease its Property and other assets as now owned or leased, and has all material governmental licenses, authorizations, consents and approvals necessary to own its Property and

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to conduct its business as its business is currently conducted and as described in the Company SEC Documents, except where the failure to obtain such licenses, authorizations, consents and approvals could not reasonably be expected to have a Company Material Adverse Effect. The Company and each of its Subsidiaries is qualified to do business as a foreign entity and is in good standing in each jurisdiction in which the nature of the business conducted by the Company or such Subsidiary makes such qualification necessary, except where the failure so to qualify could not reasonably be expected to have a Company Material Adverse Effect.

Section 3.2 Capitalization and Valid Issuance of Notes.

(a) As of the date of this Agreement, the total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Company is authorized to issue is 440,000,000 shares, consisting of (i) 430,000,000 shares of common stock, including (A) 400,000,000 shares of Class A Common Stock, (B) 20,000,000 shares of Class B Common Stock, and (C) 10,000,000 shares of Class F Common Stock (the “Class F Common Stock”), and (ii) 10,000,000 shares of preferred stock.

(b) As of the date of this Agreement, the issued and outstanding corporate stock of the Company consists of 93,377,516 shares of Class A Common Stock issued and outstanding, 24,456,302 warrants to purchase shares of Class A Common Stock (the “Warrants”), including, (i) 19,167,417 warrants issued in connection with the Company’s initial public offering and (ii) 5,288,885 warrants issued in connection with the issuance of the Series A Preferred Stock, no shares of Class B Common Stock issued and outstanding, no shares of Class F Common Stock issued and outstanding, 50,000 shares of Series A Preferred Stock issued and outstanding and 21,038 shares of Series B Preferred Stock issued and outstanding. As of the date of this Agreement, all outstanding shares of Class A Common Stock, all outstanding Warrants and all outstanding shares of the Series A Preferred Stock and Series B Preferred Stock have been duly authorized and validly issued in accordance with the Organizational Documents and are fully paid and nonassessable.

(c) As of the date of this Agreement, other than the Amended and Restated U.S. Well Services, Inc. 2018 Stock Incentive Plan, the Company has no equity compensation plans that contemplate the issuance of equity interests of the Company (or securities convertible into or exchangeable for equity interests of the Company). No indebtedness having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the Company stockholders may vote is issued or outstanding. Except for the Warrants, the Series A Preferred Stock, the Series B Preferred Stock and as contemplated by the Company’s Organizational Documents, the Series B Purchase Agreement and the USWS Holdings LLC Agreement, including the LLC Units, there are no outstanding or authorized (i) options, warrants, preemptive rights, subscriptions, calls, rights of first refusal, or other rights, convertible or exchangeable securities or written agreements obligating the Company or any of its Subsidiaries to issue, transfer or sell any equity interest in, the Company or securities convertible into or exchangeable for such equity interests, (ii) obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any equity

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interests of the Company or any such securities or agreements listed in clause (i) of this sentence or (iii) proxy agreements or voting trusts or similar agreements to which the Company or any of its Subsidiaries is a party with respect to the voting of the equity interests of the Company. Except as set forth in the Company SEC Documents or as contemplated by this Agreement, the Company has not entered into any agreements regarding the registration of any equity securities of the Company under the Securities Act.

(d) As of the date of this Agreement, except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries owns any shares of capital stock or other securities of, or interest in, any other Person, or is obligated to make any capital contribution to or any other investment in any other Person, other than with respect to the Company’s obligations under the USWS Holdings LLC Agreement. As of the date of this Agreement, the Company owns a sole managing member interest in USWS Holdings, LLC, a Delaware limited liability company (“USWS Holdings”), and 93,377,516 USWS Holdings Units (“LLC Units”); such sole managing member interest and LLC Units are duly authorized and validly issued in accordance with the USWS Holdings LLC Agreement and are fully paid (to the extent required under the USWS Holdings LLC Agreement) and non-assessable (except in the case except as such nonassessability may be affected by matters described in Sections 18-303, 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)) and such sole managing member interest and LLC Units are owned by the Company free and clear of all Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Credit Facilities, or the Organizational Documents of such Subsidiaries, as applicable). As of the date of this Agreement, USWS Holdings owns all of the shares of capital stock or other securities of, or interest in, each of its Subsidiaries, which are listed on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K filing with the SEC.

(e) As of the date of this Agreement, (i) all of the issued and outstanding equity interests of each of the Subsidiaries of USWS Holdings are owned, directly or indirectly, by USWS Holdings free and clear of any Liens (except for such restrictions as may exist under applicable Law and except for such Liens as may be imposed under the Credit Facilities or the Organizational Documents of such Subsidiaries, as applicable), and all such ownership interests have been duly authorized, validly issued and are fully paid (to the extent required in the Organizational Documents of such Subsidiaries, as applicable) and non-assessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act and Sections 18-303, 18-607 and 18-804 of the Delaware LLC Act) and (ii) except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries owns any shares of capital stock or other securities of, or interest in, any other Person, or is obligated to make any capital contribution to or any other investment in any other Person.

(f) The Notes being purchased by each of the Purchasers hereunder will be duly authorized by the Company pursuant to the Organizational Documents of the Company prior to the Closing and, when issued and delivered by the Company to such

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Purchaser against payment therefor in accordance with the terms of this Agreement and the terms of the Notes, will be validly issued, fully paid and non-assessable and will be free of preemptive rights or any Liens and restrictions on transfer, other than (i) restrictions on transfer under this Agreement and under applicable state and federal securities Laws and (ii) such Liens as are created by such Purchaser or its Affiliates.

(g) The shares of Class A Common Stock issuable upon conversion of the Equity Linked Notes have been duly authorized and reserved for issuance upon such conversion by all necessary corporate action. When issued and delivered to the Purchasers upon conversion of the Equity Linked Notes, all Class A Common Stock issued upon conversion of the Equity Linked Notes in compliance with the terms thereof will be validly issued in accordance with applicable Law and the Organizational Documents, fully paid and non-assessable and will be free of any and all Liens, other than such Liens as are created by the Purchasers, pre-emptive rights, rights of first refusal, subscription and similar rights and restrictions on transfer, other than restrictions on transfer under applicable state and federal securities Laws.

Section 3.3 Company SEC Documents. The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) or furnished with the Commission all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) that have been filed or were required to be filed or furnished by it under the Exchange Act or the Securities Act since December 31, 2020 (all such documents collectively, the “Company SEC Documents”). The Company SEC Documents, including any audited or unaudited financial statements and any notes thereto or schedules included therein (the “Company Financial Statements”), at the time filed or furnished (except to the extent corrected by a subsequently filed Company SEC Document filed prior to the date of this Agreement) (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, (iii) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, (iv) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission) and (v) fairly present (subject in the case of unaudited statements to normal, recurring and year-end audit adjustments) in all material respects the consolidated financial position of the business of the Company as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended. KPMG LLP is an independent registered public accounting firm with respect to the Company and has not resigned or been dismissed as independent registered public accountants of the Company as a result of or in connection with any disagreement with the Company on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures.

Section 3.4 Operations in the Ordinary Course. Except as set forth in or contemplated by the Company SEC Documents, since the date of the Company’s most recent Form 10-K filing with the Commission, the Company and its Subsidiaries have conducted their respective

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businesses in the ordinary course, consistent with past practice, and there has been no (a) acquisition or disposition of any material asset by the Company or any of its Subsidiaries or any contract or arrangement therefor, other than acquisitions or dispositions for fair value in the ordinary course of business, acquisitions or dispositions as disclosed in the Company SEC Documents or (b) material change in the Company’s accounting principles, practices or methods.

Section 3.5 Litigation. Except as set forth in the Company SEC Documents, there is no Action pending or, to the Company’s Knowledge, contemplated or threatened, against the Company or any of its Subsidiaries or any of their respective officers, directors or Properties, which (individually or in the aggregate) reasonably could be expected to have a Company Material Adverse Effect, or which challenges the validity of the Transaction Documents, or the right of the Company to enter into any of them, or to consummate the transactions contemplated hereby or thereby. The Company is not a party or subject to, and none of its assets is bound by, the provisions of any order, writ, injunction, judgment or decree of any Governmental Authority which could reasonably be expected to have a Company Material Adverse Effect. Except as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries, nor any director or officer thereof, is or since December 31, 2020, has been the subject of any Action involving a claim of violation of or liability under federal or state securities Laws or a claim of breach of fiduciary duty. There has not been, and to the Company’s Knowledge, there is not pending or contemplated, any investigation by the Commission involving the Company or any current director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any of its Subsidiaries under the Securities Act or the Exchange Act.

Section 3.6 No Breach. Neither the Company nor any of its Subsidiaries is in violation or default of any provision of its respective Organizational Documents, each as in effect immediately prior to the Closing. Neither the Company nor any of its Subsidiaries are in violation or default of any provision of any Law of any Governmental Authority having jurisdiction over the Company, any of its Subsidiaries or any of their respective assets or Properties which could reasonably be expected to have a Company Material Adverse Effect. The execution, delivery and performance by the Company of each Transaction Document to which it is a party and all other agreements and instruments in connection with the transactions contemplated by the Transaction Documents, and compliance by the Company with the terms and provisions hereof and thereof, do not and will not (i) violate any provision of any Law, governmental permit, determination or award applicable to the Company or any of its Subsidiaries or any of their respective Properties, (ii) conflict with or result in a violation of any provision of the Organizational Documents of the Company or any of the Company’s Subsidiaries, (iii) require any consent or approval which has not been obtained on or prior to the date hereof or notice under or result in a violation or breach of or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under (A) any note, bond, mortgage, license, or loan or credit agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective Properties may be bound or (B) any other agreement, instrument or obligation, or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the Properties now owned or hereafter acquired by the Company or any of its Subsidiaries, except in the cases of clauses (i) and (iii) where such violation, default, breach, termination, cancellation, failure to receive consent or approval, or acceleration with respect to the foregoing provisions of this Section 3.6 could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

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Section 3.7 Authority and Enforceability. The Company has all necessary corporate power and authority to execute, deliver and perform its obligations under each Transaction Document to which it is a party and to consummate the transactions contemplated hereby or thereby, including the issuance, sale and delivery of the Notes and the issuance of the Class A Common Stock upon the conversion of the Equity Linked Notes. The execution, delivery and performance by the Company of each of the Transaction Documents to which it is a party, and the consummation of the transactions contemplated hereby or thereby (including, without limitation, the issuance of the Notes and the issuance of the Class A Common Stock upon conversion of the Equity Linked Notes), have been duly authorized by all necessary action on its part and, when duly executed and delivered by the parties thereto in accordance with their terms, each of the Transaction Documents will constitute the legal, valid and binding obligations of the Company, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar Laws affecting creditors’ rights generally or by general principles of equity. Subject to the terms of the Letter Agremeent, the Purchasers and Lenders (each as defined in the Series B Purchase Agreement) have waived the preemptive rights granted to them under the terms of the Series B Purchase Agreement. No approval by the holders of the Class A Common Stock is required as a result of the Company’s issuance and sale of the Notes or the issuance of Class A Common Stock upon conversion of the Notes.

Section 3.8 Approvals. Except as contemplated by this Agreement or as required by the Commission in connection with the Company’s obligations under the Registration Rights Agreement, no authorization, consent, approval, waiver, license, qualification or written exemption from, nor any filing, declaration, qualification or registration with, any Governmental Authority or any other Person which has not been obtained on or prior to the date hereof is required in connection with the execution, delivery or performance by the Company of each of the Transaction Documents to which it is a party, except where the failure to receive such authorization, consent, approval, waiver, license, qualification or written exemption or to make such filing, declaration, qualification or registration could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 3.9 Investment Company Status. The Company is not, and immediately after receipt of payment for the Notes which are convertible into Class A Common Stock will not be, an “investment company,” an “affiliated person” of, “promoter” for or “principal underwriter” for, or an entity “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended, or the rules and regulations promulgated thereunder.

Section 3.10 Offering. Neither the Company nor, to the Company’s Knowledge, any Person acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D of the Securities Act) in connection with the offer or sale of any of the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes. Assuming the accuracy of the representations and warranties of the Purchasers contained in this Agreement, the sale and issuance of the Notes or the Class A Common Stock issuable upon conversion of the Notes pursuant to this Agreement and the Notes are exempt from the

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registration requirements of the Securities Act. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security under circumstances that would (i) eliminate the availability of the exemption from registration under Regulation D of the Securities Act in connection with the offer and sale by the Company of the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes as contemplated by this Agreement and the Equity Linked Notes or (ii) cause the offering of the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes pursuant to this Agreement and the Equity Linked Notes to be integrated with prior offerings by the Company for purposes of any applicable Law, regulation or stockholder approval provisions. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company or, to the Company’s Knowledge, any Company Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), is applicable.

Section 3.11 Certain Fees. Except for the fees payable to Piper Sandler & Co., through its Simmons Energy division, in its capacity as the financial advisor to the Board, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission with respect to the sale of any of the Notes or the consummation of the transactions contemplated by the Transaction Documents. The Company agrees that it will indemnify and hold harmless each of the Purchasers from and against any and all claims, demands or liabilities for any fees, commissions or payments of the type contemplated by this Section 3.11 incurred by the Company or alleged to have been incurred by the Company in connection with the sale of the Notes or the consummation of the transactions contemplated by the Transaction Documents.

Section 3.12 Insurance. The Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company believes to be prudent for its businesses. Neither the Company nor any of its Subsidiaries has received any notice of cancellation of any such insurance. The Company does not have any reason to believe that it or any of its Subsidiaries will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business as currently conducted without a significant increase in cost.

Section 3.13 No Side Agreements. Except for the Letter Agreement, the Written Consent and Voting Agreement and any confidentiality agreements that may have been entered into by and between such Purchaser and the Company or as set forth in the Company SEC Documents or public filings made by Purchaser with the Commission, there are no other agreements by, among or between such Purchaser and any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby (other than the Transaction Documents), and there are no promises or inducements for future transactions by, among or between such Purchaser and any of its Affiliates, on the one hand, and the Company and any of its Affiliates, on the other hand.

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER

Each Purchaser, severally and not jointly, represents and warrants to the Company with respect to itself, on and as of the applicable Closing Date upon which such Purchaser acquires Notes under the terms hereof:

Section 4.1 Valid Existence. If an entity, such Purchaser is duly organized, validly existing and in good standing under the Laws of its respective jurisdiction of organization and has all requisite corporate, partnership or limited liability company (as applicable) power and authority to own or lease its Properties and carry on its business as currently conducted.

Section 4.2 Authority and Enforceability. Such Purchaser has all necessary corporate, partnership or limited liability company (as applicable) power and authority to execute, deliver and perform its obligations under each of the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby or thereby. The execution, delivery and performance by such Purchaser of each of the Transaction Documents to which it is a party, and the consummation of the transactions contemplated thereby, have been duly authorized by all legal action on its part and, when duly executed and delivered by the parties thereto in accordance with their terms, each of the Transaction Documents to which such Purchaser is a party will constitute the legal, valid and binding obligations of such Purchaser, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar Laws affecting creditors’ rights generally or by general principles of equity.

Section 4.3 No Breach. The execution, delivery and performance by such Purchaser of each of the Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby or thereby will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which such Purchaser is a party or by which such Purchaser is bound or to which any of the Property of such Purchaser are subject, (ii) conflict with or result in any violation of the provisions of the organizational documents of such Purchaser, or (iii) violate any statute, order, rule or regulation of any Governmental Authority having jurisdiction over such Purchaser or the Property or assets of such Purchaser, except in the case of clauses (i) and (iii), for such conflicts, breaches, violations or defaults as could not reasonably be expected to have a Purchaser Material Adverse Effect.

Section 4.4 Certain Fees. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission payable by such Purchaser with respect to the purchase of any of the Notes or the consummation of the transactions contemplated by the Transaction Documents. Such Purchaser agrees that it will indemnify and hold harmless the Company from and against any and all claims, demands or liabilities for any fees, commissions or payments of the type contemplated by this Section 4.4 incurred by such Purchaser or alleged to have been incurred by such Purchaser in connection with the purchase of the Notes or the consummation of the transactions contemplated by the Transaction Documents.

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Section 4.5 Investment Representations.

(a) Accredited Investor Status; Sophisticated Purchasers. Such Purchaser is an Institutional Accredited Investor and is able to bear the risk of its investment in the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes. Such Purchaser has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes, and has so evaluated the merits and risks of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes.

(b) Acquisition for Own Account. Such Purchaser is acquiring the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes pursuant to this Agreement for its own account (or for the accounts for which it is acting as investment advisor or manager) for investment purposes and not with a view toward, or for resale or transfer in connection with, the sale or distribution thereof within the meaning of the Securities Act that would be in violation of the Securities Act.

(c) Information. Such Purchaser or its Representatives have been given access to and an opportunity to examine such documents, materials and information concerning the Company as such Purchaser deems to be necessary or advisable in order to reach an informed decision as to an investment in the Company, to the extent that the Company possesses such information, has carefully reviewed and understands these materials and has had answered to such Purchaser’s full satisfaction any and all questions regarding such information. Such Purchaser or its Representatives made such independent investigation of the Company, its management, and related matters as such Purchaser deems to be necessary or advisable in connection with the Notes and the Class A Common Stock issuable upon the conversion of the Notes, and is able to bear the economic and financial risk of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes. Such Purchaser understands and acknowledges that its purchase of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes involves a high degree of risk and uncertainty. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its purchase of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes.

(d) Notes Not Registered. Such Purchaser has been advised by the Company and understands that (i) the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes are being privately placed by the Company pursuant to an exemption from registration provided under Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act and neither the offer nor sale of any Notes or the Class A Common Stock issuable upon the conversion of the Equity Linked Notes pursuant to this Agreement has been registered under the Securities Act or any state “blue sky” laws; (ii) the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes being acquired by such Purchaser pursuant to this Agreement and the Notes are characterized as “restricted securities” under the Securities Act

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inasmuch as they are being acquired by such Purchaser from the Company in a transaction not involving a public offering and, subject to such Purchaser’s rights under this Agreement, such Purchaser must continue to bear the economic risk of the investment in its Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes indefinitely unless the offer and sale of its Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes are subsequently registered under the Securities Act and all applicable state securities or “blue sky” laws or an exemption from such registration is available; (iii) it is not anticipated that there will be any public market for the Notes; (iv) a restrictive legend in the form set forth in Section 9.2(b) of this Agreement shall be placed on the certificates representing the Notes and a restrictive legend in the form set forth in Section 9.2(c) shall be placed on the certificates representing the Class A Common Stock issuable upon the conversion of the Equity Linked Notes; and (v) a notation shall be made in the appropriate records of the Company indicating that the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes are subject to restrictions on transfer.

(e) No General Solicitation. Such Purchaser acknowledges and agrees that neither the Company nor any other Person offered to sell the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes to it by means of any form of general solicitation or advertising, including but not limited to: any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio or any seminar or meeting whose attendees were invited by any general solicitation or general advertising. Such Purchaser further acknowledges and agrees that it was solicited or became aware of the investment in the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes either through (i) a substantive, pre-existing relationship with the Company, (ii) direct contact with the Company or its agents outside of any public offering effort, and/or (iii) through contacts by the Company not identified through any public offering.

(f) No Side Agreements. Except for the Letter Agreement, the Written Consent and Voting Agreement and any confidentiality agreements that may have been entered into by and between such Purchaser and the Company or as set forth in the Company SEC Documents or public filings made by Purchaser with the Commission, there are no other agreements by, among or between such Purchaser and any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby (other than the Transaction Documents), and there are no promises or inducements for future transactions by, among or between such Purchaser and any of its Affiliates, on the one hand, and the Company and any of its Affiliates, on the other hand.

(g) Reliance Upon Purchaser’s Representations and Warranties. Such Purchaser understands and acknowledges that the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes are being offered and sold in reliance on a transactional exemption from the registration requirements of federal and state securities Laws, and that the Company is relying upon the truth and accuracy of the

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representations, warranties, agreements, acknowledgments and understandings of such Purchaser set forth in this Agreement (i) in concluding that the offer and sale of the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes is a “private offering” and, as such, is exempt from the registration requirements of the Securities Act, and (ii) to determine the applicability of such exemptions in evaluating the suitability of such Purchaser to purchase the Notes and the Class A Common Stock issuable upon the conversion of the Equity Linked Notes.

(h) Independent Investment Decision. Each Purchaser has made an independent investment decision with respect to this Agreement and the Notes, without reliance on any other Purchaser or its Affiliates, and is not acting in concert with respect to this Agreement or the Notes with any other Purchaser or its Affiliates. Other than the Transaction Documents, to each Purchaser’s knowledge, there are no agreements or understandings between (i) such Purchaser or any of its Affiliates and (ii) any other Purchaser or any of its Affiliates with respect to this Agreement or the Notes.

Section 4.6 Short Selling. Such Purchaser represents and warrants that it has not entered into any Short Sales of the Class A Common Stock owned by it between the time it first began discussions with the Company about the transactions contemplated by this Agreement and the date hereof.

ARTICLE V

POST-CLOSING COVENANTS

Section 5.1 Covenants of the Company. The Company hereby agrees with the Purchasers as set forth in this Section 5.1:

(a) Taking of Necessary Action. The Company shall use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement. Without limiting the foregoing, the Company will, and the Company shall cause each of its Subsidiaries to, use its commercially reasonable efforts to make all filings and obtain all consents of Governmental Authorities or other Persons that may be necessary or, in the reasonable opinion of the Requisite Holders of the Notes, advisable for the consummation of the transactions contemplated by the Transaction Documents.

(b) Use of Proceeds. The Company shall use the proceeds from the sale of the Notes to finance the settlement of the Lawsuit, to fund the cash deposit necessary to stay execution on the Judgment and/or for general corporate purposes, including growth capital and to pay transaction expenses incurred in connection with this Agreement and the Notes; provided, however, the Company may only use the proceeds from the sale of the Notes for general corporate purposes only after it (i) has settled the Lawsuit or (b) funded the cash deposit necessary to stay execution on the Judgment and continues to work in good faith to settle the Lawsuit.

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(c) Corporate Existence. So long as the Notes are outstanding, the Company shall not enter into a plan of liquidation or dissolution and shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, limited liability company or other existence of each of its Subsidiaries, in accordance with the respective Organizational Documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (ii) the rights (charter and statutory), licenses, franchises and permits of the Company and its Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license, franchise or permit, or the corporate, limited liability company or other existence of any of its Subsidiaries, if (i) the Board shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes, or (ii) the effect of not preserving any such right, license, franchise or permit, or the corporate, limited liability company or other existence of any of its Subsidiaries, would not reasonably be expected to result in a Company Material Adverse Effect.

(d) Financial Reporting.

(i) So long as the Notes are outstanding, the Company will cause to be furnished to the Purchasers, all financial statements as are or would be required to be filed by the Company with the Commission as a reporting issuer under Section 13 or 15(d) of the Exchange Act.

(ii) The Company shall be deemed to have furnished to the Purchasers the information referred to in Section 5.1(d)(i) if the Company has filed such financial statements with the Commission or has posted such information on the Company Website. For purposes of this Section 5.1(d)(ii), the term “Company Website” means the collection of web pages that may be accessed on the World Wide Web using the URL address http://www.uswellservices.com or such other address as the Company may from time to time designate in writing to the Purchasers.

(e) Reservation and Listing of Class A Common Stock and Related Matters. So long as the Equity Linked Notes are outstanding, the Company shall take all action necessary to at all times have authorized and reserved for the purpose of issuance no less than the sum of the maximum number of shares of Class A Common Stock issuable upon conversion of the Equity Linked Notes then outstanding at the then applicable Conversion Price (as defined in the applicable Equity Linked Notes). So long as the Equity Linked Notes are outstanding, the Class A Common Stock shall be registered under the Exchange Act and the Company shall use its commercially reasonable efforts to maintain the listing of the Class A Common Stock on a Trading Market.

(f) Securities Laws Disclosure.

(i) The Company shall, by 5:30 p.m. (New York City time) on the fourth Business Day following the date hereof, file a Current Report on Form 8-K

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and press release disclosing the material terms of the transactions contemplated hereby, including this Agreement, the Notes and the Registration Rights Agreement as exhibits thereto. The Parties shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, provided, that consultation with the Notes Agent shall only be required in connection with any press release in which reference is made to the Notes Agent, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any such press release of any Purchaser, or without the prior consent of the Purchasers, with respect to any such press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by Law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.

(ii) The Company shall timely file all required reports under Section 13 or 15(d) of the Exchange Act, as applicable. The Company understands and confirms that the Purchasers will rely on the foregoing covenant and the covenant in Section 5.1(d)(i) above in effecting transactions in securities of the Company.

(g) Listing of Class A Common Stock. Beginning promptly following the date of this Agreement, the Company shall take all reasonable actions necessary to cause the Class A Common Stock issuable upon conversion of the Equity Linked Notes at the initial Conversion Price to be listed on the NASDAQ. Further, if the Company applies to have the Class A Common Stock traded on any other principal stock exchange or market, it shall include in such application the Class A Common Stock issuable upon conversion of the Equity Linked Notes at the then applicable Conversion Price and will take such other action as is necessary to cause such Class A Common Stock to be so listed.

(h) Subsequent Equity Sales. The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in Section 2 of the Securities Act) that will be integrated with the offer or sale of the Notes or the Class A Common Stock to be issued upon the conversion of the Equity Linked Notes in a manner that would require the registration under the Securities Act of the sale of the Notes to the Purchasers or the issuance of the Class A Common Stock upon conversion of the Equity Linked Notes.

(i) Successor Corporation Substituted. So long as the Notes are outstanding, the Company shall not consolidate or merge, or sell, assign, transfer, convey or dispose of all or substantially all of its assets or the assets of the Company and its Subsidiaries taken as a whole, unless the surviving entity shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, conveyance or other disposition, the provisions of this Agreement referring to the “Company” shall refer instead to the surviving entity and not to the Company), and may exercise every right and power of, the Company under this Agreement with the same effect as if such surviving entity had been named as the Company herein. In any such

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event (other than any transfer by way of lease), the predecessor Company shall be released and discharged from all liabilities and obligations in respect of the Notes and this Agreement and the predecessor Company may be dissolved, wound up or liquidated at any time thereafter.

(j) Collateral; Subsequently Acquired Subsidiaries. The complete payment and performance of this Agreement and the Notes shall be secured by the “Collateral” described as such in the Security Documents. The Company and each Guarantor shall execute all applicable Security Documents necessary to grant a security interest in all of the Collateral it owns to the extent permitted under the Intercreditor Agreement. Each Guarantor created or acquired after the Closing shall execute a joinder to the Security Agreement and to all applicable Security Documents necessary to grant a security interest in all of the Collateral it owns to the Notes Agent (for the ratable benefit of the Notes Agent and the Holders) to the extent permitted under the Intercreditor Agreement. In no event shall any terms or undertakings of the Company and the Guarantors in the Security Agreement be more restrictive or burdensome than the Existing Security Agreements as in effect on the date hereof, and as such Existing Security Agreements may be amended, restated or modified from time to time after the date hereof, or violate, conflict with or contravene any terms of the Intercreditor Agreement. In the event of a conflict between the Security Agreement and the Intercreditor Agreement, the terms of the Intercreditor Agreement shall prevail and control.

Section 5.2 Covenants of the Purchasers. Each of the Purchasers hereby agrees, severally and not jointly, with the Company as set forth in this Section 5.2:

(a) Conditions Precedent. Each of the Purchasers shall use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement; provided, however, that nothing contained in this Section 5.2(a) shall obligate any Purchaser to waive any right or condition under this Agreement.

(b) Transfer Restrictions Regarding the Notes. Each Purchaser agrees not to offer, sell or otherwise transfer any Notes except to an Affiliate of such Purchaser or pursuant to an available exemption from the registration requirements of the Securities Act and, in each case, in compliance with any applicable securities Laws of any state of the United States and any other applicable jurisdiction and subject to the terms of this Agreement.

(c) Short Selling Acknowledgement and Agreement. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that coverage of Short Sales of securities “against the box” prior to the effective date of a registration statement is a violation of Section 5 of the Securities Act. Each Purchaser agrees, severally and not jointly, that it will not engage in any Short Sales that result in the disposition of the Class A Common Stock acquired pursuant to a conversion of the Equity Linked Notes by the Purchaser until such time as the Shelf Registration Statement (as defined in the Registration Rights Agreement) is declared or deemed effective by the Commission.

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ARTICLE VI

DEFAULTS AND REMEDIES

Section 6.1 Events of Default. Each of the following shall constitute an “Event of Default”:

(a) unless converted into Class A Common Stock pursuant to the terms of the Equity Linked Notes or into the License Agreement pursuant to the terms of the License Linked Notes, as applicable, the Company fails to pay any principal on any of the Notes when due and payable at its Stated Maturity, upon any required repayment, or upon declaration of acceleration or otherwise or the Company fails to pay when due any other Note Obliations;

(b) the Company fails to comply with the obligation to convert the Notes into Class A Common Stock or the License Agreement, as applicable, in accordance with the terms of the Notes;

(c) the Company fails to materially comply with the covenants of the Company set forth in Section 5.1 and such failure to comply shall continue unremedied for a period of 30 days after the Company has received notice thereof from the Notes Agent (at the direction of the Requisite Holders) or any Holder;

(d) the Company breaches any representation and warranty set forth in Article III of this Agreement which would reasonably be expected to result in a Company Material Adverse Effect or would reasonably be expected to have a material adverse effect on the Notes or the License Agreement or Class A Common Stock issuable upon conversion of the Equity Linked Notes, as applicable;

(e) the Company or a Significant Subsidiary: (i) commences a voluntary case or proceeding, (ii) applies for or consents to the entry of an order for relief against it in an involuntary case or proceeding, (iii) applies for or consents to the appointment of a Custodian of it or for all or substantially all of its assets; or (iv) makes a general assignment for the benefit of its creditors, in each case pursuant to or within the meaning of any Bankruptcy Law;

(f) the Company files or enters into a plan of liquidation; or

(g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or any Significant Subsidiary debtor in an involuntary case or proceeding; (ii) appoints a Custodian of the Company or any Significant Subsidiary or a Custodian for all or substantially all of the assets of the Company or any Significant Subsidiary; or (iii) orders the liquidation of the Company or any Significant Subsidiary and the order or decree remains unstayed and in effect for 60 days.

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Section 6.2 Acceleration; Waiver of Past Defaults and Recission.

(a) Subject to the terms of the Intercreditor Agreement, if any Event of Default (other than an Event of Default specified in Section 6.1(e), (f) or (g)) occurs and is continuing, then and in every such case the Requisite Holders may declare 100% of the principal amount plus accrued and unpaid interest on all the outstanding Notes (including but not limited to any outstanding accrued but not yet capitalized PIK Interest and all outstanding capitalized PIK Interest) to be due and payable immediately by notice in writing to the Company specifying the Event of Default(s). Upon any such declaration, all such outstanding Note Obligations shall become due and payable in cash on the Business Day following delivery of such notice in writing. Notwithstanding the foregoing, if an Event of Default in Section 6.1(e), (f) or (g) occurs with respect to the Company, all outstanding Note Obligations shall become due and payable immediately without further action, notice or declaration on the part of any Holder.

(b) The Requisite Holders, by written notice to the Company and the Notes Agent, may (x) waive any past Event of Default and its consequences and (y) at any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained as hereinafter in this Article VI provided, rescind any such acceleration with respect to the Notes and its consequences, except, in each case, with respect to an Event of Default described in Section 6.1(a) or Section 6.1(b) (which, in each case shall require the approval of each Holder directly affected by such Event of Default), if: (i) such rescission will not conflict with any judgment or decree of a court of competent jurisdiction; and (ii) all existing Events of Default (other than the non-payment of any principal amount or interest or any other Note Obligation that became due solely by such declaration of acceleration) have been cured or waived.

Upon any such waiver, the Event of Default which has been waived shall cease to exist and any Event of Default arising therefrom shall be deemed to have been cured, for every other purpose of this Agreement; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent. No such rescission shall affect any subsequent default or impair any right consequent thereon. The Requisite Holders shall provide the Notes Agent a copy of each notice of an Event of Default promptly upon the delivery thereof to the Maker.

Section 6.3 Holders May File Proofs of Claim. Subject to the terms of the Intercreditor Agreement, the Holders and the Notes Agent are authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Holders of the Notes or the Notes Agent, as applicable, allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its Property and shall be entitled and empowered to collect, receive and distribute any money or other Property payable or deliverable on any such claims and any Custodian in any such judicial proceeding.

Section 6.4 Restoration of Rights and Remedies. If any Holder has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then

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and in every such case the Company and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Holders shall continue as though no such proceeding had been instituted.

Section 6.5 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by Law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 6.6 Delay or Omission Not Waiver. No delay or omission of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by Law to the Holders, subject to the terms of the Intercreditor Agreement and the rights of the Notes Agent under Section 10.1, may be exercised from time to time, and as often as may be deemed expedient, by the Holders, as the case may be. Holders cannot exercise rights and remedies on the Collateral, as the Notes Agent is vested with this right (at the direction at the Requisite Holders).

ARTICLE VII

CLOSING CONDITIONS

Section 7.1 Conditions to the Closing.

(a) Mutual Conditions. The respective obligation of each Purchaser Party to consummate the purchase and issuance and sale of the Notes on any applicable Closing Date shall be subject to the satisfaction on or prior to such Closing Date of each of the following conditions (any or all of which may be waived by a particular Party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):

(i) no Law shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority of competent jurisdiction which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated by this Agreement, the Transaction Documents, or makes the transactions contemplated by this Agreement or the Transaction Documents illegal; and

(ii) there shall not be pending any Action by any Governmental Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement or the Transaction Documents.

(b) Each Purchaser’s Conditions. The respective obligation of each Purchaser to consummate the purchase of its Notes on any applicable Closing Date shall be subject to the satisfaction on or prior to such Closing Date, as applicable, of each of the following conditions (any or all of which may be waived by a particular Purchaser on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):

(i) the Company shall have performed and complied with the covenants and agreements contained in this Agreement in all material respects that are required to be performed and complied with by the Company on or prior to such Closing Date;

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(ii) the representations and warranties of the Company contained in this Agreement that are qualified by materiality or Company Material Adverse Effect shall be true and correct when made and as of such Closing Date and all other representations and warranties shall be true and correct in all material respects when made and as of such Closing Date, in each case as though made at and as of such Closing Date (except that representations made as of a specific date shall be required to be true and correct as of such date only);

(iii) the Board shall have authorized and approved the issuance of the Notes, the entry into the License Agreement and the issuance of Class A Common Stock upon conversion of the Equity Linked Notes, as applicable;

(iv) no Company Material Adverse Effect shall have occurred and be continuing;

(v) the Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Notes and the issuance of Class A Common Stock upon conversion of the Equity Linked Notes in accordance with and subject to the terms thereof and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect;

(vi) the Purchasers and the Notes Agent shall have received the Security Documents, each duly executed and delivered by the parties thereto;

(vii) all Uniform Commercial Code financing statements or other required filings or notices deemed necessary or appropriate by Purchasers to perfect the Liens in favor of the Notes Agent arising under the Security Documents, duly authenticated and delivered by the applicable Note Parties, to be recorded with the appropriate filing offices; and

(viii) the Company shall have delivered, or caused to be delivered, to the Purchasers at such Closing Date the Company’s closing deliveries described in Section 7.2 of this Agreement.

(c) Company’s Conditions. The obligation of the Company to consummate the sale of the Notes to each of the applicable Purchasers on any applicable Closing Date shall be subject to the satisfaction on or prior to such Closing Date, as applicable, of the following conditions with respect to each Purchaser individually and not the Purchasers jointly (which may be waived by the Company or, in the case of clause (iv), the Notes Agent, in writing, in whole or in part, to the extent permitted by applicable Law):

(i) such Purchaser shall have performed and complied with the covenants and agreements contained in this Agreement in all material respects that are required to be performed and complied with by that Purchaser on or prior to such Closing Date;

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(ii) the representations and warranties of such Purchaser contained in this Agreement that are qualified by materiality or Purchaser Material Adverse Effect shall be true and correct when made and as of such Closing Date and all other representations and warranties shall be true and correct in all material respects when made and as of such Closing Date in each case as though made at and as of such Closing Date (except that representations made as of a specific date shall be required to be true and correct as of such date only);

(iii) such Purchaser shall have delivered, or caused to be delivered, to the Company at such Closing, its closing deliveries described in Section 7.3 of this Agreement; and

(iv) all fees, costs and expenses, including, without limitation, legal fees and expenses, of the Notes Agent shall have been paid prior to, or on, such Closing Date.

Section 7.2 Company Deliveries. At each Closing, subject to the terms and conditions of this Agreement, the Company will deliver, or cause to be delivered, to each applicable Purchaser or, in the case of clause (g), the Notes Agent:

(a) the applicable Notes to be delivered at such Closing, in the original principal amount as set forth under the heading “Principal Amount of Cash Notes”, “Principal Amount of Exchange Notes”, “Principal Amount of License Linked Note”, “Principal Amount of Additional Cash Notes” or “Principal Amount of Additional Exchange Notes”, as applicable, on Schedule 2.1 to this Agreement, by delivering certificates (bearing the legend set forth in Section 9.2(b)) evidencing such Notes at the Closing, all free and clear of any Liens, encumbrances or interests of any other party;

(b) the Registration Rights Agreement in substantially the form attached to this Agreement as Exhibit A, which shall have been duly executed by the Company;

(c) a certificate of the Secretary of the Company dated as of such Closing Date substantially in the form attached to this Agreement as Exhibit C;

(d) a certificate dated as of a recent date of the Secretary of State of the State of Delaware with respect to the due organization and good standing in the State of Delaware of the Company;

(e) a cross receipt, dated as of such Closing Date, executed by the Company and delivered to the Purchasers, certifying that the Company has received the applicable Notes Purchase Price with respect to the applicable Notes issued and sold to the Purchasers at such Closing, substantially in the form attached to this Agreement as Exhibit D-1;

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(f) evidence of requisite consent from the lenders under the ABL Credit Agreement and Term Loan Credit Agreement allowing for the issuance of the Notes, entry into the Security Agreement, and the consummation of the transactions contemplated hereby; and

(g) the Company shall have delivered to the Notes Agent the Notes Agent Fee Letter.

Section 7.3 Purchaser Deliveries. At each Closing, subject to the terms and conditions of this Agreement, each applicable Purchaser will deliver, or cause to be delivered, to the Company:

(a) the Registration Rights Agreement in substantially the form attached to this Agreement as Exhibit A, which shall have been duly executed by such Purchaser;

(b) with respect to any Cash Note or the License Linked Note, as applicable, delivered to such Purchaser at such Closing, payment of the applicable Notes Purchase Price for such Note(s) by wire transfer of immediately available funds to an account designated by the Company prior to 9:30 a.m., New York time, on the applicable Closing Date;

(c) with respect to any Exchange Note delivered to such Purchaser at such Closing, the shares of Series A Preferred Stock comprising the applicable Exchange Notes Purchase Price or Additional Exchange Notes Purchase Price, as applicable, for such Note(s) by delivery to the Company at the address specified in Section 11.6 of this Agreement of the certificates for such shares, duly endorsed for transfer, or by transferring such share through the DTC via DWAC to the Company’s Transfer Agent in accordance with the instructions provided by such Transfer Agent prior to the applicable Closing Date; and

(d) a cross receipt, dated as of such Closing Date, executed by such Purchaser and delivered to the Company, certifying that such Purchaser has received its Notes, substantially in the form attached to this Agreement as Exhibit D-2.

ARTICLE VIII

INDEMNIFICATION, COSTS AND EXPENSES

Section 8.1 Indemnification by the Company. The Company agrees to indemnify and hold the Purchasers, their Affiliates, and any of their respective Representatives, successors, stockholders and partners (each, a “Purchaser Indemnitee”) harmless from and against any and all losses, claims, damages and liabilities, joint or several (including any investigation, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) (collectively, “Losses”), to which any Purchaser Indemnitee may become subject to the extent resulting from, due to or based upon Purchasers having entered into this Agreement or agreeing to purchase the Notes, the Company’s use of proceeds from the sale of the Notes pursuant to this Agreement and the issuance of the Notes or the Class A Common Stock issuable upon conversion of the Equity Linked Notes.

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Section 8.2 Indemnification by Purchasers. Each Purchaser severally and not jointly agrees to indemnify and hold the Company, its Affiliates, any of its or their Affiliates, and any of its or their respective Representatives, successors, stockholders and partners (each, a “Company Indemnitee”) harmless from and against any and all Losses to which any Company Indemnitee may become subject to the extent resulting from, due or are based upon (i) any inaccuracy in, breach of or failure to comply with, any representation, warranty, or covenant made to the Company in this Agreement or any Transaction Document by such Purchaser, or (ii) any information furnished by such Purchaser in writing to the Company expressly for use in any preliminary prospectus, prospectus or issuer free writing prospectus (as defined in Rule 433 of the Securities Act) relating thereto, any amendment or supplement thereto or any document incorporated by reference therein; provided that the liability of each Purchaser shall be in proportion to, and shall be limited to, such Purchaser’s Notes Purchase Price.

Section 8.3 Conduct of Indemnification Proceedings.

(a) Any Person entitled to indemnification under this Article VIII shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided that the failure to give such notice shall not limit the rights of such Person or relieve the indemnifying party from any liability that it may have under Sections 8.1 and 8.2 above unless and only to the extent that failure to give such notice materially prejudices the indemnifying party; and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and any indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided that any Person entitled to indemnification under this Article VIII shall have the right to employ separate counsel and to participate in the defense of such claim at the expense of such indemnified person, unless (x) the indemnifying party has agreed to pay such fees or expenses or (y) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Person. If such defense is not assumed by the indemnifying party when permitted under this Article VIII, the indemnified party shall be entitled to assume and control such defense and to settle and agree to pay in full such claim without the consent of the indemnifying party without prejudice to the ability of the indemnified party to enforce its claim for indemnification against the indemnifying party under this Article VIII.

(b) Except as otherwise provided in the preceding paragraph, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent, which consent shall not be unreasonably withheld or delayed. If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the applicable claim (i) unless (A) such settlement or compromise contains a full and unconditional release of the indemnified party and (B) such settlement or compromise does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of the indemnified party or (ii) if such settlement or compromise provides for injunctive or other non-monetary relief, in each case, unless the indemnified party otherwise consents in writing. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and

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expenses of more than one (1) counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels.

ARTICLE IX

REGISTRATION, EXCHANGE AND REPLACEMENT OF NOTES

Section 9.1 Registration of Notes. The Company shall keep at its principal executive office a register for the registration of issuances, transfers and exchanges of the Notes (the “Notes Register”). The Notes Register shall contain the names and addresses of the Holders and principal amounts, PIK Interest payments, and accrued and unpaid interest owing to each Holder pursuant to the terms hereof and under the Notes from time to time. The entries and calculations in the Notes Register shall be conclusive absent manifest error, and the Company and the Holders shall treat each person whose name is recorded in the Notes Register pursuant to the terms hereof as a Holder hereunder for all purposes of this Agreement. The Notes Register shall be available for inspection by any Holder at any reasonable time and from time to time upon reasonable prior notice.

Section 9.2 Transfer and Exchange of Notes. Upon request by a Holder of a Note, and such Holder’s compliance with the provisions of this Section 9.2, the Company shall register the transfer or exchange of the Note. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Company the Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Company duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide (i) an opinion of counsel to such Holder in a form reasonably satisfactory to the Company that registration of such transfer or exchange is not required under the Securities Act and (ii) any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 9.2. Each such new Note shall be payable to such Person as such Holder may request and shall be substantially in the form of note specified for the Notes hereunder. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon.

(a) Limited Transferability of Notes. No Holder may offer, sell or otherwise transfer any Notes except to an Affiliate of such Holder or pursuant to an available exemption from the registration requirements of the Securities Act and, in each case, any applicable securities laws of any state of the United States and any other applicable jurisdiction and subject to the approval of the Company.

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(b) Note Purchase Agreement Legend. Each Note (and all Notes issued in exchange therefor or substitution therefor) shall bear the legend in substantially the following form:

“THE NOTE REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM REASONABLY SATISFACTORY TO U.S. WELL SERVICES, INC. THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.

THE NOTES ARE SUBJECT IN ALL RESPECTS TO THE RESTRICTIONS IN THE NOTE PURCHASE AGREEMENT.”

(c) Common Stock Legend. Until such time as the Class A Common Stock issuable upon conversion of the Equity Linked Notes has been registered pursuant to the provisions of the Securities Act, or the Class A Common Stock issuable upon conversion of the Equity Linked Notes is eligible for resale pursuant to Rule 144 promulgated under the Securities Act without any restriction as to the number of securities as of a particular date that can then be immediately sold, the Class A Common Stock issuable upon conversion of the Equity Linked Notes will bear the following restrictive legend:

“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE ISSUER HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT.”

(d) General Provisions Relating to Transfer and Exchange.

(i) No service charge shall be made to the Holder for registration of the transfer or exchange of any Note, but the Company may require payment of a sum sufficient to cover any transfer tax or similar Governmental Authority charge payable in connection therewith.

(ii) All Notes issued upon any registration of transfer or exchange in Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Agreement, as the Notes surrendered upon such registration of transfer or exchange. Notwithstanding the foregoing, no Holder of a Note shall be entitled to receive confidential information of the Company and its Subsidiaries prior to the entry by such Holder and the Company into a mutually agreeable confidentiality agreement with respect to such confidential information.

(iii) Prior to due presentment for the registration of a transfer of any Note, the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and the Company shall not be affected by notice to the contrary.

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(iv) All certifications, certificates and opinions of counsel required to be submitted to the Company pursuant to this Section 9.2 to effectuate a registration of transfer or exchange may be submitted by electronic transmission.

Section 9.3 Replacement of Notes. If any mutilated Note is surrendered to the Company, and the Company receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue a replacement Note. If required by the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Company to protect the Company and any authenticating agent from any loss that any of them may suffer if a Note is replaced. Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Agreement equally and proportionately with all other Notes duly issued hereunder. The provisions of this Section 9.3 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

ARTICLE X

NOTES AGENT

Section 10.1 Appointment and Authorization of the Administrative Agent.

(a) Each Holder hereby irrevocably appoints Wilmington Savings Fund Society, FSB, to act on its behalf as the Notes Agent hereunder and under the other Security Documents and authorizes the Notes Agent to take such actions on its behalf and to exercise such rights, remedies and powers as are delegated to Notes Agent by the terms hereof or thereof (including, without limitation, any subordination and intercreditor agreements), together with such rights, actions and powers as are reasonably incidental thereto. In furtherance of the foregoing, each of the Holders hereby irrevocably appoints and authorizes the Notes Agent to act as collateral agent of (and, in such capacity, to hold any security interest created by the Security Documents for and on behalf of or in trust for) such Holder for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Company or any Guarantor to secure any of the Note Obligations, and to take all other actions, exercise all powers and perform such duties as are delegated to the Notes Agent under the Security Documents, together with such powers and discretion as are reasonably incidental thereto. The Notes Agent (and any co-agents, sub-agents and attorneys-in-fact appointed by the Notes Agent pursuant to Section 10.7 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof), or for exercising any rights and remedies with respect thereto), shall be entitled to the benefits of all provisions of this Article X (including Section 10.7, as though such co-agents, sub-agents and attorneys-in-fact were the ”Notes Agent” under the Transaction Documents). Without limiting the generality of the foregoing, the Holders hereby expressly authorize the Notes Agent to execute any and all documents (including releases) with respect to the Collateral and the rights of the Notes Agent and the Holders with respect thereto (including the Intercreditor Agreement), as contemplated by and in

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accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by the Notes Agent or its sub-agent(s) shall bind the Holders. The provisions of this Article X (other than Sections 10.9, 10.10, and 10.11) are solely for the benefit of the Notes Agent and the Holders; neither the Company nor any Guarantor shall have rights as a third-party beneficiary of any such provision. Notwithstanding any provision to the contrary elsewhere in this Agreement or any other Transaction Documents, no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Transaction Document or otherwise exist against the Notes Agent.

Section 10.2 Rights as a Holder. Any Holder that is also serving as Notes Agent hereunder shall have the same rights and powers in its capacity as a Holder as any other Holder and may exercise the same as though it were not Notes Agent and the term “Holder” or “Holders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Holder (if any) serving as Notes Agent hereunder in its individual capacity. Any such Person serving as Notes Agent and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company or any Guarantor or other Affiliate thereof as if such Person were not Notes Agent hereunder and without any duty to account therefor to the Holders. The Holders acknowledge that, pursuant to such activities, Note Agent or its Affiliates may receive information regarding the Company or a Guarantor or any of their respective Affiliates (including information that may be subject to confidentiality obligations in favor of the Company, such Guarantor or such Affiliate) and acknowledge that the Notes Agent shall not be under any obligation to provide such information to them.

Section 10.3 Exculpatory Provisions. The Notes Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and in the other Transaction Documents. Without limiting the generality of the foregoing, the Notes Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a default or an Event of Default has occurred and is continuing and without limiting the generality of the foregoing, the use of the term “agent” herein and in the other Transaction Documents with reference to Notes Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law and instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Transaction Documents that the Notes Agent is required to exercise as directed in writing by the Requisite Holders (or such other number or percentage of Holders as shall be expressly provided for herein or in the other Transaction Documents), provided that the Notes Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Notes Agent to liability or that is contrary to any Transaction Document or applicable Law; and

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(c) shall not, except as expressly set forth herein and in the other Transaction Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, any Guarantor or any of their respective Affiliates that is communicated to or obtained by any Person serving as Notes Agent or any of its Affiliates in any capacity.

Neither Notes Agent nor any of its Agent-Related Persons shall be liable for any action taken or not taken (including (i) the making of (or omitting to make) any determination, calculations, selection, request, appointment, instruction, direction, election or providing any approval or consent to enter into any amendments, modifications or supplements or otherwise in connection with any provisions of the Transaction Documents, (ii) the sending (or failure to send) any notice or the revocation (or failure to revoke) any notice, (iii) the exercise (or failure to exercise) of voting rights or powers, (iv) the filing or recording of any agreement, document or instrument (or the failure to file or records any agreement, document or instrument), (v) the exercise of any rights and remedies (and all actions incidental or related thereto), (vi) releasing, subordinating, and/or terminating any Lien or (vii) exercising any powers as the attorney-in-fact for the Company or any Guarantor) by it (i) with the consent or at the request of the Requisite Holders (or such other number or percentage of the Holders as shall be necessary, or as the Notes Agent shall believe in good faith shall be necessary or (ii) in the absence of its own gross negligence or willful misconduct as determined by the final and non-appealable judgment of a court of competent jurisdiction (provided, that no action taken or not taken in accordance with clause (i) of this sentence, shall be deemed to constitute gross negligence or willful misconduct), in each case, in connection with its duties expressly set forth herein. The Notes Agent not shall be deemed to have knowledge of any default or Event of Default unless and until notice describing such default or Event of Default is given to the Notes Agent by the Company or a Holder and expressly stating that such notice is a “notice of default”. In the event that the Notes Agent receives such a notice, the Notes Agent shall give notice thereof to the Holders. The Notes Agent shall take such action with respect to such default or Event of Default as shall be reasonably directed by the Requisite Holders (or, if so specified by this Agreement, all Holders or such number or percentage of the Holders as shall be necessary under the circumstances as provided for herein or in the other Transaction Documents); provided that unless and until the Notes Agent shall have received such direction, the Notes Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such default or Event of Default, in its sole discretion.

Neither Notes Agent nor Agent-Related Person shall be liable or responsible for, or have any duty to ascertain or inquire into, (i) any recital, statement, warranty or representation made in or in connection with this Agreement or any other Transaction Document, (ii) the contents of any certificate, report, instrument, statement or other document referred to or provided for in, or delivered to the Notes Agent or Holders hereunder or pursuant to the Transaction Documents or in connection herewith or in connection with the Transaction Documents or the transactions contemplated herein or therein, (iii) the performance or observance of any of the covenants, agreements, obligations, provisions or other terms or conditions set forth herein or therein or the occurrence of any default or Event of Default, (iv) the value, validity, enforceability, effectiveness, execution, collectability, sufficiency or genuineness of this Agreement, any other Transaction Document or any other agreement, certificate, instrument or document, or the creation, attachment, perfection and/or priority of any Lien created or purported to be created in

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the Collateral by the Security Documents and/or the filing of financing statements, continuation and/or amendment of any financing statements filed to perfect the Liens in the applicable Collateral (other than to the extent expressly directed by the Requisite Holders in writing), (v) the value or the sufficiency of any Collateral, (vi) the satisfaction of any condition set forth in Article VII or elsewhere herein or in any other Transaction Document, other than to confirm receipt of items expressly required to be delivered to the Notes Agent, (vii) the inspection of the properties, books or records of the Company or any Guarantor or any of their respective Affiliates, (viii) the financial condition or business affairs of the Company, any Guarantor or any other Person liable for the payment of any Notes Obligations (ix) the use of the proceeds of the Notes, or (x) to make any disclosures with respect to the foregoing or otherwise relating to the Company or any Guarantor unless expressly required herein. Anything contained herein to the contrary notwithstanding, the Notes Agent shall not have any liability arising from confirmations of the amount of outstanding of Notes or the component amounts thereof. Additionally, the Notes Agent shall not (i) be responsible or have any liability for, or have any duty to inquire into, monitor or enforce compliance with Article IX of this Agreement. or (ii) have any liability with respect to or arising out of any assignment or of any Note, or disclosure of confidential information to an assignee of a Note.

The duties of the Notes Agent shall be mechanical and administrative in nature; the Notes Agent shall not have by reason of this Agreement or any other Transaction Document a fiduciary relationship in respect of any Holder; and nothing in this Agreement or in any other Transaction Document, expressed or implied, is intended to or shall be so construed as to impose upon the Notes Agent any obligations in respect of this Agreement or any other Transaction Document except as expressly set forth herein or therein. Each Holder acknowledges, agrees and accepts the terms and conditions of each Transaction Document, including, without limitation, the Security Agreement and the Intercreditor Agreement, and authorizes and instructs the Notes Agent to execute and perform its obligations hereunder and under each other Transaction Document.

Section 10.4 Lack of Reliance on the Notes Agent. Each Holder expressly acknowledges that neither the Notes Agent nor any Agent-Related Person have made any representations or warranties to it and that no act by the Notes Agent hereafter taken, including any review of the affairs of the Company or any Guarantor or any of their respective Affiliates of such Person, shall be deemed to constitute any representation or warranty by Notes Agent to any Holder. Independently and without reliance upon the Notes Agent, each Holder, to the extent it deems appropriate, has made and shall continue to make (i) its own independent investigation of the financial condition, affairs, business, operations, property, financial and other condition and creditworthiness of the Company and the Guarantors in connection with the purchase of the Notes and the taking or not taking of any action in connection herewith and (ii) its own appraisal of the creditworthiness of the Company and the Guarantors, based on such documents and information as such Holder has deemed appropriate, and, except as expressly provided in this Agreement, the Notes Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Holder with any credit or other information with respect thereto, whether coming into its possession before the purchase of the Notes or at any time or times thereafter. The Notes Agent shall not be (i) responsible to any Holder for (A) any recitals, statements, information, representations or warranties herein or in any other Transaction Document or other document, certificate, requests, instruments, statement or other writing delivered in connection herewith, with the Transaction Documents or the transactions

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contemplated herein or referenced or provided for herein or in the other Transaction Documents, (B) the execution, effectiveness, value, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Transaction Document or the financial condition of the Company or any of the Guarantors or (C) the attachment, creation and/or perfection of the Liens granted or purported to be granted in the Collateral pursuant to the Security Documents, the filing of financing statements or the continuation and/or amendment of any financing statements filed to perfect the Liens in the applicable Collateral (other than to the extent expressly directed by the Requisite Holders) or (ii) required to make (or otherwise be responsible to the Holders for making) any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Transaction Document, or the financial condition of the Company or any Guarantor, or the existence or possible existence of any default or Event of Default . Except for notices, reports and other documents expressly required to be furnished to the Holders by the Notes Agent hereunder, the Notes Agent shall not have any duty or responsibility to provide any Holder with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any the Company, any Guarantor or any of their respective Affiliates that may come into the possession of the Notes Agent or any Agent-Related Person.

Section 10.5 Certain Rights of the Notes Agent. The Notes Agent may request instructions from the Requisite Holders (or such greater percentage of Holders required) prior to taking any action or entering into any amendments, modifications or supplements, making any determination (including as to whether any agreement, document or instrument is in form and substance satisfactory to Notes Agent), making any calculation (which shall be computed by the Requisite Holders), sending any notice, revoking any notice, making a selection, request, election or appointment (including failing to make a selection, request, election or appointment), exercising any voting rights or powers (including failing to exercise any voting rights or powers), exercising any rights and remedies (and all actions incidental or related thereto), releasing, subordinating and/or terminating any Lien, exercising any powers as the attorney-in-fact for the Company or any Guarantor, providing any consent, approval, instruction or direction (including failing to provide any consent, approval, instruction or direction) or making (or failing to make) any filing or recording in connection with this Agreement or any of the other Transaction Documents and may refrain (and shall incur no liability from so refraining) from taking or omitting to take any act or making any such determination, calculation, selection, request, exercising such voting rights or powers or providing such notice, approval or consent or entering into any amendments, modifications or supplements until it receives such instruction (or calculation, as applicable) from the Requisite Holders (or such number or percentage of the Holders as shall be necessary under the circumstances as provided for herein or in the other Transaction Documents) and such additional indemnity from the Holders, in each case, as it deems reasonably appropriate (and until such instructions and indemnity, as applicable, are received, the Notes Agent shall act, or refrain from acting, as it deems advisable in its sole discretion) and the Notes Agent shall not incur liability to any Holder, the Company or any Guarantor by reason of so refraining. Without limiting the immediately preceding sentence, in no event shall the Notes Agent be required to enter into any extension or amendment to any Transaction Document without receiving direction from the requisite percentage of the applicable Holders. The Notes Agent shall in all cases be fully protected in acting, or in

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refraining from acting, under this Agreement and the other Transaction Documents in accordance with the request of the Requisite Holders (or such number or percentage of the Holders as shall be necessary under the circumstances as provided for herein or in the other Transaction Documents), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Holders and all future holders of the Notes. Without limiting the foregoing, no Holder shall have any right of action whatsoever against the Notes Agent as a result of the Notes Agent acting or refraining from acting hereunder or under any other Transaction Document in accordance with the instructions of the Requisite Holders (or such greater percentage of Holders required). Notwithstanding any other provisions set forth in this Agreement or any other Transaction Documents, the Notes Agent shall not be required to take any action that is in its opinion contrary to applicable Law (including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Bankruptcy Law (or similar laws)) or the terms of any of the Transaction Documents that would in its reasonable opinion subject it or any of its officers, employees or directors to personal liability. Each Holder, by delivering its signature page to this Agreement or the applicable transfer document in connection with the assignment of a Note and/or the purchase of the Notes, shall be deemed to have acknowledged receipt of, and consented to and approved, each Transaction Document and each other document required to be approved by the Notes Agent, Requisite Holders or Holders, as applicable, on the applicable Closing Date or as of the date of the purchase of such Note.

Section 10.6 Reliance by the Notes Agent. The Notes Agent shall be entitled to rely upon, and shall be fully protected in relying upon (and shall not be liable for so relying upon), any communication, request, instrument, note, consent, affidavit, letter, writing, resolution, notice, statement, certificate, e-mail or other electronic message, order, internet or intranet website posting, or other document (or writing), conversation or telephone message signed, sent or made (or authenticated) by (or, in the case of a conversation, with) any Person that the Notes Agent believed to be the proper Person, and, with respect to all legal matters (including all duties and obligations of Notes Agent hereunder and under the other Transaction Documents) pertaining to this Agreement and any other Transaction Document and its duties hereunder and thereunder, upon advice of legal counsel, independent accountants and other experts and professional advisors selected by the Notes Agent. The Notes Agent may deem and treat the Holder of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation, transfer thereof shall have been delivered with the Notes Agent. In determining compliance with any condition hereunder to the purchase of a Note by its terms must be fulfilled to the satisfaction of a Holder, the Notes Agent may presume that such condition is satisfactory to such Holder, unless the Notes Agent shall have received notice to the contrary from such Holder prior to the purchase of such Note. The Notes Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts or professional advisors selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants, professional advisors or experts.

Section 10.7 Delegation of Duties. The Notes Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Transaction Documents by or through any one or more of its agents, sub agents and/or attorneys in fact appointed by the Notes Agent. The Notes Agent and any such agent, sub agent or attorney in fact may perform

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any and all of its duties and exercise its rights and powers as are delegated to the Notes Agent, as applicable, together with such rights and powers as are reasonably incidental thereto, by or through their respective Agent-Related Persons. The exculpatory and indemnification provisions of this Article shall apply to any such agent, sub agent or attorney in fact and to the Agent-Related Persons of the Notes Agent and any such agent, attorney in fact or sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Notes Agent. The Notes Agent shall not be responsible for the negligence or misconduct of any agents, sub agents, attorney in fact or any of their respective Agent-Related Persons selected by it with reasonable care.

Section 10.8 Costs and Expenses; Indemnification.

(a) The Company agrees to pay or reimburse the Notes Agent for all reasonable and documented out-of-pocket costs and expenses of the Notes Agent (promptly following a written demand therefor, together with backup documentation supporting such reimbursement request) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and the other Transaction Documents and any amendment, waiver, consent, forbearance, modification or enforcement (whether through negotiations, legal proceedings or otherwise) of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all reasonable and documented attorneys’ fees, costs and expenses and, if necessary, a single local counsel in each relevant jurisdiction, and (b) upon presentation of a summary statement, together with any supporting documentation reasonably requested by the Company, to pay or reimburse the Notes Agent, promptly following a written demand therefor for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Transaction Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Bankruptcy Law or other similar law, and including all reasonable and documented fees, costs and expenses of one counsel to the Notes Agent and one local counsel in each relevant jurisdiction. The agreements in this Section 10.8(a) shall survive the repayment of all Note Obligations.

(b) The Company shall indemnify and hold harmless the Notes Agent its Agent-Related Persons (collectively, the “Agent Indemnitees”) from and against any and all losses, claims, damages, liabilities, obligations, penalties, actions, judgments, costs or expenses of whatsoever kind or nature (including attorney costs) to which any such Agent Indemnitee may become subject arising out of, resulting from or in connection with (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Agent Indemnitees taken as a whole and, if reasonably necessary, a single local counsel for all Agent Indemnitees taken as a whole in each relevant jurisdiction, and solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to each group of affected Agent Indemnitees similarly situated taken as a whole) any (i) actual or threatened claim, litigation, investigation, proceeding or liabilities relating to the transactions contemplated hereby or under the other Transaction Documents or (ii) to the execution, delivery, enforcement, performance and administration (including the negotiation, execution, and delivery of any waivers, forbearances, amendments, supplements or modifications thereto) of this Agreement, the other Transaction Documents, in connection with

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the transactions contemplated hereunder or thereunder, the Notes or the use, or proposed use of the proceeds therefrom, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, litigation, investigation or proceeding), and regardless of whether any Agent Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Agent Indemnitee, be available to the extent that such losses, claims, damages, liabilities or expenses resulted from (x) the gross negligence or willful misconduct of such Agent Indemnitee as determined by a final, non-appealable judgment of a court of competent jurisdiction or (y) any dispute solely among Agent Indemnitees other than any claims against an Agent Indemnitee in its capacity or in fulfilling its role as an agent or any similar role under any Transaction Document and other than any claims arising out of any act or omission of the Company or any of its Affiliates (as determined by a final, non-appealable judgment of a court of competent jurisdiction). To the extent that the undertakings to indemnify and hold harmless set forth in this Section 10.8 may be unenforceable in whole or in part because they are violative of any applicable law or public policy, the Company shall contribute the maximum portion that they are permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Agent Indemnitees or any of them. No Agent Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement or any other Transaction Document (except to the extent such damages are found in a final non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Agent Indemnitee), nor shall any Agent Indemnitee, the Company or any Guarantor have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Transaction Document or arising out of its activities in connection herewith or therewith (whether before or after a Closing Date) (other than, in the case of the Company or any Guarantor, in respect of any such damages incurred or paid by an Agent Indemnitee to a third party for which such Agent Indemnitee is otherwise entitled to indemnification pursuant to this Section 10.8). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.8 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Company or any Guarantor, their respective directors, stockholders or creditors or an Agent Indemnitee or any other Person, whether or not any Agent Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Transaction Documents is consummated.

(c) To the extent the Agent Indemnitee is not reimbursed and indemnified by the Company, the Holders will reimburse and indemnify the Notes Agent or any other Agent-Related Person (in proportion to their respective “percentage” as used in determining the Requisite Holders for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred at any time by the Notes Agent or any other Agent-Related Person in performing its duties hereunder or under any other Transaction Document or in any way relating to or arising out of this Agreement or any other Transaction Document (including, without limitation, any indemnification provided by the Notes Agent under any Transaction Document); provided that no Holder shall be liable to an Agent Indemnitee for any portion of such liabilities, obligations, losses, damages, penalties, claims,

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actions, judgments, suits, costs, expenses or disbursements resulting from such Agent Indemnitee’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 10.8 applies whether any such investigation, litigation or proceeding is brought by any Holder or any other Person. Without limitation of the foregoing, each Holder shall reimburse the Notes Agent, as applicable, upon demand for its ratable share of any costs or out-of-pocket expenses (including attorneys’ fees, costs and expenses) incurred by the Notes Agent, as applicable, in connection with the preparation, execution, delivery, administration, modification, amendment, forbearance or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document, or any document contemplated by or referred to herein or in any Transaction Document, or in connection with any transaction contemplated hereunder, or in connection with any action taken or omitted to be taken by Notes Agent or Agent-Related Person, as applicable, under or in connection with any of the foregoing including without limitation, exercising any of the Notes Agent’s powers, rights, and remedies and performing its duties hereunder and thereunder (or omitting to do the same), in each case, to the extent that the Notes Agent is not reimbursed for such expenses by or on behalf of the Company, provided that such reimbursement by the Holders shall not affect the Company’s continuing reimbursement obligations with respect thereto, provided further that the failure of any Holder to indemnify or reimburse the Notes Agent shall not relieve any other Holder of its obligation in respect thereof. If any indemnity furnished to the Notes Agent for any purpose shall, in the opinion of the Notes Agent, be insufficient or become impaired, the Notes Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished.

(d) All amounts due under Section 10.8 shall be paid within twenty (20) Business Days after written demand therefor. The agreements in this Section 10.8 shall survive the resignation of the Notes Agent, the replacement of any Holder, and the repayment, satisfaction or discharge of all Note Obligations.

Section 10.9 Resignation by the Notes Agent. The Notes Agent may resign from the performance of all its functions and duties hereunder or under the other Transaction Documents at any time by giving 30 Business Days’ prior written notice to the Holders and the Company. If the Notes Agent is in material breach of its obligations hereunder as Notes Agent, then the Notes Agent may be removed as the Notes Agent at the reasonable request of the Requisite Holders.

Upon any such notice of resignation by, or notice of removal of, the Notes Agent, the Requisite Holders shall appoint a successor Notes Agent hereunder or thereunder who shall be a commercial bank or trust company reasonably acceptable to the Company, which acceptance shall not be unreasonably withheld or delayed (provided that the Company’s approval shall not be required if an Event of Default under Section 6.1(f) has occurred and is continuing).

If a successor Notes Agent shall not have been so appointed within such 30 Business Day period, the Notes Agent may (but shall not be obligated to) appoint a successor Notes Agent who shall serve as Notes Agent hereunder until such time, if any, as the Requisite Holders appoint a successor Notes Agent as provided above.

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If no successor Notes Agent has been appointed pursuant to the foregoing by the 30th Business Day after the date such notice of resignation was given by the Notes Agent or such notice of removal was given by the Requisite Holders or the Company, as applicable, the Notes Agent’s resignation or removal shall nonetheless become effective and the Requisite Holders shall thereafter perform all the duties of the Notes Agent hereunder or under any other Transaction Document until such time, if any, as the Requisite Holders appoint a successor Notes Agent as provided above. Upon the end of such 30 Business Day period, the retiring Notes Agent shall be discharged from its duties and obligations hereunder and under the other Transaction Documents.

Upon the acceptance of a successor’s appointment as Notes Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired or removed) Notes Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Notes Agent prior to the effectiveness of such removal or resignation), the term “Notes Agent” shall mean such successor agent effective upon such appointment and approval, and the retiring (or retired or removed) Notes Agent shall be discharged from all of its duties and obligations hereunder or under the other Transaction Documents (if not already discharged therefrom as provided above in this Section 10.9) without any other or future act or deed on the part of such former Notes Agent or any of the parties to this Agreement or any Holders.

The fees payable by the Company to a successor Notes Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the resignation or removal of the Notes Agent hereunder, the provisions of this Article X and Section 10.8 shall continue in effect for the benefit of such Notes Agent, its sub-agents and its Agent-Related Persons in respect of any actions taken or omitted to be taken by any of them while Notes Agent was acting as Notes Agent.

Upon a resignation or removal of the Notes Agent pursuant to this Section 10.9, the Notes Agent (i) shall continue to be subject to any confidentiality provisions of the Transaction Documents and (ii) shall remain indemnified to the extent provided in this Agreement and the other Transaction Documents and the provisions of this Article X (and the analogous provisions of the other Transaction Documents) shall continue in effect for the benefit of the Notes Agent for all of its actions and inactions while serving as the Notes Agent.

Section 10.10 Collateral Matters. Each of the Holders hereby irrevocably authorize and instruct the Notes Agent to take the actions to be taken by them as set forth in the Security Documents.

Each Holder hereby agrees, that, except as otherwise set forth herein, any action taken by the Requisite Holders (or such greater percentage of Holders required) (or the Note Agent, at the direction of the Requisite Holders (or such greater percentage of Holders required)) in accordance with the provisions of this Agreement or the Security Documents, and the exercise by the Requisite Holders (or such greater percentage of Holders required) (or the Note Agent, at the direction of the Requisite Holders (or such greater percentage of Holders required)) of the powers set forth herein or therein, together with such other powers as are reasonably incidental

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thereto, shall be authorized and binding upon all of the Holders. The Notes Agent is hereby authorized on behalf of all of the Holders, without the necessity of any notice to or further consent from any Holder, from time to time prior to an Event of Default, (but shall have no obligation to do so prior to receiving written direction from the Requisite Holders) to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.

Upon request by the Notes Agent at any time, the Holders will confirm in writing the Notes Agent’s authority to release particular types or items of Collateral pursuant to this Section 10.10. In each case as specified in and subject to the provisions of this Section 10.10, the Notes Agent will (and each Holder irrevocably authorizes the Notes Agent to), at the Company’s expense, execute and deliver to the Company or any Guarantor, as applicable, such documents as such Person may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Security Documents, or to evidence the release of such Guarantor from its obligations under the Security Agreement, in each case in accordance with the terms of the Transaction Documents and this Section 10.10.

The Notes Agent shall have no obligation whatsoever to the Holders or to any other Person to assure that the Collateral exists or is owned by the Company or any Guarantor or is cared for, protected or insured or that the Liens granted to the Notes Agent pursuant to any Security Document have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Notes Agent in this Section 10.10, or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Notes Agent shall have no duty unless and until expressly directed by Requisite Holders. The Notes Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence or collectability of the Collateral, the existence, priority or perfection of the Notes Agent’s Lien thereon, or any certificate prepared by the Company or any Guarantor in connection therewith, nor shall the Notes Agent be responsible or liable to the Holders for any failure to monitor or maintain any portion of the Collateral, Liens therein or financing statements filed in connection therewith.

Anything contained in any of the Transaction Documents to the contrary notwithstanding, the Company and the Notes Agent hereby agree that (i) no Person (other than the Notes Agent) shall have any right individually to realize upon any of the Collateral or to enforce the Security Agreement or the guaranty contained there, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Transaction Documents may be exercised solely by the Notes Agent, as applicable, for the benefit of itself and the Holders in accordance with the terms hereof and thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Notes Agent on any of the Collateral pursuant to a public or private sale or other disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of Title 11 of the United States Code (the “Bankruptcy Code”) or other similar law), the Notes Agent (or any Holder, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), may be the purchaser or licensor of any

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or all of such Collateral at any such sale or other disposition and the Notes Agent, as agent for and representative of Holders (but not any Holder in its individual capacities) shall be entitled, upon instructions from Requisite Holders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Note Obligations as a credit on account of the purchase price for any collateral payable by the Notes Agent at such sale or other disposition.

Section 10.11 Intercreditor Agreements. Notwithstanding anything to the contrary in this Agreement or in any other Transaction Document: (a) the Liens granted to the Notes Agent in favor of itself and the Holders pursuant to the Transaction Documents and the exercise of any right related to any Collateral shall be subject, in each case, to the terms of the Intercreditor Agreement, (b) in the event of any conflict between the express terms and provisions of this Agreement or any other Transaction Document, on the one hand, and of the Intercreditor Agreement, on the other hand, the terms and provisions of the Intercreditor Agreement shall control, and (c) each Holder hereunder authorizes and instructs the Notes Agent to execute and perform its obligations under the Intercreditor Agreement (and any amendments, restatements, supplements or other modifications thereto approved in accordance with the terms thereof) on behalf of such Holder, and such Holder agrees to be bound by the terms thereof.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Interpretation. Article, Section, Schedule and Exhibit references are to this Agreement, unless otherwise specified. All references to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever the Company has an obligation under the Transaction Documents, the expense of complying with such obligation shall be an expense of the Company unless otherwise specified. Whenever any determination, consent or approval is to be made or given by a Purchaser under this Agreement, such action shall be in such Purchaser’s sole discretion unless otherwise specified. If any provision in the Transaction Documents is held to be illegal, invalid, not binding or unenforceable, such provision shall be fully severable, and the Transaction Documents shall be construed and enforced as if such illegal, invalid, not binding or unenforceable provision had never comprised a part of the Transaction Documents, and the remaining provisions shall remain in full force and effect. The Transaction Documents have been reviewed and negotiated by sophisticated parties with access to legal counsel and shall not be construed against the drafter.

Section 11.2 Survival of Provisions. The representations and warranties set forth in Sections 3.1, 3.2, 3.7, 3.9, 3.10, 3.11, 4.1, 4.2, 4.4 and 4.5 hereunder shall survive the execution and delivery of this Agreement indefinitely, and the other representations and warranties set forth in this Agreement either made as of the date of this Agreement or a Closing Date shall survive for a period of six (6) months following such date regardless of any investigation made by or on behalf of the Company or the Purchasers. Except as provided in Article V, the covenants made in this Agreement or any other Transaction Document shall survive the closing of the transactions contemplated herein and remain operative and in full force and effect regardless of acceptance of any of the Notes and payment therefor and repayment, conversion, exercise or repurchase thereof.

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Section 11.3 No Waiver; Modifications in Writing.

(a) Delay. No failure or delay on the part of any Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to a Party at Law or in equity or otherwise.

(b) Specific Waiver. Except as set forth in Section 6.3 or as otherwise provided in this Agreement or the Registration Rights Agreement, no amendment, waiver, consent, modification or termination of any provision of this Agreement or any other Transaction Document shall be effective unless signed by each of the Parties or each of the original signatories thereto affected by such amendment, waiver, consent, modification or termination. Without limiting the foregoing, the consent of Notes Agent shall be required for any amendment, waiver, or consent affecting the rights, privileges, indemnities, duties or obligations of the Notes Agent hereunder or under any of the other Transaction Documents. Any amendment, supplement or modification of or to any provision of this Agreement or any other Transaction Document, any waiver of any provision of this Agreement or any other Transaction Document and any consent to any departure by the Company from the terms of any provision of this Agreement or any other Transaction Document shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement, no notice to or demand on any Party in any case shall entitle any Party to any other or further notice or demand in similar or other circumstances.

Section 11.4 Binding Effect; Assignment.

(a) Binding Effect. This Agreement shall be binding upon the Company, each Purchaser, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any Person other than the Parties to this Agreement and as provided in Article VIII, and their respective successors and permitted assigns.

(b) Assignment. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Except as set forth in Section 9.2 or Section 10.9 hereof, neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any of the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Parties.

Section 11.5 Confidentiality and Non-Disclosure. Notwithstanding anything herein to the contrary, each Purchaser that has executed a confidentiality agreement in favor of the Company shall continue to be bound by such confidentiality agreement in accordance with its terms.

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Section 11.6 Communications. All notices and demands provided for under this Agreement and the Notes shall be in writing and shall be given by regular mail, registered or certified mail, return receipt requested, electronic mail, air courier guaranteeing overnight delivery or personal delivery to the following addresses:

(a) If to any Purchaser, at its address as it appears on its signature page hereto,

(b) If to the Notes Agent, at its address as it appears on its signature page hereto,

U.S. Well Services, Inc.

1360 Post Oak Boulevard, Suite 1800

Houston, Texas 77056

Attention: Kyle O’Neill

E-mail: koneill@uswellservices.com

with a copy to:

Porter Hedges LLP

1000 Main Street, 36^th Floor

Houston, Texas 77002

Attention: Corey Brown

Email: cbrown@porterhedges.com

Facsimile: (713) 228-1331

or to such other address as the Company or such Purchaser may designate in writing. All notices and communications shall be deemed to have been duly given: (i) at the time delivered by hand, if personally delivered; (ii) upon actual receipt, if sent by registered or certified mail, return receipt requested, or regular mail, if mailed; (iii) when receipt acknowledged, if sent via electronic mail; and (iv) upon actual receipt when delivered to an air courier guaranteeing overnight delivery.

Section 11.7 Removal of Legend. The Company shall remove the legend described in Section 9.2(c) from the certificates evidencing the Class A Common Stock issued upon conversion of the Equity Linked Notes at any time following (x) the six-month anniversary of the applicable Closing Date on which such Notes were issued upon request of a Purchaser who is not an “affiliate” (as defined under Rule 144 of the Securities Act) of the Company at the time of such request or during the three months prior to such request, provided that the Company is in compliance with its disclosure requirements under applicable federal securities Laws as of such date and (y) after the twelve-month anniversary of such Closing Date upon request of a Purchaser who is not an “affiliate” (as defined under Rule 144 of the Securities Act) of the Company at the time of such request or during the three months prior to such request. The Company shall cooperate with such Purchaser to effect removal of such legend and shall deliver

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to the Transfer Agent irrevocable instructions that the Transfer Agent shall reissue a certificate representing shares of Class A Common Stock without legends upon receipt by such Transfer Agent of the legended certificates for such shares, together with (1) either a customary representation by the Purchaser that Rule 144 applies to the shares of Class A Common Stock represented thereby or (2) a statement by the Purchaser that such Purchaser has sold the shares of Class A Common Stock represented thereby in accordance with the plan of distribution contained in the registration statement filed pursuant to the Registration Rights Agreement, and (B) the Company shall use its reasonable best efforts to cause its counsel to deliver to the Transfer Agent one or more opinion letters to the effect that the removal of such legends in such circumstances may be effected under the Securities Act.

Section 11.8 Entire Agreement. The Transaction Documents, including all exhibits and schedules thereto, are intended by the Parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the Parties hereto and thereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein with respect to the rights granted by the Company or a Purchaser set forth herein or therein. The Transaction Documents supersede all prior agreements and understandings between the Parties with respect to such subject matter (other than nondisclosure and confidentiality agreements between the Company and the Purchasers signed in anticipation of an equity financing in the Company).

Section 11.9 Governing Law and Venue; Waiver of Jury Trial; Waiver of Certain Damages.

(a) THIS AGREEMENT, THE NOTES AND ALL DISPUTES BETWEEN THE PARTIES UNDER OR RELATING TO THIS AGREEMENT, THE NOTES OR THE FACTS AND CIRCUMSTANCES LEADING TO ITS EXECUTION AND DELIVERY, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE.

(b) ANY ACTION, SUIT OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL ONLY BE BROUGHT IN ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR ANY NEW YORK STATE COURT, AND EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH ACTION, SUIT OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH, ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM;

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PROVIDED, HOWEVER, THAT ANY ACTION, SUIT OR PROCEEDING, SEEKING TO ENFORCE A FINAL JUDGMENT RENDERED IN SUCH COURT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION. PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE SERVED ON ANY PARTY ANYWHERE IN THE WORLD, WHETHER WITHIN OR WITHOUT THE JURISDICTION OF ANY SUCH COURT. WITHOUT LIMITING THE FOREGOING, SERVICE OF PROCESS ON SUCH PARTY AS PROVIDED IN SECTION 11.6 SHALL BE DEEMED EFFECTIVE SERVICE OF PROCESS ON SUCH PARTY.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTES IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION OR DISPUTE DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY REPRESENTS AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS SECTION 11.9. IN THE EVENT OF LITIGATION THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

Section 11.10 Execution in Counterparts. This Agreement may be executed in any number of counterparts (including by .pdf or other electronic transmission) and by different Parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute the same Agreement.

Section 11.11 Obligations Limited to Parties to Agreement. Each of the Parties covenants, agrees and acknowledges that no Person other than the Purchasers (and their permitted assignees), the Notes Agent, and the Company shall have any obligation hereunder and that, notwithstanding that one or more of the Purchasers may be a corporation, partnership or limited liability company, no recourse under the Transaction Documents or under any documents or instruments delivered in connection therewith shall be had against any former, current or

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future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the Purchasers or the Company or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the Purchasers or the Company or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of the Purchasers and the Company under the Transaction Documents or any documents or instruments delivered in connection therewith or for any claim based on, in respect of or by reason of such obligation or its creation.

Section 11.12 Remedies. The Parties agree that money damages or another remedy at law would not be a sufficient or adequate remedy for any breach or violation of, or a default under, this Agreement by them and that, in addition to all other remedies available to them, each of them shall be entitled to an injunction restraining such breach, violation or default or threatened breach, violation or default and to any other equitable relief including, without limitation, specific performance without bond or other security being required.

[The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of the date first above written.


COMPANY:

U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
		Kyle O’Neill
		Chief Financial Officer

[Signatures continue on following page.]

Signature Page to Note Purchase Agreement


PURCHASERS:

PROFRAC HOLDINGS, LLC

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		President and CFO

Address:

333 Shops Boulevard, Suite 301
Willow Park, TX 76087
Attention: Matthew D. Wilks; Robert J. Willette; Brian L. Von Hatten
Email: matt.wilks@profrac.com; robert.willette@wilksbrothers.com; brian.vonhatten@profrac.com

with a copy to:

Alston & Bird LLP
Chase Tower
2200 Ross Avenue, Suite 2300
Dallas, TX 75201
Attention: Mitchell L. Griffith
Email: mitchell.griffith@alston.com

[Signatures continue on following page.]

Signature Page to Note Purchase Agreement


THRC HOLDINGS, LP

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		VP, Investments


Address:

THRC Holdings, LP
16858 IH 20
Cisco, TX 76437
Attention: Matthew D. Wilks; Robert Willette
Email: matt.wilks@profrac.com; robert.willette@wilksbrothers.com

with a copy to:

Alston & Bird LLP
Chase Tower
2200 Ross Avenue, Suite 2300
Dallas, TX 75201
Attention: Mitchell L. Griffith
Email: mitchell.griffith@alston.com

[Signatures continue on following page.]

Signature Page to Note Purchase Agreement


CRESTVIEW III USWS, L.P.

By: Crestview III USWS GenPar, LLC,
its general partner

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

c/o Crestview Advisors, L.L.C.
590 Madison Avenue, 42nd Floor
New York, New York 10022
Attention: Adam J. Klein, Ross A. Oliver
E-mail: aklein@crestview.com;
roliver@crestview.com

with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Attention: E. Ramey Layne, Crosby Scofield
Email: rlayne@velaw.com; cscofield@velaw.com

[Signatures continue on following page.]

Signature Page to Note Purchase Agreement


CRESTVIEW III USWS TE, LLC

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

c/o Crestview Advisors, L.L.C.
590 Madison Avenue, 42nd Floor
New York, New York 10022
Attention: Adam J. Klein, Ross A. Oliver
E-mail: aklein@crestview.com;
roliver@crestview.com

with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Attention: E. Ramey Layne, Crosby Scofield
Email: rlayne@velaw.com; cscofield@velaw.com

[Signatures continue on following page.]

Signature Page to Note Purchase Agreement


NOTES AGENT:

WILMINGTON SAVINGS FUND SOCIETY, FSB

By:		/s/ Geoffrey J. Lewis
Name:		/s/ Geoffrey J. Lewis
Title:		Vice President

Address:
500 Delaware Avenue
Wilmington, DE 19801
Attention: Patrick J. Healy
Facsimile: (302) 421-9137
Telephone: (302) 888-7420
Email: PHealy@wsfsbank.com

With a copy to:

Wilmington Savings Fund Society, FSB
500 Delaware Avenue
Wilmington, DE 19801
Attention: Geoffrey J. Lewis
Telephone: (302) 573-3218
Email: GLewis@wsfsbank.com

With a copy to (which shall not constitute notice):

Brown Rudnick LLP
One Financial Center
Boston, MA 02111
Attention: Tia C. Wallach
Telephone: (617) 856-8181
Email: twallach@brownrudnick.com

Signature page to Note Purchase Agreement

Exhibit B-1

FORM OF CASH NOTE

(see attached)

THE NOTE REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTUATED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO U.S. WELL SERVICES, INC. THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.

THE NOTES ARE SUBJECT IN ALL RESPECTS TO THE RESTRICTIONS IN THE AGREEMENT (AS DEFINED BELOW).

THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN AMENDED AND RESTATED INTERCREDITOR AGREEMENT (AS AMENDED, RESTATED OR SUPPLEMENTED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”) DATED AS OF JUNE 24, 2021, AMONG BANK OF AMERICA, N.A., AS ABL AGENT, CLMG CORP., AS TERM LOAN AGENT, NOTES AGENT, AND U.S. WELL SERVICES, LLC, TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY MAKER AND ITS SUBSIDIARIES PURSUANT TO (I) THAT CERTAIN SENIOR SECURED TERM LOAN CREDIT AGREEMENT DATED AS OF MAY 17, 2019 AMONG THE MAKER AND ITS SUBSIDIARIES PARTY THERETO, CMLG CORP., AS ADMINISTRATIVE AGENT AND TERM LOAN COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH TERM LOAN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND (II) THAT CERTAIN ABL CREDIT AGREEMENT, DATED AS OF MAY 17, 2019, AMONG THE MAKER AND ITS SUBSIDIARIES PARTY THERETO, BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH ABL CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME; AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.

U.S. WELL SERVICES, INC.

CONVERTIBLE SENIOR SECURED (THIRD LIEN) PIK NOTE


$[ ]		[ ] [ ], 2021

1. Principal Amount. For value received, U.S. WELL SERVICES, INC., a Delaware corporation (the “Maker”), promises to pay to the order of [ ] (the “Payee”), the principal amount of [ ] Dollars ($[ ]) and interest on the outstanding principal amount of this Convertible Senior Secured (Third Lien) PIK Note (this “Note”) in accordance with the terms of this Note. Capitalized terms used herein shall have the meanings assigned to them in the Agreement referred to below unless otherwise indicated.

2. Interest. Interest shall begin to accrue on the unpaid principal balance of this Note, if any, commencing on the date hereof and continuing until repayment of this Note in full at the rate of sixteen percent (16%) per annum calculated on the basis of a 360 day year and actual days elapsed. Accrued and unpaid interest shall be calculated on this Note on the last day of each March, June, September and December, commencing September 30, 2021, and shall be added on such date to the unpaid principal balance of this Note (rounded up to the nearest $1.00) (the “PIK Interest”). PIK Interest, upon being added to the unpaid principal balance of this Note, shall no longer be deemed to be accrued and unpaid interest on the outstanding principal amount. References herein and in the Agreement to the “principal amount” of the Notes includes any increases in the principal amount of the outstanding Notes as a result of the PIK Interest. Accrued and unpaid interest on this Note shall also be due and payable on the Maturity Date under the terms set forth in Section 3.

3. Maturity Date. Subject to the conversion of this Note pursuant to Section 6, the entire outstanding and unpaid principal balance of this Note, plus any accrued and unpaid interest thereon, shall be due and payable on June 5, 2026 (the “Maturity Date”) in a number of shares of Class A Common Stock equal to the quotient obtained by dividing (a) the amount of such outstanding principal and unpaid interest through the date immediately prior to the Maturity Date, by (b) either (i) the volume-weighted average trading price of the Class A Common Stock reported by the principal national securities exchange on which the Class A Common Stock is then listed for trading for the twenty (20) trading day period (including the last day of such period) immediately preceding the Maturity Date (“Twenty-Day VWAP”) or (ii) if the Maturity Date occurs during any period in which the Class A Common Stock is not listed on any national securities exchange (such time, a “Delisted Period”), then the Fair Market Value of a share Class A Common Stock as of May 1, 2026; provided, however, that if any Event of Default specified in Section 6.1(e), (f) or (g) under the Agreement occurs and is continuing on the Maturity Date, then payment shall be made in cash. For the purposes hereof, “Fair Market Value” means the fair market value of a share of the Class A Common Stock as determined in good faith by the Board. Notwithstanding the above, in the event the Board is obligated to made a determination of Fair Market Value under the terms of this Section 3 or Section 6(c), the Maker shall provide notice of the Board’s determination (together with reasonably supporting documentation as to such determination) as to Fair Market Value to the Payee at least fifteen (15) Business Days in advance of the Maturity Date or Change of Control, as applicable (a “FMV Determination Notice”), and, if the Requisite Holders of the Equity Linked Notes provide a written notice disputing the Board’s Fair Market Value determination (a “Dispute Notice”) within five (5) Business Days following delivery of a FMV Determination Notice, the Board and a Holder designated as the representative of the outstanding Equity Linked Notes, as selected by the Requisite Holders of the Equity Linked Notes (the “Note Holders’ Representative”) shall attempt to agree on the Fair Market Value in good faith; provided, however, that if the Board and the Note Holders’ Representative are unable to agree upon the Fair Market Value within five (5) Business Days after delivery of a Dispute Notice, the Board and the Note Holders’ Representative shall submit the dispute to an internationally recognized independent investment bank or valuation firm selected by the Note Holders’ Representative from three such investment banks or valuation firms proposed by the Maker (the “Independent Appraiser”). The

Independent Appraiser’s determination as to the Fair Market Value shall be final, binding and conclusive for all purposes. The Holders shall bear one hundred percent (100%) of the fees and expenses of the Independent Appraiser through a reduction in the outstanding principal balance and unpaid interest on the Equity Linked Notes allocated in accordance to such amounts owed per Equity Linked Note; provided, however, that if the appraised Fair Market Value as determined by the Independent Appraiser exceeds one hundred twenty-five percent (125%) of the Fair Market Value determined by the Board, the Maker shall pay one hundred percent (100%) of the fees and expenses of the Independent Appraiser. Notwithstanding anything to the contrary herein, in the event payment of this Note is in shares of Class A Common Stock, Maker shall deliver such shares no later than ten (10) Business Days following the final determination of the number of such shares to be delivered.

4. No Prepayment or Redemption. Maker may not redeem or prepay all or any portion of this Note.

5. Note Purchase Agreement. Maker issued this Note and each of the other Convertible Senior Secured (Third Lien) PIK Notes under a Note Purchase Agreement (the “Agreement”) dated as of June 24, 2021 (the “Agreement Date”), among Maker, the Payee and the other Holders, and Wilmington Savings Fund Society, FSB, as collateral agent (the “Notes Agent”). The terms of this Note and the other Convertible Senior Secured (Third Lien) PIK Notes include those stated in the Agreement. This Note and the other Convertible Senior Secured (Third Lien) PIK Note are subject to all such terms, and Holders are referred to the Agreement for a statement of such terms.

6. Conversion.

(a) Optional Conversion. At any time prior to the payment in full of all outstanding principal and interest owing under this Note, the Payee may elect to convert all or a portion of such outstanding principal and interest into a number of shares of Class A Common Stock equal to the quotient obtained by dividing (i) the amount of such outstanding aggregate principal amount plus accrued and unpaid interest through the date immediately prior to the date of conversion, by (ii) the Conversion Price. The Payee may exercise this right by delivering written notice of such conversion to the Maker in the form attached as Annex A (the “Conversion Notice”) and tendering this Note to the Maker. Such conversion shall be completed on a date specified in the Conversion Notice, which shall be not less than 10 and not more than 20 Business Days following the date of the Conversion Notice, and at such closing, the Maker shall issue to the Payee the number of shares of Class A Common Stock set forth in the notice of conversion, as well as a replacement note representing the unconverted principal amount of any notes tendered, such replacement note to have the same terms and conditions as this Note. “Conversion Price” shall initially be $[ ]¹, which may be adjusted from time to time as set forth herein.

(b) Mandatory Conversion. Following the first anniversary of the date of the Agreement, and at any time in which there are no issued and outstanding shares of Series A

The Conversion Price for the Equity Linked Notes will be $0.98 (the “Closing Date Price); provided that with respect to any Additional Cash Note(s), the Company and the applicable Purchaser may agree in connection with the issuance of such note to a Conversion Price for such note that is equal to or higher than the Closing Date Price.

Preferred Stock or Series B Preferred Stock, if the Twenty-Day VWAP is greater than $2.00 for ten (10) trading days during any twenty (20) consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which the Maker provides the Maker Conversion Notice as set forth below, then the Maker shall have the option from time to time, exercisable by delivery of written notice to the Payee substantially in the form attached hereto as Annex B (the “Maker Conversion Notice”), to convert all or a portion of the outstanding principal and interest then owing under this Note into a number of shares of Class A Common Stock equal to the quotient obtained by dividing (A) the amount of such outstanding principal and interest owing through the date immediately prior to the date of conversion, by (B) the Conversion Price on a date specified in the Maker Conversion Notice that is no later than the second Business Day following such Maker Conversion Notice. For the avoidance of doubt, this Section 6(b) shall have no force and effect during any period in which the Class A Common Stock is not listed on any national securities exchange.

(c) Change of Control Forced Conversion. In the event of a Change of Control, subject to the Payee’s right to convert this Note into Class A Common Stock pursuant to Section 6(a), the Maker shall have the option, exercisable by delivery of written notice to the Payee substantially in the form attached hereto as Annex C (the “CoC Conversion Notice”) at least fifteen (15) Business Day prior to such Change of Control, to either (i) in full satisfaction hereof pay to the Payee in cash the amount of the outstanding principal and accrued and unpaid interest on this Note through the date immediately prior to the date of such Change of Control or (ii) convert no later than the tenth Business Day following such Change of Control all of the outstanding principal and interest then owing under this Note into a number of shares of Class A Common Stock equal to the quotient obtained by dividing (A) the amount of such outstanding principal and interest through the date immediately prior to the Change of Control, by (B) either (1) the Twenty-Day VWAP for the twenty (20) trading day period (including the last day of such period) immediately preceding such Change of Control or (2) if the Change of Control occurs during any Delisted Period, then the Fair Market Value of the Class A Common Stock as of the date of the CoC Conversion Notice. For the Purposes hereof, (a) a “Change of Control” means (i) the consummation of any transaction by the Maker the result of which is that any person, other than any Permitted Holder (as defined below), becomes the beneficial owner, directly or indirectly, of more than fifty percent (50%) of the voting stock of the Maker, measured by voting power rather than number of shares, units or the like; provided that a transaction in which the Maker becomes a subsidiary of another person shall not constitute a Change of Control if, immediately following such transaction, the persons who were beneficial owners of the voting stock of the Maker immediately prior to such transaction beneficially own, directly or indirectly, fifty percent (50%) or more of the total voting power of the voting stock of such other person of whom the Maker has become a subsidiary or (ii) the sale of all or substantially all of the Maker’s assets; and (b) the “Permitted Holder” means any original holder of Convertible Senior Secured (Third Lien) PIK Notes and its affiliates.

connection with a merger, consolidation or business combination in which the Maker is the surviving person or another constituent corporation is issuing equity securities in exchange for Class A Common Stock), then the Conversion Price in effect at the time of the record date for such distribution or of the effective date of such subdivision, split, combination, or reclassification shall be proportionately adjusted so that the conversion of the Note after such time shall entitle the Payee to receive the aggregate number of Class A Common Stock (or shares of any securities into which such shares of Class A Common Stock would have been combined, consolidated, merged, reclassified or exchanged pursuant to clauses (iii) and (iv) above) that Payee would have been entitled to receive if the Note had been converted into shares of Class A Common Stock immediately prior to such record date or effective date, as the case may be. An adjustment made pursuant to this Section 6(f) shall become effective immediately after the record date in the case of a distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, reclassification (including any reclassification in connection with a merger, consolidation or business combination in which the Corporation is the surviving person or a constituent corporation) or split. Such adjustment shall be made successively whenever any event described above shall occur.

(e) Termination of Rights. Upon the issuance of shares of Class A Common Stock upon the conversion of any outstanding principal and interest owing under this Note, all rights of the Payee with respect to such principal and interest shall terminate.

7. Share Limitations. Notwithstanding the provisions set forth in Section 3, Section 6 or anywhere else in this Note, (i) no shares of Class A Common Stock will be issued under this Note unless and until the Company shall have submitted a Listing of Additional Shares to the NASDAQ covering all the shares of Class A Common Stock issuable pursuant to this Note (the “Listing Application”) and NASDAQ shall have completed its review of, and approved, such listing application, (ii) no shares of Class A Common Stock will be issued under this Note to the extent such issuance would constitute a “change of control” under the Nasdaq’s listing rules (the “Change of Control Limitation”) or would be in excess of the number of shares of Class A Common Stock authorized and available for issuance under the Company’s charter (the “Charter Limitation”), and (iii) the total number of shares of Class A Common Stock that may be issued under the Equity Linked Notes at a price per share which is less than the Conversion Price, when combined with any other shares of Class A Common Stock which may be aggregated with such issuances under applicable NASDAQ rules for this purpose, will not exceed the number permitted under such applicable NASDAQ rules (the “Exchange Cap”), unless stockholder approval is obtained in order to comply with, satisfy or remove, as applicable, the Change of Control Limitation, the Charter Limitation, or the Exchange Cap, as applicable. The Exchange Cap will not apply to any issuance of shares of Class A Common Stock under this Note if the number of shares to be issued is calculated based on a value per share of Class A Common Stock that is equal to or greater than the Conversion Price. In the event that the Company is unable to issue shares of Class A Common Stock as a result of the NASDAQ not approving the Listing Application, the Change of Control Limitation, a Charter Limitation or the Exchange Cap, the Company will instead settle the conversion or payment due at Maturity in cash (but only to the extent necessary to not trigger a Change of Control Limitation, a Charter Limitation or the Exchange Cap, as applicable). To the extent shares of Class A Common Stock are to be issued pursuant to this Note and other Equity Linked Notes simultaneously and the Company is unable to issue shares of Class A Common Stock as a result of the Change of

Control Limitation, a Charter Limitation or the Exchange Cap and must instead settle the conversion or payment partially in cash, the allocation of Class A Common Stock and cash to be issued or paid shall be pro rata among the Payee and the holders of such other Equity Linked Notes.

8. Collateral. The Note Obligations are secured by that certain collateral as set forth in that certain Guarantee and Third Lien Collateral Agreement dated June 24, 2021, by and among Maker and the subsidiaries of Maker party thereto, as grantors, and Notes Agent (as amended, restated or supplemented from time to time, the “Third Lien Security Agreement”). The Payee has agreed to and accepted the terms and conditions of the Third Lien Security Agreement and the Intercreditor Agreement and the performance by the Notes Agent of its respective obligations and the exercise of their respective rights thereunder and in connection therewith.

9. Guarantees. The Note Obligations are guaranteed by U.S. Well Services, LLC, USWS Holdings LLC, USWS Fleet 10, LLC, USWS Fleet 11, LLC and by each of future wholly-owned subsidiaries of the Maker, under the terms of the Third Lien Security Agreement.

10. Defaults and Remedies. The Agreement defines certain Events of Default. The Note Obligations may be accelerated following an Event of Default in the manner provided in the Agreement.

11. Waiver of Notice. The Maker hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity and diligence in taking any action to collect sums owing hereunder.

12. Officers and Directors Not Liable. In no event will any officer or director of the Maker be liable for any amounts due and payable pursuant to this Note.

13. Applicable Law. THIS NOTE WILL BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE.

[Signature page follows]

IN WITNESS WHEREOF, the Maker has executed and delivered this Note as of the day and year first above written.


U.S. WELL SERVICES, INC.



By:
Name:
Title:

Signature Page to Convertible Senior Secured (Third Lien) PIK Note

Annex A

Conversion Notice

The undersigned, the Payee, under that certain Convertible Senior Secured (Third Lien) PIK Note issued by U.S. Well Services, Inc., a Delaware corporation, on [ ], 2021 (the “Note”), hereby irrevocably elects to convert the amount indicated below of the Note on the date set forth below into shares of Class A Common Stock at the Conversion Price pursuant to Section 6(a) of the Note. Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in the Note.

Date of conversion: [ ]

Conversion Calculations:

Principal and accrued interest on the date immediately prior to conversion: $[ ]

Principal and accrued interest to be converted: $[ ]

Number of shares of Class A Common Stock to be issued: [ ]

Principal amount immediately after redemption: $[ ]

Address for delivery of physical certificates: [ ]


PAYEE


By:
Name:
Title:
Date:

Annex B

Maker Conversion Notice

U.S. Well Services, Inc., a Delaware corporation, hereby irrevocably elects to convert the amount indicated below of the Convertible Senior Secured (Third Lien) PIK Note on the date set forth below into shares of Class A Common Stock at the Conversion Price pursuant to Section 6(b) of the Note. Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in the Note.

Payee: [ ]

Conversion Calculations:

Principal and accrued interest on the date immediately prior to conversion: $[ ]

Principal and accrued interest to be converted: $[ ]

Number of shares of Class A Common Stock to be issued: [ ]

Principal amount immediately after redemption: $[ ]


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Date:

Annex C

CoC Conversion Notice

U.S. Well Services, Inc., a Delaware corporation, hereby notifies Payee that a Change of Control is expected to be consummated on or about [ ], and, subject to the consummation of such Change of Control, elects to:

Satisfy the Convertible Senior Secured (Third Lien) PIK Note in Cash

Convert the Convertible Senior Secured (Third Lien) PIK Note into shares of Class A Common Stock pursuant to Section 6(c) of the Note.

Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in the Note.

Payee: [ ]

Principal and accrued interest on the date immediately prior to the Change of Control: $[ ]

[Cash Payment: $[ ]]

[OR]

[Conversion Calculations:

[Twenty-Day VWAP: $[ ]]

[Fair Market Value: $[ ]]

Number of shares of Class A Common Stock to be issued: [ ]]


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Date:

Exhibit B-2

FORM OF EXCHANGE NOTE

(see attached)

EXHIBIT B-2

THE NOTES ARE SUBJECT IN ALL RESPECTS TO THE RESTRICTIONS IN THE AGREEMENT (AS DEFINED BELOW).

U.S. WELL SERVICES, INC.

CONVERTIBLE SENIOR SECURED (THIRD LIEN) PIK NOTE


$[ ]		[ ] [ ], 2021

4. No Prepayment or Redemption. Maker may not redeem or prepay all or any portion of this Note.

6. Conversion.

(a) Optional Conversion. At any time prior to the payment in full of all outstanding principal and interest owing under this Note, the Payee may elect to convert all or a portion of such outstanding principal and interest into a number of shares of Class A Common Stock equal to the quotient obtained by dividing (i) the amount of such outstanding aggregate principal amount plus accrued and unpaid interest through the date immediately prior to the date of conversion, by (ii) the Conversion Price. The Payee may exercise this right by delivering written notice of such conversion to the Maker in the form attached as Annex A (the “Conversion Notice”) and tendering this Note to the Maker. Such conversion shall be completed on a date specified in the Conversion Notice, which shall be not less than 10 and not more than 20 Business Days following the date of the Conversion Notice, and at such closing, the Maker shall issue to the Payee the number of shares of Class A Common Stock set forth in the notice of conversion, as well as a replacement note representing the unconverted principal amount of any notes tendered, such replacement note to have the same terms and conditions as this Note. “Conversion Price” shall initially be $2.00, which may be adjusted from time to time as set forth herein.

(b) Mandatory Conversion. Following the first anniversary of the date of the Agreement, and at any time in which there are no issued and outstanding shares of Series A Preferred Stock or Series B Preferred Stock, if the Twenty-Day VWAP is greater than $2.00 for ten (10) trading days during any twenty (20) consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the

date on which the Maker provides the Maker Conversion Notice as set forth below, then the Maker shall have the option from time to time, exercisable by delivery of written notice to the Payee substantially in the form attached hereto as Annex B (the “Maker Conversion Notice”), to convert all or a portion of the outstanding principal and interest then owing under this Note into a number of shares of Class A Common Stock equal to the quotient obtained by dividing (A) the amount of such outstanding principal and interest owing through the date immediately prior to the date of conversion, by (B) the Conversion Price on a date specified in the Maker Conversion Notice that is no later than the second Business Day following such Maker Conversion Notice. For the avoidance of doubt, this Section 6(b) shall have no force and effect during any period in which the Class A Common Stock is not listed on any national securities exchange.

(d) Adjustments to Conversion Price. If, after the date hereof, the Maker (i) makes a distribution on its Class A Common Stock in cash, securities (including Class A Common Stock) or other property or assets, (ii) subdivides or splits its outstanding Class A Common Stock into a greater number of Class A Common Stock, (iii) combines or reclassifies its Class A Common Stock into a smaller number of Class A Common Stock or (iv) issues by reclassification of its Class A Common Stock any securities (including any reclassification in connection with a merger, consolidation or business combination in which the Maker is the surviving person or another constituent corporation is issuing equity securities in exchange for Class A Common Stock), then the Conversion Price in effect at the time of the record date for

such distribution or of the effective date of such subdivision, split, combination, or reclassification shall be proportionately adjusted so that the conversion of the Note after such time shall entitle the Payee to receive the aggregate number of Class A Common Stock (or shares of any securities into which such shares of Class A Common Stock would have been combined, consolidated, merged, reclassified or exchanged pursuant to clauses (iii) and (iv) above) that Payee would have been entitled to receive if the Note had been converted into shares of Class A Common Stock immediately prior to such record date or effective date, as the case may be. An adjustment made pursuant to this Section 6(d) shall become effective immediately after the record date in the case of a distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, reclassification (including any reclassification in connection with a merger, consolidation or business combination in which the Corporation is the surviving person or a constituent corporation) or split. Such adjustment shall be made successively whenever any event described above shall occur.

10. Defaults and Remedies. The Agreement defines certain Events of Default. The Note Obligations may be accelerated following an Event of Default in the manner provided in the Agreement.

12. Officers and Directors Not Liable. In no event will any officer or director of the Maker be liable for any amounts due and payable pursuant to this Note.

[Signature page follows]

IN WITNESS WHEREOF, the Maker has executed and delivered this Note as of the day and year first above written.


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Signature page to Convertible Senior Secured (Third Lien) PIK Note

Annex A

Conversion Notice

Date of conversion: [ ]

Conversion Calculations:

Principal and accrued interest on the date immediately prior to conversion: $[ ]

Principal and accrued interest to be converted: $[ ]

Number of shares of Class A Common Stock to be issued: [ ]

Principal amount immediately after redemption: $[ ]

Address for delivery of physical certificates: [ ]


PAYEE


By:
Name:
Title:
Date:

Annex B

Maker Conversion Notice

Payee: [ ]

Conversion Calculations:

Principal and accrued interest on the date immediately prior to conversion: $[ ]

Principal and accrued interest to be converted: $[ ]

Number of shares of Class A Common Stock to be issued: [ ]

Principal amount immediately after redemption: $[ ]


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Date:

Annex C

CoC Conversion Notice

Satisfy the Convertible Senior Secured (Third Lien) PIK Note in Cash

Convert the Convertible Senior Secured (Third Lien) PIK Note into shares of Class A Common Stock pursuant to Section 6(c) of the Note.

Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in the Note.

Payee: [ ]

Principal and accrued interest on the date immediately prior to the Change of Control: $[ ]

[Cash Payment: $[ ]]

[OR]

[Conversion Calculations:

[Twenty-Day VWAP: $[ ]]

[Fair Market Value: $[ ]]

Number of shares of Class A Common Stock to be issued: [ ]]


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Date:

Exhibit B-3

FORM OF LICENSE LINKED NOTE

(see attached)

EXHIBIT B-3

THE NOTES ARE SUBJECT IN ALL RESPECTS TO THE RESTRICTIONS IN THE AGREEMENT (AS DEFINED BELOW).

THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN AMENDED AND RESTATED INTERCREDITOR AGREEMENT (AS AMENDED, RESTATED OR SUPPLEMENTED FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”) DATED AS OF JUNE 24, 2021, AMONG BANK OF AMERICA, N.A., AS ABL AGENT, CLMG CORP., AS TERM LOAN AGENT, NOTES AGENT, AND U.S. WELL SERVICES, LLC, TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY MAKER AND ITS SUBSIDIARIES PURSUANT TO (I) THAT CERTAIN SENIOR SECURED TERM LOAN CREDIT AGREEMENT DATED AS OF MAY 17, 2019 AMONG THE MAKER AND ITS SUBSIDIARIES PARTY THERETO, CMLG CORP., AS ADMINISTRATIVE AGENT AND TERM LOAN COLLATERAL AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH TERM LOAN CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AND (II) THAT CERTAIN ABL CREDIT AGREEMENT, DATED AS OF MAY 17, 2019, AMONG THE MAKER AND ITS SUBSIDIARIES PARTY THERETO, BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, AND THE LENDERS FROM TIME TO TIME PARTY THERETO, AS SUCH ABL CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME; AND EACH HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.

U.S. WELL SERVICES, INC.

CONVERTIBLE SENIOR SECURED (THIRD LIEN) PIK NOTE


$[ ]		June [ ], 2021

4. No Prepayment or Redemption. Maker may not redeem or prepay all or any portion of this Note.

5. Note Purchase Agreement. Maker issued this Note and each of the other Convertible Senior Secured (Third Lien) PIK Notes under a Note Purchase Agreement (the “Agreement”) dated as of June 24, 2021, among Maker, the Payee and the other Holders, and Wilmington Savings Fund Society, FSB, as collateral agent (the “Notes Agent”). The terms of this Note and the other Convertible Senior Secured (Third Lien) PIK Notes include those stated in the Agreement. This Note and the other Convertible Senior Secured (Third Lien) PIK Note are subject to all such terms, and Holders are referred to the Agreement for a statement of such terms.

6. Conversion. At any time prior to the payment in full of all outstanding principal and interest owing under this Note, either the Maker or the Payee may elect to convert all of such outstanding principal and interest into the License Agreement. Either party may exercise this right by delivering written notice of such conversion to the other party in the form attached as Annex A (the “Conversion Notice”) and, in the event the Payee is the electing party, the Payee shall tender this Note to the Maker with such notice. Such conversion shall be completed on a date specified in the Conversion Notice, which shall be not less than 10 and not more than 20 Business Days following the date of the Conversion Notice, and at such closing, the Maker shall execute and deliver to the Payee the License Agreement. Within four Business Days of its receipt of an executed License Agreement, the Payee shall countersign such License Agreement and deliver to the Maker a copy of such fully-executed License Agreement. Upon the execution by the Maker and the delivery to Payee of the License Agreement, all rights of the Payee with respect to the outstanding principal and interest owing under this Note shall terminate.

7. Collateral. The Note Obligations are secured by that certain collateral as set forth in that certain Guarantee and Third Lien Collateral Agreement dated June 24, 2021, by and among Maker and the subsidiaries of Maker party thereto, as grantors, and Notes Agent (as amended, restated or supplemented from time to time, the “Third Lien Security Agreement”). The Payee has agreed to and accepted the terms and conditions of the Third Lien Security Agreement and the Intercreditor Agreement and the performance by the Notes Agent of its respective obligations and the exercise of their respective rights thereunder and in connection therewith.

8. Guarantees. The Note Obligations are guaranteed by U.S. Well Services, LLC, USWS Holdings LLC, USWS Fleet 10, LLC, USWS Fleet 11, LLC and by each of future wholly-owned subsidiaries of the Maker, under the terms of the Third Lien Security Agreement.

9. Defaults and Remedies. The Agreement defines certain Events of Default. The Note Obligations may be accelerated following an Event of Default in the manner provided in the Agreement.

10. Waiver of Notice. The Maker hereby waives demand for payment, presentment for payment, protest, notice of payment, notice of dishonor, notice of nonpayment, notice of acceleration of maturity and diligence in taking any action to collect sums owing hereunder.

11. Officers and Directors Not Liable. In no event will any officer or director of the Maker be liable for any amounts due and payable pursuant to this Note.

12. Applicable Law. THIS NOTE WILL BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER STATE.

[Signature page follows]

IN WITNESS WHEREOF, the Maker has executed and delivered this Note as of the day and year first above written.


U.S. WELL SERVICES, INC.

By:
Name:
Title:

Signature page to Convertible Senior Secured (Third Lien) PIK Note

Annex A

Conversion Notice

The undersigned, under that certain Convertible Senior Secured (Third Lien) PIK Note issued by U.S. Well Services, Inc., a Delaware corporation, on June [ ], 2021 (the “Note”), hereby irrevocably elects to convert all of the outstanding principal and accrued interest on the License Linked Note into the License Agreement pursuant to Section 6 of the Note. Capitalized terms utilized but not defined herein shall have the meaning ascribed to such terms in the Note.

Date of conversion: [ ]


ELECTING PARTY



By:
Name:
Title:

Date:

Exhibit 10.2

Execution Version

FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT

This FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of June 25, 2021 (this “Amendment”), is by and among U.S. WELL SERVICES, INC., a Delaware corporation (the “Company”), each of the purchasers named in Schedule 2.1 to this Agreement (a “Purchaser” and, collectively, the “Purchasers”), and Wilmington Savings Fund Society, FSB, as collateral agent for the Purchasers (in such capacity, “Notes Agent”).

WHEREAS, on June 24, 2021, the Company, the initial Purchasers named therein and the Notes Agent entered into that certain Note Purchase Agreement (the “Note Purchase Agreement,” capitalized terms used but not defined herein shall have the meanings assigned to them in the Note Purchase Agreement) pursuant to which the Company sold on such date to such initial Purchasers $45,000,000 in principal amount of Cash Notes, $20,000,000 in principal amount of Exchange Notes and $22,500,000 in principal amount of a License Linked Note and was further authorized to issue and sell during the Offering Period an additional $30,000,000 in principal amount of Additional Cash Notes and $5,000,000 in principal amount of Additional Exchange Notes;

WHEREAS, at a Closing to occur on the date hereof, the Company desires to issue and sell $19,000,000 in principal amount of Additional Cash Notes, with an initial Conversion Price of $1.25, and $19,000,000 in principal amount of Additional Exchange Notes to AG Energy Funding, LLC (“AG”), and AG desires to purchase such Notes (the “AG Notes”) from the Company and join the Note Purchase Agreement as a “Purchaser” in accordance with the terms and conditions of this Agreement and the Note Purchase Agreement; and

WHEREAS, in order to permit the sale of the AG Notes as contemplated above, the Company and the initial Purchasers desire to increase the principal amount of Additional Exchange Notes which may be issued and sold under the Note Purchase Agreement to $19,000,000.

1. Increase Offering of Additional Exchange Notes. The Parties hereby agree to increase the aggregate principal amount of Additional Exchange Notes which the Company may issue and sell under the Note Purchase Agreement to $19,000,000.

2. Sale and Purchase. On the basis of the representations, warranties, agreements and covenants set forth in the Note Purchase Agreement and subject to the terms and conditions of this Amendment and the Note Purchase Agreement, at an Additional Notes Closing to occur on the date hereof, the Company hereby agrees to issue and sell to AG, and AG hereby agrees to purchase from the Company, (i) the aggregate principal amount of an Additional Cash Note set forth opposite such Purchaser’s name on Schedule 2.1 to the Amendment (which Schedule 2.1 shall amend Schedule 2.1 to the Note Purchase Agreement) be deemed under the title “Principal Amount of Additional Cash Notes”, at the purchase price set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded”, and (ii) the aggregate principal amount of an Additional Exchange Note set forth opposite such Purchaser’s name on Schedule 2.1

to this Amendment under the title “Principal Amount of Additional Exchange Notes” in exchange for a number of shares of Series A Preferred Stock valued for purposes of such exchange at their liquidation preference as of the day immediately prior to the date hereof as set forth opposite such Purchaser’s name on Schedule 2.1 under the title “Amount to be Funded”.

3. Joinder. AG has received and read the Note Purchase Agreement and acknowledges that AG is acquiring Notes subject to the terms and conditions of the Note Purchase Agreement, excluding those terms and conditions which apply solely to the Initial Equity Linked Notes Closing on June 24, 2021 (collectively, the “Applicable Rights and Obligations”). AG hereby joins in, and agrees to be bound by, and each of the Company, the other Purchasers and the Notes Agent hereby agrees that AG shall have the benefit of, all of Applicable Rights and Obligations under the Note Purchase Agreement, to the same extent as if AG were an original party to the Note Purchase Agreement. Any notice required as permitted by the Note Purchase Agreement shall be given to AG at the address listed beneath AG’s signature below.

4. Waiver. Each of Crestview III USWS, L.P. and Crestview III USWS TE, LLC hereby expressly and irrevocably waive any and all rights that they may have under the Series B Purchase Agreement or otherwise to receive notice of, or participate in, the issuance and sale of the Notes as provided by this Amendment or the Note Purchase Agreement, as amended.

5. Effect of Amendment. This Amendment shall be construed in connection with and as part of the Note Purchase Agreement. Except as hereby expressly amended by this Amendment, all terms of the Note Purchase Agreement are hereby ratified and shall remain in full force and effect. None of the rights, interests and obligations existing and to exist under the Note Purchase Agreement are hereby released, diminished or impaired, and the Parties hereby reaffirm all covenants, representations and warranties of the Note Purchase Agreement as amended hereby. This Amendment (i) shall bind and benefit the Parties and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors and assigns; (ii) shall be modified or amended only in accordance with the terms of the Note Purchase Agreement; and (iii) embodies the entire agreement and understanding between the Parties with respect to modifications of instruments provided for herein and supersedes all prior conflicting or inconsistent agreements, consents and understandings relating to such subject matter. Article XI of the Note Purchase Agreement shall apply mutatis mutandis to this Amendment.

6. Direction to Notes Agent. The Purchasers party hereto, constituting the Requisite Holders as of the date hereof, hereby direct the Notes Agent to execute and deliver this Amendment. The Company and the Purchasers hereto expressly agree and confirm the Notes Agent’s right to indemnification, as set forth in Article X of the Note Purchase Agreement, shall apply with respect to any and all losses, claims, liabilities costs and expenses that the Notes Agent suffers, incurs or is threatened with relating to actions taken or omitted by the Notes Agent in connection with this Amendment. The Company hereby confirms its obligations to pay all costs and expenses of the Notes Agent in accordance with Section 10.8 of the Note Purchase Agreement, in each case, incurred in connection with the preparation, negotiation and execution of this Amendment.

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IN WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of the date first above written.


COMPANY:

U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
		Kyle O’Neill
		Chief Financial Officer

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Signature Page to First Amendment to Note Purchase Agreement


PURCHASERS:

PROFRAC HOLDINGS, LLC

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		President and CFO

THRC HOLDINGS, LP

By:		/s/ Matt Wilks
Name:		Matt Wilks
Title:		VP, Investments

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Signature Page to First Amendment to Note Purchase Agreement


CRESTVIEW III USWS, L.P.

By: Crestview III USWS GenPar, LLC, its general partner

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

CRESTVIEW III USWS TE, LLC

By:		/s/ Ross A. Oliver
Name:		Ross A. Oliver
Title:		General Counsel

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Signature Page to First Amendment to Note Purchase Agreement


AG ENERGY FUNDING, LLC

By: Angelo, Gordon & Co., L.P., as its Manager

By:		/s/ Todd Dittmann
Name:		Todd Dittmann
Title:		Authorized Person

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Signature Page to First Amendment to Note Purchase Agreement


NOTES AGENT:

WILMINGTON SAVINGS FUND SOCIETY, FSB, as Notes Agent

By:		/s/ Geoffrey J. Lewis
Name:		Geoffrey J. Lewis
Title:		Vice President

Signature Page to First Amendment to Note Purchase Agreement

Exhibit 10.3

Execution Version

SETTLEMENT AGREEMENT AND RELEASE

by and among

SMART SAND, INC.

U.S. WELL SERVICES, LLC

and

U.S. WELL SERVICES, INC.

dated June 28, 2021

Table of Contents


		Page
ARTICLE 1	CERTAIN DEFINITIONS		2

ARTICLE 2	SETTLEMENT AND RELEASE		4

ARTICLE 3	REPRESENTATIONS AND WARRANTIES		6

ARTICLE 4	ADDITIONAL AGREEMENTS		10

ARTICLE 5	MISCELLANEOUS		10

Exhibit A	Right of First Refusal Agreement

SETTLEMENT AGREEMENT AND RELEASE

This SETTLEMENT AGREEMENT AND RELEASE dated June 28, 2021 (this “Agreement”) is by and among Smart Sand, Inc. a Delaware corporation (“SSI”), U.S. Well Services, LLC, a Delaware limited liability company (“USWS”), and U.S. Well Services, Inc., a Delaware corporation (“USWI”). SSI, USWS and USWI are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

A. WHEREAS, SSI and USWS were parties to a Master Product Purchase Agreement dated November 6, 2015, as amended effective May 1, 2016 (collectively the “PPA”), and a coterminous Railcar Usage Agreement (the “RUA” and collectively with the PPA, the “Agreements”);

B. WHEREAS, on January 14, 2019, SSI filed a Complaint against USW in the Superior Court of the State of Delaware in and for New Castle County at C.A. No. 19C-01-144 CCLD, seeking monetary damages alleging, among other things, non-payment under the PPA and RUA, USWS then filed counterclaims, and the Parties amended the pleadings several times (the “Litigation”);

C. WHEREAS, all claims were resolved following a trial in which the Court entered an Order of Final Judgment (the “Final Judgment”) in favor of SSI and against USWS in the principal amount of $50,897,534.40, plus post-judgment interest accruing at the rate of 5.25% per annum until the Final Judgment is paid in full;

D. WHEREAS, both Parties have filed notices of appeal from the Final Judgment to the Supreme Court of Delaware; and

E. WHEREAS, the Parties have reached a settlement of all matters in dispute or potentially in dispute between them, including without limitation all claims asserted in the Litigation.

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE 1

INTERPRETATION

Section 1.01 Certain Definitions. The following terms shall have the meanings set forth in this Section 1.01.

“Affiliate” means a Person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with such Person (for purposes of this definition, the term “control, and the correlative meanings of the terms “controlled by” and “under common control with” as used with respect to any Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise).

“Bankruptcy Case” means (a) a voluntary bankruptcy case under the Federal Bankruptcy Code, (b) an involuntary bankruptcy case under the Federal Bankruptcy Code (an “Involuntary Bankruptcy Case”) that has not been dismissed (along with any adversary proceedings commenced thereunder) within 90 days after the involuntary petition date; provided, however, that any Involuntary Bankruptcy Case shall be at all times a Bankruptcy Case unless and until it is dismissed within 90 days after the involuntary petition date, or (c) any voluntary insolvency or similar proceeding under the laws of any State.

“Claim” means any and all claims, demands, suits, actions, causes of action, grievances, liabilities, obligations, accounts, promises, damages, agreements, rights, debts and expenses (including claims for attorneys’ fees and costs), of every kind and nature whatsoever, either in law or in equity, whether contingent, matured or unmatured, known or unknown, suspected or unsuspected, foreseeable or unforeseeable, liquidated or unliquidated, and however arising or accruing including, without limitation, any claims arising under any federal, state, local or municipal law, common law or statute, whether arising in contract or in tort, and any claims arising under any other laws or regulations of any nature whatsoever.

“Governing Documents” means, when used with respect to an entity, the documents governing the formation, operation and governance of such entity, including (i) in the instance of a corporation, the articles or certificate of incorporation and bylaws of such corporation, (ii) in the instance of a limited partnership, the certificate of formation and the limited partnership agreement, and (iii) in the instance of a limited liability company, the certificate of formation and limited liability company agreement.

“Law” means, with respect to any person, any and all applicable law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, notice, or other similar requirement, whether domestic or foreign, enacted, adopted, promulgated or applied by a governmental entity that is binding upon or applicable to such person or its business, undertaking, property or securities.

“Liens” means any lien, pledge, charge, option, hypothecation, mortgage, security interest, right of first refusal, right of first offer, prior assignment, license, sublicense or any other encumbrance of any kind or nature whatsoever, whether contingent or absolute.

“Person” means an individual or corporation, partnership, trust, estate, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, governmental entity or other entity of any kind.

“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of (i) the securities or ownership interests of such other Person having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions or (ii) the equity or ownership interests of such other Person, in each case is directly or indirectly owned or controlled by such first Person and/or by one or more of its Subsidiaries.

Section 1.02 Interpretation. When a reference is made in this Agreement to Articles, Sections or Exhibits, such reference is to an Article, Section, or Exhibit (as the case may be) of this Agreement, unless otherwise indicated. When a reference is made in this Agreement to a “party” or “parties”, such reference shall be to a party or parties to this Agreement, unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the word “include”, “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”. The use of any gender herein shall be deemed to be or include the other gender and the use of the singular herein shall be deemed to be or include the plural (and vice versa), wherever appropriate. The use of the words “hereof”, “herein”, “hereunder”, and words of similar import shall refer to this entire Agreement, and not to any particular Article, Section, subsection, clause, paragraph or other subdivision of this Agreement, unless the context clearly indicates otherwise.

ARTICLE 2

SETTLEMENT AND RELEASE

Section 2.01 Settlement. By executing below, the Parties hereby settle all matters in dispute or potentially in dispute between them, including without limitation, all Claims asserted in the Litigation. Concurrently with the execution and delivery of this Agreement, the Parties shall execute and deliver that certain Right of First Refusal Agreement in the form attached hereto as Exhibit A (the “ROFR Agreement”, and together with this Agreement, the “Transaction Documents”). Within one business day after the execution of the Transaction Documents, USWS shall withdraw its Notice of Appeal filed in the Litigation with the Supreme Court of the State of Delaware at C.A. No. 196,2021 (the “Notice of Appeal”) with prejudice and concurrently with the execution of the Transaction Documents, USWS shall make payment to SSI in the amount of $35,000,000.00 by wire transfer of immediately available funds (the “Payment”) to the account set forth below:

Within one business day after USWS’ withdrawal of the Notice of Appeal with prejudice, SSI shall withdraw its Notice of Cross Appeal filed in the Litigation with the Supreme Court of the State of Delaware at C.A. No. 196,2021 with prejudice.

SSI’s receipt of the Payment and USWS’ withdrawal of its Notice of Appeal with prejudice are conditions precedent to the effectiveness of this Agreement.

Section 2.02 Releases.

(a) Except for obligations arising under this Agreement or any of the Transaction Documents, USWS, on behalf of itself, its Subsidiaries, and each of their respective officers, directors, managers, employees, Affiliates, successors, and assigns (collectively, the “USWS Release Group Members” and individually a “USWS Release Group Member”), hereby fully, forever, irrevocably and unconditionally releases and discharges SSI, each of its Subsidiaries, and each of their respective officers, directors, managers, employees, Affiliates, successors, and assigns (collectively, the “SSI Released Parties” and individually a “SSI Released Party”) of and from any and all Claims, including but not limited to those arising from or related to the Litigation or the Final Judgment, that any USWS Release Group Member ever had, now has or may hereafter have or acquire, against any SSI Released Party for or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date hereof (collectively, the “USWS Released Claims).

(b) Except for obligations arising under this Agreement or any of the Transaction Documents, USWI, on behalf of itself, its Subsidiaries, and each of their respective officers, directors, managers, employees, Affiliates, successors, and assigns (collectively, the “USWI Release Group Members” and individually a “USWI Release Group Member”), hereby fully, forever, irrevocably and unconditionally releases and discharges each SSI Released Party of and from any and all Claims, including but not limited to those arising from or related to the Litigation or the Final Judgment, that any USWI Release Group Member ever had, now has or may hereafter have or acquire, against any SSI Released Party for or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date hereof (collectively, the “USWI Released Claims”).

(c) Except for obligations arising under this Agreement or any of the Transaction Documents, and subject to the provisos in this Section 2.02(c), SSI, on behalf of itself, its Subsidiaries, and each of their respective officers, directors, managers, employees, Affiliates, successors, and assigns (collectively, the “SSI Release Group Members” and individually a “SSI Release Group Member”), hereby fully, forever, irrevocably and unconditionally releases and discharges USWS, USWI, each of their respective Subsidiaries, and each of their respective officers, directors, managers, employees, Affiliates, successors, and assigns (collectively, the “USW Released Parties” and individually a “USW Released Party”) of and from any and all Claims, including but not limited to those arising from or related to the Litigation or the Final Judgment, that any SSI Release Group Member ever had, now has or may hereafter have or acquire, against any USW Released Party for or by reason of any cause, matter or thing whatsoever, from the beginning of the world to the date hereof (collectively, the “SSI Released Claims”); provided, however, that the release set forth in this Section 2.02(c) shall not become effective or enforceable until 91 days after SSI’s receipt of the Payment, provided that as of such time (i.e., within 91 days after SSI’s receipt of Payment) neither USWS, USWI, nor any of their respective Subsidiaries has become the subject of a Bankruptcy Case, but provided further, that in the event of an Involuntary Bankruptcy Case within such 91-day period, such release shall not become effective or enforceable unless and until such Involuntary Bankruptcy Case is dismissed (along with any adversary proceedings commenced thereunder) within 90 days after the involuntary petition date thereof.

Section 2.03 Satisfaction of Final Judgment. SSI’s receipt of the Payment shall satisfy $35,000,000 of the Final Judgment upon receipt thereof but shall not satisfy the balance due under the Final Judgement; provided, however, that so long as neither USWS, USWI nor any of their respective Subsidiaries has become the subject of a Bankruptcy Case within 91 days after SSI’s receipt of the Payment, then (subject to the final provisos of Section 2.02(c) and 2.04) the release set forth in Section 2.02(c) shall then become effective and enforceable, and the Final Judgment shall then become fully and completely satisfied by SSI’s receipt of the Payment and the terms of this Agreement, and SSI shall direct the New Castle County Prothonotary to satisfy the Final Judgment in the Judgment Docket Section of the Superior Court. For the avoidance of doubt, unless and until 91 days after SSI’s receipt of the Payment in immediately available funds has passed without USWS, USWI or any of their respective Subsidiaries becoming the subject of a Bankruptcy Case, the Final Judgment shall remain in full force and effect and, except as otherwise set forth in Section 2.04, SSI will be entitled to pursue all rights and defenses arising under or with respect to the Final Judgment, including to assert an unsecured claim in the full amount of the Final Judgment, less any amount of the Payment ultimately retained by SSI.

Section 2.04 Forbearance. During the 91-day period after the receipt of the Payment, SSI hereby agrees, subject to the terms of this Agreement, to forbear from directly or indirectly taking any action to enforce, execute on, or domesticate the Final Judgment in any jurisdiction unless and until USWS, USWI or any of their respective Subsidiaries becomes, within 91 days after SSI’s receipt of the Payment, the subject of a Bankruptcy Case. For the avoidance of doubt, if neither USWS, USWI nor any of their respective Subsidiaries has become the subject of a Bankruptcy Case within 91 days after SSI’s receipt of the Payment, the Final Judgment shall then become fully satisfied by SSI’s prior receipt of the Payment and the terms of this Agreement as set forth in Section 2.03 of this Agreement; provided, however, that in the event of an Involuntary Bankruptcy Case within such 91-day period, the Final Judgment shall not become fully satisfied by SSI’s receipt of the Payment unless and until such Involuntary Bankruptcy Case is dismissed (along with any adversary proceedings commenced thereunder) within 90 days after the involuntary petition date thereof.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES

Section 3.01 Representations of U.S. Well Services, LLC.

(a) Organization and Qualification. USWS is duly organized, validly existing and in good standing under the laws of Delaware and has all requisite entity power and authority to own and operate its business as presently conducted. USWS is duly qualified as a foreign entity to do business and is in good standing in each jurisdiction where the character of its properties owned or held under lease or the nature of their activities makes such qualification necessary, except where the failure to be or have any of the foregoing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or the other Transaction Documents.

(b) Authority. USWS has the requisite entity power and authority to execute and deliver each of the Transaction Documents, perform its obligations thereunder, and consummate the transactions contemplated by this Agreement. The execution and delivery by USWS of each of the Transaction Documents, the performance by USWS of its obligations thereunder, the transactions contemplated thereby, and all other necessary organizational action on the part of USWS have been duly authorized by the managers and or members of USWS, and no other entity proceedings on the part of USWS are necessary to authorize each of the Transaction Documents or the transactions contemplated thereby. Each of the Transaction Documents has been or will be duly and validly executed and delivered by USWS and, assuming that each has been duly authorized, executed and delivered by each counterparty thereto, each constitutes a legal, valid and binding obligation of USWS, in accordance with its terms.

(c) Waivers or Consents under USWS Credit Facilities. Under that certain (i) ABL Credit Agreement dated as of May 7, 2019 by and among USWI, USWS, Bank of America, NA, as Administrative Agent (the “ABL Agent”), the lenders party thereto (the “ABL Lenders”), and the other parties thereto (as amended, restated or supplemented to date, the “ABL Credit Agreement”), or any other loan document executed and delivered by USWS to the ABL Agent or the ABL Lenders, each as amended, restated or supplemented to date (collectively, the “ABL Loan Documents”), and (ii) Senior Secured Term Loan Credit Agreement dated as of May 7, 2017 by and among USWI, USWS, CLMG Corp., as Administrative Agent (the “Term Loan Agent”) , the lenders party thereto (the “Term Loan Lenders”), and the other parties thereto (as amended, restated or supplemented to date, the “Term Loan Credit Agreement”), or any other loan document executed or delivered by USWS to the Term Loan Agent or the Term Loan Lenders, each as amended, restated or supplemented to date (collectively, the “Term Loan Documents”), USWS has obtained the requisite waivers, consents, and acknowledgements from the ABL Agent and ABL Lenders, as applicable, with respect to the ABL Loan Documents, and from the Term Loan Agent and Term Loan Lenders, as applicable, with respect to the Term Loan Documents, which authorize USWS to make the Payment, to execute, deliver and perform its obligations under the Transaction Documents, and to consummate the transactions contemplated by the Transaction Documents, fully executed copies of which have been delivered by USWS to SSI.

(d) No Conflict; Required Filings and Consents. The execution and delivery by USWS of the Transaction Documents and the performance by USWS of its obligations thereunder will not: (i) conflict with the Governing Documents of USWS; (ii) violate any statute, Law, ordinance, rule or regulation applicable to USWS or any of the properties or assets of USWS; or (iii) violate, breach, be in conflict with or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or permit the termination of any provision of, or result in the termination of, the acceleration of the maturity of any obligation of USWS (including, but not limited to, the obligations of USWS under the ABL Loan Documents and the Term Loan Documents), or result in the creation or imposition of any Lien upon any properties, assets or business of USWS under any material contract or any order, judgment or decree to which USWS is a party or by which it or any of its assets or properties is bound or encumbered.

(e) Ownership of Claims and Indemnification. USWS has not previously sold, assigned, transferred, conveyed, hypothecated, encumbered, or otherwise disposed of any USWS Released Claim, and it is the sole owner of all of the USWS Released Claims.

Section 3.02 Representations of U.S. Well Services, Inc.

(a) Organization and Qualification. USWI is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to own and operate its business as presently conducted. USWI is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the character of its properties owned or held under lease or the nature of their activities makes such qualification necessary, except where the failure to be or have any of the foregoing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or the other Transaction Documents.

(b) Authority. USWI has the requisite corporate power and authority to execute and deliver each of the Transaction Documents, perform its obligations thereunder, and consummate the transactions contemplated by this Agreement. The execution and delivery by USWI of each of the Transaction Documents, the performance by USWI of its obligations thereunder, the transactions contemplated thereby, and all other necessary corporate action on the part of USWI have been duly authorized by the Board of Directors of USWI, and no other corporate proceedings on the part of USWI are necessary to authorize each of the Transaction Documents or the transactions contemplated thereby. Each of the Transaction Documents has been or will be duly and validly executed and delivered by USWI and, assuming that each has been duly authorized, executed and delivered by each counterparty thereto, each constitutes a legal, valid and binding obligation of USWI, in accordance with its terms.

(c) Waivers or Consents under USWI Credit Facilities. Under the (i) ABL Credit Agreement and ABL Loan Documents, and (ii) the Term Loan Agreement and Term Loan Documents, USWI has obtained the requisite waivers, consents, and acknowledgements from the ABL Agent and ABL Lenders, as applicable, with respect to the ABL Loan Documents, and from the Term Loan Agent and Term Loan Lenders, as applicable, with respect to the Term Loan Documents, which authorize USWI to make the Payment, to execute, deliver and perform its obligations under the Transaction Documents, and to consummate the transactions contemplated by the Transaction Documents, fully executed copies of which have been delivered by USWI to SSI.

(d) No Conflict; Required Filings and Consents. The execution and delivery by USWI of the Transaction Documents and the performance by USWI of its obligations thereunder will not: (i) conflict with the Governing Documents of USWI; (ii) violate any statute, Law, ordinance, rule or regulation applicable to USWI or any of the properties or assets of USWI; or (iii) violate, breach, be in conflict with or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or permit the termination of

any provision of, or result in the termination of, the acceleration of the maturity of any obligation of USWI (including, but not limited to, the ABL Loan Documents and the Term Loan Documents), or result in the creation or imposition of any Lien upon any properties, assets or business of USWI under any material contract or any order, judgment or decree to which USWI is a party or by which it or any of its assets or properties is bound or encumbered.

(e) Ownership of Claims and Indemnification. USWI represents and warrants that it has not previously sold, assigned, transferred, conveyed, hypothecated, encumbered, or otherwise disposed of any USWI Released Claim, and it is the sole owner of all of the USWI Released Claims.

Section 3.03 Representations of Smart Sand, Inc.

(a) Organization and Qualification. SSI is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to own and operate its business as presently conducted. SSI is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the character of its properties owned or held under lease or the nature of their activities makes such qualification necessary, except where the failure to be or have any of the foregoing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or the other Transaction Documents.

(b) Authority. SSI has the requisite corporate power and authority to execute and deliver each of the Transaction Documents, perform its obligations thereunder, and consummate the transactions contemplated by this Agreement. The execution and delivery by SSI of each of the Transaction Documents, the performance by SSI of its obligations thereunder, the transactions contemplated thereby, and all other necessary corporate action on the part of SSI have been duly authorized by the Board of Directors of SSI, and no other corporate proceedings on the part of SSI are necessary to authorize each of the Transaction Documents or the transactions contemplated thereby. Each of the Transaction Documents has been or will be duly and validly executed and delivered by SSI and, assuming that each has been duly authorized, executed and delivered by each counterparty thereto, each constitutes a legal, valid and binding obligation of SSI, in accordance with its terms.

(c) No Conflict; Required Filings and Consents. Neither the execution and delivery by SSI of the Transaction Documents nor the performance by SSI of its obligations thereunder will: (i) conflict with the Governing Documents of SSI; (ii) violate any statute, Law, ordinance, rule or regulation applicable to SSI or any of the properties or assets of SSI; or (iii) violate, breach, be in conflict with or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or permit the termination of any provision of, or result in the termination of, the acceleration of the maturity of, or the acceleration of the performance of any obligation of SSI, or result in the creation or imposition of any Lien upon any properties, assets or business of SSI under any material contract or any order, judgment or decree to which SSI is a party or by which it or any of its assets or properties is bound or encumbered.

(d) Ownership of Claims and Indemnification. SSI represents and warrants that it has not previously sold, assigned, transferred, conveyed, hypothecated, encumbered, or otherwise disposed of any SSI Released Claim, and it is the sole owner of all of the SSI Released Claims.

ARTICLE 4

ADDITIONAL AGREEMENTS

Section 4.01 Covenant Not to Sue. Except as set forth in Section 2.03 or Section 2.04, each Party agrees on behalf of itself, it Subsidiaries, and their respective officers, directors, managers, employees, agents, and Affiliates not to (i) commence any action or initiate any proceeding in any court, arbitration forum, or regulatory or administrative agency against any other Party or their respective officers, directors, managers, employees, agents, Affiliates on the basis of, or that is otherwise inconsistent with, any of the Claims released hereunder, including but not limited to filing any notice or cross notice of appeal with respect to the Litigation or (ii) directly or indirectly, induce, encourage or assist any other Person, or otherwise participate in the commencement, support or maintenance of any action, proceeding in any court, arbitration forum, or regulatory or administrative agency by any other Person against any other Party or their respective officers, directors, managers, employees, agents, Affiliates on the basis of, or that is otherwise inconsistent with, any of the Claims released hereunder.

ARTICLE 5

MISCELLANEOUS

Section 5.01 Consultation with Counsel. Each party hereto represents and warrants that it has consulted with legal counsel of its choosing before entering into this Agreement, it has read this Agreement, it knows and understands the contents of this Agreement, it executes this Agreement and the other Transaction Documents freely and voluntarily, and it is not relying on any promise or representation of any kind made to it, except as expressly stated in this Agreement or the ROFR Agreement.

Section 5.02 Further Assurances. At any time or from time to time after the date hereof, the Parties hereto agree to cooperate with each other and, at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as such other party may reasonably request in order to evidence or effectuate the actions and transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

Section 5.03 Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against any party unless such modification, amendment or waiver is approved in writing by each Party.

The failure of any Party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such Party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

Section 5.04 Construction; Severability. This Agreement has been negotiated and drafted by the parties at arm’s-length. No provision or ambiguity in this Agreement shall be construed or interpreted against any party by virtue of its participation in the drafting of this Agreement. Whenever possible, each term or provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or the validity of this Agreement in any other jurisdiction, and such term or provision shall be reformed, construed and enforced to the maximum extent permitted by applicable law or rule in such jurisdiction.

Section 5.05 Entire Agreement. Except as otherwise expressly set forth herein, this Agreement, including the Exhibits and Schedules hereto and all Transaction Documents, embodies the complete agreement and understanding among the Parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, that may have related to the subject matter hereof in any way.

Section 5.06 Successors and Assigns. Neither this Agreement nor any of the rights or obligations under this Agreement shall be assigned, in whole or in part (except by operation of law pursuant to a merger whose purpose is not to avoid the provisions of this Agreement), by any party without the prior written consent of the other Parties hereto, and any purported assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Parties hereto and their respective successors and permitted assigns.

Section 5.07 Counterparts. This Agreement may be executed in separate counterparts and delivered electronically, each of which shall be an original and all of which taken together shall constitute one and the same agreement.

Section 5.08 Remedies.

(a) Each Party hereto acknowledges that money damages would not be an adequate remedy in the event that any of the covenants or agreements in this Agreement are not performed in accordance with its terms, and it is therefore agreed that in addition to and without limiting any other remedy or right it may have, each non breaching Party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.

(b) All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such Party.

Section 5.09 Consent to Jurisdiction. The Parties to this Agreement submit to the exclusive jurisdiction of the state courts in Delaware for the purpose of any dispute arising hereunder. The Parties waive any objections based on lack of jurisdiction over their person or property or based on forum non conveniens with respect to any application for such interim relief in the state courts in Delaware.

Section 5.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the principles of conflicts of law thereof.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.


U.S. WELL SERVICES, LLC

By:		/s/ Joel Broussard
Name:		Joel Brousserd
Title:		President & Chief Executive Officer

U.S. WELL SERVICES, INC.

By:		/s/ Joel Broussard
Name:		Joel Brousserd
Title:		President & Chief Executive Officer

SMART SAND, INC.

By:		/s/ Lee E. Beckelman
Name:		Lee E. Beckelman
Title:		Chief Financial Officer

[Signature Page to Settlement Agreement and Release]

EXHIBIT A

RIGHT OF FIRST REFUSAL AGREEMENT

Attached.

Exhibit 10.4

Execution Version

CONSENT AND FIFTH AMENDMENT TO

SENIOR SECURED TERM LOAN CREDIT AGREEMENT

This CONSENT AND FIFTH AMENDMENT TO SENIOR SECURED TERM LOAN CREDIT AGREEMENT, dated as of June 24, 2021 (this “Fifth Amendment”), is made by and among U.S. Well Services, LLC, a Delaware limited liability company (the “Borrower”), U.S. Well Services, Inc., a Delaware corporation (the “Parent”), USWS Fleet 10, LLC, a Delaware limited liability company (“USWS Fleet 10”), USWS Fleet 11, LLC, a Delaware limited liability company (“USWS Fleet 11”, together with USWS Fleet 10, the “Subsidiary Guarantors”), USWS Holdings LLC, a Delaware limited liability company (the “Holdings”, together with the Parent, the Borrower and the Subsidiary Guarantors, the “Loan Parties” and each a “Loan Party”), CLMG Corp., as Administrative Agent (the “Administrative Agent”), CLMG Corp., as Term Loan Collateral Agent (the “Collateral Agent”, and together with the Administrative Agent, the “Agents”), and the Lenders (defined below) and is made with reference to the Credit Agreement (as defined below), and certain other financial institutions party thereto from time to time. Capitalized terms used herein without definition shall have the meaning assigned to such terms in the Credit Agreement.

RECITALS:

WHEREAS, reference is made to the Senior Secured Term Loan Credit Agreement, dated as of May 7, 2019, among the Parent, Holdings, the Borrower, the Subsidiary Guarantors, the lenders party thereto (the “Lenders”), CLMG CORP., as Administrative Agent and Term Loan Collateral Agent (as amended by the First Technical Supplemental Amendment thereto dated June 14, 2019, the Second Amendment thereto dated April 1, 2020, the Third Amendment thereto dated July 30, 2020 and the Fourth Amendment thereto dated November 12, 2020, and as may be further amended, supplemented, amended and restated or otherwise modified from time to time prior to the Fifth Amendment Effective Date, the “Original Credit Agreement”);

WHEREAS, pursuant to this Fifth Amendment, the Borrower has requested, and the Administrative Agent and the Lenders have agreed, subject to the terms and conditions of this Fifth Amendment, to amend the Original Credit Agreement on the Fifth Amendment Effective Date, as specified in Section 1 below;

WHEREAS, pursuant to Section 9.01 of the Credit Agreement, certain amendments and consents set forth in this Fifth Amendment may be entered into only with the consent of each Lender;

WHEREAS, Borrower has informed the Administrative Agent and Lenders that the Parent desires to enter into that certain note purchase agreement (the “Third Lien Notes Agreement”) dated of even date herewith among Parent, as issuer, certain purchasers party thereto, and Wilmington Savings and Fund Society, FSB, as collateral agent (in such capacity, “Notes Agent”), and certain other documents as set forth in Schedule 1 (the “Note Purchase Documents”) pursuant to which, among other things, the Parent has agreed to issue and the purchasers have agreed to purchase certain 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026;

WHEREAS, Borrower has informed the Administrative Agent and Lenders that the Parent and Borrower intend to use the net proceeds received under the Initial Third Lien Notes (as defined in the Credit Agreement) to settle or provide the cash deposit necessary to stay execution and enforcement of the June 2021 Judgment (as defined in the Credit Agreement) as well as for general corporate purposes;

WHEREAS, the Loan Parties have requested that the Administrative Agent and Lenders (i) consent to the incurrence of debt and liens under the Note Purchase Documents and the consummation of the transactions contemplated by the Note Purchase Documents, and (ii) make certain modifications to the Credit Agreement, and the Agents and Lenders have agreed to the foregoing requests of the Loan Parties, in each case on the terms and conditions set forth herein;

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

AGREEMENT:

SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.

Pursuant to Section 9.01 of the Credit Agreement, each of the Lenders, the Administrative Agent, and each of the Loan Parties consents to the amendment of the Original Credit Agreement made as of the Fifth Amendment Effective Date to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto (the Original Credit Agreement as so amended, the “Credit Agreement”).

SECTION 2. CONSENT.

As of the Fifth Amendment Effective Date, and subject to the conditions set out in this Fifth Amendment, each of the Agents and Lenders hereby consents to the incurrence of debt offerings and granting of third ranking liens over certain of the Collateral pursuant to the Note Purchase Documents in the form attached hereto as Schedule 2, in each case, subject to the terms and conditions of the Credit Agreement.

SECTION 3. CONDITIONS TO EFFECTIVENESS.

This Fifth Amendment shall become effective on and as of the first date (the “Fifth Amendment Effective Date”) on which the Administrative Agent determines in its sole and absolute discretion that the following conditions precedent have been satisfied:

(a) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of this Fifth Amendment by each party hereto (which may include a copy transmitted by PDF or other electronic method);

(b) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of the Intercreditor Agreement, in a form and substance satisfactory to the Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);

(c) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of each of the Note Purchase Documents, in a form and substance satisfactory to the Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);

(d) the Administrative Agent shall have received on or before the Fifth Amendment Effective Date, duly executed copies of an amendment to the ABL Credit Agreement, in a form and substance satisfactory to the Administrative Agent, by each party thereto (which may include a copy transmitted by PDF or other electronic method);

(e) payment by Borrower of a structuring fee to CSG Investment, Inc., in cash in the amount of three million dollars ($3,000,000) (the “Structuring Fee”);

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(f) each of the respective conditions set forth in Section 2.3 of the Third Lien Notes Agreement to the obligations of each party thereto to consummate the transactions contemplated thereby on or prior to the Fifth Amendment Effective Date;

(g) immediately prior to and after giving effect to this Fifth Amendment, all representations and warranties of each Loan Party contained in Article IV of the Credit Agreement are true and correct in all material respects on and as of the date of this Fifth Amendment and the Fifth Amendment Effective Date as if made on and as of such date (or if stated to have been made at an earlier date, were true and correct in all material respects as of such earlier date) (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects);

(h) after giving effect to this Fifth Amendment, no Default or Event of Default has occurred and is continuing;

(i) the Administrative Agent and the Lenders shall have been paid or reimbursed by the Borrower for all costs and expenses associated with the preparation, negotiation and execution of this Fifth Amendment and the other instruments and documents to be delivered hereunder and in connection with the transactions contemplated hereby (including, the reasonable, documented and out-of-pocket accrued and unpaid fees and expenses of counsel thereto to the extent invoiced at least one Business Day prior to the Fifth Amendment Effective Date);

(j) the Borrower shall have made in full (and the Administrative Agent shall have received) all payments (including all Scheduled Amortization Payments (as defined in the Original Credit Agreement), interest, fees, costs and expenses) due under the Loan Documents prior to the Fifth Amendment Effective Date (without giving effect to any amendments to the Original Credit Agreement made as of such Fifth Amendment Effective Date); and

(k) the Administrative Agent shall have received an opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent (including, without limitation, with respect to the enforceability of this Fifth Amendment).

SECTION 4. REPRESENTATION AND WARRANTY.

Each Loan Party hereby represents and warrants to the Administrative Agent, Collateral Agent, and Lenders party hereto that (i) after giving effect to this Fifth Amendment all representations and warranties of each Loan Party contained in Article IV of the Credit Agreement are true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of the date of this Fifth Amendment as if made on and as of the date of this Fifth Amendment (or if stated to have been made at an earlier date, were true and correct in all material respects as of such earlier date); and (iii) as of the Fifth Amendment Effective Date, no Default or Event of Default has occurred and is continuing.

SECTION 5. EFFECT ON AND RATIFICATION OF LOAN DOCUMENTS.

(a)

Ratification of Transaction Documents. The Credit Agreement, Loan Documents and all related ancillary and collateral documentation shall remain in full force and effect and are hereby ratified, reaffirmed, and confirmed. In addition, all terms, conditions, covenants, representations and warranties contained in the Credit Agreement and other Loan Documents, and all rights of the Lenders and the Administrative Agent, shall remain in full force and effect, and all of the Obligation remains in full force and effect. Each of the Borrower and the other Loan Parties hereby confirms that no such party has any right of setoff, recoupment or other offset with respect to any of the Obligation.

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(b)

Ratification of Term Loan Collateral Documents. Each of the Loan Parties party to the Term Loan Collateral Documents and the other Loan Documents (i) acknowledges and agrees that all of its pledges, grants of security interests and Liens and other obligations under the Term Loan Collateral Documents and the other Loan Documents to which it is a party are reaffirmed, and remain in full force and effect on a continuous basis, (ii) reaffirms (x) each Lien granted by it to the Administrative Agent and/or Collateral Agent for the benefit of the Secured Parties and (y) the guaranties made by it pursuant to the Loan Documents and such Liens and guaranties are, and shall remain in full force and effect on and after the Fifth Amendment Effective Date, and (iii) acknowledges and agrees that the grants of security interests and Liens by and the guaranties of the Loan Parties contained in the Term Loan Collateral Documents are, and shall remain, in full force and effect on and after the Fifth Amendment Effective Date.

(c)

No Other Amendment or Waiver. Except as specifically set forth herein, the execution, delivery and performance of this Fifth Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under the Loan Documents. The waivers contained herein are each limited to the specific provisions and circumstances described and shall not be deemed to prejudice any rights not specifically addressed herein which any Agent or any Lender may now have or may have in the future under any Loan Document.

(d)

Loan Documents. This Fifth Amendment shall be a Loan Document under the Credit Agreement.

SECTION 6. STRUCTURING FEE.

The Loan Parties, the Administrative Agent and each Lender expressly agree and acknowledge that: (i) the Structuring Fee is reasonable and is the product of an arm’s length transaction between sophisticated business persons, ably represented by counsel; (ii) the Loan Parties have agreed to pay, and have made payment of such Structuring Fee as specific consideration to CSG Investments, Inc. and that there has been a course of conduct between the Loan Parties and the Lenders for such agreement to pay such Structuring Fee; and (iii) the Loan Parties’ agreement to pay the Structuring Fee as herein described is a material inducement to CSG Investments, Inc., to negotiate, structure and prepare the Lenders to consummate the transactions described herein, and enter into this Fifth Amendment.

SECTION 7. RELEASE.

AS A MATERIAL INDUCEMENT TO THE LENDERS, THE COLLATERAL AGENT AND THE ADMINISTRATIVE AGENT TO ENTER INTO THIS FIFTH AMENDMENT, THE BORROWER AND EACH BORROWER-AFFILIATED SIGNATORY TO THIS FIFTH AMENDMENT, ON BEHALF OF ITSELF AND ITS OWNERS, SUCCESSORS, ASSIGNS, AFFILIATES AND LEGAL REPRESENTATIVES WHETHER OR NOT A PARTY HERETO (THE BORROWER, EACH SUCH BORROWER-AFFILIATED SIGNATORY TO THIS FIFTH AMENDMENT, SUCH OWNERS, SUCCESSORS, ASSIGNS, AFFILIATES AND LEGAL REPRESENTATIVES BEING REFERRED TO HEREIN COLLECTIVELY AND INDIVIDUALLY, AS “OBLIGORS, ET AL.”), AUTOMATICALLY, AND WITHOUT FURTHER ACTION BY ANY PERSON, HEREBY FULLY, FINALLY AND COMPLETELY RELEASE AND FOREVER DISCHARGE EACH LENDER, COLLATERAL AGENT AND ADMINISTRATIVE

Page 4

AGENT, AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, AFFILIATES, SUBSIDIARIES, PARENTS, OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, PAST, PRESENT AND FUTURE, AND THEIR RESPECTIVE HEIRS, PREDECESSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY AND INDIVIDUALLY, “LENDER, ET AL.”) OF AND FROM ANY AND ALL CLAIMS, CONTROVERSIES, DISPUTES, LIABILITIES, OBLIGATIONS, DEMANDS, DAMAGES, EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES), DEBTS, LIENS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY NATURE WHATSOEVER RELATING TO THE FACILITIES AND/OR THE LOAN DOCUMENTS, AND WAIVE AND RELEASE ANY DEFENSE, RIGHT OF COUNTERCLAIM, RIGHT OF SET-OFF OR DEDUCTION TO THE PAYMENT OF THE OBLIGATIONS WHICH OBLIGORS, ET AL. NOW HAVE OR MAY CLAIM TO HAVE AGAINST ANY LENDER, ET AL., IN EACH CASE ARISING OUT OF, CONNECTED WITH OR RELATING TO ANY AND ALL ACTS, OMISSIONS OR EVENTS OCCURRING PRIOR TO OR IN CONNECTION WITH THE EXECUTION OF THIS FIFTH AMENDMENT.

SECTION 8. INDEMNIFICATION.

WITHOUT LIMITING ANY OF THE AGENT’S OR LENDERS’ RIGHTS, OR THE LOAN PARTIES’ OBLIGATIONS, UNDER SECTION 9.04 OF THE CREDIT AGREEMENT (WHICH THE BORROWER AND THE OTHER LOAN PARTIES HEREBY RATIFY, REITERATE AND RECONFIRM), THE LOAN PARTIES HEREBY AGREE TO INDEMNIFY, DEFEND AND SAVE AND HOLD HARMLESS EACH AGENT, EACH LENDER, EACH OF THEIR AFFILIATES AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, TRUSTEES, AGENTS AND ADVISORS OF EACH OF THE FOREGOING (EACH, AN “INDEMNIFIED PARTY”) FROM AND AGAINST, AND SHALL PAY ON DEMAND, ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL) THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION, LITIGATION OR PROCEEDING OR PREPARATION OF A DEFENSE IN CONNECTION THEREWITH) THIS FIFTH AMENDMENT, AND/ OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

SECTION 9. LIMITATION ON LIABILITY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS FIFTH AMENDMENT OR THE OTHER LOAN DOCUMENTS: (A) NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THEIR RESPECTIVE ACTIVITIES RELATED TO THIS FIFTH AMENDMENT, THE OTHER LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY, THE LOANS, OR OTHERWISE IN CONNECTION WITH THE FOREGOING; (B) WITHOUT LIMITING THE FOREGOING, NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL BE SUBJECT TO ANY EQUITABLE REMEDY OR RELIEF, INCLUDING SPECIFIC PERFORMANCE OR INJUNCTION ARISING OUT OF OR RELATING TO THIS FIFTH AMENDMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY; (C) NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL HAVE ANY LIABILITY TO THE LOAN

Page 5

PARTIES, FOR DAMAGES OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS FIFTH AMENDMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY UNTIL THE EFFECTIVE DATE HAS OCCURRED; AND (D) IN NO EVENT SHALL LENDERS’ LIABILITY TO THE LOAN PARTIES EXCEED ACTUAL DIRECT DAMAGES INCURRED BY THE LOAN PARTIES OF UP TO $10,000,000 IN THE AGGREGATE.

SECTION 10. GOVERNING LAW.

THIS FIFTH AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS FIFTH AMENDMENT (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

SECTION 11. WAIVER OF JURY TRIAL.

EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS FIFTH AMENDMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES HERETO, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS FIFTH AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 12. COUNTERPARTS.

This Fifth Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart to this Fifth Amendment by facsimile transmission or electronic transmission in “.pdf” format shall be as effective as delivery of a manually signed original.

SECTION 13. MISCELLANEOUS.

This Fifth Amendment, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other

Page 6

prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. Capitalized terms defined herein in the preliminary statements and/or recitals shall be incorporated as if set out in full in the operative provisions hereunder. Section 1.04 of the Credit Agreement is hereby incorporated herein as if set out in full hereunder, mutatis mutandis.

[Signature Pages Follow]

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


U.S. WELL SERVICES, LLC, as Borrower

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

U.S. WELL SERVICES, INC., as Parent

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

USWS HOLDINGS LLC, as Holdings

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

USWS FLEET 10, LLC, as Subsidiary Guarantor

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

USWS FLEET 11, LLC, as Subsidiary Guarantor

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

Page 8


CLMG CORP., as Administrative Agent

By:		/s/ James Erwin
Name:		James Erwin
Title:		President

Page 9


CLMG CORP., as Collateral Agent

By:		/s/ James Erwin
Name:		James Erwin
Title:		President

Page 10

Acknowledged and agreed as of the day and year first written above:


LNV Corporation, as Lender

By:		/s/ Jacob Cherner
Name:		Jacob Cherner
Title:		Executive Vice President

Page 11

Acknowledged and agreed as of the day and year first written above:


LPP Mortgage, Inc., as Lender

By:		/s/ Jacob Cherner
Name:		Jacob Cherner
Title:		Executive Vice President

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EXHIBIT A

CREDIT AGREEMENT (amendments to the Original Credit Agreement made pursuant to the Fifth Amendment on the Fifth Amendment Effective Date only)

Page 13

EXECUTION VERSION

(As amended by Fifth Amendment dated June 24, 2021)

SENIOR SECURED TERM LOAN

CREDIT AGREEMENT

Dated as of May 7, 2019

Among

U.S. WELL SERVICES, INC.

as Parent

USWS HOLDINGS LLC

as Holdings

U.S. WELL SERVICES, LLC

as Borrower

and

THE SUBSIDIARY GUARANTORS NAMED HEREIN

as Guarantors

and

THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders

and

CLMG CORP.

as Term Loan Collateral Agent

and

CLMG CORP.

as Administrative Agent

TABLE OF CONTENTS


Section		Page
Article I DEFINITIONS AND ACCOUNTING TERMS			2

SECTION 1.01.	Certain Defined Terms		2
SECTION 1.02.	Computation of Time Periods		40
SECTION 1.03.	Accounting Terms		40
SECTION 1.04.	Other Definitional Provisions and Rules of Construction		40

Article II AMOUNTS AND TERMS OF THE LOANS			41

SECTION 2.01.	The Loans		41
SECTION 2.02.	Making the Loans		43
SECTION 2.03.	Repayment of Loans		44
SECTION 2.04.	Prepayments		49
SECTION 2.05.	Interest		49
SECTION 2.06.	Fees		51
SECTION 2.07.	Increased Costs, Etc.		53
SECTION 2.08.	Payments and Computations		53
SECTION 2.09.	Taxes		55
SECTION 2.10.	Sharing of Payments, Etc.		57
SECTION 2.11.	Use of Proceeds		58
SECTION 2.12.	Evidence of Debt		58
SECTION 2.13.	Duty to Mitigate		59
SECTION 2.14.	Accounts; Cash Waterfall		59

Article III CONDITIONS TO EFFECTIVENESS OF LENDING			65

SECTION 3.01.	Conditions Precedent		65
SECTION 3.02.	Conditions Precedent to Each Borrowing		70

Article IV REPRESENTATIONS AND WARRANTIES			71

SECTION 4.01.	Representations and Warranties		71

Article V COVENANTS			80

SECTION 5.01.	Affirmative Covenants		80
SECTION 5.02.	Negative Covenants		93
SECTION 5.03.	Reporting Requirements		107

Article VI EVENTS OF DEFAULT			112

SECTION 6.01.	Events of Default		112
SECTION 6.02.	Application of Funds		117


Article VII THE AGENTS		118

SECTION 7.01.	Authorization and Action	118
SECTION 7.02.	Administrative Agent’s Reliance, Etc.	119
SECTION 7.03.	Agents and Affiliates	119
SECTION 7.04.	Lender Credit Decision	120
SECTION 7.05.	Indemnification	120
SECTION 7.06.	Successor Administrative Agent	121
SECTION 7.07.	Term Loan Collateral Agent	121
SECTION 7.08.	Secured Cash Management Agreements and Secured Hedge Agreements	122

Article VIII [RESERVED]		122

Article IX MISCELLANEOUS		122

SECTION 9.01.	Amendments, Etc.	122
SECTION 9.02.	Notices, Etc.	124
SECTION 9.03.	No Waiver; Remedies	126
SECTION 9.04.	Costs and Expenses	126
SECTION 9.05.	Right of Set-off	127
SECTION 9.06.	Binding Effect	128
SECTION 9.07.	Assignments and Participations	128
SECTION 9.08.	Execution in Counterparts	132
SECTION 9.09.	Confidentiality	132
SECTION 9.10.	Marshalling; Payments Set Aside	133
SECTION 9.11.	Patriot Act Notice	133
SECTION 9.12.	Jurisdiction, Etc.	133
SECTION 9.13.	Governing Law	134
SECTION 9.14.	Waiver of Jury Trial	134
SECTION 9.15.	Limitation on Liability	134
SECTION 9.16.	Acceptable Purchaser Schedule Updates	134
SECTION 9.17.	No Advisory or Fiduciary Responsibility	134
SECTION 9.18.	Acknowledgment and Consent to Bail-In of Affected Financial Institutions	135
SECTION 9.19.	Recognition of the U.S. Special Resolution Regimes	136
SECTION 9.20.	Intercreditor Agreement	137
SECTION 9.21.	No Partnership, Etc.	137

SCHEDULES


Schedule I	-	Commitments and Lending Offices
Schedule II	-	Acceptable Purchasers
Schedule III	-	Approved Closing Growth Capital Expenditures
Schedule IV	-	Pending Litigation
Schedule V	-	CARES Act Loan Collateral
Schedule 3.01(a)(iv)	-	Perfect by Filing
Schedule 3.01(a)(v)	-	Closing Date Landlord Waivers
Schedule 3.01(b)	-	Existing Debt
Schedule 4.01(b)	-	Loan Parties
Schedule 4.01(c)	-	Capital Structure
Schedule 4.01(e)	-	Governmental Approvals and Authorizations
Schedule 4.01(o)	-	Environmental Disclosure
Schedule 4.01(r)	-	Leased Real Property
Schedule 4.01(t)	-	Material Contracts
Schedule 4.01(v)	-	Existing Capitalized Leases; Existing Equipment Financings
Schedule 4.01(x)	-	Maintained Insurance
Schedule 4.01(y)	-	Intellectual Property
Schedule 4.01(aa)	-	Letter of Credit Rights
Schedule 4.01(bb)	-	Commercial Tort Claims
Schedule 4.01(cc)	-	Employment Contracts
Schedule 4.01(dd)	-	Affiliate Transactions
Schedule 4.01(ee)	-	Restrictive Agreements
Schedule 5.01(d)	-	Required Insurance
Schedule 5.02(k)	-	Equipment Finance SPVs
Schedule 6.01(q)	-	Frac Fleet 16 Agreement
Schedule 9.02	-	Notice Addresses

EXHIBITS


Exhibit A-1	-	Form of Term Loan A Note
Exhibit A-2	-	Form of Term Loan B Note
Exhibit B	-	Form of Notice of Borrowing
Exhibit C	-	Form of Assignment and Acceptance
Exhibit D	-	[Reserved]
Exhibit E	-	Form of Solvency Certificate
Exhibit F	-	Form of Consent and Agreement for Material Contracts
Exhibit G	-	Form of Frac Fleet Maintenance Report
Exhibit H	-	Frac Fleet Preservation Program
Exhibit I	-	Form of Restoration Requisition
Exhibit J	-	Form of Schedule Purchaser Update Notice
Exhibit K	-	Form of Growth Capex Withdrawal Certificate
Exhibit L	-	Form of Secured Party Designation Notice
Exhibit M	-	Form of Insurance Payment Instruction Letter
Exhibit N	-	Form of License Agreement
Exhibit O	-	Form of Settlement Agreement

SENIOR SECURED TERM LOAN CREDIT AGREEMENT

SENIOR SECURED TERM LOAN CREDIT AGREEMENT, dated as of May 7, 2019, among U.S. WELL SERVICES, INC., a Delaware corporation (“Parent”), USWS HOLDINGS LLC, a Delaware limited liability company (“Holdings”), U.S. WELL SERVICES, LLC, a Delaware limited liability company (the “Borrower”), the Subsidiary Guarantors (as hereinafter defined), the Lenders (as hereinafter defined), CLMG CORP., a Texas corporation (“CLMG”), as term loan collateral agent (together with any successor term loan collateral agent appointed pursuant to Article VII, the “Term Loan Collateral Agent”) for the Term Loan Secured Parties (as hereinafter defined), and CLMG, as administrative agent (together with any successor administrative agent appointed pursuant to Article VII, the “Administrative Agent” and, together with the Term Loan Collateral Agent, the “Agents”) for the Lenders.

PRELIMINARY STATEMENTS:

The Borrower currently (i) operates twelve (12) Frac Fleets, including three (3) Electric Frac Fleets and nine (9) Diesel Frac Fleets, and (ii) has two (2) Electric Frac Fleets scheduled for delivery as of the date hereof on or before May 2019 and January 2020, respectively (collectively, the “Initial Frac Fleets”).

Prior to execution of this Agreement, the Borrower launched a competitive process to seek financing proposals from various financial institutions to finance the Loan Parties’ operations and capital expenditure requirements.

Following review of the proposals received, the Borrower has requested that the Lenders make term loans pursuant to (i) a Term Loan A Facility in an aggregate principal amount of $150,000,000 and (ii) a Term Loan B Facility in an aggregate principal amount of $100,000,000.

The proceeds of the Facilities shall be used (i) to repay and/or refinance all Existing Debt (other than Permitted Existing Debt) of the Loan Parties, (ii) fund the Initial Growth Capex Reserve Account, (iii) pay accrued expenses and accounts payable and (iv) pay transaction fees and expenses incurred in connection with each of the Facilities and the ABL Facility.

The Borrower and the Loan Parties have agreed to secure all of the Obligations of the Loan Parties under the Loan Documents by granting to the Term Loan Collateral Agent, for the benefit of the Secured Parties, (i) first priority Liens on the Term Loan Priority Collateral (as hereafter defined) and (ii) second priority Liens on the ABL Priority Collateral (as hereafter defined).

The Lenders have indicated their willingness to agree to make available the Facilities, subject to the terms and conditions of this Agreement.

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

DEFINITIONS AND ACCOUNTING TERMS

a. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

“ABL Agent” has the meaning specified in the Intercreditor Agreement.

“ABL Collateral Documents” has the meaning specified in the Intercreditor Agreement.

“ABL Credit Agreement” has the meaning specified in the Intercreditor Agreement.

“ABL Facility” has the meaning specified in the Intercreditor Agreement.

“ABL Loan Documents” has the meaning specified in the Intercreditor Agreement.

“ABL Loans” has the meaning specified in the Intercreditor Agreement.

“ABL Obligations” has the meaning specified in the Intercreditor Agreement.

“ABL Priority Collateral” means has the meaning specified in the Intercreditor Agreement.

“ABL Secured Parties” has the meaning specified in the Intercreditor Agreement.

“Acceptable Landlord Waiver” shall mean a landlord, mortgagee or warehouseman agreement or waiver with terms reasonably acceptable to the Collateral Agent.

“Acceptable Purchaser” means each Person set forth on Schedule II.

“Accepting Lenders” has the meaning specified in Section 2.04(c).

“Account Control Agreements” means the BAML DACA, the Beal DACAs, the Wells Fargo DACA, and any other deposit account control agreement in form and substance reasonably satisfactory to the Administrative Agent.

“Accounts” means the Collateral Accounts, the Excluded Accounts and the Specified Distributable Cash Account.

“Additional ProFrac Licensing Transactions” means up to 17 Additional Licenses (as defined in the Form License Agreement) constituting ProFrac Licensing Transactions.

“Additional Third Lien Notes” means 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026 issued by Parent under the Third Lien Notes Agreement as “Additional Cash Notes” or “Additional Exchange Notes” each as defined in the Third Lien Notes Agreement on the Fifth Amendment Effective Date.

“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.

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“Administrative Agent’s Account” means the account of the Administrative Agent specified by the Administrative Agent in writing to the Lenders from time to time.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affected Property” means any Collateral that has been damaged, destroyed or rendered unfit for normal use as a result of a Casualty Event or an Event of Eminent Domain.

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to vote ten percent (10%) or more of the Voting Interests of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.

“Agent Parties” has the meaning specified in Section 9.02(c).

“Agents” has the meaning specified in the recital of parties to this Agreement.

“Agreement” means this Senior Secured Term Loan Credit Agreement, as amended, restated, supplemented or otherwise modified from time to time.

“Agreement Value” means, for each Hedge Agreement, on any date of determination, the amount, if any, that would be payable by any Loan Party to its counterparty to such Hedge Agreement in accordance with its terms as if an Early Termination Event (as defined in the Intercreditor Agreement) has occurred on such date of determination.

“Allowable Uses” means the “Allowable Uses of Covered Loans” set forth in Section 7(a)(36)(F) of the Small Business Act, as in effect on July 30, 2020.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Loan Party or any of their respective Subsidiaries from time to time concerning or relating to bribery or corruption.

“Anti-Terrorism Laws” means any of the following (a) the Anti-Terrorism Order, (b) the Terrorism Sanctions Regulations (Title 31 Part 595 of the US Code of Federal Regulations), (c) the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the US Code of Federal Regulations), (d) the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the US Code of Federal Regulations), (e) the Patriot Act, (f) all other present and future legal requirements of any Governmental Authority addressing, relating to, or attempting to eliminate, terrorist acts and acts of war, and (g) any regulations promulgated pursuant thereto or pursuant to any legal requirements of any Governmental Authority governing terrorist acts and acts of war.

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“Anti-Terrorism Order” means Section 1 of Executive Order 13224 of September 24, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (Title 12, Part 595 of the US Code of Federal Regulations).

“Applicable Margin” means 8.25% per annum.

“Appraisal Report” means that certain appraisal report of the Appraiser entitled Oil and Gas Industry Equipment Appraisal Report – April 2019 (effective as of April 17, 2019).

“Appraiser” means Great American Group Advisory & Valuation Services, L.L.C.

“Approved AGCE Contract” means a binding contract among the Borrower and/or one of the Subsidiary Guarantors and an Approved AGCE Counterparty, which (a) prior to the Borrower’s or such Subsidiary Guarantor’s acquisition of the applicable Electric Frac Fleet, is reasonably expected to generate AGCE EBITDA in an amount not less than (i) $18,000,000 in the aggregate over the duration of such contract and (ii) $1,000,000 in each calendar month during the tenor thereof and (b) contains customary termination provisions that protect the Borrower and/or such Subsidiary Guarantor, as applicable, in case of cancellation. For purposes of this definition, “AGCE EBITDA” means the amount equal to expected revenues (based on contracted rates set forth in the applicable Approved AGCE Contract) less expected direct costs (based upon average historical costs demonstrated by Electric Frac Fleets operated by the Borrower and its Subsidiaries).

“Approved AGCE Counterparty” means a Person who (or whose credit support provider under the applicable Approved AGCE Contract, including a parent guarantor) can reasonably be expected to fulfill its obligations under the applicable Approved AGCE Contract.

“Approved Closing Growth Capital Expenditures” means the Growth Capital Expenditures described on Schedule III, subject to the individual cap on Growth Capital Expenditures relating to each Frac Fleet listed thereunder.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Approved Growth Capital Expenditures” means (i) Approved Closing Growth Capital Expenditures and (ii) any other Growth Capital Expenditures approved by the Lenders in their sole discretion.

“Asset Sale” means the assignment, conveyance, license, lease, sale, sale and leaseback, transfer, or other disposition of any Property (including any sale of Equity Interests issued by the Borrower or any Subsidiary Guarantor and any sale of Intellectual Property) by any Person, provided that in no event shall the sale or issuance of Equity Interests of the Parent or Holdings constitute Asset Sales for purposes of this definition.

“Asset Sale Proceeds” means, with respect to any Asset Sale, the Net Cash Proceeds payable to the Borrower or any Guarantor in connection with such Asset Sale.

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“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07 or by the definition of “Eligible Assignee”), and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent.

“Authority” has the meaning specified in Section 5.01(c)(iii).

“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).

“BAML DACA” means the deposit account control agreement, dated the date hereof, between the Borrower, the Collateral Agent, the ABL Agent and Bank of America.

“Bank of America” means Bank of America, N.A. or its successor.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

“Bankruptcy Law” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Beal DACAs” means (i) the deposit account control agreement, dated the date hereof, between the Borrower, the Collateral Agent, the ABL Agent and Beal Bank USA, and (ii) the deposit account control agreement, dated the date hereof, between the Borrower, the Collateral Agent and Beal Bank USA.

“Benchmark Rate” means a rate per annum equal to (a) the Federal Funds Rate then in effect plus (b) 0.35%. For purposes of this Agreement, the Benchmark Rate hereunder shall in no event be less than two percent (2.00%) per annum.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Borrower” has the meaning specified in the recital of parties to this Agreement.

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“Borrowing” means a Term Loan A Borrowing or a Term Loan B Borrowing, as the context may require.

“Budget” has the meaning specified in Section 5.03(d).

“Burdensome Restrictions” means any consensual encumbrance or restriction of the type described in clause (a) or (b) of Section 5.02(q).

“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City or Las Vegas, Nevada,and, if the applicable Business Day relates to any Loans, on which dealings are carried on in the London interbank market.

“Calendar Quarter” means a calendar quarter of any calendar year.

“Called Amount” has the meaning specified in Section 2.06(c).

“Call Premium” means any amount payable pursuant to Section 2.06(c).

“Call Premium Period” means the period commencing on the Effective Date and continuing until the fourth anniversary of the Effective Date.

“Capital Expenditures” means, for any Person for any period, the sum of, without duplication, all expenditures made, directly or indirectly, by such Person or any of its Subsidiaries during such period for equipment, fixed assets, real property or improvements, or for replacements or substitutions therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a Consolidated balance sheet of such Person.

“Capital Expenditures for Investment” means, in respect of any of the Loan Parties, the portions of such Loan Party’s Capital Expenditures that are not Approved Growth Capital Expenditures or Maintenance Capital Expenditures.

“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

“CARES Act” means The Coronavirus Aid, Relief, and Economic Security Act of 2020, as amended from time to time, and applicable rules and regulations thereunder, and any successor to such statute, rules or regulations. Any reference herein to a specific section, rule, or regulation of the CARES Act shall be deemed to include any corresponding provisions of future law.

“CARES Act Collateral Proceeds” has the meaning given to such term in Section 5.02(e).

“CARES Act Collateral Proceeds Shortfall” means, with respect to each asset constituting Pre-Release CARES Act Collateral, an amount equal to fifty percent (50%) of the difference of (x) the amount set forth on Schedule V for such asset minus (y) the amount of CARES Act Collateral Proceeds received by the Borrower or any other Loan Party upon the sale or other disposition of such asset constituting Pre-Release CARES Act Collateral.

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“CARES Act Collateral Release Date” has the meaning given to such term in Section 5.02(e)(x)(F).

“CARES Act Lender” means Greater Nevada Credit Union, and its successors and assigns.

“CARES Act Loan” means the loan made pursuant to the “Business and Industry CARES Act Program” of the CARES Act to the Borrower under that certain Business Loan Agreement dated November 12, 2020, executed by the Borrower, Holdings, and Parent, as co-borrowers and made payable to Greater Nevada Credit Union, as lender, providing for loans in the original principal amount of equal to $25,000,000.00 in aggregate and secured by CARES Act Loan Collateral.

“CARES Act Loan Account” a deposit account opened and maintained at Greater Nevada Credit Union, exclusively used for depositing the proceeds of the CARES Act Loan and making payments under the CARES Act Loan.

“CARES Act Loan Collateral” means (i) the Pre-Release CARES Act Collateral and (ii) on and after the first CARES Act Collateral Release Date, any Post-Release CARES Act Collateral and, in the case of each of clause (i) and (ii), any proceeds or products of such collateral.

“Cash” means money, currency or a credit balance in any demand account or deposit account.

“Cash Dominion Trigger Period” has the meaning specified in the ABL Credit Agreement.

“Cash Equivalents” means any of the following: (a) direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America; and (b) certificates of deposit fully insured by the Federal Deposit Insurance Corporation in national, state or foreign commercial banks whose outstanding long-term debt is rated at least “A” or the equivalent by S&P or Moody’s.

“Cash Flow Payment Date” means the fifteenth (15^th) Business Day following each Sweep Calculation Date, commencing with the Sweep Calculation Date occurring on August 31, 2019 and each Sweep Calculation Date thereafter until the occurrence of any Repayment Event.

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in each case, in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative

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Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“Casualty Event” means a casualty event that causes all or a portion of the tangible Collateral to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, other than (a) ordinary use and wear and tear or (b) any Event of Eminent Domain.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended from time to time.

“Change of Control” means, at any time, whether by, pursuant to, or as part of, a single transaction or event or series of transactions or events, (a) any “person” or “group” (within the meaning of Rule 13(d) of the Exchange Act and the rules of the Securities and Exchange Commission thereunder as in effect on the Effective Date) other than any member or combination of members of the Sponsor Group (i) shall have acquired ownership, directly or indirectly, beneficially or of record, of more than 50% on a fully diluted basis of the aggregate voting power represented by the issued and outstanding Equity Interests of the Parent, or (ii) shall have acquired direct or indirect control of Holdings or the Borrower, (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were not (x) directors of the Parent on the date of this Agreement or nominated or appointed by the board of directors of the Parent, (y) appointed by directors so nominated or appointed or (z) directors nominated or appointed by Crestview pursuant to that certain Subscription Agreement, dated July 13, 2018, entered into among the Parent, Crestview and certain other parties thereto (as in effect on the Effective Date), (c) Parent shall cease to own, free and clear of all Liens or other encumbrances, at least 70% on a fully diluted basis of the aggregate voting power represented by the issued and outstanding Equity Interests of Holdings, (d) Holdings shall cease to own, free and clear of all Liens (other than Liens permitted under Section 5.02(a)(i) and Section 5.02(a)(ii)) or other encumbrances, at least 100% on a fully diluted basis of the aggregate voting power represented by the issued and outstanding Equity Interests in the Borrower, (e) a Disqualified Owner shall become a direct or indirect owner of a 50% or greater ownership interest in or otherwise control any Loan Party or (f) a “change of control” or any other comparable term under, and as defined in, any of the ABL Loan Documents shall have occurred, provided, that no Change of Control shall be deemed to have occurred in the circumstance set forth in clause (a) above if the proposed transferee of such beneficial interests is an Acceptable Purchaser, so long as such Acceptable Purchaser has provided a parent guarantee of the Obligations in form and substance, and from an entity the creditworthiness of which is, in each case acceptable to the Administrative Agent. For the purposes of this definition, “control” shall be defined to mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the Borrower, whether through the ability to exercise voting power, contract or otherwise.

“Claim Proceeds” has the meaning specified in Section 2.04(b)(v).

“CLMG” has the meaning specified in the recital of parties to this Agreement.

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“Collateral” means all Equity Interests issued by the Borrower and its Subsidiaries and all other Property of the Loan Parties (other than the Equity Interests in the Parent and Holdings), whether now owned or hereafter acquired, other than Excluded Property.

“Collateral Accounts” means the following special, segregated and irrevocable accounts (in each case pledged to the Secured Parties) in the form of deposit accounts in the name of the Borrower but, solely in the case of the Initial Growth Capex Reserve Account, the Reinvestment Account, the Loss Proceeds Account and the Prepayment Account, under the dominion and control of the Term Loan Collateral Agent, as set forth herein and otherwise in accordance with the applicable Account Control Agreement in respect of such Collateral Account:

(a) Account No. 4001455469 entitled “USWS Initial Growth Capex Reserve Account” opened at Beal Bank USA in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Initial Growth Capex Reserve Account”);

(b) Account No. 4001422654 entitled “USWS Reinvestment Account” opened at Beal Bank USA in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Reinvestment Account”);

(c) Account No. 4001489846 entitled “USWS Loss Proceeds Account” opened at Beal Bank USA in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Loss Proceeds Account”);

(d) Account No. 4001412578 entitled “USWS Prepayment Account” opened at Beal Bank USA in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Prepayment Account”);

(e) Account No. 488073974950 entitled “USWS Collections Account” opened at Bank of America in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Collections Account”);

(f) prior to the occurrence of the Discharge of ABL Obligations, Account No. 488073974947 entitled “USWS Revenue Account” opened at Bank of America in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 and, on and after the occurrence of the Discharge of ABL Obligations, an account entitled “USWS Revenue Account” opened at Beal Bank USA in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Revenue Account”);

(g) Account No. 4971778865 entitled “Restricted Collections Account” opened at Wells Fargo Bank, N.A. in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Wells Fargo Collections Account”);

(h) Account No. 4971778873 entitled “Operating Account” opened at Wells Fargo Bank, N.A. in the name of the Borrower pursuant to which funds shall be deposited and applied in accordance with Section 2.14 (the “Wells Fargo Revenue Account”).

“Collateral Inspection Actions” has the meaning specified in Section 5.01(f)(ii).

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“Collateral Inspection Party” means any engineer, mechanic, technical personnel, consultant, inspector or other third party representative independently engaged by the Administrative Agent or the Lenders to perform the Collateral Inspection Actions.

“Collateral Report” has the meaning specified in Section 5.01(f)(ii).

“Collections” means all cash collections and other cash proceeds received on account of a right to payment for services rendered from or on behalf of the applicable account debtor.

“Collections Account” has the meaning specified in the definition of “Collateral Accounts”.

“Commercial Agreements” means, collectively, the contracts with Customers that relate to oil field services and related activities and to ancillary, supplementary and complementary lines of business and that provide any source of Revenue.

“Commitment” means, the Term Loan A Commitment and the Term Loan B Commitment, as applicable.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C § 1 et seq.), as amended from time to time, and any successor statute.

“Communications” has the meaning specified in Section 9.02(b).

“Competitor” means any Person (other than the Loan Parties, their Subsidiaries or their respective Affiliate) engaged primarily and actively in a business similar to the business of the Borrower.

“Confidential Information” means information that any Loan Party or its respective Subsidiaries furnishes to any Agent or any Lender designated as confidential, but does not include any such information that is or becomes generally available to the public other than as a result of a breach by such Agent or any Lender of its obligations hereunder or that is or becomes available to such Agent or such Lender from a source other than a Loan Party or any of its Subsidiaries that is not, to the best of such Agent’s or such Lender’s knowledge, acting in violation of a confidentiality agreement with a Loan Party or its Subsidiaries.

“Consent and Agreement” means with respect to any Material Contract, a consent and agreement in favor of the Term Loan Collateral Agent (for the benefit of the Secured Parties) in substantially the form attached hereto as Exhibit F or otherwise in form and substance reasonably satisfactory to the Term Loan Collateral Agent and the Administrative Agent.

“Consolidated” refers to the consolidation of accounts in accordance with GAAP.

“Contractual Obligations” means, as applied to any Person, any provision of any Equity Interests issued by such Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its Properties is bound.

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“Crestview” means Crestview Partners III GP, L.P., Crestview III USWS, L.P. and Crestview III USWS TE, LLC.

“Custodial Administration Agreement” means any custodial administration agreement in form and substance satisfactory to the Administrative Agent and entered into among the Servicer, the Term Loan Collateral Agent, the ABL Agent and the Loan Parties party thereto.

“Customer” means the account debtor with respect to any Receivable and/or the prospective purchaser of goods, services or both with respect to any contract or contract right, and/or any party who enters into or proposes to enter into any contract or other arrangement with any Loan Party, pursuant to which such Loan Party is to deliver any Property or perform any services.

“Debt” of any Person means, without duplication, (a) Debt for Borrowed Money of such Person, (b) all obligations of such Person for the deferred purchase price of Property or services (other than trade payables not overdue (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made) by more than one-hundred and twenty (120) days incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property), (e) all obligations of such Person as lessee under Capitalized Leases, (f) all Disqualified Equity Interests in such Person, valued, as of the date of determination, at the greater of (i) the maximum aggregate amount that would be payable upon maturity, redemption, repayment or repurchase thereof (or the value of Disqualified Equity Interests or Debt into which such Disqualified Equity Interests are convertible or exchangeable) and (ii) the maximum liquidation preference of such Disqualified Equity Interests, (g) all obligations of such Person in respect of Hedge Agreements, valued at the Agreement Value thereof, (h) all Guaranteed Debt of such Person, (i) all obligations under any earn-out (which for all purposes of this Agreement shall be valued at the maximum potential amount payable with respect to each such earn-out) and (j) all indebtedness and other payment obligations referred to in clauses (a) through (i) above of another Person secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness or other payment obligations, not to exceed the value of the Property on which such Lien exists.

“Debt for Borrowed Money” of any Person means, at any date of determination, the sum of (a) all items that, in accordance with GAAP, would be classified as indebtedness on a Consolidated balance sheet of such Person at such date, (b) all obligations of such Person under acceptance, letter of credit or similar facilities at such date and (c) all Synthetic Debt of such Person at such date.

“Debt Proceeds” means, with respect to the incurrence or issuance of any Debt by the Borrower or any Guarantor (other than Permitted Debt), the Net Cash Proceeds payable to the Borrower, any Guarantor or any of their respective Subsidiaries in connection with such incurrence or issuance.

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“Declined Mandatory Prepayment Proceeds” has the meaning specified in Section 2.04(c).

“Declining Lender” has the meaning specified in Section 2.04(c).

“Default” means any Event of Default or any event that would constitute an Event of Default but for the passage of time or the requirement that notice be given or both.

“Default Interest” has the meaning specified in Section 2.05(b).

“Deferral Period” means the period commencing on April 1, 2020 and expiring on January 1, 2022.

“Designated Leased Property” shall mean any real property leased or subleased by any Loan Party.

“Diesel Frac Fleet” means a Frac Fleet whose primary drive train is powered by diesel generators.

“Discharge of ABL Obligations” has the meaning specified in the Intercreditor Agreement.

“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:

(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;

(b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Debt or Equity Interests (other than solely for Qualified Equity Interests in such Person or cash in lieu of fractional shares of such Equity Interests); or

(c) is redeemable (other than solely for Qualified Equity Interests in such Person and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by the Parent or any Subsidiary, in either case, in whole or in part, at the option of the holder thereof;

in each case, on or prior to the date 180 days after the Maturity Date; provided that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” (or similar event, however denominated) shall not constitute a Disqualified Equity Interest if any such requirement becomes operative only after a Repayment Event and (ii) an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall not constitute a Disqualified Equity Interest solely because it may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

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“Disqualified Institution” means, on any date, any Person that is a direct Competitor of the Borrower, which Person has been designated by the Borrower as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders not less than ten (10) Business Days prior to such date; provided that “Disqualified Institutions” shall exclude any (x) commercial bank organized under the laws of the United States or any State thereof that has a combined capital and surplus and undivided profits of $500,000,000 or more, and (y) pooled investment vehicle or entity (including any Affiliates) that is or would reasonably be recognized or categorized as an investment, private equity, debt, hedge, distressed debt fund by reputable institutions that are prominent participants in the financial markets.

“Disqualified Owner” means any Person that, as of the date it first becomes a direct or indirect owner of membership interests in the Borrower: (i) is, or is an Affiliate of a Sanctioned Person or a Person that is, described by or designated in the Anti-Terrorism Order; (ii) is, or is an Affiliate of a Person that is, in violation of the Sanctions or Anti-Terrorism Laws; or (iii) has, or is an Affiliate of a Person that has, been convicted of money laundering (under 18 U.S.C. Sections 1956 or 1957), which conviction has not been overturned; provided, that a Person shall not be a Disqualified Owner if: (x) prior to the date that the Person first becomes a direct or indirect owner of membership interests in the Borrower the Borrower provides the Secured Parties with all documentation and other written information required under applicable “know your customer” and anti-money laundering rules, regulations and requirements (including the PATRIOT Act) in respect of such Person; and (y) as of the date the Person first becomes a direct or indirect owner of the membership interests in the Borrower, such Person has certified to the Administrative Agent that none of the criteria set forth in the foregoing clauses (i) through (iii) in this definition are applicable to such Person. For the avoidance of doubt, each Person that is a parent company of the Borrower on the Effective Date, and each wholly owned direct or indirect subsidiary thereof, shall not be a Disqualified Owner.

“Distributable Cash” means, as of any date of determination, any amounts deposited in the Specified Distributable Cash Account.

“Division” means the division of a limited liability company into two (2) or more limited liability companies pursuant to a “plan of division” or similar method within the meaning of the Delaware Limited Liability Company Act or similar statute in any other state.

“Dollars” and the sign “$” mean the lawful currency of the United States of America.

“DQ List” has the meaning specified in Section 9.07(m).

“Early Termination Event” has the meaning specified in the Intercreditor Agreement.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Effective Date” has the meaning specified in Section 3.01.

“Electric Frac Fleet” means a Frac Fleet whose primary drive train is powered by a natural-gas combustion turbine.

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, (d) any Person that is not a Disqualified Institution,and (e) any other Person (other than an individual) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed); provided, further, that no Loan Party or any of its Affiliates shall qualify as an Eligible Assignee under this definition.

“Eminent Domain Proceeds” means, with respect to any Event of Eminent Domain, the Net Cash Proceeds payable to the Borrower or any Guarantor in connection with such Event of Eminent Domain.

“Environmental Action” means any action, suit, demand, demand letter, claim, written notice of non-compliance or violation, written notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.

“Environmental Complaint” has the meaning specified in Section 5.01(c)(iii).

“Environmental Consultant” means Terracon Consultants, Inc.

“Environmental Law” means any common law or Federal, state or local statute, law, ordinance, rule, regulation, code, order, writ, judgment, injunction or decree relating to pollution or protection of the environment or, as such relates to exposure to Hazardous Materials, health, or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, Release, threatened Release or discharge of Hazardous Materials.

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

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“Equipment Finance SPV” means each special purpose entity that is formed by the Borrower and wholly-owned by a Subsidiary Guarantor to enter into a Non-Lender Financed Capitalized Lease or Non-Lender Financed Equipment Financing.

“Equipment Financings” means each financing obtained in the ordinary course of business which is secured solely by furnishings, fixtures and equipment acquired using the proceeds of such financing.

“Equity Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

“Equity Issuance” means any sale or issuance of any Equity Interests by any Loan Party (other than any Equity Interests (including warrants) issued by any of the Guarantors to any other Loan Party).

“Equity Issuance Proceeds” means the proceeds from any sale of Qualified Equity Interests of Parent or Holdings received by any Loan Party and from any cash capital contribution to any Loan Party from any other Person (other than a Loan Party or Subsidiary thereof).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan Party, or under common control with any Loan Party, within the meaning of Section 414 (b) or (c) of the Internal Revenue Code.

“ERISA Event” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30 day notice requirement with respect to such event has been waived by the PBGC or (a)(ii) the requirements of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any Plan;

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(g) the adoption of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section 206(g)(5) of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such Plan.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Eminent Domain” means any action, series of actions, omissions or series of omissions by any Governmental Authority (a) by which such Governmental Authority appropriates, confiscates, condemns, expropriates, nationalizes, seizes or otherwise takes all or a material portion of the Property of any Loan Party (including any Equity Interests issued or owned by any Loan Party (other than Equity Interests issued by Parent or by Holdings to the extent not owned by Parent)), or (b) by which such Governmental Authority assumes custody or control of the Property (other than immaterial portions of such Property) or business operations of any Loan Party or any Equity Interests issued or owned by any Loan Party (other than Equity Interests issued by Parent or by Holdings to the extent not owned by Parent).

“Events of Default” has the meaning specified in Section 6.01.

“Excess Cash Flow” means one hundred percent (100%) of the aggregate amount remaining on deposit in or credited to the Revenue Account after giving effect to the withdrawals, holdbacks and transfers prescribed pursuant to priorities first through ninth of the “Cash Waterfall” set forth in Section 2.14(c).

“Excess Cash Flow Payment Amount” means, as of each Sweep Calculation Date, an amount equal to 100% of Excess Cash Flow

“Excess Settlement Proceeds” means an amount determined by subtracting $20,000,000 from an amount obtained by subtracting the aggregate amount required to be paid by the Borrower or any Loan Party under the relevant settlement agreement from the greater of (x) $48,000,000 and (y) the aggregate amount of Judgment Appeal Account Proceeds that are released and returned to the Borrower or any Loan Party.

“Excluded Accounts” means (a) the Payroll Account; (b) the Workers Compensation Account; (c) the CARES Act Loan Account; and the (d) Judgment Appeal Account.

“Excluded Property” has the meaning specified in the Term Loan Security Agreement.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty (or any guarantee of such Guarantor in respect of any Swap Obligation under any Hedge Agreements) of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time

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the guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation or at any other time as is required for purposes of the Commodity Exchange Act or regulations. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal.

“Excused Payment” means all amounts designated as Excused Payments under Section 5.02(e), Section 5.02(p) and Section 5.02(r).

“Existing Capitalized Leases” means those certain Capitalized Leases set forth on Schedule 4.01(v) on the Effective Date.

“Existing Debt” means the Debt of the Loan Parties outstanding immediately before the occurrence of the Effective Date and listed on Schedule 3.01(b).

“Existing Equipment Financings” means those certain Equipment Financings set forth on Schedule 4.01(v) on the Effective Date.

“Extension Fee” has the meaning given to such term in the Second Amendment Agreement.

“Exit Fee” means any exit fee payable pursuant to Section 2.06(d).

“Facility” means, each of the Term Loan A Facility and the Term Loan B Facility, as the context may require, and “Facilities” means, collectively the Term Loan A Facility and the Term Loan B Facility.

“Federal Funds Rate” means for any day of determination, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher one hundredth of one percent (1/100 of 1%)) equal to the weighted average of the rates on overnight federal funds transactions by depositary institutions, as such rate is displayed on the FEDL01 Index Page of Bloomberg L.P. (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. New York City time on such day; provided that (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day, (ii) if no such rate is so published for any day that is a Business Day, the Federal Funds Rate for such day shall be the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it. The Federal Funds Rate shall be determined on the Fifth Amendment Effective Date and, thereafter, on the first Business Day of each Fiscal Quarter commencing with the first Business Day of the Fiscal Quarter beginning July 1, 2021. Once the Federal Funds Rate is determined as of a particular day in accordance with the immediately preceding sentence, it shall remain in effect until the next redetermination date therefor as set forth herein.

“Fee Letter” means the fee letter, dated as of the date hereof, between the Administrative Agent and the Borrower.

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“Fifth Amendment” means the Consent and Fifth Amendment to the Senior Secured Term Loan Credit Agreement, dated June 24, 2021, among the Loan Parties, the Agents and the Lenders.

“Fifth Amendment Effective Date” means June 24, 2021.

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means a fiscal year of the Borrower and its Subsidiaries ending on December 31 of each calendar year.

“Force Majeure Event” shall mean acts, occurrences, events and conditions beyond the reasonable control of the party claiming relief on the basis of the occurrence of the Force Majeure Event which delays or renders impossible the performance of the Loan Parties of their obligations under this Agreement and which could not have been prevented or avoided by the Loan Parties through the exercise of due diligence, including acts of God, earthquakes, fires, floods, insurrection, terrorism, acts of war (whether declared or otherwise).

“Form License Agreement” means a license agreement in substantially in the form attached as Exhibit N to this Credit Agreement.

“Fourth Amendment” means the Fourth Amendment to the Senior Secured Term Loan Credit Agreement, dated November 12, 2020, among the Loan Parties, the Agents and the Lenders.

“Fourth Amendment Effective Date” means November 12, 2020.

“Frac Fleet” means each group consisting of fracking rigs, trucks, pumps, primary drive train for pumps (whether powered by diesel generators or natural-gas combustion turbines), a data van and other vehicles and equipment owned by one or more of the Loan Parties that, taken as a whole, (i) when deployed, is capable of providing a Customer with a typical level of hydraulic fracturing services in accordance with the applicable Commercial Agreement in any one location based upon historical operations of the Borrower and the Subsidiary Guarantors and (ii) represents, based on historical operations, on average, between 40,000 and 50,000 hydraulic horsepower.

“Frac Fleet 16” has the meaning specified in Schedule III.

“Frac Fleet Maintenance Report” means a monthly report substantially in the form of Exhibit G.

“Frac Fleet Preservation Program” means the maintenance program that addresses the repair, maintenance and storage of each idle Frac Fleet as more particularly described in Exhibit H.

“Fund” means any Person (other than an individual) that is or will be engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

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“Funds Flow Memorandum” shall mean the memorandum setting forth the flow of funds at closing and the funding of the Term A Loans and Term B Loans, as approved by the Administrative Agent, and a related letter of direction.

“G&A Cap” means, for each Calendar Quarter following the Calendar Quarter ending on March 31, 2020, an amount of cash general and administrative costs in an aggregate amount equal to (a) $24,000,000 at any time when the Initial Lenders and their respective Affiliates (and/or any commonly-owned Affiliates thereof) are “Lenders” hereunder, and (b) $30,000,000 at any time that the Initial Lenders and their respective Affiliates (and/or any commonly-owned Affiliates thereof) cease to be “Lenders” hereunder, in each case of clause (a) and (b), per Calendar Quarter (calculated on a trailing 12 month basis) minus an amount equal to the aggregate cash general and administrative costs incurred by the Loan Parties during the three Calendar Quarters immediately preceding such Calendar Quarter, as increased by three percent (3%) per calendar year commencing in 2020; provided, that the G&A Cap shall exclude (i) non-cash costs, (ii) transaction costs attributable to the Facilities and incurred on or before the Effective Date, transaction costs incurred in connection with the Second Amendment Agreement and the related transactions consummated in connection therewith, and costs and expenses for the services of any Collateral Inspection Party (iii) restructuring fees associated with headcount reductions, (iv) Public Company Operating Costs and (v) other costs and expenses, in each case, as approved by the Lenders in their reasonable discretion; provided, further, that the G&A Cap shall exclude up to $1,000,000 in the aggregate in any fiscal year of extraordinary costs and unusual or non-recurring expenses.

“GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means any nation or government, any state, province, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board, bureau or similar body, whether federal, state, provincial, territorial, local or foreign.

“Governmental Authorization” means any authorization, approval, consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority.

“Growth Capex Withdrawal Certificate” means each withdrawal certificate delivered to the Agents substantially in the form of Exhibit K hereto.

“Growth Capital Expenditures” means, in respect of the Borrower and/or any Subsidiary Guarantor, Capital Expenditures that are (a)(i) used to finance the acquisition of a new generation Electric Frac Fleet for which the Borrower or a Subsidiary Guarantor has entered into an Approved

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AGCE Contract and (a)(ii) made on any date on which (x) no existing, operational Electric Frac Fleet has been idle for more than three (3) calendar months and (y) not more than five (5) Diesel Frac Fleets have been idle for more than three (3) calendar months or (b) approved by the Required Lenders in their sole and absolute discretion.

“Guaranteed Debt” means, with respect to any Person, any obligation or arrangement of such Person to guarantee or otherwise assure payment of any Debt (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of a primary obligor, (b) the obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties to an agreement or (c) any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor or (iii) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof. The amount of any Guaranteed Debt shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranteed Debt is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable pursuant to the terms of the instrument evidencing such Guaranteed Debt) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder), as determined by such Person in good faith.

“Guarantors” means Parent, Holdings, the Borrower and each Subsidiary Guarantor.

“Guaranty” has the meaning specified in the Term Loan Security Agreement.

“Hazardous Discharge” has the meaning specified in Section 5.01(c)(iii).

“Hazardous Materials” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials and polychlorinated biphenyls and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant or which are regulated or can give rise to liability under any Environmental Law.

“Hedge Agreements” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any

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form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Hedge Bank” means any Person in its capacity as a party to a Hedge Agreement that, (a) at the time it enters into an interest rate Hedge Agreement not prohibited under Article V, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedge Agreement not prohibited under Article V, in each case, in its capacity as a party to such Hedge Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“Holdings” has the meaning specified in the recital of parties to this Agreement.

“Incremental Facility” has the meaning specified in Section 2.01(c).

“Indemnified Costs” has the meaning specified in Section 7.05(a).

“Indemnified Party” has the meaning specified in Section 9.04(b).

“Initial Frac Fleets” has the meaning specified in the recital of parties to this Agreement.

“Initial Growth Capex Reserve Account” has the meaning specified in the definition of “Collateral Accounts”.

“Initial Lenders” means the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the Initial Lenders.

“Initial ProFrac Licensing Transactions” means the three (3) Initial Licenses (as defined in the Form License Agreement) constituting ProFrac Licensing Transactions.

“Initial Operating Budget” has the meaning specified in Section 3.01(a)(xiii).

“Initial Pledged Debt” has the meaning specified in the Term Loan Security Agreement.

“Initial Pledged Equity” has the meaning specified in the Term Loan Security Agreement.

“Initial Repair Completion Period” has the meaning specified in Section 5.01(i).

“Initial Third Lien Notes” means the 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026 issued by Parent under the Third Lien Notes Agreement on the “Initial Equity Linked Notes Closing Date” and the “License Linked Note Closing Date” each as defined in the Third Lien Notes Agreement as in effect on the Fifth Amendment Effective Date.

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“Inspection Fees Cap” has the meaning specified in Section 5.01(f)(iii).

“Insufficiency” means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.

“Insurance Consultant” means Alliant Insurance Services, Inc.

“Insurance Proceeds” means, with respect to any Casualty Event, the Net Cash Proceeds payable to the Borrower or any Guarantor from time to time with respect to such Casualty Event.

“Intellectual Property” means property constituting under any applicable law a patent, patent application, registered copyright, copyright application for copyright registration, trademark, trademark application, service mark, trade name or trade secret. Patents and patent applications include any provisional and non-provisional applications, issued patents including those based on continuation, continuation-in-part, divisional and substitute applications, patents resulting from a reissue or reexamination proceeding, and any foreign equivalents and improvements thereof, and any claims for past and future infringements of the patents.

“Intercreditor Agreement” means that certain Amended and Restated Intercreditor Agreement, dated as of June 24, 2021, by and among the Administrative Agent, the ABL Agent, Third Lien Agent, the Borrower and the other Persons party thereto from time to time, as amended, restated, supplemented or otherwise modified from time to time.

“Interest Payment Date” means, with respect to any Loan, the last day of each March, June, September and December; provided, that, in addition to the foregoing, in each case, each of (x) the date upon which the Loan has been paid in full (y) the Maturity Date, and (z) the Repayment Event, shall be deemed to be an “Interest Payment Date” with respect to any interest that has then accrued under this Agreement.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

“Investment” in any Person means any loan or advance to such Person, any purchase or other acquisition of any Equity Interests or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation (or similar transaction) and any arrangement pursuant to which the investor incurs Debt of the types referred to in clause (h) or (i) of the definition of “Debt” in respect of such Person.

“Judgment Appeal Account” means the bank account(s) directed by the court in the SND Lawsuit to hold the funds to stay enforcement of the June 2021 Judgment while the June 2021 Judgment is on appeal (including an account held by the registrar of the court).

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“Judgment Appeal Account Proceeds” the funds on deposit and held in the Judgment Appeal Account.

“June 2021 Judgment” means that certain Order of Final Judgment entered into on June 17, 2021, by the Superior Court of the State of Delaware in the SND Lawsuit.

“Lenders” means the Initial Lenders and each Person that shall become a Lender hereunder pursuant to Section 9.07 for so long as such Person shall be a party to this Agreement.

“Lending Office” means, with respect to any Lender, the office of such Lender specified as its “Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.

“Lien” means, with respect to any Property, (a) any mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such Property, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing), relating to such Property, and (c) in the case of Equity Interests or debt securities, any purchase option, call or similar right or preferential arrangement of a third party with respect to such Equity Interests or debt securities. For the avoidance of doubt, “Lien” shall not include any netting or set-off arrangements under any Contractual Obligation (other than Contractual Obligations constituting Debt for Borrowed Money) otherwise permitted under the terms of the Loan Documents.

“Liquidity Reserve Cap” means, as of any Sweep Calculation Date, an amount equal to $15,000,000.

“Liquidity Reserves” means an aggregate amount not to exceed the Liquidity Reserve Cap then on deposit in or credited to the Revenue Account on any Sweep Calculation Date as such amount (and the usage thereof) is detailed in the Net Cash Flow Certificate delivered in accordance with Section 5.03(k) for each Cash Flow Payment Date. The amount of Liquidity Reserves on the Effective Date shall be $15,000,000.

“Loan” means a Term A Loan or a Term B Loan.

“Loan Documents” means (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Intercreditor Agreement, (e) the Term Loan Collateral Documents, (f) the Custodial Administration Agreement (if any), (g) the Fee Letter, (h) the Second Amendment Agreement, and (i) any other document that is executed in connection with the transactions contemplated herewith or therewith and is deemed in writing by the Borrower and the Administrative Agent to constitute a Loan Document, in each case, for clauses (a) through (i), as amended, restated, supplemented or otherwise modified from time to time.

“Loan Parties” means the Borrower and the Guarantors.

“Loss Proceeds Account” has the meaning specified in the definition of “Collateral Accounts”.

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“Maintenance Capital Expenditures” means, in respect of the Borrower and/or any Subsidiary Guarantor, Capital Expenditures that are made (a) for the maintenance, repair, enhancement, or refurbishment of any of the equipment related to the Frac Fleets in accordance with applicable law and Prudent Industry Practice and (b) in the ordinary course of business and consistent with past practice of the Borrower.

“Mandatory Repair Notification” has the meaning specified in Section 5.01(i).

“Margin Stock” has the meaning specified in Regulation U.

“Material Adverse Change” means, individually or in the aggregate,

(a) any Material Adverse Effect;

(b) any pending or threatened Event of Eminent Domain relating to any of the Collateral which, individually or in the aggregate, could reasonably be expected to impair Collateral with a value in excess of $5,000,000;

(d) other than as set forth on Schedule IV, the existence of any litigation, which when taken in the context of the Loan Parties individually or in the aggregate, could reasonably be expected to result in liability in excess of $10,000,000; or

(e) any insolvency proceedings relating to any Loan Party or any of the Collateral, including any insolvency proceeding that is or may be pending or threatened.

“Material Adverse Effect” means a material adverse effect on (a) the financial condition, business, results or operations of the Loan Parties, taken as a whole, (b) the rights, remedies or benefits of any Agent or the Lenders, taken as a whole, under any Loan Document, (c) the ability of the Loan Parties to perform their respective Obligations under the Loan Documents or (d) the validity, binding effect, enforceability or priority of the Liens and security interests granted to the Term Secured Parties under the Loan Documents.

“Material Contract” means each of (a) the agreements listed on Schedule 4.1(t) and (b) any other Contractual Obligation entered into on or after the Effective Date (other than any Loan Document, any customer contract or any Contractual Obligation under other Permitted Debt) of any Loan Party for which breach, nonperformance or cancellation could reasonably be expected to have a Material Adverse Effect.

“Maturity Date” means the earlier of (a) December 5, 2025 and (b) the date the Loans become due and payable pursuant to Section 6.01.

“Minimum Frac Fleet Requirement” means, on any date of determination, that all Frac Fleets owned by the Loan Parties are (x) capable of being deployed or (y) being actively repaired and are capable of being deployed within 30 days of such date of determination, with each such

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Frac Fleet (a) being capable of providing a Customer with a typical level of hydraulic fracturing services in accordance with the applicable Commercial Agreement in any one location based upon historical operations of the Borrower and its Subsidiaries and (b) representing, on average, between 40,000 and 50,000 hydraulic horsepower.

“MG Finance Lease Agreement” means that certain Master Lease Agreement No. CW/1288-1, entered into on or around January 25, 2019, by and between the Parent, as lessee, and M/G Finance Co., Ltd., as lessor, pursuant to which certain assets set forth in Schedule V are leased to Parent.

“Moody’s” means Moody’s Investors Service, Inc., and any successor thereto.

“Mortgages” means any deed of trust, trust deed, mortgage, leasehold mortgage or leasehold deed of trust delivered from time to time after the date hereof pursuant to Section 5.01(j), in each case as amended.

“Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“Multiple Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.

“Net Cash Flow Certificate” has the meaning specified in Section 5.03(k).

“Net Cash Proceeds” means:

(a) with respect to any Asset Sale, the excess, if any, of (i) the sum of Cash and Cash Equivalents received by any Loan Party in connection with such Asset Sale minus (ii) the sum of (A) the out of pocket costs, fees, commissions, premiums and expenses (including legal and accounting costs, fees and expenses and title and recording fees, costs and expenses) reasonably incurred directly or indirectly by any Loan Party in connection with such Asset Sale to the extent such amounts were not deducted in determining the amount referred to in clause (i) and (B) federal, state and local taxes paid or reasonably estimated to be payable by any Loan Party in connection therewith to the extent such amounts were not deducted in determining the amount referred to in clause (i); and

(b) with respect to the incurrence or issuance of any Debt for Borrowed Money by any Loan Party, the excess if any, of (i) the sum of the Cash and Cash Equivalents received by any Loan Party in connection with such incurrence or issuance minus (ii) the underwriting discounts and commissions or other similar payments, and other out of pocket costs, fees, commissions, premiums and expenses (including legal and accounting costs, fees and expenses and title and recording fees, costs and expenses) reasonably incurred directly or indirectly any Loan Party in connection with such incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i); and

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(c) with respect to any Equity Issuance, the excess of (i) the sum of the Cash and Cash Equivalents received by any Loan Party in connection with such sale or issuance minus (ii) the underwriting discounts and commissions or similar payments, and other out of pocket costs, fees, commissions, premiums and expenses (including legal and accounting costs, fees and expenses), reasonably incurred by any Loan Party in connection with such sale or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i);

(d) with respect to any Event of Eminent Domain or Casualty Event, the excess, if any, of (i) the sum of Cash and Cash Equivalents received by any Loan Party in connection with such Event of Eminent Domain or Casualty Event minus (ii) the sum of (A) the out of pocket costs and expenses reasonably incurred by any Loan Party in connection with the collection, enforcement, negotiation, consummation, settlement, proceedings, administration or other activity related to the receipt or collection of the relevant proceeds to the extent such amounts were not deducted in determining the amount referred to in clause (i) and (B) federal, state and local taxes reasonably estimated to be payable as a result of thereof to the extent such amounts were not deducted in determining the amount referred to in clause (i); and

(e) with respect to any termination of any Commercial Agreement, the excess, if any, of (i) the sum of Cash and Cash Equivalents received by any Loan Party in connection with such termination minus (ii) the sum of (A) the out of pocket costs and expenses reasonably incurred by any Loan Party in connection with the collection, enforcement, negotiation, consummation, settlement, proceedings, administration or other activity related to the receipt or collection of the relevant proceeds to the extent such amounts were not deducted in determining the amount referred to in clause (i) and (B) federal, state and local taxes reasonably estimated to be payable as a result of thereof to the extent such amounts were not deducted in determining the amount referred to in clause (i),

provided that, any Net Cash Proceeds received in the form of Cash Equivalents by any Loan Party shall be converted to Cash prior to prepayment of the Loans in accordance with Section 2.04.

“Non-Lender Financed Capitalized Leases” means Capitalized Leases of any Equipment Finance SPV as to which neither Borrower nor any of the Guarantors (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Debt) or (b) is directly or indirectly liable as a guarantor or otherwise.

“Non-Lender Financed Equipment Financings” means Equipment Financings of any Equipment Finance SPV as to which neither Borrower nor any of the Guarantors (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Debt) or (b) is directly or indirectly liable as a guarantor or otherwise.

“Non-Speculative Interest Rate Hedge Agreements” means, with respect to any Person, any interest rate Hedge Agreement the purpose of which is to hedge or mitigate the commercial risks of such Person and which covers a notional amount not to exceed at any time the outstanding principal amount of the Loans and is for a term that ends on or prior to the Maturity Date.

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“Note” means each Term Loan A Note and Term Loan B Note.

“Notice of Borrowing” means a Notice of Borrowing, in substantially the form of Exhibit B hereto, given by the Borrower in accordance with Section 2.02.

“NPL” means the National Priorities List under CERCLA.

“O&M Costs” means, for any period, the sum, computed without duplication, of the following (in each case incurred by any Loan Party and not reimbursed by any other Person, except if the proceeds of such reimbursement are deposited into the Revenue Account): (a) direct expenses of administering and operating the Frac Fleets or the related yards where such Frac Fleets are stored and of maintaining the Frac Fleets and the related yards where such Frac Fleets are stored in good repair and operating condition (including routine operating and maintenance expenses, Maintenance Capital Expenditures, expenses under spare parts agreements, fuel costs, payments under leases and other costs of utilities, supplies, spare parts and other services), (b) insurance costs or surety bonds (including premiums and deductibles or costs associated with complying with any applicable insurance or bonding obligations under this Agreement), (c) costs, expenses and fees attendant to obtaining and maintaining in effect any Governmental Authorization, (d) legal, accounting and other professional fees and expenses attendant to any of the foregoing items, (e) sale, franchise, margin, licensing, value-added, excise, real estate, use, property and other non-income state, local and federal taxes, (f) any Capital Expenditures for Investments, subject to the cap on such expenses set forth in Section 5.02(m)(iii), (g) payments on account of any Permitted Debt described in Sections 5.02(b)(v)(A), 5.02(b)(v)(B), and 5.02(b)(vi), (h) any ordinary course settlement payments in connection with Hedge Agreements entered into in accordance with the terms of the Loan Documents and (i) all other expenses, fees and costs incurred by any Loan Party, directly in connection with the ownership, operation, maintenance or administration of any Frac Fleet; provided that all of the foregoing costs and expenses shall be determined on a cash basis and shall not include depreciation, amortization and other non-cash items; provided, further, that “O&M Costs” shall not include: (A) payments of any kind during such period to the holders of Equity Interests of the Borrower or any Affiliate thereof (other than (x) to the Borrower or any Guarantor (other than Holdings or the Parent)), (y) to any Affiliate as payment of or reimbursement for costs that would be permitted to be paid by the Borrower or any Subsidiary Guarantor as O&M Costs if incurred or paid directly by the Borrower or (z) payments that are made in compliance with Section 5.01(i), (B) payments of Capital Expenditures other than Maintenance Capital Expenditures and Capital Expenditures for Investments (subject to the cap on such expenses set forth in Section 5.02(m)(iii)), (C) amounts payable under the ABL Loan Documents, (D) Termination Payments of any kind, (E) payments to repair or restore Property during such period with Net Cash Proceeds attributable to any Casualty Event or Event of Eminent Domain, or (F) except as provided in clause (h), any payments or expenses related to any Debt for Borrowed Money or other Permitted Debt (including Debt under the ABL Credit Agreement).

“Obligation” means all obligations of every nature of each Loan Party from time to time owed to any Agent (including former Agents) or any Lender from time to time outstanding hereunder and under the other Loan Documents or otherwise under any Loan, Secured Cash

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Management Agreement or Secured Hedge Agreement, including, without limitation, all principal and all interest, fees, premium, the Call Premium, the Exit Fee, the Yield Maintenance Fee, the Extension Fee, expenses, and other charges accrued or accruing (or which would, absent commencement of any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto, accrue) on or after the commencement of any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto at the rate provided for herein or the relevant Loan Document, whether or not such interest (including post-petition interest), fees, premium, Call Premium, Exit Fee, Yield Maintenance Fee, Extension Fee, expenses or other charges are allowed or allowable in any such bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto.

“Ordinary Course Settlement Payments” means all regularly scheduled payments due under any Hedge Agreement from time to time, calculated in accordance with the terms of such Hedge Agreement, but excluding, for the avoidance of doubt any “settlement amounts” or “termination payments” due and payable under such Hedge Agreement.

“Other Taxes” has the meaning specified in Section 2.09(b).

“Parent” has the meaning specified in the recital of parties to this Agreement.

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.

“Payroll Account” a zero balance deposit account exclusively used for tax withholding, payroll, payroll taxes, employee benefits (including workers’ compensation, unemployed insurance or other forms of governmental insurance or benefits).

“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).

“Perfect by Filing” means, with respect to any certificates of title, the (a) filing of required lien notation documentation with, and delivery of such certificate of title to, the relevant department of transportation, (b) acceptance thereof by such department of transportation and (c) payment of any fees in connection with the foregoing.

“Permitted Debt” means Debt permitted under Section 5.02(b).

“Permitted Encumbrances” has the meaning specified in the Mortgages.

“Permitted Existing Debt” means the Debt of the Loan Parties outstanding immediately before the occurrence of the Effective Date and listed on Schedule 3.01(b) under the heading Permitted Existing Debt.

“Permitted Liens” means (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b); (b) Liens imposed by or arising by operation of law, such as materialmen’s, mechanics’, carriers’, workmen’s, warehousemen’s and repairmen’s Liens and other similar Liens (i) for amounts that are not overdue or (ii) for

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amounts that are overdue that (A) do not materially adversely affect the use of the Property to which they relate or (B) are bonded or are being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made; (c) pledges or deposits in the ordinary course of business to secure obligations under workers’ compensation, unemployment insurance, social security legislation or other similar legislation or to secure public or statutory obligations or to secure a bond or letter of credit or similar instrument that is utilized to secure such obligations; (d) Liens on deposits (or pledges of deposit accounts or securities accounts containing such deposits) to secure the performance of bids, Material Contracts and other Contractual Obligations permitted under this Agreement, trade contracts and leases (other than Debt that is not Debt of the type described in clause (e) of the definition thereof), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business, or to secure a bond or letter of credit or similar instrument that is utilized to secure such obligations, in an aggregate amount not to exceed $5,000,000; provided, this clause (d) shall not include any Lien described herein if any Event of Default has occurred and is continuing on the date such Lien is incurred; (e) Liens securing judgments (or the payment of money not constituting an Event of Default under Section 6.01(g)) or securing appeal or other surety bonds related to such judgments or to secure a bond or letter of credit or similar instrument that is utilized to secure such judgments; (f) Permitted Encumbrances; and (g) easements, rights-of-way, restrictions, encroachments and other minor defects or irregularities in title and any zoning or other similar restrictions to or vested in any governmental office or agency to control or regulate the use of any Real Property, that individually or in the aggregate do not materially adversely affect the value of said Real Property or materially impair the ability of the Loan Parties to operate the Real Property to which they relate in the ordinary course of business.

“Permitted Tax Distributions” means dividends or other distributions paid from time to time (which may be estimated and paid no more frequently than quarterly) by Borrower to the holders of its Equity Interests (and, in turn, by such holders to the respective holders of their Equity Interests) not to exceed in the aggregate in any fiscal year an amount equal to the federal and state income taxes of the holders of Borrower’s Equity Interests which are attributable to the taxable income of Borrower and its Subsidiaries calculated based on good faith reasonable estimates.

“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

“Plan” means a Single Employer Plan or a Multiple Employer Plan.

“Plan of Reorganization” has the meaning specified in Section 9.07(l).

“Platform” has the meaning specified in Section 9.02(b).

“Pledged Debt” has the meaning specified in the Term Loan Security Agreement.

“Post-Release CARES Act Collateral” means each asset comprising Frac Fleet 16 as set forth on Schedule V under the heading “Replacement CARES Act Loan Collateral” and any proceeds or products of Frac Fleet 16 or the individual assets thereof.

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“PPP Loan” means the unsecured loan made pursuant to the “Paycheck Protection Program” of the Small Business Act and the CARES Act to the Borrower under that certain Promissory Note dated July 23, 2020, executed by the Borrower and made payable to Bank of America, N.A., as lender, in the original principal amount of $10,000,000.00.

“Pre-Release CARES Act Collateral” each asset set forth on Schedule V under the heading “Pre-Release CARES Act Collateral” and any proceeds or products of such assets.

“Prepayment Account” has the meaning specified in the definition of “Collateral Accounts”.

“Prepayment Amount” has the meaning specified in Section 2.06(b).

“Pro Rata Share” of any amount means, with respect to any Lender at any time and with respect to Facilities, the product of such amount times a fraction the numerator of which is the amount of Loans owed to such Lender under the Facilities at such time and the denominator of which is the aggregate amount of the Loans then outstanding and owed to all Lenders under the Facilities at such time.

“ProFrac Licensing Transaction” means the non-exclusive E-Fleet licensing transactions between the Borrower, as licensor, and ProFrac Holdings, LLC, a licensee, under the license agreement in the form as the Form License Agreement, together with the exercise of any options by the licensee pursuant to the terms of such license agreement.

“Property” means any right or interest in or to any asset or property of any kind whatsoever (including Equity Interests), whether real, personal or mixed and whether intangible or tangible.

“Prudent Industry Practice” means those practices, methods, equipment, specifications and standards of safety and performance, as are commonly used by oilfield services companies engaged primarily in hydraulic fracturing for oil and gas exploration and production in the United States as good, safe and prudent engineering practices would dictate in connection with the design, construction, operation, maintenance, repair, enhancement, refurbishment and use of a Frac Fleet and other equipment, facilities and improvements related thereto, with commensurate standards of safety, performance, dependability (including the implementation of procedures that shall not adversely affect the long term reliability of the Frac Fleet, in favor of short term performance), efficiency and economy, in each such case as the same may evolve from time to time, consistent with applicable law and considering the state in which a Person is located and the type and size of such Frac Fleet. “Prudent Industry Practice” as defined herein does not necessarily mean one particular practice, method, equipment specification or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

“Public Company Operating Costs” means audit, internal audit, and Sarbanes-Oxley related expenses, legal costs related to being a public company (including those related to securities law, filing review and other related expenses), legal costs related to intellectual property of any Loan Party as long as billed on an hourly basis, in an amount not to exceed $2,000,000 in any fiscal year, expenses related to tax consulting, transaction costs related to permitted equity offerings, in an amount not to exceed $750,000 in any fiscal year (such amount, the “Reimbursable Transaction Costs”), and fees and expenses related to public reporting obligations.

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“Qualified Equity Interest” of any Person means any Equity Interest in such Person other than any Disqualified Equity Interest.

“Quarterly Inspection Cap” has the meaning specified in Section 5.01(f)(ii).

“Quarterly Payment Date” means the last Business day of each Calendar Quarter, commencing with the second full Calendar Quarter following the Effective Date, until the occurrence of any Repayment Event, provided that, the first Quarterly Payment Date hereunder shall be January 15, 2020 (for amounts due during the period between the Effective Date and the end of the second full Calendar Quarter following the Effective Date).

“Real Properties” means each item of Property listed on Schedules 4.01(q) and 4.01(r) hereto and any other real property subsequently acquired by any Loan Party covered by Section 5.01(j).

“Receivable” means, as to each Loan Party, all of such Loan Party’s accounts, contract rights, instruments (including those evidencing indebtedness owed to such Loan Party by its Affiliates), documents, chattel paper (including electronic chattel paper), general intangibles relating to accounts, drafts and acceptances, credit card receivables and all other forms of obligations owing to such Loan Party arising out of or in connection with the sale or lease of any property or the rendition of services, all supporting obligations, guarantees and other security therefor, whether secured or unsecured, now existing or hereafter created.

“Register” has the meaning specified in Section 9.07(d).

“Registered” means issued, registered, renewed or subject to a pending application with a Governmental Authority such as the United States Patent and Trademark Office, the United States Copyright Office or other similar Governmental Authority anywhere in the world.

“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.

“Reimbursable Transaction Costs” has the meaning specified in the defined term “Public Company Operating Costs”.

“Reimbursed Transaction Costs” has the meaning specified in Section 5.01(o).

“Release” has the meaning specified in CERCLA.

“Relevant Repairs” has the meaning specified in Section 5.01(i).

“Remaining Excused Amount” means, on any date of determination, $500,000 minus the aggregate amount of all Excused Payments made by any Loan Party since the Effective Date.

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“Remedial Action” means any response, remedial removal, or corrective action activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Material or to comply with any Environmental Laws and Environmental Permits, including any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Release or threatened Release of Hazardous Materials as required by Environmental Laws, Environmental Permits or any Governmental Authority.

“Repaired Feasibly” means with respect to any equipment and machinery Collateral (other than equipment or machinery Collateral that is obsolete, not economic to repair and/or that individually or in the aggregate is not reasonably necessary for the continued operation of any Loan Party) which is subject to a Mandatory Repair Notice, that such equipment and machinery Collateral can be repaired or restored for useful operation in the Loan Parties’ business in a manner that is reasonably believed by the Collateral Inspection Party to be technically and economically feasible.

“Repayment Event” means the satisfaction of the following conditions: (a) the repayment in full in Cash of all of the outstanding principal amount of the Loans and all other Obligations (except for indemnities and other obligations which by the express terms of the relevant Loan Documents survive the repayment of the Loans and the termination of the Commitments) due and payable under the Loan Documents and (b) the termination of all Commitments.

“Required Aggregate Horsepower Amount” means, on any date of determination, an amount equal to (x) 175,000 hydraulic horsepower plus (y) 40,000 hydraulic horsepower for each additional Frac Fleet built or acquired by the Loan Parties following the Fifth Amendment Effective Date.

“Required Lenders” means, at any time, Lenders owed or holding more than 50% of the aggregate principal amount of the Loans outstanding at such time.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Responsible Officer” means, as to any Person, any duly authorized and appointed officer of such Person, as demonstrated by a certificate of incumbency or other appropriate appointment or resolution, having actual knowledge of the matter in question.

“Restoration Requisition” has the meaning specified in Section 2.14(e)(v).

“Restricted Payment” has the meaning specified in Section 5.02(g).

“Revenue” means, collectively, all contributions, distributions, dividends and other Cash and Cash Equivalents actually received by the Loan Parties (including the proceeds of all ABL Loans made pursuant to the ABL Loan Documents, proceeds of dispositions under Section 5.02(e) and proceeds transferred from the Collections Account) other than: (a) Collections (until (i) prior to the Discharge of ABL Obligations, such Collections are transferred to the Revenue Account or (ii) the date upon which the Discharge of ABL Obligations has occurred and at all times thereafter), (b) any Equity Issuance Proceeds (other than to the extent the Borrower elects to apply any portion thereof to the Revenue Account); (c) proceeds of any Debt permitted under Section 5.02(b)(vii), (xv) and (xvi);

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(d) proceeds of the Loans; (e) proceeds of Asset Sales with respect to property described in Section 5.02(e)(ii), (viii), (x) and (xi); and (f) transfers of Cash and Cash Equivalents among the Loan Parties either (i) to the extent not constituting Revenue when originally received by such Person (other than Collections, which shall be applied to the Revenue Account and be deemed revenues as required in this Agreement) or (ii) from the Collateral Accounts as permitted by Section 2.14, (in each case, whether in the form of, or resulting from, Investments, Asset Sales, Restricted Payments or otherwise).

“Revenue Account” has the meaning specified in the definition of “Collateral Accounts”.

“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.

“S&P” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc., and any successor thereto.

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.

“Scheduled Amortization Payment” means each repayment of Loans made pursuant to Section 2.04(b)(i).

“Scheduled Amortization Payment Date” means, with respect to any Loan, the last day of each March, June, September and December, commencing on December 31, 2020.

“SEC” has the meaning specified in Section 5.03(n).

“Second Amendment Agreement” means that certain Second Amendment to the Senior Secured Term Loan Credit Agreement, dated as of April 1, 2020, entered into between the Loan Parties, the Lenders, the Term Loan Collateral Agent and the Administrative Agent.

“Second Offer” has the meaning specified in Section 2.04(c).

“Secured Bank Product Obligations” means all debt, obligations and other liabilities owing under Secured Cash Management Agreements and Secured Hedge Agreements; provided that Secured Bank Product Obligations of a Loan Party shall not include the Excluded Swap Obligations of such Loan Party.

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“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Subsidiary and any Cash Management Bank which has delivered a Secured Party Designation Notice.

“Secured Hedge Agreement” means any interest rate Hedge Agreement permitted under Section 5.02(l) that is entered into by and between the Borrower or any Subsidiary and any Hedge Bank which has delivered a Secured Party Designation Notice.

“Secured Parties” means, collectively, the Administrative Agent, the Term Loan Collateral Agent, the Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Article VII, and the other Persons the Obligations owing to which are secured by the Collateral under the terms of the Term Loan Collateral Documents.

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender, substantially in the form of Exhibit L, (a) describing “a Secured Cash Management Agreement” or a “Secured Hedge Agreement” and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount and (b) agreeing to be bound by Section 7.08.

“Servicer” means VINtek, Inc., a Pennsylvania corporation or any successor thereto and each party approved by the Borrower and the Administrative Agent.

“Single Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.

“Small Business Act” means the Small Business Act (15 U.S.C. 636(a)) after giving effect to the implementation of the CARES Act and any current or future regulations or official interpretations thereof.

“SND Lawsuit” means that certain lawsuit in the Superior Court of the State of Delaware styled Smart Sand, Inc., a Delaware Corporation, Plaintiff v. U.S. Well Services, LLC, a Delaware Limited Liability Company, Defendant, and filed as C.A. No. 19.C-01-144 PRW [CCLD].

“Solvent” and “Solvency” mean, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature (taking into account reasonably anticipated prepayments and refinancings) and (c) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

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“Specified Distributable Cash Account” means the following deposit account in the name of the Borrower: (i) prior to the Discharge of ABL Obligations, Account No. 488073974976 entitled “USWS Specified Distributable Cash Account” opened at Bank of America in the name of the Borrower and (ii) on and after the Discharge of ABL Obligations, a deposit account entitled “USWS Specified Distributable Cash Account” opened at Beal Bank USA in the name of the Borrower, in each case, pursuant to which only (i) any Equity Issuance Proceeds, (ii) [Reserved], and (iii) amounts permitted to be transferred to the Borrower in accordance with Section 2.14(f)(ii) are deposited (and amounts constituting interest thereon).

“Sponsor Group” means Crestview, Regiment Capital Special Situations Fund V, L.P., and David J. Matlin, together with their respective Affiliates.

“Subsidiary” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

“Subsidiary Guarantor” means each of (i) USWS Fleet 10, LLC, a Delaware limited liability company and (ii) USWS Fleet 11, LLC, a Delaware limited liability company and any (iii) Subsidiary of the Borrower that is required to guaranty the Obligations pursuant to Section 5.02(k).

“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act if, and to the extent that, all or a portion of any such obligation to pay or perform constitutes an Obligation hereunder or a Guaranteed Obligation under (and as defined in) the Term Loan Security Agreement.

“Sweep Calculation Date” means the last day of each February, May, August, and November, commencing with the Sweep Calculation Date occurring on August 31, 2019 and each Sweep Calculation Date thereafter until the occurrence of any Repayment Event.

“Sweep Period” means each three-month period as follows:

(1) for any Sweep Calculation Date occurring on the last day of February, the period commencing on the first calendar day of December and ending on the last calendar day of February;

(2) for any Sweep Calculation Date occurring on the last day of May, the period commencing on the first calendar day of March and ending on the last calendar day of May;

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(3) for any Sweep Calculation Date occurring on the last day of August, the period commencing on the first calendar day of June and ending on the last calendar day of August; and

(4) for any Sweep Calculation Date occurring on the last day of November, the period commencing on the first calendar day of September and ending on the last calendar day of November.

“Synthetic Debt” means, with respect to any Person, without duplication of any clause within the definition of “Debt”, the principal amount of all (a) obligations of such Person under any lease that is treated as an operating lease for financial accounting purposes and a financing lease for tax purposes (i.e., a “synthetic lease”), (b) obligations of such Person in respect of transactions entered into by such Person, the proceeds from which would be reflected on the financial statements of such Person in accordance with GAAP as cash flows from financings at the time such transaction was entered into (other than as a result of the issuance of Equity Interests) and (c) obligations of such Person in respect of other transactions entered into by such Person that are not otherwise addressed in the definition of “Debt” or in clause (a) or (b) above that are intended to function primarily as a borrowing of funds (including, without limitation, any minority interest transactions that function primarily as a borrowing).

“Taxes” has the meaning specified in Section 2.09(a).

“Term A Loans” means any loan made by any Term Loan A Lender pursuant to this Agreement.

“Term B Loans” means any loan made by any Term Loan B Lender pursuant to this Agreement.

“Termination Payment” means any amount payable to or by any Loan Party in connection with a termination (whether as a result of the occurrence of an event of default or other termination event) of any Hedge Agreement; provided that for the avoidance of doubt, “Termination Payments” shall not include any Ordinary Course Settlement Payments due under any such Hedge Agreement.

“Term Loan A Borrowing” means a borrowing consisting of simultaneous Term A Loans made by the Term Loan A Lenders on the Effective Date.

“Term Loan A Commitment” means, (a) with respect to any Term Loan A Lender at any time, the amount set forth opposite its name on Schedule I hereto under the caption “Term Loan A Commitment” or, (b) with respect to any Term Loan A Lender that has entered into one or more Assignment and Acceptances, the amount set forth for such Term Loan A Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Term Loan A Lender’s “Term Loan A Commitment”, in each case, as such amount may be reduced at or prior to such time pursuant to Section 6.01

“Term Loan A Facility” means, at any time, the aggregate amount of the Term Loan A Lenders’ Term Loan A Commitments at such time.

“Term Loan A Lender” means, at any time, a Lender that has a Term Loan A Commitment or is owed any outstanding Term A Loans at such time.

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“Term Loan A Note” means a promissory note of the Borrower payable to the order of any Term Loan A Lender, in substantially the form of Exhibit A-1 hereto, evidencing the indebtedness of the Borrower to such Term Loan A Lender, as amended, restated, supplemented or otherwise modified from time to time.

“Term Loan B Borrowing” means a borrowing consisting of simultaneous Term B Loans made by the Term Loan B Lenders on the Effective Date.

“Term Loan B Commitment” means, (a) with respect to any Term Loan B Lender at any time, the amount set forth opposite its name on Schedule I hereto under the caption “Term Loan A Commitment” or, (b) with respect to any Term Loan B Lender that has entered into one or more Assignment and Acceptances, the amount set forth for such Term Loan B Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Term Loan B Lender’s “Term Loan B Commitment”, in each case, as such amount may be reduced at or prior to such time pursuant to Section 6.01

“Term Loan B Facility” means, at any time, the aggregate amount of the Term Loan B Lenders’ Term Loan B Commitments at such time.

“Term Loan B Lender” means, at any time, a Lender that has a Term Loan B Commitment or is owed any outstanding Term B Loans at such time.

“Term Loan B Note” means a promissory note of the Borrower payable to the order of any Term Loan B Lender, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such Term Loan B Lender, as amended, restated, supplemented or otherwise modified from time to time.

“Term Loan Collateral Agent” has the meaning specified in the recital of parties to this Agreement.

“Term Loan Collateral Documents” means the Term Loan Security Agreement, the Mortgages, each Account Control Agreement, each Consent and Agreement, each of the collateral documents, instruments and agreements delivered pursuant to Section 5.01(j), and each other agreement (including intellectual property security agreements) that creates or purports to create a Lien in favor of the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties, in each case, as amended, restated, supplemented or otherwise modified from time to time.

“Term Loan Obligations” has the meaning specified in the Intercreditor Agreement.

“Term Loan Priority Collateral” has the meaning specified in the Intercreditor Agreement (it being understood and agreed that any time the ABL Credit Agreement is not in effect, the term “Term Loan Priority Collateral” shall mean all Collateral).

“Term Loan Secured Parties” has the meaning specified in the Intercreditor Agreement.

“Term Loan Security Agreement” means that certain Term Loan Collateral and Guaranty Agreement, dated as of May 7, 2019, by the Loan Parties in favor of the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties, as amended, restated, supplemented or otherwise modified from time to time.

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“Third Amendment” means the Third Amendment to the Senior Secured Term Loan Credit Agreement, dated July 30, 2020, among the Loan Parties, the Agents and the Lenders.

“Third Lien Agent” means Wilmington Savings Fund Society, FSB, in its capacity as Notes Agent under the Third Lien Collateral Documents, and any of its successors and assigns.

“Third Lien Collateral Documents” means the Third Lien Security Agreement, and each of the collateral documents, instruments and agreements delivered pursuant to the Third Lien Notes Agreement (including intellectual property security agreements) that purports to create a Lien in favor of the Third Lien Agent for the benefit of the Third Priority Secured Parties.

“Third Lien Notes” means the Initial Third Lien Notes and any Additional Third Lien Notes.

“Third Lien Notes Agreement” means the Note Purchase Agreement dated as of June 24, 2021, by and among Parent, the Purchasers party thereto, and Third Lien Agent, as in effect on the Fifth Amendment Effective Date, and as such Note Purchase Agreement may be further amended, restated, supplemented or otherwise modified from time to time with the prior written consent of the Required Lenders in their sole discretion.

“Third Lien Security Agreement” means the Guarantee and Third Lien Collateral Agreement dated as of June 24, 2021, among the Loan Parties and Third Lien Agent, as amended, restated, supplemented or otherwise modified form time to time.

“Third Priority Secured Parties” has the meaning specified in the Intercreditor Agreement.

“Title Assets” means, collectively, each asset comprising Collateral owned by any Loan Party that requires a certificate of title for purposes of registration in the relevant jurisdiction and which assets are set forth on Schedule 3.01(a)(iv).

“Trade Date” has the meaning specified in Section 9.07(j).

“UCC” means the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

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“Unused Capex Reserve Proceeds” has the meaning specified in Section 2.14(f).

“Unused Reinvestment Proceeds” has the meaning specified in Section 2.14(h).“Vehicles” means all cars, trucks, trailers, construction and earth moving equipment and other vehicles that require a certificate of title/ownership of purpose of registration in the relevant jurisdiction, and in any event including the Vehicles listed on Schedule 3.01(a)(iv), and all tires and other appurtenances to any of the foregoing.

“Voting Interests” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

“Wells Fargo Collections Account” has the meaning specified in the definition of “Collateral Accounts”.

“Wells Fargo DACA” means the deposit account control agreement, dated the date hereof, between the Borrower, the Collateral Agent, the ABL Agent and Wells Fargo Bank, N.A..

“Wells Fargo Revenue Account” has the meaning specified in the definition of “Collateral Accounts”.

“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.

“Workers Compensation Account” a deposit account exclusively used for workers’ compensation benefits.

“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

“Yield Maintenance” means any amount payable pursuant to Section 2.06(b).

“Yield Maintenance Fee” means any yield maintenance fee payable pursuant to Section 2.06(b).

“Yield Maintenance Period” means the period commencing on the Effective Date and continuing until the second anniversary of the Effective Date.

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b. Computation of Time Periods. In this Agreement and the other Loan Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

c. Accounting Terms.

i. Generally. All accounting terms not specifically defined herein shall be construed in accordance with GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

ii. Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any provision contained herein or any other Loan Document, any lease (or similar arrangement) that would have been characterized, classified or reclassified as an operating lease in accordance with GAAP prior to the date of the Parent’s adoption of ASC 842 (or any other ASC having a similar result or effect) (and related interpretations) (whether or not such lease was in effect on such date) shall not constitute an obligation under a Capital Lease, and any such lease shall be, for all purposes of this Agreement and the other Loan Documents, treated as though it were reflected on the Parent’s consolidated financial statements in the same manner as an operating lease would have been reflected prior to the Parent’s adoption of ASC 842.

iii. Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Parent and its Subsidiaries or to the determination of any amount for the Loan Parties and their Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Loan Parties is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

d. Other Definitional Provisions and Rules of Construction.

i. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.

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ii. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect. Any references in this Agreement to “Articles” and/or “Sections” which make reference to any particular piece of legislation or statute, including without limitation, the Bankruptcy Code, ERISA and Internal Revenue Code shall, to the extent that the context implies a reference to any other similar or equivalent legislation as is in effect from time to time in any other applicable jurisdiction, mean the equivalent section in the applicable piece of legislation. Furthermore, where any such reference is meant to apply to such other similar or equivalent legislation where such other similar or equivalent legislation has parallel or like concepts, then such references shall import such parallel or like concepts from such other similar or equivalent legislation, as applicable.

iii. The use in any of the Loan Documents of the word “include” or “including” shall not be construed to be limiting whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto.

iv. Unless otherwise expressly provided herein or in the other Loan Documents, references in the Loan Documents to any agreement or contract shall be deemed to be a reference to such agreement or contract as amended, amended and restated, supplemented, replaced or otherwise modified from time to time in accordance with its terms and in compliance with the Loan Documents.

AMOUNTS AND TERMS OF THE LOANS

a. The Loans.

i. The Term A Loans. Each Term Loan A Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance to the Borrower on the Effective Date in an amount in Dollars not to exceed such Term Loan A Lender’s Term Loan A Commitment at such time. The Borrowing shall consist of Term A Loans made simultaneously by the Term Loan A Lenders ratably according to their Term Loan A Commitments. Term A Loan amounts repaid or prepaid may not be reborrowed.

ii. Term B Loans. Each Term Loan B Lender severally agrees, on the terms and conditions hereinafter set forth, to make a single advance to the Borrower on the Effective Date in an amount in Dollars not to exceed such Term Loan B Lender’s Term Loan B Commitment at such time. The Borrowing shall consist of Term B Loans made simultaneously by the Term Loan B Lenders ratably according to their Term Loan B Commitments. Term B Loan amounts repaid or prepaid may not be reborrowed.

iii. Incremental Loans. The Borrower may request that one or more incremental term loan facilities (each, an “Incremental Facility”) be added to the Facilities in the sole and absolute discretion of the Lenders; provided, that:

1. the Lenders, in their sole and absolute discretion, shall have agreed to participate in such Incremental Facility;

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2. no Default has occurred and is continuing, or would result from any Borrowing under such Incremental Facility or from the application of the proceeds therefrom;

3. the representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of such request and on and as of the date of any borrowing under such Incremental Facility, before and after giving effect to such borrowing and to the application of the proceeds therefrom, as though made on and as of such dates, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (c)(iii) shall be disregarded;

4. subject to any changes acceptable to the Lenders in their sole and absolute discretion that are required to make the loans under the Incremental Facility fungible for U.S. tax purposes, the terms and conditions of the Incremental Facility shall be identical to those of the existing Facilities;

5. any such Incremental Facility shall rank pari passu in right of payment and of security with the Facilities, and no Incremental Facility shall be secured by assets other than Collateral or guaranteed by Persons other than the Guarantors;

6. any Incremental Facility shall be pari passu in right of payment and security and will share ratably in any voluntary or mandatory prepayments (other than Scheduled Amortization Payments) of the Facilities unless the Borrower and the lenders in respect of such Incremental Facility elect lesser payments, provided that, in connection with any such prepayment, any loans made under the Incremental Facility shall be paid after the Term A Loans and the Term B Loans. Each of the parties hereto hereby agrees that, notwithstanding anything to the contrary set forth in Section 9.01, this Agreement and the other Loan Documents may be amended pursuant to an amendment executed by the Loan Parties, the Administrative Agent and the Lenders providing an Incremental Facility, without the consent of any other Lender, to the extent reasonably required to effect such amendments to this Agreement (including necessary amendments to reflect the existence of a new Incremental Facility) and the other Loan Documents as may be necessary or appropriate, in the sole and absolute opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.01(b), and the Lenders hereby expressly and irrevocably, for the benefit of all parties hereto, authorize the Administrative Agent to enter into such amendment. In connection with any such amendment, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent (i) as to the enforceability of this Agreement (as amended), and such of the other Loan Documents (if any) as may be amended thereby and (ii) as to any other customary matters reasonably requested by the Administrative Agent.

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7. The Administrative Agent and each Lender shall have consented (not to be unreasonably withheld or delayed) to the lenders providing such Incremental Facility to the extent such consent, if any, would be required under Section 9.07 for an assignment of Loans or Commitments, as applicable, to such lender.

8. Any loan amounts borrowed under any Incremental Facility that is repaid or prepaid may not be reborrowed.

b. Making the Loans.

i. The Term Loan A Borrowing consisting of Term A Loans advanced by the Term Loan A Lenders on the Effective Date shall be made following the issuance of a Notice of Borrowing, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Term Loan A Borrowing, by the Borrower to the Administrative Agent, which shall give to the Term Loan A Lenders prompt notice thereof by electronic communication. Each such Notice of Borrowing shall be by telephone, confirmed immediately in writing, or by electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Term Loan A Borrowing (which shall be the Effective Date), and (ii) aggregate amount of such Term Loan A Borrowing. Each Term Loan A Lender shall, before 11:00 A.M. (New York City time) on the date of such Term Loan A Borrowing, make available for the account of its Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, its Pro Rata Share of the amount of such Term Loan A Borrowing in accordance with its Term Loan A Commitment under the Term Loan A Facility. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Borrower hereby directs the Administrative Agent to apply such funds as set forth in the Funds Flow Memorandum.

ii. The Term Loan B Borrowing consisting of Term B Loans advanced by the Term Loan B Lenders on the Effective Date shall be made following the issuance of a Notice of Borrowing, given not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Term Loan B Borrowing, by the Borrower to the Administrative Agent, which shall give to the Term Loan B Lenders prompt notice thereof by electronic communication. Each such Notice of Borrowing shall be by telephone, confirmed immediately in writing, or by electronic communication, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Term Loan B Borrowing (which shall be the Effective Date), and (ii) aggregate amount of such Term Loan B Borrowing. Each Term Loan B Lender shall, before 11:00 A.M. (New York City time) on the date of such Term Loan B Borrowing, make available for the account of its Lending Office to the Administrative Agent at the Administrative Agent’s Account, in same day funds, its Pro Rata Share of the amount of such Term Loan B Borrowing in accordance with its Term Loan B Commitment under the Term Loan B Facility. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Borrower hereby directs the Administrative Agent to apply such funds as set forth in the Funds Flow Memorandum.

iii. Any Notice of Borrowing delivered after the Effective Date shall be irrevocable and binding on the Borrower. The Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified

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in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.

iv. Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with Sections 2.02(a) or 2.02(b), as applicable, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower, the interest rate applicable at such time under Section 2.05 to Loans comprising such Borrowing and (ii) in the case of such Lender, the Benchmark Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender’s Loan as part of such Borrowing for all purposes.

v. The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

c. Repayment of Loans.

i. Term A Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Loan A Lenders on the Maturity Date the aggregate principal amount of the Term A Loans then outstanding, together with any accrued but unpaid interest thereon.

ii. Term B Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Loan B Lenders on the Maturity Date the aggregate principal amount of the Term B Loans then outstanding, together with any accrued but unpaid interest thereon.

d. Prepayments.

i. Optional. The Borrower may, upon at least three (3) Business Days’ notice to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Loans in whole or ratably in part, together with accrued interest to the date of such prepayment on the aggregate principal amount prepaid and the applicable Yield Maintenance Fee, Call Premium and Exit Fee (if any); provided, that each partial prepayment shall be in an aggregate principal amount of $1,000,000 or an integral multiple of $500,000 in excess thereof. Each such prepayment of the Loans shall be applied, after payment of (A) accrued and unpaid interest to the

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date of such prepayment on the principal amount prepaid, (B) any amounts owing pursuant to Section 9.04(c), (C) any applicable Yield Maintenance Fee, (D) any applicable Call Premium, and (E) any applicable Exit Fee, in the order directed by the Borrower; provided that if an Event of Default has occurred and is continuing, each such prepayment of the Loans shall be applied in inverse order of maturity.

ii. Mandatory.

1. Scheduled Amortization. (A) On each Scheduled Amortization Payment Date commencing on December 31, 2020 until June 30, 2022, the Borrower shall prepay an amount equal to $1,250,000.00, which amount shall be applied the Term B Loans; (B) On each Scheduled Amortization Payment Date commencing on June 30, 2022, the Borrower shall prepay: (1) an aggregate principal amount of the Term A Loans in an amount equal to one half of one percent (0.50%) of the sum of the initial principal amount of the Term A Loans advanced on the Effective Date; (2) an aggregate principal amount of the Term B Loans in an amount equal to one half of one percent (0.50%) of the sum of the initial principal amount of the Term B Loans advanced on the Effective Date; and (C) On May 31, 2021, the Borrower shall prepay an amount equal to $2,500,000.00 , which amount shall be applied to the Term B Loans.

2. Unused Capex Reserve; Unused Reinvestment Account. On each date amounts are required to be released from the Initial Growth Capex Reserve Account for mandatory prepayment of the Loans in accordance with Section 2.14(f) or the Reinvestment Account for mandatory prepayment of the Loans in accordance with Section 2.14(i), the Borrower shall prepay an aggregate principal amount of the Loans in an amount equal to the proceeds required to be withdrawn from the Initial Growth Capex Reserve Account or the Reinvestment Account. Each such prepayment of the Loans shall be applied (i) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (ii) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

3. Excess Cash Flow. On each Cash Flow Payment Date (or such earlier date elected by the Borrower following any Sweep Calculation Date), subject to the terms of Section 2.04(c), the Borrower shall prepay an aggregate principal amount of the Loans in an amount equal to the Excess Cash Flow Payment Amount calculated for the Sweep Calculation Date occurring immediately prior to such Cash Flow Payment Date. Each such prepayment of the Loans shall be applied (i) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (ii) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

4. Loss Proceeds. Upon the occurrence of a Casualty Event or an Event of Eminent Domain, the Borrower shall prepay an aggregate principal amount of the Loans in an aggregate amount equal to the Net Cash Proceeds thereof; provided, the Net Cash Proceeds of the a Casualty Event or an Event of Eminent Domain shall not be required to

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be immediately prepaid in the event such proceeds are applied in accordance with Section 2.14(e). Each such prepayment of the Loans shall be applied (i) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (ii) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

5. Termination Payments; Claim Proceeds; Appeal Proceeds and CARES Act Collateral Proceeds Shortfall.

a. Upon the termination, or the cancellation, of any Commercial Agreement, the Borrower shall prepay an aggregate principal to the Loans in an aggregate amount equal to the Net Cash Proceeds thereof;

b. In the event that the Borrower receives any cash payments under its claim for the Outstanding Receivables in the Proceedings (the “Claim Proceeds”), within five (5) Business Days of such receipt, the Borrower shall prepay an aggregate principal amount of the Loans in an amount equal to the Claim Proceeds received in the aggregate, which amount shall be applied the Term B Loans, so long as the Borrower makes such prepayment in compliance with the ABL Credit Agreement, provided that if the Payment Conditions (used as defined under the ABL Credit Agreement effective as of the Fourth Amendment Effective Date) are not satisfied on the date that the Claim Proceeds are required to be paid to prepay the Loans, the Borrower shall prepay Term B Loans as follows: (1) to the extent that no prepayment of the Claim Proceeds have been made as of September 30, 2021, an amount equal to the lesser of (x) the Claim Proceeds; and (y) two million and five hundred thousand dollars ($2,500,000.00) shall be paid on September 30, 2021; and (2) at any time after September 30, 2021, on the date that the Payment Conditions are satisfied, the Borrower shall prepay Term B Loan in the aggregate amount of the Claim Proceeds minus, to the extent applicable, any prepayments that were previously made in accordance with this Section 2.04(b)(v)(B);

c. In the event that a settlement agreement is executed between the parties to the SND Lawsuit, the Borrower shall promptly, but in any event no later than, if the settlement agreement is signed prior to the date that is thirty (30) calendar days following the Fifth Amendment Effective Date, thirty (30) calendar days following such Fifth Amendment Effective Date or, if the settlement agreement is signed following the date that is thirty (30) calendar days following the Fifth Amendment Effective Date, one (1) calendar days following such execution date, prepay an aggregate principal amount of the Loans equal to the greater of (A) Excess Settlement Proceeds and (B) $7,000,000; provided that, such prepayment of the Loans shall be applied (1) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (2) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date;

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d. In the event that any Judgment Appeal Account Proceeds are released and returned to the Borrower or any Loan Party other than following the payment of any settlement amounts under a settlement agreement between the parties to the SND Lawsuit, the Borrower shall promptly, but in any event within one (1) Business Day of such release, prepay an aggregate principal amount of the Loans in an amount equal to the lesser of (i) one-hundred percent (100%) of such Judgment Appeal Account Proceeds which are released and returned to the Borrower or any Loan Party and (ii) $30,000,000; provided that, such prepayment of the Loans shall be applied (1) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (2) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date; and

e. In the event that any CARES Act Collateral Proceeds received on account of any asset comprising Pre-Release CARES Act Collateral by the Borrower or any Loan Party and applied in accordance with clause (vi) below is less than the amount set forth on Schedule V for such asset, the Borrower shall prepay an aggregate principal amount of the Loans in an amount equal to (i) one-third of the CARES Act Collateral Proceeds Shortfall on the date that is the one calendar month anniversary of the date that such CARES Act Collateral Proceeds were received, (ii) one-third of the CARES Act Collateral Proceeds Shortfall on the date that is the second calendar month anniversary of the date that such CARES Act Collateral Proceeds were received, and (iii) one-third of the CARES Act Collateral Proceeds Shortfall on the date that is the third calendar month anniversary of the date that such CARES Act Collateral Proceeds were received; provided that in no event shall the aggregate amount of CARES Act Collateral Proceeds required to be prepaid under this clause (v)(E) and clause (vi) below exceed $25,000,000 in the aggregate for all Pre-Release CARES Act Collateral; and provided that each such prepayment of the Loans in this clause (v) shall be applied (1) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (2) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

6. Asset Sales. Except in respect of Asset Sales of ABL Priority Collateral that are required to be applied to a mandatory prepayment of ABL Obligations under the ABL Credit Agreement, all Net Cash Proceeds from Asset Sales (other than the Initial ProFrac Licensing Transaction but including any Additional ProFrac Licensing Transaction) shall be deposited into the Prepayment Account. Within one (1) Business Day of the deposit of such Net Cash Proceeds into the Prepayment Account, the Borrower shall prepay an aggregate principal amount of the Loans in an aggregate amount equal to such excess Net Cash Proceeds (including any CARES Act Collateral Proceeds). Each such prepayment of the Loans shall be applied (i) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (ii) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

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7. Debt Proceeds. Upon the issuance of any Debt (other than Debt permitted to be incurred pursuant to Section 5.02(b)), the Borrower shall prepay an aggregate principal amount of the Loans in an aggregate amount equal to the Net Cash Proceeds thereof. Each such prepayment of the Loans shall be applied (i) to the scheduled principal payments of the Loans in inverse order of maturity in respect of each Facility and (ii) first, to the prepayment of Term A Loans in full in Cash, including the principal amount due on the Maturity Date and second, to the prepayment of Term B Loans in full in Cash, including the principal amount due on the Maturity Date.

8. All prepayments under this clause (b) shall be made together with (A) accrued and unpaid interest to the date of such prepayment on the principal amount prepaid, (B) any amounts owing pursuant to Section 9.04(c), (C) any applicable Yield Maintenance Fee owed pursuant to Section 2.06(b), (D) any applicable Call Premium owed pursuant to Section 2.06(c) and (E) any applicable Exit Fee owed pursuant to Section 2.06(d).

iii. Lender’s Option to Decline Prepayment. Except as provided in the penultimate sentence of this Section 2.04(c), any Lender, at its option, may elect to accept or decline all or any portion of any prepayment of the Loans pursuant to Section 2.04(b). Subject to the immediately preceding sentence, upon each prepayment date set forth in Section 2.04(b) for any prepayment of Loans, the Borrower shall notify the Administrative Agent in writing of the amount that is available to prepay the Loans. Promptly after the date of receipt of such notice, the Administrative Agent shall provide written notice to the Lenders of the amount available to prepay the Loans. Any Lender accepting such prepayment (an “Accepting Lender”) and any Lender declining such prepayment (a “Declining Lender”) shall give written notice thereof to the Administrative Agent by 11:00 a.m. New York City time no later than two (2) Business Days after the date of such notice from the Administrative Agent (the “Initial Prepayment Acceptance Date”); any Lender that does not give such notice during such period shall be deemed to be an Accepting Lender. On the Initial Prepayment Acceptance Date, the Administrative Agent shall then provide written notice (the “Second Offer”) to the Accepting Lenders of the additional amount available (due to such Declining Lenders’ declining such prepayment) to prepay the Loans owing to such Accepting Lenders. Any Lender declining prepayment pursuant to such Second Offer shall give written notice thereof to the Administrative Agent by 11:00 a.m. New York City time no later than two (2) Business Days after the date of such notice of a Second Offer; any Lender that does not give such notice during such period shall be deemed to have accepted such prepayment offer. Amounts allocated to Accepting Lenders in accordance with the Initial Prepayment Acceptance Date and the Second Offer shall be applied in accordance with Section 2.04(b). Notwithstanding the above, if Lenders owed or holding more than 50% of the aggregate principal amount of the Loans outstanding at such time accept or are deemed to have accepted all or any portion of any prepayment offer pursuant to this Section 2.04(c), then all Lenders shall be deemed to have accepted such prepayment offer to the same. In the event any such proceeds are declined (such proceeds, “Declined Mandatory Prepayment Proceeds”), such Declined Mandatory Prepayment Proceeds shall be deposited as follows: (i) if such Declined Mandatory Prepayment Proceeds were in respect of a mandatory prepayment under Section 2.04(b)(ii) or Section 2.04(b)(iii), into the Specified Distributable Cash Account and (ii) if such Declined Mandatory Prepayment Proceeds

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were in respect of a mandatory prepayment under Section 2.04(b)(iv), Section 2.04(b)(v), Section 2.04(b)(vi) and Section 2.04(b)(vii), into the Reinvestment Account for application in accordance with Section 2.04(b)(viii).

e. Interest.

i. Interest.

1. Interest shall accrue on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) from the date of each such Term A Loan and Term B Loan until such principal amount shall be paid in full, at a rate per annum equal at all times for each such Term A Loan and Term B Loan to the sum of (A) the Benchmark Rate plus (B) the Applicable Margin (such rate the “Term Loan Interest Rate”); provided that,

(A)

solely during the Deferral Period, the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall be 0.0% per annum and no interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B (subject to clauses (B) and (C) below, interest shall accrue and the interest rate shall resume at the Term Loan Interest Rate stated in Section 2.05(a)(i) commencing on January 1, 2022 and at all times thereafter under this Agreement);

(B)

if on December 31, 2021, either:

(1)

the outstanding principal amount of the Loans is equal to or less than $132,000,000 but greater than $110,000,000, then solely during the period between January 1, 2022 and March 31, 2022, the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall be 0.0% per annum and no interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B (subject to clause (C) below, interest shall accrue and the interest rate shall resume at the Term Loan Interest Rate stated in Section 2.05(a)(i) commencing on April 1, 2022 and at all times thereafter under this Agreement); or

(2)

the outstanding principal amount of the Loans is equal to or less than $110,000,000, then (x) solely during the period between January 1, 2022 and March 31, 2022, the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall be 0.0% per

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annum and no interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B and (y) subject to clause (C) below, solely during the period between April 1, 2022 and December 31, 2022 the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall be 2.0% per annum and interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B at such rate (interest shall accrue and the interest rate shall resume at the Term Loan Interest Rate stated in Section 2.05(a)(i) commencing on January 1, 2023 and at all times thereafter under this Agreement); and

(C)

if on April 1, 2022, the outstanding principal amount of the Loans is equal to or less than $103,000,000, then solely during the period between April 1, 2022 and December 31, 2022 the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall be 1.0% per annum (notwithstanding anything to the contrary in clause (B)(2) above) and interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B at such rate (interest shall accrue and the interest rate shall resume at the Term Loan Interest Rate stated in Section 2.05(a)(i) commencing on January 1, 2023 and at all times thereafter under this Agreement);

provided further that, notwithstanding anything to the contrary herein, on and after the date of the occurrence of a Change of Control, the interest rate on the unpaid principal amount of each Term A Loan and each Term B Loan owing to each Term Loan A Lender and Term Loan B Lender (as applicable) shall immediately resume at the Term Loan Interest Rate stated in Section 2.05(a)(i) (without giving any further effect to the proviso to such section) on the date of such Change of Control and at all times thereafter under this Agreement and interest shall accrue on the unpaid principal amount of each Term Loan A and each Term Loan B at such rate.

2. Interest shall be payable in arrears on each Interest Payment Date.

ii. Default Interest. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and upon the request of the Required Lenders shall, require that the Borrower pay interest at a rate per annum equal at all times to two percent (2.00%) per annum above the rate per annum required to be paid pursuant to Section 2.05(a)(i) (“Default Interest”) on:

1. the aggregate outstanding principal amount of each Loan, and

2. to the fullest extent permitted by applicable law, the amount of any interest, fee or other amount payable under this Agreement or any other Loan Document to any Agent or any Lender that is not paid when due, from the date such amount shall be due until such amount shall be paid in full,

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in each case, payable in Cash either (x) on each Interest Payment Date following the occurrence and during the continuance of an Event of Default or (y) on demand; provided, however, that following the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent. Payment or acceptance of the increased rates of interest provided for in this Section 2.05(b) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.

f. Fees.

i. Structuring Fee. The Borrower shall pay to the Administrative Agent such fees as the Administrative Agent and the Borrower shall agree, as further set forth in the Fee Letter with the Administrative Agent.

ii. Yield Maintenance Fee.

1. Subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Loans pursuant to Section 2.04(a), Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Yield Maintenance Period (the principal amount of such prepayment or amount so accelerated being the “Prepayment Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a Yield Maintenance Fee in an amount equal to the sum of the interest that would have been payable on the Prepayment Amount (in the absence of such prepayment or acceleration) at a rate per annum equal to the Applicable Margin (x) on all scheduled Interest Payment Dates falling after the date of prepayment or acceleration until the end of the Yield Maintenance Period and (y) if the last day of the Yield Maintenance Period is not an Interest Payment Date, on the last day of the Yield Maintenance Period.

2. Notwithstanding anything set forth in this Agreement, no Yield Maintenance Fee will be due during any time period that is not the Yield Maintenance Period; provided, however, that, in the event of an acceleration of the Facilities (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Yield Maintenance Fee shall apply and shall be determined pursuant to clause (b)(i) above as if a prepayment occurred on the date of such acceleration.

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iii. Call Premium.

1. In addition to the amount of any applicable Yield Maintenance Fee during the Yield Maintenance Period, subject to clause (ii) below, in the event that (A) the Borrower makes any prepayment of Loans pursuant to Section 2.04(a) or Section 2.04(b)(vi) or Section 2.04(b)(vii) or (B) the unpaid principal balance of any Loan is accelerated (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), in each case during the Call Premium Period (the principal amount of such prepayment or amount so accelerated being the “Called Amount”), the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, a Call Premium in an amount equal to the product of the Called Amount and the applicable percentage set forth below under the caption “Call Premium Percentage”:


Date of Prepayment	Call Premium Percentage
From Effective Date to second anniversary thereof		1.00	%

From second anniversary of Effective Date to third anniversary thereof		2.00	%

From third anniversary of Effective Date to fourth anniversary thereof		1.00	%

2. Notwithstanding anything set forth in this Agreement, no Call Premium will be due during any time period that is not the Call Premium Period; provided, however, that, in the event of an acceleration of the Facilities (whether by election or automatically) upon the occurrence of an Event of Default pursuant to Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)), the Call Premium shall apply and shall be determined pursuant to clause (c)(i) above as if a prepayment occurred on the date of such acceleration.

iv. Exit Fee. Upon the occurrence of any Repayment Event, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Lenders, an Exit Fee in an amount equal to two percent (2.00%) of the sum of (i) the principal amount of Loans repaid or refinanced on such date and (ii) the aggregate principal amount of Loans repaid pursuant to Section 2.04(a) during the one hundred twenty (120) day period ending on the date of such Repayment Event.

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v. Agents’ Fees. The Borrower shall pay to each Agent for its own account such fees as may from time to time be agreed between the Borrower and such Agent.

g. Increased Costs, Etc. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or of making, funding or maintaining Loans (excluding, for purposes of this Section 2.07, any such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.09 shall govern) and (y) changes in the basis or rate of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Lending Office or any political subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender within 10 calendar days after receipt of an invoice from such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

i. If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to make Loans and other commitments of such type (or similar Guaranteed Debts), then, upon demand by such Lender or such corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the account of such Lender within 10 calendar days after receipt of an invoice from such Lender from such Lender, additional amounts sufficient to compensate such Lender in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to make Loans. A certificate as to such amounts submitted to the Borrower by such Lender shall be conclusive and binding for all purposes, absent manifest error.

h. Payments and Computations.

i. The Borrower shall make each payment hereunder and under the other Loan Documents, irrespective of any right of counterclaim or set-off (except as otherwise provided in Section 2.10), not later than 11:00 A.M. (New York City time) on the day when due in Cash in U.S. dollars to the Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative Agent after such time being deemed to have been received on the next succeeding Business Day. The Administrative Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment fees, letter of credit fees or any other Obligation then payable hereunder and under the other Loan Documents to more than one Lender, to such Lenders for the account of their respective Lending Offices ratably in accordance with the amounts of such respective Obligations then payable to such Lenders and (ii) if such payment by the Borrower is in respect of any Obligation then payable hereunder to one Lender, to such Lender for the account of its Lending Office, in each case to be applied in accordance with the terms of this Agreement.

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Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(d), from and after the effective date of such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the other Loan Documents in respect of the interest assigned thereby to the assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

ii. Each Loan Party hereby authorizes each Lender and each of its Affiliates, if and to the extent any payment owed to such Lender is not made when due hereunder or under the other Loan Documents, to charge from time to time, to the fullest extent permitted by law, against any or all of such Loan Party’s accounts with such Lender or such Affiliate any amount so due.

iii. All computations of interest based on the Benchmark Rate and of commitment fees, letter of credit fees and other fees and commissions shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive and binding for all purposes, absent manifest error.

iv. Whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or commitment or letter of credit fee or commission, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Loans to be made in the next following calendar month, such payment shall be made on the preceding Business Day.

v. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each such Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Benchmark Rate.

vi. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the Loans to which, or the manner in which, such funds are to be applied, the Administrative Agent may, if no instructions with respect thereto are received from the Lenders upon request, but shall not be obligated to, elect to distribute such funds to each of the Lenders in accordance with such Lenders’ Pro Rata Share of the aggregate principal amount of all Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender, for application to such principal repayment installments thereof, as the Administrative Agent shall direct.

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i. Taxes.

i. Any and all payments by any Loan Party to or for the account of any Lender or any Agent hereunder or under any other Loan Document shall be made, in accordance with Section 2.08 or the applicable provisions of such other Loan Document, if any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and each Agent, (x) taxes that are imposed on its overall net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction under the laws of which such Lender or such Agent, as the case may be, is organized (or any political subdivision thereof), has its Lending Office, has a permanent establishment or is engaged in business (other than the business that the Lender is engaged in solely by reason of the transactions contemplated by this Agreement), (y) any branch profits taxes imposed by the United States of America and (z) withholding taxes imposed under law in effect on the date hereof or at the time the Lender designates a new Lending Office, other than any new Lending Office designated at the written request of a Loan Party (in the case of a Lender that is not an Initial Lender, this clause (z) shall include taxes imposed under law in effect on the date such Lender becomes a Lender, except to the extent that the Lender’s predecessor would have been entitled to receive additional amounts under this Section 2.09(a)) and, in the case of each Lender, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of such Lender’s Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under any other Loan Document being hereinafter referred to as “Taxes”). If any Loan Party shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender or any Agent, (i) the sum payable by such Loan Party shall be increased as may be necessary so that after such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional sums payable under this Section 2.09) such Lender or such Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

ii. In addition, each Loan Party shall pay any present or future stamp, documentary, excise, property (including intangible property, but with regard to all property taxes, only to the extent relating to property of a Loan Party) mortgage recording or similar taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement or the other Loan Documents (hereinafter referred to as “Other Taxes”).

iii. The Loan Parties shall indemnify each Lender and each Agent for and hold them harmless against the full amount of Taxes and Other Taxes, and for the full amount of taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.09, imposed on or paid by such Lender or such Agent (as the case may be) and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within thirty (30) days from the date such Lender or such Agent (as the case may be) makes written demand therefor.

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iv. Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the other Loan Documents by or on behalf of a Loan Party through an account or branch outside the United States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of subsections (d) and (e) of this Section 2.09, the terms “United States” and “United States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code.

v. Each Lender organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrower (but only so long thereafter as such Lender remains lawfully able to do so), provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service Forms W-8BEN or W-8EC1 or (in the case of a Lender that has certified in writing to the Administrative Agent that it is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Internal Revenue Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign corporation related to any Loan Party (within the meaning of Section 864(d)(4) of the Internal Revenue Code), Internal Revenue Service Form W-8BEN, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case of a Lender that has certified that it is not a “bank” as described above, certifying that such Lender is a foreign corporation, partnership, estate or trust. As provided in Section 2.09(a), if the forms provided by a Lender at the time such Lender first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such forms; provided, however, that if, at the effective date of the Assignment and Acceptance pursuant to which a Lender becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) of this Section 2.09 in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form W-8BEN or W-8EC1 or the related certificate described above, that the applicable Lender reasonably considers to be confidential, such Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form or document such confidential information.

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vi. For any period with respect to which a Lender has failed to provide the Borrower with the appropriate form, certificate or other document described in subsection (e) above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided or if such form, certificate or other document otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.09 with respect to Taxes imposed by the United States by reason of such failure; provided, however, that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Loan Parties shall take such steps as such Lender shall reasonably request, at the Lender’s sole expense and as long as the Loan Parties determine that such steps will not, in the reasonable judgment of the Loan Parties, be disadvantageous to the Loan Parties, to assist such Lender to recover such Taxes.

vii. Any Lender claiming any additional amounts payable pursuant to this Section 2.09 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. In addition, if a Lender determines, in such Lender’s sole discretion, that it has received a refund or credit in respect of any Taxes or Other Taxes as to which it has been indemnified pursuant to Section 2.09(c), or with respect to which additional amounts have been paid pursuant to Section 2.09(a), such Lender shall pay to the Borrower an amount equal to such refund (but such amount in no event to exceed the amount of any indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.09 with respect to the Taxes or Other Taxes giving rise to such refund) net of all out-of-pocket expenses of such Lender, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of such Lender, shall agree to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender in the event such Lender subsequently determines that such refund or credit is unavailable under applicable law or is otherwise required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require a Lender to rearrange its tax affairs or to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

j. Sharing of Payments, Etc. If any Lender shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other than as a result of an assignment pursuant to Section 9.07), (a) on account of Obligations due and payable to such Lender hereunder and under the other Loan Documents in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) on account of Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable

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share (according to the proportion of (i) the amount of such Obligations owing to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, such Lender shall forthwith purchase from the other Lenders such interests or participating interests in the Obligations as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price to the extent of such Lender’s ratable share (according to the proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price paid to all Lenders) of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Loan Parties agree that any Lender so purchasing an interest or participating interest from another Lender pursuant to this Section 2.10 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender were the direct creditor of the Loan Parties in the amount of such interest or participating interest, as the case may be.

k. Use of Proceeds. The proceeds of the Loans shall be available (and the Borrower agrees that it shall use such proceeds and Commitments), on the Effective Date, to (i) repay and/or refinance all Existing Debt (other than Permitted Existing Debt) of the Loan Parties, (ii) fund the Initial Growth Capex Reserve Account in an amount equal to $42,076,973.27 (which amounts shall be used solely to fund Frac Fleet 16), (iii) pay accrued expenses and accounts payable and (iv) pay transaction fees and expenses contemplated under the Facilities herein or under the ABL Facility.

l. Evidence of Debt. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Borrower agrees that upon written notice by any Lender to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Loans owing to, or to be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender, with a copy to the Administrative Agent, a Term Loan A Notes and Term Loan B Notes, as applicable, in substantially the form of Exhibits A-1 and A-2 hereto, as applicable, payable to the order of such Lender in a principal amount equal to the Loans of such Lender. All references to the Notes in the Loan Documents mean the Notes, if any, to the extent issued hereunder.

i. The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any

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principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from the Borrower hereunder and each Lender’s share thereof.

ii. Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided, however, that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.

m. Duty to Mitigate. In the event that any Lender demands payment of costs or additional amounts pursuant to Sections 2.07 or 2.09, the Borrower may, upon twenty (20) days’ prior written notice to such Lender and the Administrative Agent, elect to cause such Lender to assign its Loans and Commitments in full to one or more Persons selected by the Borrower so long as (i) each such Person satisfies the criteria of an Eligible Assignee and is reasonably satisfactory to the Administrative Agent, (ii) such Lender receives payment in full in Cash of the outstanding principal amount of all Loans made by it and all accrued and unpaid interest thereon and all other amounts due and payable to such Lender as of the date of such assignment (including, without limitation, amounts owing pursuant to Sections 2.07, 2.09 and 9.04) and (iii) each such assignee agrees to accept such assignment and to assume all obligations of such Lender hereunder in accordance with Section 9.07.

n. Accounts; Cash Waterfall.

i. Establishment of Collateral Accounts. On or prior to the Effective Date, the Borrower shall establish each of the Collateral Accounts and the Specified Distributable Cash Account.

ii. Deposits into Collateral Accounts and the Specified Distributable Cash Account; Maintenance of Collateral Accounts and the Specified Distributable Cash Account. Until the occurrence of any Repayment Event, the Borrower shall, and shall cause each of its Subsidiaries to, deposit:

1. all Collections, promptly after receipt thereof, into the Collections Account for application in accordance with Section 2.14(h);

2. all Revenues, promptly after receipt thereof, into the Revenue Account for application in accordance with Section 2.14(c);

3. any Insurance Proceeds or Eminent Domain Proceeds, promptly after receipt thereof (in the exact form received (with any necessary endorsement)), into the Loss Proceeds Account for application in accordance with Section 2.14(e);

4. any Asset Sale Proceeds (other than such Asset Sale Proceeds received in connection with Asset Sales of ABL Priority Collateral that are required to be applied as a

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mandatory prepayment of ABL Obligations under the ABL Credit Agreement), promptly after receipt thereof (in the exact form received (with any necessary endorsement)), into the Prepayment Account for application in accordance with Section 2.14(d);

5. any Debt Proceeds, promptly after receipt thereof (in the exact form received (with any necessary endorsement)), into the Prepayment Account for application in accordance with Section 2.04(b)(vii);

6. at the direction of the Borrower, any Equity Issuance proceeds, promptly after receipt thereof, into the Revenue Account for application in accordance with Section 2.14(c) or the Specified Distributable Cash Account (as applicable) for application in accordance with Section 2.14(h);

7. any Reimbursed Transaction Costs into the Revenue Account for application in accordance with Section 2.14(c);

8. on the Effective Date, an amount equal to $42,076,973.27 into the Initial Growth Capex Reserve Account in accordance with the Funds Flow Memorandum delivered on the Effective Date and approved by the Administrative Agent;

9. any Declined Mandatory Prepayment Proceeds in accordance with Section 2.04(c); and

10. any unidentified funds or to the extent funds are received by the Borrower or any Guarantor and none of clauses (i) through (viii) above apply to such funds (other than, in each case, Distributable Cash), promptly after receipt thereof, into the Revenue Account for application in accordance with Section 2.14(c).

11. Notwithstanding any provision of this Section 2.14 to the contrary, assets credited to a Collateral Account or the Specified Distributable Cash Account may be invested, liquidated and reinvested in Cash and Cash Equivalents from time to time at the discretion of the Borrower so long as such assets remain credited to the applicable Collateral Account.

12. Notwithstanding any provision of this Section 2.14 to the contrary, the Borrower shall be permitted solely to deposit Declined Mandatory Prepayment Proceeds into the Reinvestment Account and, in no event, shall the Reinvestment Account contain any other proceeds (including Asset Sale Proceeds, which in all cases, shall be deposited into the Prepayment Account upon receipt by the Borrower or any Loan Party).

iii. Withdrawals from the Revenue Account. Prior to the occurrence of any Repayment Event, all amounts in the Revenue Account shall be disbursed by the Borrower from time to time for application (or to make Investments in any Subsidiary permitted pursuant to Section 5.02(f)(i) to permit such Subsidiary to make any such application), to the extent available at the following

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times and in the following order of priority (with no payment referred to in each clause below being made until all amounts referred to in the clauses preceding it have been made):

1. First, as needed: when due and payable to pay the following (in each case, without duplication) in such order as the Borrower shall elect (and, except with respect to any overdue obligations, in such amounts as the Borrower shall elect): (A) cash general and administrative (G&A) costs (subject to the G&A Cap) and O&M Costs of the Borrower and its Subsidiaries and (B) Approved Growth Capital Expenditures (subject to (x) the caps on expenditures for each individual Frac Fleet set forth on Schedule III and, (y) in the case of any Approved Growth Capital Expenditures incurred in connection with Frac Fleet 16, solely to the extent the balance in the Initial Growth Capex Reserve Account is zero), provided that no payments in respect of any Debt for Borrowed Money shall be made pursuant to this priority first;

2. Second, as needed: when due and payable, to pay the administrative fees and expenses, indemnities and interest expenses and other costs and amounts (other than payments in respect of principal of the Loans) with respect to the ABL Facility;

3. Third, as needed: when due and payable, to pay the administrative fees and expenses, indemnities, interest expenses and other costs and amounts (other than payments in respect of principal of the Loans) owing to any Agent or Lender pursuant to any Loan Document;

4. Fourth, as needed: when due and payable, to make payments in respect of principal, interest and fees with respect to any Permitted Debt (other than Debt under the Loan Documents, any Termination Payments, any Non-Lender Financed Equipment Financings and any Non-Lender Financed Capitalized Leases);

5. Fifth, on each Quarterly Payment Date: when due and payable, pro rata, to pay any Scheduled Amortization Payment and any Termination Payment in connection with any Hedge Agreement set forth on Schedule 4.01(t) on the Effective Date or subsequently entered in accordance with the terms of Section 5.02(l);

6. Sixth, on each Sweep Calculation Date, when due and payable, Permitted Tax Distributions and to make Restricted Payments permitted under Section 5.02(g)(iv), (v) or (vi), in each case subject to the amount specified therein;

7. Seventh, at the option of the Borrower: to pay or to repay principal under the ABL Facility;

8. Eighth, on each Sweep Calculation Date: at the Borrower’s election, a holdback amount to remain on deposit or credited to the Revenue Account in an amount that does not exceed the Liquidity Reserve Cap;

9. [Reserved]; and

10. Tenth, on each Cash Flow Payment Date: to the Administrative Agent, to pay the Excess Cash Flow Payment Amount.

iv. Withdrawals from the Prepayment Account. Prior to the occurrence of a Repayment Event, all amounts in the Prepayment Account shall be disbursed by the Borrower within one (1)

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Business Day upon deposit into such Prepayment Account to the Administrative Agent, or if not so disbursed by the Borrower, applied directly by the Administrative Agent, for ultimate application to the prepayment of outstanding Term A Loans and Term B Loans, together with any interest, Yield Maintenance, Call Premium, Exit Fee or other amounts then due and payable in connection therewith, in accordance with the applicable provisions of Section 2.04(b);

v. Withdrawals from the Loss Proceeds Account. Prior to the occurrence of a Repayment Event, all amounts in the Loss Proceeds Account in respect of any Casualty Event or Event of Eminent Domain shall be disbursed by the Borrower from time to time for application (or to make Investments permitted pursuant to Section 5.02(f)(i) in any Subsidiary to permit such Subsidiary, as the case may be, to make any such application) as follows:

1. subject to clause (iii) below, if the Borrower certifies to the Term Loan Collateral Agent that the Affected Property is not capable of being rebuilt, repaired, restored or replaced to permit operation of the relevant Frac Fleet or the Frac Fleets in accordance in all material respects with the terms of the Loan Documents, then upon delivery of such certificate to the Term Loan Collateral Agent, the Borrower shall transfer the amount of such Insurance Proceeds or Eminent Domain Proceeds (as applicable) to the Prepayment Account for further application in accordance with Section 2.04(b)(iv).

2. Subject to clause (iii) below, if the Loan Parties determine not to rebuild, repair, restore or replace any Affected Property, the Borrower shall transfer the amount of such Insurance Proceeds or Eminent Domain Proceeds (as applicable) to the Prepayment Account for further application in accordance with Section 2.04(b)(iv).

3. If the Loan Parties elect to rebuild, repair, restore or replace any Affected Property, then:

a. if the aggregate amount of Insurance Proceeds or Eminent Domain Proceeds, as the case may be, payable in respect of such Casualty Event or Event of Eminent Domain is less than or equal to $500,000, then the Borrower shall apply such Insurance Proceeds or Eminent Domain Proceeds, as applicable, to the payment of the cost of restoration or replacement of the Affected Property within twelve (12) months; or

b. if the aggregate amount of Insurance Proceeds or Eminent Domain Proceeds, as the case may be, payable in respect of such Casualty Event or Event of Eminent Domain is less than or equal to $10,000,000, then the Borrower shall apply such Insurance Proceeds or Eminent Domain Proceeds, as applicable, to the payment of the cost of restoration or replacement of the Affected Property within twelve (12) months; provided that the Agents shall have received from the Borrower within 120 days of such Casualty Event or Event of Eminent Domain, a certificate of the Borrower executed by a Responsible Officer of the Borrower (a “Repair Notice”) (1) setting forth in reasonable detail the nature of such restoration or replacement and the estimated cost and time to complete such restoration or replacement and (2) stating that (x) the proposed restoration or

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replacement is technologically and economically feasible and (y) the Insurance Proceeds or Eminent Domain Proceeds payable in connection with the related Casualty Event or Event of Eminent Domain, together with other resources available to the Borrower and the Guarantors in accordance with the terms of the Loan Documents, are sufficient to pay the estimated cost of completing such restoration or replacement; or

c. if the aggregate amount of Insurance Proceeds or Eminent Domain Proceeds, as the case may be, payable in respect of any Casualty Event or Event of Eminent Domain (other than a Casualty Event or Event of Eminent Domain described in clause (iii)(A) above) is greater than $10,000,000, then no later than three months following receipt of such payment, the Borrower shall either (1) cause such amount to be transferred to the Prepayment Account for further application in accordance with Section 2.04(b)(iv) or (2) deliver to the Agents (x) a Repair Notice confirming the Borrower’s decision to apply such Insurance Proceeds or Eminent Domain Proceeds, as applicable, to the payment of the cost of restoration or replacement of the Affected Property and (y) an approval by an appraisal firm such as Great American confirming that the proposed replacement equipment is of similar quality and ability of the Affected Property as set forth in the related Repair Notice and that such restoration and replacement is technologically and economically feasible;

provided, that any amount deposited into the Loss Proceeds Account that is not applied by the Loan Parties in accordance with the terms of this Section 2.14(e) within twelve (12) months (subject to extension to eighteen (18) months in the event a Loan Party has entered into a binding contract to complete any Approved Growth Capital Expenditures), then the Borrower shall transfer such amounts to the Prepayment Account for further application in accordance with Section 2.04(b)(iv).

4. Amounts held in the Loss Proceeds Account may be applied by the Borrower for the payment of the costs of rebuilding, restoration or repair of the Affected Property only as contemplated in this Section 2.14(e).

5. Before any withdrawal or transfer shall be made from the Loss Proceeds Account (other than any transfer to the Prepayment Account pursuant to this Section 2.14(e)), the Borrower shall deliver to the Agents with respect to each date on which it proposes to make a transfer from the Loss Proceeds Account (each such date, a “Disbursement Date”), a requisition from the Borrower substantially in the form attached hereto as Exhibit I (a “Restoration Requisition”), dated not more than three Business Days prior to such Disbursement Date, signed by an authorized representative of the Borrower.

6. Upon completion of any rebuilding, restoration, repair or replacement of all or a portion of any Affected Property, the Borrower shall notify (in writing) the Agents of such completion, and the amount, if any, required in its reasonable opinion to be retained in the Loss Proceeds Account for the payment of any remaining costs of rebuilding, restoration, repair or replacement not then due and payable and for the payment of

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reasonable contingencies following completion of such rebuilding, restoration, repair or replacement (the “Remaining Repair Amounts”). Upon receipt of such notice by the Agents, the Borrower shall transfer the amount remaining in the Loss Proceeds Account in excess of the Remaining Repair Amounts and any other amounts to remain in the Loss Proceeds Account as stated in such notice, to the Persons identified by the Borrower in writing to the extent of any amounts which have been expended in connection with such rebuilding, restoration, repair or replacement and not previously reimbursed. If after giving effect to the foregoing, the amount remaining on deposit in the Loss Proceeds Account in excess of the Remaining Repair Amounts exceeds $100,000, the Borrower shall transfer all of such excess in the Loss Proceeds Account to the Prepayment Account for further application in accordance with Section 2.04(b)(iv). If such amount is equal to or less than $100,000, the Borrower shall transfer all of such amount in the Loss Proceeds Account to the Revenue Account for further application in accordance with Section 2.04(c). Thereafter, upon notice from the Borrower that payment of all costs of rebuilding, restoration, repair or replacement of any Affected Property has been made, the Borrower shall transfer any amounts remaining in the Loss Proceeds Account to the Revenue Account for further application in accordance with Section 2.04(c).

vi. Withdrawals from the Initial Growth Capex Reserve Account.

1. Upon receipt of a Growth Capex Withdrawal Certificate, duly completed and duly executed by a Responsible Officer of the Borrower, specifying (A) an amount requested to be transferred from the Initial Growth Capex Reserve Account and (B) the items for which such amount is to be paid and the appropriate wire payment instructions, and (C) certifying that the payments to be made with such amount constitute payments of Approved Growth Capital Expenditures solely in connection with Frac Fleet 16 permitted to be paid in accordance with this Agreement, the Term Loan Collateral Agent shall transfer from the Initial Growth Capex Reserve Account to the Persons (and in accordance with the payment information) specified in such Growth Capex Withdrawal Certificate the amounts specified in such Growth Capex Withdrawal Certificate to be then due and payable.

2. To the extent any funds deposited into the Initial Growth Capex Reserve Account shall not have been used within twelve (12) months following the date of such deposit (which period shall be increased to eighteen (18) months so long as a binding contract for a Growth Capital Expenditures shall have been entered into within such initial twelve (12) month period) (any such proceeds, the “Unused Capex Reserve Proceeds”), the Borrower shall apply such Unused Capex Reserve Proceeds to the prepayment of Loans in accordance with Section 2.04(b)(ii). In the event any Lenders decline such Unused Capex Reserve Proceeds in accordance with Section 2.04(c), the Borrower shall deposit any such declined amount in the Specified Distributable Cash Account.

vii. Withdrawals from the Specified Distributable Cash Account. The Borrower shall be permitted to transfer funds in the Specified Distributable Cash Account as directed by the Borrower.

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viii. Withdrawals from the Collections Account. Once each Business Day (or such shorter period, as elected by the Borrower), the Borrower shall transfer funds in the Collection Account to the Revenue Account.

ix. Withdrawals from the Reinvestment Account.

1. Upon receipt of a Reinvestment Withdrawal Certificate, duly completed and duly executed by a Responsible Officer of the Borrower, specifying (A) an amount requested to be transferred from the Reinvestment Account and (B) the items for which such amount is to be paid and the appropriate wire payment instructions, and (C) certifying that the payments to be made with such amount constitute payments of Approved Growth Capital Expenditures permitted to be paid in accordance with this Agreement, the Term Loan Collateral Agent shall transfer from the Reinvestment Account identified in such Reinvestment Withdrawal Certificate to the Persons (and in accordance with the payment information) specified in such Reinvestment Withdrawal Certificate the amounts specified in such Reinvestment Withdrawal Certificate to be then due and payable.

2. To the extent any funds deposited into the Reinvestment Account shall not have been used within twelve (12) months following the date of such deposit (which period shall be increased to eighteen (18) months so long as a binding contract for Approved Growth Capital Expenditures shall have been entered into within such initial twelve (12) month period) (any such proceeds, the “Unused Reinvestment Proceeds”), the Borrower shall apply such Reinvestment Proceeds to the prepayment of Loans in accordance with Section 2.04(b)(ii). In the event any Lenders decline such Unused Reinvestment Proceeds in accordance with Section 2.04(c), the Borrower shall deposit any such declined amount in the Specified Distributable Cash Account.

x. Exercise of Remedies. Notwithstanding any provision to the contrary contained in this Section 2.14, during the continuance of an Event of Default and the exercise of control over the Collateral Accounts by the Term Loan Collateral Agent pursuant to the Account Control Agreements, the Term Loan Collateral Agent shall apply amounts on deposit in the Collateral Accounts as provided in Article IV of the Intercreditor Agreement.

CONDITIONS TO EFFECTIVENESS OF LENDING

a. Conditions Precedent. Section 2.01 of this Agreement shall become effective on and as of the first date (the “Effective Date”) on which the Administrative Agent determines in its sole and absolute discretion that the following conditions precedent have been satisfied (and the obligation of any Lender to make a Loan hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Effective Date):

i. The Administrative Agent shall have received on or before the Effective Date the following, each dated such day (unless otherwise specified) and in form and substance reasonably satisfactory to the Administrative Agent:

1. This Agreement, duly executed and delivered by the parties hereto.

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2. The Notes, duly executed and delivered by the Borrower and payable to the order of the Lenders.

3. The Term Loan Security Agreement, duly executed by each Loan Party, together with:

a. confirmation reasonably satisfactory to the Administrative Agent that (1) certificates representing the Initial Pledged Equity referred to therein accompanied by undated membership interest powers or partnership interest powers, as applicable, executed in blank, and (2) instruments evidencing the Initial Pledged Debt referred to therein, indorsed in blank, in each case, have been delivered to the Term Loan Collateral Agent;

b. appropriately completed financing statements in form appropriate for filing under the UCC in the State of Delaware and each other jurisdiction the Term Loan Collateral Agent may request, covering the Collateral described in the Term Loan Security Agreement, provided that, the parties agree such financing statement shall be filed prior to any financing statement filed in connection with the ABL Loan Documents;

c. completed requests for information or similar search reports, dated on or before the Effective Date, listing all effective financing statements filed in the jurisdictions where the Loan Parties are incorporated or in which the Collateral is located that name any Loan Party as debtor, together with copies of such other financing statements;

d. true and complete copies of each Material Contract in existence on the Effective Date and listed on Schedule 4.01(t);

e. [Reserved]; and

f. evidence that all other actions that the Administrative Agent and the Term Loan Collateral Agent may deem reasonably necessary in order to perfect and protect the first priority Liens in all Term Loan Priority Collateral (except that Liens expressly permitted by Section 5.02(a), including the second priority Liens on the Term Loan Priority Collateral securing payment of the ABL Obligations, may exist), the second priority Liens in all ABL Priority Collateral and security interests created under the Term Loan Security Agreement has been taken.

4. The Administrative Agent shall have received certificates of title for each of the Title Assets owned by the Loan Parties listed under the headings “Titles held by US Bank,” “Titles Held by US Well Services” and “Title Documentation Held by US Well Services,” of Schedule 3.01(a)(iv) and any documentation required to name the Term Loan Collateral Agent as the Secured Party.

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5. The Administrative Agent shall have received an Acceptable Landlord Waiver with respect to each Designated Leased Property set forth on Schedule 3.01(a)(v) subject to a lease containing terms that expressly prevent or hinder the removal of any Collateral by any Loan Party or the Administrative Agent.

6. The Intercreditor Agreement, in form and substance satisfactory to the Administrative Agent, and duly executed by the Loan Parties and each other party thereto as of the Effective Date.

7. The following:

a. The ABL Credit Agreement, duly executed and delivered by the Loan Parties, the lenders, each other lender party thereto, the ABL Agent and the other Persons party thereto,

b. the ABL Collateral Documents, duly executed by the applicable Loan Parties and the other Persons party thereto,

c. evidence from the lenders and the administrative agent under the ABL Credit Agreement authorizing the Administrative Agent (or its designee, including its counsel) to file UCC financing statements expressly specified in such authorization letter,

8. Certified copies of the resolutions of the board of directors of the Parent and authorizations of the sole member or general partner, as applicable, of each other Loan Party, approving the Loan Documents to which it is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary organizational action and governmental and other third party approvals and consents, if any, with respect to the Loan Documents to which it is or is to be a party and the transactions contemplated thereby.

9. A copy of a certificate of the Secretary of State of Delaware, dated reasonably near the Effective Date certifying (A) as to a true and correct copy of the certificate of formation or other constituent documentation, as the case may be, of such Loan Party, as applicable, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s certificate of formation or other constituent documents, as the case may be, on file in such Secretary’s office, (2) to the extent applicable, such Loan Party has paid all franchise taxes to the date of such certificate and (3) to the extent applicable, such Loan Party is duly formed and in good standing or presently subsisting under the laws of the State of Delaware.

10. A certificate of the Parent and each other Loan Party signed on behalf of such Person by a Responsible Officer, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the certificate of formation or other constituent documentation, as the case may be, of such Person since the date of the Secretary of State’s certificate referred to in Section 3.01(a)(ix), (B) a true and correct copy of the bylaws,

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limited liability company agreement or other governing agreement, as the case may be, of such Person as in effect on the date on which the resolutions referred to in Section 3.01(a)(viii) were adopted and on the Effective Date, (C) the due formation and good standing or valid existence of such Person as a corporation, limited liability company or limited partnership, as the case may be, organized under the laws of the jurisdiction of its formation, and the absence of any proceeding for the dissolution or liquidation of such Person, and (D) the truth in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Effective Date; provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (D) shall be disregarded.

11. In the case of the Parent, a certificate of the Parent, executed by an officer or a director of the Parent, in the case of each other Loan Party, a certificate of the sole member, general partner or other governing Person(s), as applicable, of such Loan Party, Parent or Holdings, executed by an officer or a director of such sole member, general partner or other governing Person(s), in each case, certifying the name and true signature of the authorized Person or representative of such Loan Party, Parent or Holdings, as applicable, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.

12. A certificate in substantially the form of Exhibit E, attesting to the Solvency of the Parent and its Subsidiaries on a Consolidated basis after giving effect to the Loan Documents and the transactions contemplated thereby, from its chief financial officer.

13. a certified copy of the operating budget for the Borrower and its Subsidiaries for the twelve (12) month period beginning on the Effective Date (the “Initial Operating Budget”).

14. A pro forma balance sheet of each of the Parent and its Subsidiaries, in each case on a Consolidated basis, as of the Effective Date after giving effect to the Loans and extensions of credit pursuant to this Agreement occurring on the Effective Date.

15. Copies of all certificates representing the policies, endorsements and other documents required under Section 5.01(d) to be in effect as of the Effective Date, accompanied by (A) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that the copies of each of the policies, endorsements and other documents delivered pursuant to this Section 3.01(a)(xv) are true, correct and complete copies thereof, (B) letters from the Borrower’s insurance brokers or insurers, dated not earlier than fifteen (15) days prior to the Effective Date, stating with respect to each such insurance policy that (1) such policy is in full force and effect, (2) all premiums theretofore due and payable thereon have been paid and (3) the underwriters of such insurance have agreed that the policies, when issued, will contain the provisions required under Section 5.01(d) and (C) evidence in form and substance reasonably satisfactory to the Lenders confirming that such required insurance is in full force and effect in accordance with the terms of this Agreement.

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16. An opinion of counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent (including, without limitation, with respect to the enforceability of this Agreement).

ii. The Administrative Agent shall be satisfied that all Existing Debt (other than Permitted Existing Debt) has been (or is contemporaneously being) prepaid, redeemed or defeased in full or otherwise satisfied and extinguished, including all interest, fees and other amounts accrued and unpaid in accordance with the payoff and related payoff letter, and all commitments relating thereto are (or are contemporaneously being) terminated.

iii. Before giving effect to the Loan Documents and the transactions contemplated thereby, there shall have occurred (other than as set forth on Schedule IV) (x) no Material Adverse Change or (y) no economic, legal or political developments, or developments in the monetary capital markets, in each case, having a Material Adverse Effect upon any Lender prior to the occurrence of the Effective Date, in the case of each of clauses (x) and (y), since December 31, 2018.

iv. There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened in writing before any Governmental Authority that (i) other than as set forth on Schedule IV, could reasonably be expected to have a Material Adverse Effect or materially impair or interfere with the operations of any Loan Party or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.

v. Except for any Governmental Authorizations required in connection with the Lenders’ exercise of remedies under the Loan Documents, all Governmental Authorizations and third party consents and approvals necessary in connection with the Loan Documents and the transactions contemplated thereby or for the ownership and operation of the Frac Fleets shall have been obtained (without the imposition of any condition that is not acceptable to the Administrative Agent or the Lenders) and shall remain in effect.

vi. The Borrower shall have paid (or shall be contemporaneously paying from the proceeds of the Loans) all accrued fees of the Agents and the Lenders, and all accrued expenses of the Agents (including all reasonable and documented accrued fees and expenses of counsel to the Administrative Agent) and other compensation contemplated in connection with this Agreement and the Fee Letter, payable to the Administrative Agent and the Lenders in respect of the transactions contemplated by this Agreement.

vii. The Administrative Agent shall be reasonably satisfied that the amount of committed financing available to the Borrower shall be sufficient to meet the ongoing financial needs of the Borrower and its Subsidiaries after giving effect to the Loan Documents and the transactions contemplated thereby.

viii. An Appraisal Report, in form and substance satisfactory to the Administrative Agent, from the Appraiser.

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ix. The Administrative Agent shall have received (A) a report of the Insurance Consultant in respect to the Frac Fleets and the other property of the Loan Parties, (B) a report of the Environmental Consultant, in respect of the Frac Fleets and the other property of the Loan Parties and (C) a legal due diligence report of White & Case LLP, in each case satisfactory to the Lenders and upon which the Administrative Agent, the Term Loan Collateral Agent and each Lender shall be entitled to rely (in the case of clauses (A) and (B), together with a certificate from the Insurance Consultant and the Environmental Consultant (as applicable)) and in each case in form and substance satisfactory to the Lenders.

x. The Administrative Agent shall have received (a) a schedule setting forth each deposit and/or securities accounts of each Loan Party and setting forth the financial institution with which such account is maintained, the account number and the account balance (as of the Effective Date) for each such account, (b) a certificate from the Responsible Officer of the Borrower certifying as to the accuracy of the information set forth in such schedule, and (c) an Account Control Agreement in respect of each Collateral Account, in each case satisfactory to the Lenders, provided that in the case of the Initial Growth Capex Reserve Account, the Reinvestment Account, the Loss Proceeds Account and the Prepayment Account, such Account Control Agreements shall be a blocked account control agreement entered into with the Term Loan Collateral Agent.

xi. (i) The Administrative Agent shall have received, at least five (5) days prior to the Effective Date, all documentation and other information regarding the Loan Parties requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Effective Date, and (ii) to the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Effective Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Effective Date, a Beneficial Ownership Certification in relation to Loan Parties shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).

xii. The Administrative Agent shall have received such other statements, certificates, documents, approvals and legal opinions as such Person shall reasonably request.

b. Conditions Precedent to Each Borrowing. The obligation of each Lender to make a Loan on the occasion of each Borrowing (including the initial Borrowing) shall be subject to the conditions precedent that on the date of such Borrowing the following statements shall be true and the Administrative Agent shall have received for the account of such Lender a certificate signed by a Responsible Officer of the Borrower, dated the date of such Borrowing, stating that (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that both on the date of such notice and on the date of such Borrowing such statements are true):

i. the representations and warranties contained in each Loan Document are true and correct in all material respects on and as of such date, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such

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date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided, that if a representation and warranty is qualified as to materiality, with respect to such representation and warranty, the materiality qualifier set forth in this clause (a) shall be disregarded; and

ii. no Default has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom.

REPRESENTATIONS AND WARRANTIES

a. Representations and Warranties. Each Loan Party represents and warrants as follows:

i. Organization. It (i) is a corporation, limited liability company or limited partnership, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) is duly qualified and in good standing as a corporation, limited liability company or limited partnership, as applicable, in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not reasonably be expected to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.

ii. Entity Names and Principal Places of Business. Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties and their respective Subsidiaries, showing the exact legal name of each Loan Party and its Subsidiaries, the jurisdiction of its formation, the address of its principal place of business, its U.S. taxpayer identification number and its status as a Loan Party. The copy of the charter, certificate of formation or certificate of limited partnership, as applicable, of each Loan Party and each amendment thereto provided pursuant to Section 3.01(a)(ix) is a true, correct and complete copy of each such document, each of which is valid and in full force and effect.

iii. Capital Structure. Set forth on Schedule 4.01(c) hereto is a complete and accurate list of all Subsidiaries of Holdings and its Subsidiaries, showing as of the date hereof (as to each such Subsidiary), the number of shares, membership interests or limited partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, membership interests or limited partnership interests (as applicable) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Subsidiary of Holdings and its Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Term Loan Collateral Documents, Liens permitted under Section 5.02(a)(ii) or Permitted Liens.

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iv. Authorization; Non-Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which it is or is to be a party, and the consummation of the transactions contemplated thereby, are within such Loan Party’s corporate, limited liability company or limited partnership (as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene such Loan Party’s bylaws, limited liability company agreement, limited partnership agreement or other constituent documents, (ii) violate in any material respect any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award applicable to or binding on it, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, a Contractual Obligation of any Loan Party (except to the extent such conflict, breach, default or payment could not reasonably be expected to have a Material Adverse Effect) or (iv) except for the Liens created under the Term Loan Collateral Documents or the ABL Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the Properties of any Loan Party.

v. Licenses, Consents and Approvals.

1. No Governmental Authorization, and no notice to, filing with, or consent or approval of any other third party is required for (A) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party, or for the consummation of the transactions contemplated thereby, (B) the grant by any Loan Party of the Liens granted by it pursuant to the Term Loan Collateral Documents, (C) the perfection or maintenance of the Liens created under the Term Loan Collateral Documents (including the first priority nature thereof in respect of all Term Loan Priority Collateral and the second priority nature thereof in respect of all ABL Priority Collateral (except that Liens expressly permitted by Section 5.02(a), including first priority Liens on ABL Priority Collateral securing payment of the ABL Obligations and second priority Liens on Term Loan Priority Collateral security payment of the ABL Obligations, may exist)), or (D) the exercise by any Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Term Loan Collateral Documents, except for (1) those Governmental Authorizations, notices and filings set forth on Schedule 4.01(e), all of which except as set forth on Schedule 4.01(e) or that are otherwise a Governmental Authorization described in clauses (2) or (3) below (x) have been duly obtained, taken, given or made, (y) are in full force and effect, and (z) are free from conditions or requirements that have not been met or complied with or (2) those Governmental Authorizations, notices, filings with, or consents of, any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.

2. No Governmental Authorization, and no notice to, filing with, or consent or approval of any Governmental Authority or any other third party is required in connection with the operation of the Frac Fleets in accordance with applicable law and as otherwise contemplated by this Agreement, except for (A) the Governmental Authorizations, notices and filings set forth on Schedule 4.01(e), all of which except as set forth on Schedule 4.01(e) (or that are otherwise a Governmental Authorization described in clause (B) below) (1) have been duly obtained, taken, given or made, (2) are in full force and effect and (3) are

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free from conditions or requirements that have not been met or complied with or (B) those Governmental Authorizations, notices, filings with or consents of any other third party, the failure of which to obtain and maintain could not reasonably be expected to result in a Material Adverse Effect.

vi. Binding Agreement. This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party thereto, enforceable against each such Loan Party in accordance with its terms.

vii. Litigation. Other than as set forth on Schedule IV, there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened in writing before any Governmental Authority or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.

viii. Financial Statements.

1. The Consolidated financial statements of the Parent and its Subsidiaries, including the balance sheet and related statements of income and cash flows for the Fiscal Year and Fiscal Quarter then ended, duly certified by a Responsible Officer of the Parent, in each case which have most recently been furnished to the Administrative Agent pursuant to Section 3.01 or Section 5.03, fairly present in all material respects, subject, in the case of any interim balance sheet and related statements of income and cash flows for the relevant three months then ended, to year-end audit adjustments, the financial condition of the Parent and its Subsidiaries as at the dates of such financial statements and the results of operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a consistent basis.

2. Other than as set forth on Schedule IV, since December 31, 2018, there has been no Material Adverse Change.

3. The Consolidated forecasted balance sheet, statement of income and statement of cash flows of the Parent and its Subsidiaries and all other projections and forward-looking information delivered to the Administrative Agent pursuant to Section 3.01(a)(xiii) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best estimate of its future financial performance.

ix. Full Disclosure. As of the Effective Date, no written information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained, when taken as a whole, and as of the date such information, exhibit or report (as applicable) was so furnished, any untrue statement of a material fact or omitted to state a

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material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which such statements were made; provided, however, that, except as set forth herein, no representation or warranty is made with respect to any projections or other forward looking statements provided by or on behalf of any Loan Party or any of their Affiliates.

x. Margin Stock. No Loan Party is engaged in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of purchasing, buying or carrying Margin Stock, and no proceeds of any Loan will be used to purchase or carry any Margin Stock, to extend credit to others for the purpose of purchasing or carrying any Margin Stock, or for any purpose which violates the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System.

xi. Investment Company Act. No Loan Party is an “investment company”, as defined in or subject to regulations under the Investment Company Act of 1940, as amended.

xii. Security Interest; Enforceable Obligations. All filings and other actions necessary to perfect and protect the security interest in the Collateral created under the Term Loan Collateral Documents have been duly made or taken and are in full force and effect, and the Term Loan Collateral Documents create in favor of the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties legal, valid, enforceable and, together with such filings and other actions, perfected (i) first priority Liens in all Term Loan Priority Collateral (except that Liens expressly permitted by Section 5.02(a), including second priority Liens on the Term Loan Priority Collateral securing payment of the ABL Obligations, may exist) and (ii) second priority Liens in all ABL Priority Collateral (except that Liens expressly permitted by Section 5.02(a), including first priority Liens on the ABL Priority Collateral securing payment of the ABL Obligations, may exist), securing the payment of the Term Loan Obligations. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.

xiii. Solvency. After giving effect to the Loan Documents and the transactions contemplated thereby, the Loan Parties are, on a Consolidated basis, Solvent.

xiv. ERISA Matters. (i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in or is reasonably expected to result in a material liability of any Loan Party or any ERISA Affiliate.

1. Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any material Withdrawal Liability to any Multiemployer Plan.

2. Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a material Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.

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xv. Environmental Matters.

1. Except as otherwise set forth on Part I of Schedule 4.01(o) hereto, each Loan Party and each of its Subsidiaries and each of the foregoing’s operations and properties comply with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except for any such noncompliance, obligation or cost that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect and, to the best knowledge of each Loan Party, no circumstances exist that could (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership or transferability, or subject to any material Lien, under any Environmental Law.

2. Except as otherwise set forth on Part II of Schedule 4.01(o) hereto, none of the properties currently or formerly owned, leased or operated at by any Loan Party or any of its Subsidiaries is currently listed or proposed for listing on the NPL or on the Superfund Enterprise Management System or any analogous state or local list; there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries that requires abatement under any applicable Environmental Law; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries in a manner that would reasonably be expected to require any material investigation, cleanup, remediation or remedial action by any Loan Party under any applicable Environmental Law.

3. Except as otherwise set forth on Part III of Schedule 4.01(o) hereto, no Loan Party or any of its Subsidiaries is undertaking or financing, required to undertake or finance, or has completed, either individually or together with other potentially responsible parties, any investigation or assessment, Remedial Action or remedial or response action relating to any actual or threatened Release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to any contractual agreement, the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned, leased or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries except, in each case above, where any such investigation or assessment, Remedial Action or other remedial or response action or liability could not reasonably be expected to have a Material Adverse Effect.

xvi. Tax Matters. (i) Neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement.

1. Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed,

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other than those tax returns where the failure to file such returns could not be reasonably expected to have a Material Adverse Effect or to result in a liability of such Loan Party and its Subsidiaries in an amount in excess of $5,000,000 at any time, and has paid all taxes shown thereon to be due, together with applicable interest and penalties (other than taxes contested in good faith by proper proceedings to the extent that adequate reserves are being maintained therefor in accordance with GAAP).

2. No issues have been raised by the Internal Revenue Service in respect of federal income tax returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise that, in the aggregate, could reasonably be expected to have a Material Adverse Effect.

3. No issues have been raised by any state, local or foreign taxing authorities, in respect of the returns for years for which the expiration of the applicable statute of limitations has not occurred by reason of extension or otherwise, that, in the aggregate, could reasonably be expected to have a Material Adverse Effect.

xvii. Owned Real Property. No Loan Party owns any real property.

xviii. Leased Real Property. Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all leases of real property under which any Loan Party is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor and lessee thereof. Each such lease is the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in accordance with its terms.

xix. Compliance with Laws and Agreements; No Default or Event of Default; No Material Adverse Change; No Force Majeure Event.

1. Other than as set forth on Schedule IV, no Loan Party or any of its Subsidiaries is in violation of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could reasonably be expected to have a Material Adverse Effect.

2. No Default or Event of Default has occurred and is continuing.

3. Other than as set forth on Schedule IV, no Material Adverse Change has occurred.

4. No Force Majeure Event has occurred and is continuing.

xx. Material Contracts; Hedge Agreements.

1. Each Material Contract (i) has been duly authorized, executed and delivered by all parties thereto, (ii) has not been amended or otherwise modified from the form previously delivered to the Administrative Agent except to the extent permitted under the terms of the Loan Documents and (iii) is in full force and effect and is binding upon and enforceable against each Loan Party thereto in accordance with its terms, and to the best knowledge of the Loan Parties, there exists no default under any Material Contract by any party thereto.

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2. No Loan Party is party to any Hedge Agreement other than Hedge Agreements permitted under Section 5.02(l) and disclosed on Schedule 4.01(t).

3. All Material Contracts and Hedge Agreements, including all amendments thereto, to which any Loan Party is a party are set forth on Schedule 4.01(t).

xxi. Accounts. No Loan Party has any deposit or securities accounts other than (i) the Collateral Accounts, (ii) the Specified Distributable Cash Account, (iii) the CARES Act Loan Account, and (iv) as otherwise permitted under the terms of the Loan Documents. Each Account Control Agreement required pursuant to the Loan Documents has been executed and delivered and is in full force and effect.

xxii. Existing Capitalized Leases; Existing Equipment Financings. Set forth on Schedule 4.01(v) hereto is a complete and accurate list of all Capitalized Leases and Equipment Financings, including all amendments thereto, to which any Loan Party is a party and in effect as of the Effective Date.

xxiii. Regulatory Approvals. No approvals or authorizations from any Governmental Authority are required to be obtained by any Loan Party, any Agent or the Lenders with respect to the Loan Documents and the transactions contemplated thereby.

xxiv. Business and Property of the Loan Parties; Insurance Matters.

1. Business. Upon and after the Effective Date, the Loan Parties and their respective Subsidiaries shall solely engage in the business relating to oil field services and related activities and ancillary, supplementary and complementary lines of business. On the Effective Date, the Loan Parties and their respective Subsidiaries, taken as a whole, will own all the property and possess all of the rights and consents necessary for the conduct of the business of the Loan Parties and their respective Subsidiaries, taken as a whole, except where such failure would not reasonably be expected to have a Material Adverse Effect.

2. Frac Fleets. Each of the individual Frac Fleets that is deployed to service Customers as of the Effective Date is in good working order and condition and usable in the ordinary course of business. Each of the individual Frac Fleets that is idle as of the Effective Date is being maintained in accordance with the Frac Fleet Preservation Program. As of the Effective Date, (i) the aggregate horsepower of the Frac Fleets that are either ready for immediate deployment in accordance with the Frac Fleet Preservation Program or currently deployed meets or exceeds the Required Aggregate Horsepower Amount and (ii) the Frac Fleets satisfy the Minimum Frac Fleet Requirement.

3. Insurance Matters.

a. The properties of each Loan Party and each of their respective Subsidiaries are insured pursuant to policies and other bonds that

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are valid and in full force and effect and that provide coverage as is customarily carried by companies engaged in similar businesses of the same size and character as its business and owning and operating similar properties in locations in which it operates.

b. Each Loan Party and each of their respective Subsidiaries has obtained flood insurance for such structures and contents constituting Collateral located in a flood hazard zone pursuant to policies that are valid and in full force and effect, in accordance with applicable law and reasonably satisfactory to the Term Loan Collateral Agent.

c. Schedule 4.01(x) sets forth a description of all insurance maintained by or on behalf of the Loan Parties on the Effective Date.

d. As of the Effective Date, no Casualty Event has occurred and is continuing, except where such Casualty Event would not reasonably be expected to have a Material Adverse Effect.

xxv. Intellectual Property. All Registered Intellectual Property owned by any Loan Party or any of their respective Subsidiaries is set forth on Schedule 4.01(y). The Loan Parties and/or their respective Subsidiaries own or have rights or licenses to all Intellectual Property sufficient to conduct the business and operations as currently conducted or proposed to be conducted (as of the Effective Date), except as otherwise would not reasonably be expected to result in a Material Adverse Effect. All material Registered Intellectual Property owned by any Loan Party or any of their respective Subsidiaries is, to the knowledge of each Loan Party, valid and enforceable. There is no objection to or pending challenge to the validity or enforceability of any such owned material Registered Intellectual Property (other than with respect to pending applications in the ordinary course of prosecution before the United States Patent and Trademark Office or other applicable governmental authority) or, to the knowledge of any Loan Party, any licensed material Registered Intellectual Property. As of the Effective Date, no Loan Party is aware of any grounds for any such challenge to such owned or licensed Registered Intellectual Property, except as set forth in Schedule 4.01(y). Each item of material Intellectual Property owned by any Loan Party or any of their respective Subsidiaries is described on Schedule 4.01(y) and consists of material or property developed by or on behalf of such Loan Party or was lawfully acquired by such Loan Party or Subsidiary from the proper and lawful owner thereof, except as otherwise would not reasonably be expected to result in a Material Adverse Effect. Each Loan Party and of their respective Subsidiaries has taken commercially reasonable steps to maintain all owned Intellectual Property as to preserve the value thereof from the date of creation or acquisition thereof except as otherwise would not reasonably be expected to result in a Material Adverse Effect. With respect to all software used by any Loan Party or any of their respective Subsidiaries in the operation of any such Loan Party’s or Subsidiary’s business, as currently conducted, such Loan Party or Subsidiary owns, or possesses valid licenses or other rights to use all such software in all material respects. No Intellectual Property owned by any Loan Party or any of their respective Subsidiaries has been sold or licensed to another Person except as permitted under Section 5.02(e)(vi). No Intellectual Property owned by any Loan Party or any of the respective Subsidiaries has been sold or licensed to another Person except as permitted under Section 5.02(e)(vi).

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xxvi. No Labor Disputes. None of the Loan Parties nor any of their respective Subsidiaries is involved in any labor dispute; there are no strikes, walkouts or union organization of any Loan Party’s employees nor any of their respective Subsidiaries’ employees threatened or in existence and no labor contract is scheduled to expire during the term of this Agreement, in each case, that would reasonably be expected to have a Material Adverse Effect.

xxvii. Letter of Credit Rights. No Loan Party has any letter of credit rights, except as set forth on Schedule 4.01(aa).

xxviii. Commercial Tort Claims. No Loan Party is a party to any commercial tort claims exceeding $100,000 (either individually or $500,000 in the aggregate), except as set forth on Schedule 4.01(bb).

xxix. Employment Contracts. No Loan Party is party to any employment contracts, except as set forth on Schedule 4.01(cc).

xxx. Affiliate Transactions. Except as set forth on Schedule 4.01(dd), there are no existing or proposed agreements, arrangements, understandings or transactions between any Loan Party and any of the officers, members, managers, directors, stockholders, parents, holders of other Equity Interests, employees or Affiliates (other than Subsidiary Guarantors) of any Loan Party other than as disclosed in public filings or permitted under Section 5.01(i).

xxxi. No Burdensome Restrictions. No Loan Party is subject to any Burdensome Restrictions except Burdensome Restrictions permitted under Section 5.02(q).

xxxii. Anti-Terrorism; Anti-Corruption Laws and Sanctions.

1. No Loan Party is in violation of any Anti-Terrorism Laws.

2. Each Loan Party has implemented and maintains in effect policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and such Loan Party, its Subsidiaries and their respective officers and directors and, to the knowledge of such Loan Party, its employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) any Loan Party, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of any such Loan Party or Subsidiary, any agent of such Loan Party or any Subsidiary that will act in any capacity in connection with or benefit from Facilities established hereby, is a Sanctioned Person. No Borrowing, use of proceeds, or other transaction contemplated by this Agreement or the other Loan Documents will violate Anti-Corruption Laws or applicable Sanctions.

xxxiii. Maintained Insurance. The insurance certificates attached as Schedule 4.01(x) represent all of the insurance policies currently issued by insurance companies in favor the Loan Parties.

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COVENANTS

a. Affirmative Covenants. Until a Repayment Event has occurred, each Loan Party will:

i. Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply with all applicable laws, rules, regulations and orders binding on such Loan Party or such Subsidiary, such compliance to include, without limitation, compliance with ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, other than any such non-compliance which could not reasonably be expected to have a Material Adverse Effect. Each Loan Party will maintain in effect and enforce policies and procedures designed to ensure compliance by such Loan Party, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

ii. Payment of Obligations, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge all material Debt obligations and all other liabilities and obligations, including (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property (unless, in the case of (i) and (ii), the failure to do so could not reasonably be expected to have a Material Adverse Effect, or to result in a liability of such Loan Party and its Subsidiaries in an amount in excess of $5,000,000 at any time), in each case, before the same shall become delinquent; provided, that neither such Loan Party nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings to the extent that adequate reserves are being maintained in accordance with GAAP; provided, however, that each Loan Party will, and will cause each Subsidiary to, remit withholding taxes and other payroll taxes to appropriate Governmental Authorities as and when claimed to be due, notwithstanding the foregoing exceptions.

iii. Environmental Matters.

1. Comply, and cause each of its Subsidiaries and, if applicable, take commercially reasonable efforts to cause, all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew, and cause each of its Subsidiaries to obtain and renew, all material Environmental Permits necessary for its operations and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, cleanup, removal, Remedial Action or other action in response to any Release, discharge or disposal of any Hazardous Materials from or at any of its properties or otherwise relating to its operations, to the extent required by, and in material compliance with, all Environmental Laws; provided, however, that neither such Loan Party nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, Remedial Action or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings provided appropriate reserves are being maintained with respect to such circumstances.

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2. Establish and maintain, and cause each of its Subsidiaries and, if applicable, cause, all lessees and other Persons operating or occupying its properties to establish and maintain, a system to assure and monitor continued compliance in all material respects of such Persons’ operations and businesses with all applicable Environmental Laws and Environmental Permits, which system shall include periodic reviews of such compliance.

3. In the event that it (A) obtains, gives or receives written notice of any Release or written threat of Release of a reportable quantity of any Hazardous Materials at any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property caused by any Loan Party or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect (any such event being hereinafter referred to as a “Hazardous Discharge”) or (B) receives any written notice of violation, written request for information or written notification that it is potentially responsible for investigation, Remedial Action or cleanup of environmental conditions at any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property caused by any Loan Party or any of its Subsidiaries, or written demand letter, complaint, order, citation or other written notice with regard to any Hazardous Discharge or violation of Environmental Laws or Environmental Permits affecting any Loan Party’s or any of its Subsidiaries’ Property or any Person’s interest therein, or any Customer’s Property caused by any Loan Party, that with respect to any of the foregoing could reasonably be expected to result in a Material Adverse Effect (any of the foregoing is referred to herein as an “Environmental Complaint”) from any Governmental Authority responsible in whole or in part for environmental matters in the state in which the such Property is located or the United States Environmental Protection Agency (any such Person, hereinafter, the “Authority”), or any other Person, then the Borrower shall, within five (5) Business Days after any Responsible Officer becomes aware of such notification, give written notice of the same to the Administrative Agent, detailing facts and circumstances (to the extent that such is non-privileged) of which any Loan Party or any of its Subsidiaries is aware of giving rise to the Hazardous Discharge or Environmental Complaint. Such notice is not intended to create, nor shall it create, any obligation upon the Administrative Agent or any Lender with respect thereto.

4. Promptly forward to the Administrative Agent copies of any written request for information, written notification of potential liability, or demand letter from any Governmental Authority relating to potential responsibility with respect to the investigation, Remedial Action or clean-up of Hazardous Materials at any other site owned, leased, operated at or used by any Loan Party or any of its Subsidiaries for the disposal of Hazardous Materials (including sites to which such Persons have arranged for the transport and disposal of Hazardous Materials) that could reasonably be expected to have a Material Adverse Effect and shall continue to forward to the Administrative Agent copies of written correspondence and other non-privileged documents reasonably requested by the Administrative Agent until such matter is settled. The Borrower shall promptly forward to the Administrative Agent and the Lenders copies of all written documents and reports concerning a Hazardous Discharge that is reasonably expected to have a Material Adverse Effect at any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property caused by any Loan Party, or any such third party disposal sites that any Loan Party or any of its Subsidiaries is required to file under any Environmental Laws.

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5. Respond promptly to any Hazardous Discharge or Environmental Complaint and take all Remedial Actions to the extent required by Environmental Law, Environmental Permit or the Authority; provided, that, it shall not be required to undertake any such Remedial Action to the extent that its obligation to do so is being contested in good faith and by proper proceedings. If it shall fail to respond promptly to any such Hazardous Discharge or as required by Environmental Law, Environmental Permit or the Authority, which such failure would reasonably be expected to have a Material Adverse Effect, the Administrative Agent on behalf of the Lenders may, but without the obligation to do so, for the sole purpose of protecting the Lenders’ interest in the Collateral, upon written notification to the Borrower, enter onto any Loan Party’s or any of its Subsidiaries’ Property (or authorize third parties to enter onto any Loan Party’s or Subsidiaries’ Property) and take such Remedial Actions required by Environmental Law, Environmental Permit or the Authority with respect to any such Hazardous Discharge or Environmental Complaint. All reasonable and documented costs and expenses incurred by the Administrative Agent and Lenders (or such third parties) in the exercise of any such rights under this Section 5.01(c), including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, shall be paid by the Borrowers within thirty (30) days of written demand by the Administrative Agent, and until paid shall be added to and become a part of the Obligations secured by the Liens created by the terms of the Loan Documents.

6. In the event there is a Hazardous Discharge or a failure to comply with Environmental Laws or Environmental Permit at any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property caused by any Loan Party, which in either case is reasonably expected to have a Material Adverse Effect, comply with all reasonable written requests for information made by the Administrative Agent with respect to such Hazardous Discharge or failure to comply with Environmental Laws or Environmental Permits. Such information reasonably requested may include, at the Borrowers’ expense, an environmental site assessment or environmental compliance audit of any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property caused by any Loan Party, to be prepared by a nationally recognized environmental consulting or engineering firm, to assess such Hazardous Discharge or noncompliance with Environmental Laws or Environmental Permits; provided, however, that any environmental site assessment, environmental compliance audit or similar report acceptable to the Authority that is charged to oversee any Remedial Action related to such Hazardous Discharge or failure to comply with Environmental Laws or Environmental Permits shall be deemed acceptable to the Administrative Agent and the Required Lenders.

7. Defend and indemnify the Agents and the Lenders and hold the Agents, the Lenders and their respective employees, agents, directors and officers harmless from and against all loss, liability, reasonable expense, claims, costs, fines and penalties, including reasonable and documented out-of-pocket attorney’s fees, suffered or incurred by the Agents or the Lenders under or on account of any Environmental Action, Hazardous Material, Environmental Law or Environmental Permit, including the assertion of any Lien thereunder, including with respect to any Hazardous Discharge or the presence of any Hazardous Materials affecting any Loan Party’s or any of its Subsidiaries’ Property or any Customer’s Property whether or not the same originates or emerges from such Loan Party’s

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or Subsidiary’s or Customer’s Property or any contiguous real estate, except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge or presence of Hazardous Materials that is found by a final and non-appealable judgment of a court of competent jurisdiction to have directly and solely been caused by the gross negligence or willful misconduct of such indemnified party under this Section 5.01(c). The Loan Parties’ respective obligations under this Section 5.01(c) exist regardless of whether or not any federal, state or local environmental agency has taken or threatened any action in connection with the presence of any such Hazardous Material or Hazardous Discharge. The Loan Parties’ obligations and the indemnifications hereunder shall survive until a Repayment Event has occurred.

iv. Insurance Matters.

1. In the case of each insurance policy in force on the Effective Date (and described on Schedule 4.01(x)), from the Effective Date to the renewal date of such insurance policy, maintain and cause each of its Subsidiaries to maintain, insurance in accordance with the terms and conditions set forth in such insurance policy, provided that, the Loan Parties shall commence negotiations for renewal of each insurance policy set forth on Schedule 4.01(x) on the terms set forth on Schedule 5.01(d) not later than 30 calendar days prior to renewal thereof; and

2. On and after the renewal date of each insurance policy listed on Schedule 4.01(x) until the Maturity Date, maintain and cause each of its Subsidiaries to maintain, insurance in accordance with Schedule 5.01(d), provided that, following the renewal date of all of the insurance policies set forth on Schedule 4.01(x) the Loan Parties shall at all times maintain and cause each of its Subsidiaries to maintain, insurance in accordance with Schedule 5.01(d).

v. Maintenance of Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries to preserve and maintain, its existence as a corporation, limited liability company or limited partnership, as applicable, its good standing in its jurisdiction of incorporation, formation, organization, or otherwise, as applicable, and, to the extent required under applicable law, its qualification to do business and good standing in each other state or jurisdiction in which it operates a material part of its business; provided, however, that the Borrower and its Subsidiaries may consummate any merger or consolidation permitted under Section 5.02(d).

vi. Visitation Rights; Inspections.

1. Upon reasonable notice, at any reasonable time and from time to time, permit any of the Agents or any of the Lenders, or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Loan Parties, and to discuss the affairs, finances and accounts of the Loan Parties and any of their respective Subsidiaries with any of their officers or directors and with their independent certified public accountants; provided that so long as no Event of Default shall have occurred and be continuing, unless the Borrower shall have consented thereto, neither the Agents nor the Lenders shall be entitled to more than one visit at the cost of Borrower to any single location in any Fiscal Year, provided further that, the Agents and Lenders may make additional visits at their sole cost and expense.

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2. In addition to the foregoing, at any time upon the Administrative Agent’s reasonable request,the Loan Parties will allow any Collateral Inspection Party to verify or examine in the Administrative Agent’s name or in the name of any Loan Party, the validity, amount, quality, quantity, value and condition of, or any other matter relating to, the equipment and machinery Collateral, and to perform collateral inspection services on behalf of the Administrative Agent for the benefit of the Lenders, including, but not limited to, inspections with respect to equipment and machinery Collateral located at any properties of the Loan Parties and to conduct field examinations to ensure the adequacy of such equipment and machinery Collateral, prepared on a basis reasonably satisfactory to the Administrative Agent, and any actions required by applicable law (the “Collateral Inspection Actions”); provided that, prior to the occurrence of an Event of Default, (A) the Collateral Inspection Party shall not conduct such Collateral Inspection Actions more than one (1) time in any Calendar Quarter (“Quarterly Inspection Cap”) (it is expressly acknowledged and agreed that the duration and scope of any Collateral Inspection Actions (or any portion thereof) conducted during a Calendar Quarter may comprise of and extend across multiple days, which days may or may not be consecutive, all as determined by the Collateral Inspection Party), (B) the Borrower shall pay and/or reimburse the Administrative Agent (and/or the Collateral Inspection Party (if so requested by the Administrative Agent)) for all reasonable and documented fees for the services provided by such Collateral Inspection Party in an amount not exceeding $75,000 per Calendar Quarter (“Inspection Fees Cap”) (with all or any portion of the Inspection Fees Cap which is unspent or unused in any Calendar Quarter being carried forward to the next succeeding Calendar Quarter), and (C) to the extent any Collateral Inspection Party issues any final written report in respect of any applicable Collateral Inspection Actions to the Administrative Agent and/or the Lenders (any such final written report, a “Collateral Report”), if requested by the Borrower in writing, and such applicable Collateral Report is in the possession and control of the Lenders, a copy of such Collateral Report shall be made available to the Borrower; provided further that this Section 5.01(f)(ii)(C) (x) shall only require any applicable final Collateral Reports to be made available to the Borrower (and not any interim work product, regardless of whether the same includes any “draft”, “draft form” or similar notation or watermark therein), and (y) shall not require nor permit any disclosure of trade secrets or proprietary information, or any information or reports that is restricted in order to preserve attorney-client, work product or similar privilege, or to comply with any applicable confidentiality obligations or applicable law. The Borrower acknowledges that all Collateral Inspection Actions, Collateral Reports, inspections, appraisals and reports are prepared by Collateral Inspection Party are for the benefit of the Administrative Agent and/or the Lenders, and the Borrower shall not be entitled to rely upon them.

3. Notwithstanding anything to the contrary under any Loan Document (including Section 5.01(f)(ii)), upon the occurrence of an Event of Default, (A) the Quarterly Inspection Cap shall cease to apply and there shall be no limitation on the number or frequency of any Collateral Inspection Actions (including any actions related thereto), (B) all such actions and Collateral Reports prepared or issued in connection therewith shall

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be at the sole expense of the Borrower, and the Borrower shall reimburse the Administrative Agent (and/or the Collateral Inspection Party (if so requested by the Administrative Agent)) for all such fees and reasonable and documented out-of-pocket charges, costs and expenses (including any applicable per diem field examination charge), and (C) no Secured Party nor Collateral Inspection Agent shall be required to share any results of any Collateral Inspection Actions, Collateral Reports, or any other appraisal or report with any Loan Party.

For the purposes of clarity, any Collateral Inspection Actions commenced when an Event of Default has occurred and is continuing may be completed at the Borrower’s sole expense notwithstanding the cessation of such Event of Default. The Secured Parties shall have no duty to any Loan Party to conduct any Collateral Inspection Actions or request any Collateral Reports.

4. Notwithstanding anything set forth herein to the contrary, if any Collateral Inspection Party is engaged by the Administrative Agent to assist with the liquidation and/or disposition of all or any part of the equipment and machinery Collateral upon the occurrence of an Event of Default, then such Collateral Inspection Party may receive, prior to distribution of the proceeds from such liquidation and/or disposition in accordance with the provisions hereunder, its reasonable actual out-of-pocket expenses which are incurred solely in connection with the actual liquidation/disposition of such equipment and machinery Collateral.

vii. Books and Records. (i) Keep proper books of record and account in which full, true and correct entries will be made, in all material respects, of all dealings or transactions of or in relation to its business and affairs; (ii) set up on its books accruals with respect to all taxes, assessments, charges, levies and claims; and (iii) on a reasonably current basis, set up on its books, from its earnings, allowances against doubtful Receivables, advances and investments and all other proper accruals (including by reason of enumeration, accruals for premiums, if any, due on required payments and accruals for depreciation, obsolescence or amortization of properties), which should be set aside from such earnings in connection with its business. All determinations pursuant to this Section 5.01(g) shall be made in accordance with, or as required by, GAAP consistently applied in the opinion of such independent certified public accounting firm as shall then be regularly engaged by the Loan Parties.

viii. Conduct of Business and Maintenance of Properties, Etc.

1. Actively conduct and operate its business and cause each of its Subsidiaries to actively conduct and operate their business according to good business practices and maintain, preserve and protect, and cause each of its Subsidiaries to maintain, preserve and protect, all of its properties and equipment necessary in the conduct of the business of the Loan Parties (including all Collateral) and their Subsidiaries in good working order and condition, ordinary wear and tear excepted, and in accordance with Prudent Industry Practices.

2. Maintain and cause all Subsidiaries to maintain all Intellectual Property and any licenses under third-party Intellectual Property, subject to the terms of any such

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licenses, and take all commercially reasonable actions necessary to enforce and protect the validity of any Intellectual Property right or other right included in the Collateral, except, in the case of any such Intellectual Property right, where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

3. Maintain and cause each of its Subsidiaries to maintain each of the individual Frac Fleets in good operating condition and repair (including, in the case of idle Frac Fleets, maintenance in accordance with the Frac Fleet Preservation Program) in a manner such that each deployed Frac Fleet shall be, during the period of its deployment, usable in the ordinary course of business in accordance with Section 4.01(x) and this Section 5.01(h), and each idle Frac Fleet shall be, once prepared for service in accordance with the Frac Fleet Preservation Program, capable of deployment and usable in the ordinary course of business in accordance with Section 4.01(x) and this Section 5.01(h).

4. Make such Maintenance Capital Expenditures in accordance with the Frac Fleet Preservation Program as are necessary to (A) conduct and operate its business according to good business practices, (B) maintain the Required Aggregate Horsepower Amount with respect to the Frac Fleets that are either ready for immediate deployment in accordance with the Frac Fleet Preservation Program or currently deployed, and (C) satisfy the Minimum Frac Fleet Requirement.

5. Use, operate or deploy any Collateral or any portion thereof, at any time, solely for use, lease or deployment in connection with oil and gas fracking or exploration (and for no other purpose unless otherwise expressly consented to by the Administrative Agent in writing) and, in any event, consistent with the business of the Loan Parties conducted as of the Effective Date; provided that, in any event, all such Collateral shall be, and shall continue to be, (1) maintained and used in good working order and condition, ordinary wear and tear excepted, and in accordance with Prudent Industry Practice standards and in compliance with the Frac Fleet Preservation Program and any other requirement hereunder, and (2) at all times remain stored, located or deployed solely within the continental United States of America (excluding the Turbine Lease Transaction which is defined in and governed by the terms and conditions in the Third Amendment and, at all times, subject to Section 3 of the Third Amendment).

ix. Mandatory Repair Notice. In the event that, in the reasonable opinion of any Collateral Inspection Party, any equipment and machinery Collateral (other than equipment that is obsolete, not economic to repair and/or that individually or in the aggregate is not reasonably necessary for the continued operation of any Loan Party) owned or leased by a Loan Party is not properly maintained and/or in functioning order, and the Administrative Agent (in consultation with any Collateral Inspection Party) notifies a Loan Party of the same in writing (such notification, “Mandatory Repair Notification”), the Borrower shall (A) commence any relevant repairs and maintenance as directed (“Relevant Repairs”) within 45 days of such Mandatory Repair Notification,and (B) complete or cause to be completed such Relevant Repairs to the reasonable satisfaction of the Administrative Agent (in consultation with the Collateral Inspection Party) within 120 days following the date of such Mandatory Repair Notification (the “Initial Repair Completion Period”); provided that in the event that (1) any Relevant Repair is not susceptible to be completed within the Initial Repair Completion Period (whether by reason of third party

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backlog or otherwise), (2) the applicable Loan Party is proceeding with diligence and in good faith to complete such Relevant Repair, (3) the applicable equipment or machinery Collateral can be Repaired Feasibly, and (4) the extension of such Initial Repair Completion Period could not be reasonably expected to have a Material Adverse Effect, such Initial Repair Completion Period may be extended with the consent of the Administrative Agent as may be necessary to complete the Relevant Repairs (in all cases, in the Administrative Agent’s reasonable discretion).

x. Covenant to Give Security. Upon the acquisition of any Property, in the case of Property other than Real Property, subject to the terms and conditions in the Security Agreement, by any Loan Party, and such Property, in the judgment of the Administrative Agent, shall not already be subject to a Lien and perfected first priority security interest (except that Liens expressly permitted by Section 5.02(a), including first priority Liens on ABL Priority Collateral securing payment of the ABL Obligations, may exist) in favor of the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties, then in each case at the Borrower’s expense:

1. within five (5) Business Days (or such longer period as the Administrative Agent may agree in its discretion) after such acquisition, furnish to the Administrative Agent and the Term Loan Collateral Agent a description of the real and personal properties so acquired, in each case in detail reasonably satisfactory to the Administrative Agent; and

2. promptly, but in any event within thirty (30) days after such acquisition, take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, surveys, estoppel and consent agreements of lessors, title insurance policies (such title insurance policies insuring the mortgages to be valid first subsisting Liens on the property described therein, free of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents and for mechanics’ and materialmen’s Liens) and direct access), documents, instruments, agreements, opinions and certificates with respect to such Property as the Administrative Agent shall reasonably request to create (and provide evidence thereof) a valid and perfected first priority Liens (except that Liens expressly permitted by Section 5.02(a), including first priority Liens on Receivables securing payment of the ABL Obligations, may exist) on such Property in favor of the Term Loan Collateral Agent (for the benefit of the Term Loan Secured Parties).

xi. Further Assurances.

1. Promptly upon the written request by any Agent, or any Lender through the Administrative Agent, will, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, conveyances, pledge agreements, mortgages, landlord waivers, estoppel and consent agreements of lessors, deeds of trust, trust deeds, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments and amendments, modifications or supplements to any of the foregoing, in each case, as any Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s

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or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Term Loan Collateral Documents and (iii) perfect and maintain the validity, effectiveness and priority of any of the Term Loan Collateral Documents and any of the Liens intended to be created thereunder.

2. Promptly upon the written request by any Agent, deliver an updated Appraisal Report in form and substance satisfactory to the Administrative Agent, from the Appraiser (or such other appraiser as the Administrative Agent may approve in its sole discretion), provided that, so long as no Event of Default shall have occurred and be continuing, unless the Borrower shall have consented thereto, neither the Agents nor the Lenders shall be entitled to more than one updated Appraisal Report in any Fiscal Year, provided further that, the Lenders may request additional Appraisal Reports at their sole cost and expense.

3. Notwithstanding anything to the contrary in this Agreement or any Loan Document, no Default or Event of Default shall have occurred and be continuing, in the event the Loan Parties have failed to (x) grant or perfect a Lien on Vehicles and/or (y) perfect and maintain the validity, effectiveness and priority of the Liens on Collateral, in the case of clauses (x) and (y) collectively, having value not to exceed $500,000 in the aggregate, provided that in each case, the Loan Parties are diligently taking and pursuing steps to grant, perfect and/or maintain such Lien on the Vehicles or other Term Loan Collateral, as applicable (it being understood, and the parties hereby agree, that failure to (x) grant or perfect a Lien on Vehicles and/or (y) perfect and maintain the validity, effectiveness and priority of the Liens on Collateral, in the case of clause (x) and (y) collectively, having an aggregate value exceeding $500,000 shall trigger an Event of Default hereunder).

xii. Accounts.

1. Establish and maintain, and cause each other Loan Party to maintain at all times the Collateral Accounts and the Specified Distributable Cash Account;

2. cause all Revenues and other amounts (including Collections) payable to it to be deposited into, or credited to, the Accounts, in accordance with the terms of Section 2.14;

3. cause all funds deposited in the Accounts to be applied and disbursed in accordance with the terms of Section 2.14; and

4. cause the type of bank account of the Payroll Account to be a zero balance account at all times and require that the proceeds of such Payroll Account be transferred by the end of the Business Day in which a transfer is made into the Payroll Account.

xiii. Performance of Material Contractual Obligations. (i) (x) Perform its Contractual Obligations under and observe all the terms and provisions of each Material Contract and Commercial Agreement to be performed or observed by it, and (y) maintain each such Material Contract in full force and effect, and enforce each such Material Contract in accordance with its terms unless, in each case, (A) the failure to do so would not reasonably be expected to have a Material Adverse Effect or (B) such Material Contract or Commercial Agreement, as applicable, has expired in accordance with its

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terms in the ordinary course (and not related to any default thereunder) or, in the case solely of any Commercial Agreement, has been voluntarily terminated by the counterparty in accordance with its terms and (ii) without limiting the generality of the foregoing, replace, or cause to be replaced (or put into place alternative arrangements (including contracts) satisfactory to the Required Lenders with respect to), any Material Contract that has expired in accordance with its terms in the ordinary course (and related to any default thereunder) to the extent such replacement (or such alternative arrangement satisfactory to the Required Lenders) is necessary or advisable in accordance with Prudent Industry Practices.

xiv. Separateness.

1. Obtain, and cause each of their respective Subsidiaries to obtain, proper authorization from member(s), shareholder(s), director(s) and manager(s), as required by its limited liability company agreement or bylaws for all of its limited liability company or corporate actions; and

2. Comply, and cause each of their respective Subsidiaries to comply, with the terms of its certificate of incorporation or formation and by-laws or limited liability company agreement (or similar constituent documents).

xv. Reimbursable Transaction Costs. Promptly, but in any event not later than three (3) calendar days following the closing of any permitted equity issuance for which Reimbursable Transaction Costs were paid by the Borrower, cause the party that issued such permitted equity issuance to deposit an amount equal to such Reimbursable Transaction Costs paid by the Borrower or any other Loan Party to be deposited into the Revenue Account (such amounts, the “Reimbursed Transaction Costs”)

xvi. Custodial Services Agreement. In the event the Administrative Agent elects to hold Title Assets through a Servicer, use commercially reasonable efforts to enter into a customary Custodial Administration Agreement among the ABL Agent, the Collateral Agent, the Servicer and the Loan Parties to engage such Servicer to hold such Title Assets.

xvii. Equipment Finance SPV.

1. Cause each Equipment Finance SPV to comply with the Separateness Covenants (as defined in Schedule 5.02(k)).

2. At all times cause (x) the Equity Interests in each Equipment Finance SPV to be owned by a Subsidiary Guarantor and (y) such Equity Interests owned by such Subsidiary Guarantor to be pledged to the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties.

3. Cause the Equipment Finance SPV to be the sole owner of the asset it holds.

4. Cause the Equipment Finance SPV to own assets solely relating to the Non-Lender Financed Capital Lease or Non-Lender Financed Equipment Financing.

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xviii. Post-Closing Actions.

1. Promptly, but in any event not later than ninety (90) calendar days following the Effective Date, cause each of the Wells Fargo Collections Account and the Wells Fargo Revenue Account to be closed and cause any proceeds deposited in such accounts to be transferred to the Revenue Account;

2. Use commercially reasonable efforts to deliver an Acceptable Landlord Waiver with respect to each Designated Leased Property subject to a lease containing terms that expressly prevents or hinders the removal of any Collateral by any Loan Party or the Administrative Agent;

3. Promptly, but in any event not later than sixty (60) calendar days (or such additional period as the Administrative Agent may reasonably agree) following the Effective Date, use commercially reasonable efforts to take all actions that the Administrative Agent and the Term Loan Collateral Agent may deem reasonably necessary in order to Perfect by Filing, the valid first priority (provided Liens expressly permitted by Section 5.02(a) may exist) Liens and security interests created under the Term Loan Security Agreement in the Title Assets has been taken;

4. Promptly, but in no event later than one-hundred and fifty (150) calendar days following the Effective Date, with respect to each Title Asset for which no certificate of title/ownership exists or for which no certificate of title/ownership is in the possession of the Loan Parties or the Lenders on the Effective Date (such Title Assets, the “Uncertificated Title Assets”), (x) obtain certificates of title/ownership for each such Title Asset and (x) use commercially reasonable efforts to take all actions that the Administrative Agent and the Term Loan Collateral Agent may deem reasonably necessary in order to Perfect by Filing, the valid first priority (provided Liens expressly permitted by Section 5.02(a) may exist) Liens and security interests created under the Term Loan Security Agreement in the Title Assets has been taken, provided that no Event of Default shall exist under this Section 5.01(r)(iv)(x), so long as the Borrower shall pay to the Agents and the Lenders (as applicable) a rate of interest equal to the Default Interest on the amounts specified in, and in accordance with, the terms of Section 2.05(b) commencing on the date that is 150 calendar days following the Effective Date until the date the Loan Parties have obtained a certificate of title/ownership for each such Title Asset, provided that, the Default Interest shall no longer be payable by the Borrower pursuant to the terms of this Section 5.01(r) on the date that the Uncertificated Title Assets have an outstanding value equal to or less than $500,000 in the aggregate for such Untitled Assets;

5. Promptly, but in no event later than thirty (30) calendar days following the Effective Date, deliver to each relevant insurer of the Loan Parties an executed copy of the Insurance Payment Instruction Letter naming the Term Loan Collateral Agent as payee under the insurance policies set forth on Schedule 4.01(x), substantially in the form of Exhibit M hereto;

6. Promptly, but in no event later than ninety (90) calendar days following the Effective Date, deliver to the Administrative Agent a supplement to Exhibit G with

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information including (a) reasonable estimates of repairs and Maintenance Capital Expenditures by individual Frac Fleet, (b) key performance indicators used by management to monitor needed maintenance by individual Frac Fleet and (c) a general description of the Loan Parties’ preventive maintenance principles, provided that, upon approval by the Administrative Agent of such supplement to the Frac Fleet Maintenance Report, such supplement, together with Schedule G delivered on the Effective Date, shall be deemed to be the updated Schedule G hereunder; and

7. Promptly, but in no event later than thirty (30) calendar days from the date hereof, deliver to the Administrative Agent copies of all certificates representing the policies, endorsements and other documents required under Section 5.01(d) to be in effect as of the Effective Date, accompanied by (A) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying that the copies of each of the policies, endorsements and other documents delivered pursuant to this Section 5.01(r)(vii) are true, correct and complete copies thereof, (B) letters from the Borrower’s insurance brokers or insurers, dated not earlier than fifteen (15) days prior to the date such certificate is delivered, stating with respect to each such insurance policy that (1) such policy is in full force and effect, (2) all premiums theretofore due and payable thereon have been paid and (3) the underwriters of such insurance have agreed that the policies, when issued, will contain the provisions required under Section 5.01(d) and (C) evidence in form and substance reasonably satisfactory to the Lenders confirming that such required insurance is in full force and effect in accordance with the terms of this Agreement.

xix. Upon the occurrence of the Discharge of ABL Obligations:

1. Promptly, but in no event later than 5 Business Days following the Discharge of ABL Obligations, close the Collections Account and cause all Collections to be deposited into the Revenue Account; and

2. Promptly, but in no event later than 5 Business Days following the Discharge of ABL Obligations, transfer each of the Revenue Account and the Specified Distributable Cash Account to Beal Bank USA and cause such Revenue Account and Specified Distributable Cash Account to be subject to an Account Control Agreement between the Borrower, Beal Bank USA and the Administrative Agreement.

xx. PPP Loan.

1. Use best efforts to apply the proceeds of the PPP Loan first to Allowable Uses that qualify the PPP Loan for forgiveness under Section 1106 of the CARES Act, and second, to other Allowable Uses, (ii) promptly apply for and file all documentation necessary to qualify the PPP Loan for forgiveness under Section 1106 of the CARES Act, and (iii) keep detailed records of the Borrower’s utilization of the proceeds of the PPP Loan.

2. Will (A) use commercially reasonable efforts to satisfy the requirements for forgiveness of the PPP Loan, or the largest amount of the PPP Loan as is permitted under the CARES Act, as set forth in Section 1106 of the CARES Act, and (B) promptly file a request for loan forgiveness with respect to the PPP Loan in accordance with the CARES Act and Small Business Act.

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(i) Will promptly provide Administrative Agent with copies of all material correspondence and documentation regarding the PPP Loan.

xxi. CARES Act Loan.

1. keep detailed records of the Loan Parties’ utilization of the proceeds of the CARES Act Loan;

2. shall apply proceeds of the CARES Act Loan, to the payment of obligations under the MG Finance Lease Agreement when due and payable and for other purposes approved under the CARES Act Loan Agreement to the extent permissible under the CARES Act;

3. shall use the CARES Act Loan Account solely for the purpose of depositing proceeds of the CARES Act Loan and making payments in accordance with Section 5.01.

4. promptly upon repayment of the CARES Act Loan in full, all assets comprising the CARES Act Loan Collateral shall become part of the Collateral and the Borrower shall make all filings and other actions necessary to perfect and protect the security interest in such assets pursuant to the terms of the Term Loan Collateral Documents;

5. promptly provide Administrative Agent upon its request with copies of all material correspondence and documentation regarding the CARES Act Loan; and

6. use commercially reasonably efforts to ensure that, at all times, an amount equal to no less than ninety percent (90%) of the CARES Act Loan is guaranteed by the U.S. Department of Agriculture.

xxii. Third Lien Notes.

1. Apply proceeds of the Initial Third Lien Notes (i) on or prior to the court deadline, to deposit into the Judgment Appeal Account the amount necessary to stay any enforcement of the June 2021 Judgment, by reason of pending appeal, (ii) to pay any amounts due under a settlement agreement of the June 2021 Judgment, so long as the terms of the settlement agreement can be satisfied by a cash payment made solely from the proceeds of the Initial Third Lien Notes on deposit in the Specified Distributable Cash Account or from amounts on deposit in the Judgment Appeal Account and none of the Parent, the Borrower or any other Loan Party has any liability, contingent obligations or any other obligations in respect of such settlement agreement following such payment of cash other than the liabilities, contingent obligations or any other obligations set forth in an agreement in the form of Exhibit O, or (iii) for general corporate purposes only after Borrower has discharged the June 2021 Judgment; and

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2. Promptly provide Administrative Agent upon its request with copies of all material correspondence and documentation regarding the CARES Act Loan.

b. Negative Covenants. Until a Repayment Event has occurred, no Loan Party will, at any time:

i. Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with respect to any of its properties of any character (including, without limitation, accounts) whether now owned or hereafter acquired, or sign or file or, or to its knowledge, suffer to exist, or permit any of its Subsidiaries to sign or file or to their knowledge suffer to exist, under the UCC of any jurisdiction, a financing statement that names such Loan Party or any of its Subsidiaries as debtor, or sign or suffer to exist, or permit any of its Subsidiaries to sign or suffer to exist, any security agreement authorizing any secured party thereunder to file such financing statement, or assign, or permit any of its Subsidiaries to assign, any accounts or other right to receive income, except:

1. Liens created under the Term Loan Collateral Documents; provided that such Liens only secure Debt permitted under Section 5.02(b)(i);

2. Liens created under the ABL Collateral Documents; provided that (A) such Liens only secure Debt permitted under Section 5.02(b)(ii) or obligations under Secured Hedge Agreements or in respect of Cash Management Agreements in each case as defined in the ABL Credit Agreement, (B) such Liens are subject to the terms of the Intercreditor Agreement, all such Liens (other than Liens on ABL Priority Collateral) rank second in priority to all Liens securing the Term Loan Obligations and (C) any lender or issuing bank (or any agent or trustee thereof, including the ABL Agent) with respect to such Debt shall have become a party to the Intercreditor Agreement as, and shall have the obligations of, an ABL Secured Party thereunder;

3. Permitted Liens;

4. purchase money Liens upon or in real property or equipment acquired or held by the Borrower or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of any such property or equipment to be subject to such Liens, or Liens existing on any such property or equipment at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that no such Lien shall extend to or cover any property other than the property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced; and provided further that the aggregate principal amount of the Debt secured by Liens permitted by this clause (iv) shall not exceed the amount permitted under Section 5.02(b)(iii) at any time outstanding;

5. Liens arising by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights;

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6. Liens arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, any operating lease;

7. pledges or deposits of Cash or Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;

8. in connection with any Debt permitted under Section 5.02(b)(xi), Liens solely on the proceeds received or to be received by any Loan Party in connection with the termination of any insurance policy financed by such Debt;

9. Liens arising under Capitalized Leases permitted under Section 5.02(b)(v); provided that no such Lien shall extend to or cover any Collateral or assets other than the property subject to such Capitalized Leases;

10. Liens arising from UCC financing statements filed solely for obligations arising from the deferred purchase price of Property or services (x) not overdue by more than 120 days and incurred in the ordinary course of such Person’s business or (y) being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made;

11. other Liens incident to the ordinary course of business that are not incurred in connection with the incurrence of any Debt in respect of an aggregate amount of obligations with a value not to exceed $500,000 at any one time outstanding;

12. Liens on CARES Act Loan Collateral securing the indebtedness incurred under the CARES Act Loan as of the Fifth Amendment Effective Date, provided, that Term Loan Collateral Agent is granted a second priority lien on any Post-Release CARES Act Loan Collateral securing the CARES Act Loan pursuant to subordination terms and conditions acceptable to the Required Lenders and the Administrative Agent in their sole discretion; and

13. Liens created under the Third Lien Collateral Documents; provided that (A) such Liens only secure Debt permitted under (b)(xvi), (B) such Liens are subject to the terms of the Intercreditor Agreement, (C) all such Liens rank third in priority to all Liens securing the Term Loan Obligations and (D) any lender or issuing bank (or any agent or trustee thereof, including the Third Lien Agent) with respect to such Debt shall have become a party to the Intercreditor Agreement as, and shall have the obligations of, a Third Lien Secured Party thereunder.

ii. Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except:

1. Debt under the Loan Documents;

2. (A) Debt under the ABL Facility, provided that the aggregate principal amount of such Debt shall not exceed $75,000,000 at any time outstanding, and (B) Debt constituting obligations under Secured Hedge Agreements and Cash Management

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Agreements as contemplated by the ABL Credit Agreement as in effect on the Effective Date and in the case of (A) and (B), so long as (i) the ABL Agent on behalf of the Secured Parties (as defined in the ABL Credit Agreement) has entered into the Intercreditor Agreement), (ii) the ABL Secured Parties are granted a first priority Lien solely in the ABL Priority Collateral and (iii) the ABL Secured Parties are granted a second priority Lien solely in the Term Loan Priority Collateral;

3. (A) Debt arising under Existing Equipment Financings, (B) other Debt incurred subsequent to the Effective Date and secured by Liens permitted by Section 5.02(a)(iv); provided that Debt permitted to be incurred pursuant to this Section 5.02(b)(iii)(B) shall not exceed in the aggregate, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 5.02(b)(v)(B), $8,000,000 at any time outstanding, and (C) Debt arising under Non-Lender Financed Equipment Financings incurred subsequent to the Effective Date in accordance with the terms of, and subject to the satisfaction of each condition in, Schedule 5.02(k);

4. Debt owed to any Loan Party, which Debt shall (x) constitute Pledged Debt, (y) be on terms reasonably acceptable to the Administrative Agent and (z) be otherwise permitted under Section 5.02(f);

5. (A) Existing Capitalized Leases, (B) other Debt incurred subsequent to the Effective Date and attributable to Capitalized Leases not to exceed in the aggregate, when taken together with any outstanding Debt permitted to be incurred pursuant to Section 5.02(b)(iii)(B), $8,000,000 at any time outstanding and (C) Debt arising under Non-Lender Financed Capitalized Leases incurred subsequent to the Effective Date in accordance with the terms of, and subject to each condition in, Schedule 5.02(k);

6. to the extent constituting Debt, (A) Debt in respect of performance bonds, workers’ compensation claims, unemployment insurance, employee compensation and benefits, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to pay insurance premiums, take or pay obligations, completion guarantees and similar obligations incurred in the ordinary course of business and not securing Debt for Borrowed Money and (B) letters of credit, bonds or similar instruments collateralized in full by amounts permitted under, and to the extent secured by a Lien described in, clause (d) of the definition of Permitted Liens;

7. non-current pay, non-amortizing, unsecured and subordinated junior lien debt with a maturity date beyond the Maturity Date of the Loans and which is subordinated in right of payment in full to the Obligations, subject to execution by such junior debt lenders of a subordination agreement in form and substance satisfactory to the Administrative Agent; or such other form as may be acceptable to the Administrative Agent in its sole discretion;

8. Guaranteed Debt of any Loan Party in respect of any Debt otherwise permitted to be incurred under this Section 5.02(b);

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9. Debt of the Loan Parties under company debit cards, stored value cards, commercial cards or cash management services incurred in the ordinary course of business in an amount not to exceed $500,000 in the aggregate at any time outstanding;

10. Debt of the Loan Parties arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Debt (i) does not exceed $100,000 at any time outstanding or (ii) is extinguished within 10 Business Days of receipt of notice from the applicable financial institution of such occurrence;

11. Debt in respect of the financing of insurance premiums incurred in the ordinary course of business and consistent with past practice;

12. unsecured Debt incurred in the ordinary course of business in an aggregate amount not to exceed $500,000 at any one time outstanding;

13. the PPP Loan, as in effect on July 23, 2020;

14. trade payables overdue (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made) by more than one-hundred and twenty (120) days but less than one-hundred eighty (180) days incurred in the ordinary course of such Person’s business, or such longer period as is approved in writing by the Administrative Agent from time to time;

15. The CARES Act Loan, as in effect on November 12, 2020, provided that the Borrower shall not enter into any amendment, restatement, renewal, extension or other modification of such CARES Act Loan (other than to replace the Pre-Release CARES Act Collateral with Post-Release CARES Act Collateral) without the prior written consent of the Required Lenders and provided further that the sole collateral that maybe pledged under the CARES Act Loan is CARES Act Loan Collateral; and

16. Debt issued under the Third Lien Notes Agreement, provided that the aggregate principal amount of such Debt shall not exceed $155,000,000 (plus any interest that is capitalized to the principal of the notes) in the aggregate at any time outstanding, so long as (A) the Third Lien Agent on behalf of the Third Lien Secured Parties has entered into the Intercreditor Agreement, (B) the Third Lien Secured Parties are granted a third priority Lien in the ABL Priority Collateral and the Term Loan Collateral, and (B) all Debt issued under such Third Lien Notes Agreement is issued no later than thirty (30) calendar days following the Fifth Amendment Effective Date.

iii. Change in Nature of Business. Make, or permit any of its Subsidiaries to make, any material change in the nature of its business as carried on as of the date hereof.

iv. Mergers, Etc.

1. Merge into or consolidate with any Person or permit any Person to merge into it, or permit any of its Subsidiaries to do so; provided that any Subsidiary of the Borrower may merge into or consolidate with any other Subsidiary of the Borrower;

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provided that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be a wholly owned Subsidiary of the Borrower; provided that, in the case of any such merger or consolidation to which a Guarantor is a party, the Person formed by such merger or consolidation shall be a Guarantor.

2. Change its legal form, liquidate or dissolve or enter into any Division.

3. Make or permit any change in the upstream ownership of any Guarantor (other than Parent or Holdings) without the prior written consent of the Administrative Agent, such consent not to be unreasonably withheld.

v. Sales, Etc. of Assets. Without the prior written consent of the Required Lenders, which consent may be granted or withheld in each Required Lender’s sole and absolute discretion, sell, lease, license, transfer or otherwise dispose of, or permit any Subsidiary Guarantor to sell, lease, license, transfer or otherwise dispose of (including by way of Division), any assets (including any Intellectual Property), or grant any option or other right to purchase, lease or otherwise acquire, or permit any Subsidiary Guarantor to grant any option or other right to purchase, lease, license or otherwise acquire, any assets, except:

1. sales of (or the granting of any option or other right to purchase, lease or otherwise acquire) services inventory in the ordinary course of such Person’s business;

2. sales, transfers or other dispositions in the ordinary course of its business of Property that is surplus, obsolete, defective, worn-out, damaged, or that individually or in the aggregate is not reasonably necessary for the continued operation of any Loan Party, which, in the case of any such sale, transfer or disposition exceeding $1,000,000 in value, shall be so certified by a Responsible Officer of the Borrower and agreed by the Administrative Agent;

3. the liquidation, sale or use of Cash and Cash Equivalents;

4. to the extent constituting Asset Sales, dispositions permitted by Section 5.02(d), Investments permitted by Section 5.02(f) and Restricted Payments permitted by Section 5.02(g);

5. sales, transfers or other dispositions of assets among Loan Parties;

6. sales, transfers or other dispositions of assets, so long as such assets are exchanged for like-kind (replacement) assets or the proceeds of such sales, transfers or other dispositions are applied contemporaneously to acquire like-kind (replacement) property (which, in each case, will become Collateral);

7. sales and issuances of Equity Interests in the Parent and, so long as no Change of Control occurs, Holdings;

8. non-exclusive grants of licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases or subleases of other assets, of the Loan Parties that could reasonably be expected to be accretive to the business

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of the Loan Parties at a price to be paid to the Borrower of no less than nine million ($9,000,000) per single Electric Frac Fleet, so long as upon receipt of such proceeds by the Borrower concurrently with the granting of the license or sublicense, such proceeds are applied by the Borrower to prepay the outstanding principal and interest of the Loans in accordance with Section 2.04(b)(vi);

9. sale, lease, license, transfer or disposition of any assets, the value of which does not exceed the Remaining Excused Amount; provided that any such sale, lease, license, transfer or disposition under this Section 5.02(e)(ix) will be an Excused Payment and notice of such Excused Payment (together with the amount of such Excused Payment) will be delivered promptly, and in any event within five (5) days after the Borrower or any other Loan Party obtains knowledge thereof) to the Administrative Agent;

10. sale or other disposition of any asset constituting Pre-Release CARES Act Collateral; provided that:

a. 100% of the consideration received in respect of such sale or other disposition of each such asset shall be cash;

b. the consideration received in respect of such sale or other disposition of each such asset constituting Pre-Release CARES Act Collateral shall be at fair market value as determined by the Administrative Agent in its sole discretion (such consideration in respect of each such asset, the “CARES Act Collateral Proceeds”);

c. the Borrower shall apply any CARES Act Collateral Proceeds received by the Borrower to prepayment of the Loans in accordance Section 2.04(b)(vi), together with any amount of Call Premium due and payable in connection with such prepayment;

d. no Default shall have occurred and be continuing or result therefrom,

e. the Borrower shall deliver at least five (5) Business Days’ prior written notice of any sale or other disposition of Pre-Release CARES Act Collateral to the Administrative Agent, together with such detailed information as the Administrative Agent shall reasonably request;

f. the Term Loan Agent is granted a second-priority Lien on any Post-Release CARES Act Collateral granted to the lenders under the CARES Act Loan on terms satisfactory to the Term Lenders in their sole discretion as required by Section 5.02(A)(xii);

g. on the date such sale or other disposition of Pre-Release CARES Act Collateral is to be consummated and consideration is to be received by the Borrower or any other Loan Party in the amount required pursuant to sub-clause (B) above, the Lien of the Term Loan Collateral Agent on the specific Pre-Release CARES Act Collateral asset that was sold

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or disposed pursuant to this Section 5.02(e)(x)(F) shall be released upon receipt by the Borrower or the Loan Party of such consideration (each such release date, a “CARES Act Collateral Release Date”); and

h. on or before the date that is three (3) Business Days before such consummation of the sale or other disposition the Borrower shall deliver to the Administrative Agent a certificate signed on behalf of the Borrower and the Loan Parties by a Responsible Officer:

(1) setting forth that the foregoing requirements have been satisfied (or will be satisfied in the case of the obligation pursuant to Section 2.04(b)(vi));

(2) providing the aggregate amount of CARES Act Collateral Proceeds to be received by the Borrower or any other Loan Party in respect of any such asset;

(3) in the event the CARES Act Collateral Proceeds are less than the amount set forth in Schedule V with respect to such asset, attaching a calculation of the CARES Act Collateral Proceeds Shortfall for such asset; and

(4) attaching the material documentation related to such disposition and such other documentation as the Administrative Agent may request in its reasonable discretion;

11. the Initial ProFrac Licensing Transaction; and

12. each Additional ProFrac Licensing Transaction, so long as the Borrower receives an amount of consideration for such transaction equal to the amount set forth in the Form License Agreement and such amount is applied in accordance with Section 2.04(b)(vi) as a mandatory prepayment.

vi. Investments in Other Persons. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment in any Person, except:

1. Investments by and among Loan Parties in other Loan Parties;

2. Investments by the Borrower and its Subsidiaries in (A) Cash and Cash Equivalents, (B) direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal and interest on which are fully guaranteed by the United States of America and (C) certificates of deposit fully insured by the Federal Deposit Insurance Corporation in national, state or foreign commercial banks whose outstanding long term debt is rated at least A or the equivalent by S&P or Moody’s;

3. to the extent constituting Investments, Investments in contracts and agreements (including, without limitation, interest rate Hedge Agreements), including prepaid deposits and expenses thereunder, to the extent permitted under the Loan Documents;

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4. Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business;

5. Investments in the Accounts and Investments permitted pursuant to Section 5.02(f)(ii) on deposit in or credited to the Accounts, or other accounts permitted under the Loan Documents;

6. loans and advances to officers, directors and employees of any Loan Party for reasonable and customary business related travel expenses, moving expenses and similar expenses incurred in the ordinary course of business of such Loan Party in an aggregate principal amount at any time outstanding not exceeding $500,000;

7. Investments by a Loan Party in the Equity Interests in any Equipment Finance SPVs, provided that each of the conditions precedent set forth in Schedule 5.02(k) shall have been satisfied at the time such Investment is made by any Loan Party; and

8. Investments with proceeds from the Specified Distributable Cash Account.

vii. Restricted Payments. Declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereof) as such, or permit any of its Subsidiaries to do any of the foregoing, or permit any of its Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any Equity Interests in the Borrower (each a “Restricted Payment”); except that:

1. any Loan Party may make Restricted Payments to any Loan Party;

2. [Reserved];

3. any Loan Party may make Permitted Tax Distributions;

4. so long as no Event of Default shall have occurred and be continuing at the time of any such action or would result therefrom, the redemption, repurchase or other acquisition or retirement for value of Equity Interests of the Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either upon any such individual’s death or disability; provided that in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed $1,000,000 during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year);

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5. so long as no Event of Default shall have occurred and be continuing at the time of any such action or would result therefrom, (i) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (ii) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding Taxes in connection with any exercise or exchange of stock options, warrants or other similar rights, provided that in any case, that the aggregate repurchases, redemptions or other acquisitions or retirements shall not exceed $100,000 in the aggregate;

6. the payment of cash in lieu of fractional Equity Interests in an amount not to exceed $100,000;

7. any Loan Party may make Restricted Payments with Distributable Cash;

8. the Parent may declare and pay dividends with respect to its Equity Interests payable solely in Qualified Equity Interests; and

9. any Subsidiary of the Borrower may (1) declare and pay Cash dividends to the Borrower or to any Loan Party of which it is a Subsidiary and (2) accept capital contributions from its parent to the extent permitted under Section 5.02(f)(i).

viii. Amendments of Constitutive Documents. Amend, or permit any of its Subsidiaries to amend, its bylaws, limited liability company agreement, limited partnership agreement or other constitutive documents, other than amendments in respect of the constitutive documents of such Person that could not be reasonably expected to have a Material Adverse Effect.

ix. Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting policies or reporting practices, except, with prior written notice to the Administrative Agent, as permitted or required by GAAP, or (ii) Fiscal Year.

x. Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt that is expressly subordinated to the Obligations hereunder, or that is secured and the Liens securing such Debt rank behind the Liens created by the Term Loan Collateral Documents, or permit any of its Subsidiaries to do any of the foregoing, in each case, except (a) the prepayment of Loans in accordance with the terms of this Agreement, (b) the prepayment of Credit Extensions in accordance with (and as defined in) the term of the ABL Credit Agreement as in effect on the date hereof, provided that this limitation shall not apply to mandatory or voluntary payments or prepayments of Debt (a) under the ABL Facility, (b) permitted under Section 5.02(b)(iii) or (v), (c) solely in the case of the Equipment Finance SPVs, the payment of any amounts required to be paid (but in no event shall any optional prepayment be made) in respect of any Non-Lender Financed Capitalized Leases or Non-Lender Financed Equipment Financings solely with the proceeds of internally generated cash by such Equipment Finance SPV, (d) with Distributable Cash, or (e) forgiveness of all or any portion of the PPP Loan in accordance with Section 5.01(t) or the mandatory prepayment of any portion of the PPP Loan using only the proceeds of the PPP Loan if required by the CARES Act, provided further that, in no event shall any cash payments be permitted to be made by any Loan Party at any time in respect of the Third Lien Notes.

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xi. Partnerships; Formation of Subsidiaries, Etc.

1. Become a general partner in any general or limited partnership or joint venture, or permit any of its Subsidiaries to do so; or

2. acquire, form or organize or permit any Subsidiary to acquire, form or organize any new Subsidiary; provided that any Loan Party may acquire, form or organize (A) one or more new Subsidiaries so long as such new Subsidiary shall (I) be wholly-owned by such Loan Party, (II) have no Debt (other than Debt permitted under Section 5.02(b)) and (III) become a Guarantor, and all of the Equity Interests issued by such new Subsidiary and all of such new Subsidiary’s Property shall be pledged to the Term Loan Collateral Agent for the benefit of the Term Loan Secured Parties in accordance with this Agreement and the Term Loan Security Agreement and (B) subject to satisfaction of conditions set forth on Schedule 5.02(k), one or more Equipment Finance SPVs, so long as such Equipment Finance SPVs is subject to a Non-Lender Financed Capitalized Leases or Non-Lender Financed Equipment Financings, if such Non-Lender Financed Capitalized Leases or Non-Lender Financed Equipment Financings have been repaid in full, such Equipment Finance SPVs shall be subject to the provisions of this 5.02(k)(ii)(A).

xii. Hedge Agreements. Enter into, or it permit any Subsidiary to enter into, any hedging activity or Hedge Agreement, except Non-Speculative Interest Rate Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary. The Borrower shall promptly, but in any event not later than the third (3^rd) Business Day following any Loan Party’s entry into a Hedge Agreement, deliver and updated Schedule 4.01(t) to the Administrative Agent.

xiii. Capital Expenditures. Make, or permit any of its Subsidiaries to make:

1. any Maintenance Capital Expenditures that are funded with Debt of any kind (including Equipment Financings); or

2. any Growth Capital Expenditures without the prior written consent of the Administrative Agent, which consent may be granted or withheld in the Administrative Agent’s sole and absolute discretion, other than Approved Growth Capital Expenditures;

3. any Capital Expenditures for Investment that are funded with internally generated cash in an aggregate amount not to exceed $1,000,000 in the aggregate in each fiscal year;

4. any Capital Expenditures, other than (A) those described in clauses (i), (ii) and (iii) above, (B) Capital Expenditures that are financed with the proceeds of Non-Lender Financed Equipment Financing or Non-Lender Financed Capital Leases, and (C) Capital Expenditures that are funded solely with proceeds of Debt described in Section 5.02(b)(vii) or Equity Issuance Proceeds.

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xiv. Amendment, Etc., of Material Contracts. Cancel or terminate any Material Contract or consent to or accept any cancellation or termination thereof, amend or otherwise modify any Material Contract, waive any default under or breach of any Material Contract, agree in any manner to any other amendment, modification, waiver or change of any term or condition of any Material Contract, or permit any of its Subsidiaries to do any of the foregoing, unless (x) such cancellation, termination, amendment, modification, waiver or change could not reasonably be expected to have a Material Adverse Effect, (y) such Material Contract has been replaced as set forth in Section 6.01(n), or (z) such Material Contract has expired in accordance with its terms in the ordinary course (and not related to any default thereunder).

xv. Investments by Other Persons. Direct or permit any Person to invest any funds on deposit in or credited to the Accounts to be invested in any Investments other than Investments permitted pursuant to Section 5.02(f)(ii).

xvi. Use of Proceeds. Request any Borrowing or use, or permit any of its Subsidiaries and its and their respective directors, officers, employees and agents to use, the proceeds of any Borrowing (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

xvii. Burdensome Restrictions. Enter into, incur or permit to exist (nor permit any Subsidiary to enter into, incur or permit to exist) any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Loan Party or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary Guarantor or to guaranty Debt of the Borrower or any other Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by any applicable law or by any ABL Loan Document as in effect on the Effective Date, (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof identified on Schedule 4.01(ee) (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Debt permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Debt and (v) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.

xviii. Transactions With Affiliates. Sell, lease or otherwise transfer (nor permit any Subsidiary to sell, lease or otherwise transfer) any property or assets to, or purchase, lease or

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otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (i) transactions that (A) are in the ordinary course of business and (B) are at prices and on terms and conditions not less favorable to such Loan Party or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (ii) transactions between or among the Loan Parties not involving any other Affiliate, (iii) any Investment permitted by Section 5.02(f)(i), (iv) any Debt permitted under Section 5.02(b)(iv), (v) any Restricted Payment permitted by Section 5.02(g), (vi) loans or advances to employees permitted under Section 5.02(f)(vi), (vii) any contribution to the capital of the Borrower or Holdings by the Sponsor Group or any purchase of Equity Interests of Holdings by the Sponsor Group and (viii) any sale, lease or other transfer of any property or assets to, or purchase, lease or other acquisition of property or assets from, any Affiliate that, as of the date of any such sale, lease or other transfer, is not in excess of the Remaining Excused Amount, so long as such amount is designated by the Loan Parties an Excused Payment and notice of such Excused Payment (together with the amount of such Excused Payment) will be delivered promptly, and in any event within five (5) days after the Borrower or any other Loan Party obtains knowledge thereof) to the Administrative Agent.

xix. Accounts.

1. Open or hold any deposit accounts or securities accounts, other than:

a. the Collateral Accounts;

b. the Specified Distributable Cash Account; and

c. the Excluded Accounts.

2. Grant any Lien in respect of the Initial Growth Capex Reserve Account to the ABL Agent; or

3. Allow the balance in the Workers Compensation Account to exceed $1,000,000 at any one time outstanding.

xx. Amendment, Etc. of Indebtedness. Amend, modify or change in any manner any term or condition of the ABL Loan Documents except as provided in the Intercreditor Agreement.

xxi. Settlements. Enter into any settlement agreement in connection with any litigation or proceeding which, together with any other settlement agreements entered into by any Loan Party since the Effective Date, results in payment obligations or liability of the Loan Parties in excess of $10,000,000 in the aggregate since the Effective Date, unless such payment obligations or liability are fully covered by insurance policies (excluding any deductibles required to be paid under such insurance policies or self-insured retention obligations in any amount not to exceed $100,000), provided that the Borrower shall be permitted to enter into a settlement and release agreement in connection with the June 2021 Judgment, so long as (i) the terms of the settlement and release agreement can be satisfied by a cash payment made solely from the proceeds of the Initial Third Lien Notes on deposit in the Specified Distributable Cash Account or from the Judgment Appeal Account Proceeds, (ii) the applicable Judgment Appeal Account Proceeds (if any) that are released and returned to the Borrower or any Loan Party are paid as a mandatory prepayment in accordance with Section 2.04(b)(v)(C) or Section 2.04(b)(v)(D) (as applicable) and (iii) the settlement agreement is in the form attached as Exhibit O.

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xxii. Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease; Equipment Finance SPV.

1. Enter into any Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease or acquire the interests of any Equipment Finance SPV, unless the following conditions precedent have been satisfied:

a. Prior to seeking any Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease (as applicable) and the acquisition of interests of any Equipment Finance SPV:

(1) To the Lenders’ reasonable satisfaction, the Borrower shall demonstrate, together with any supporting documentation, the Loan Parties shall not have entered into prior to the proposed date of incurrence of the Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease, more than four (4) either Non-Lender Financed Equipment Financings or Non-Lender Financed Capitalized Leases since the Fifth Amendment Effective Date.

(2) If the condition in clause (1) is satisfied, the Borrower shall provide to the Lenders the opportunity to fund an Incremental Facility on the same terms and conditions as the Facilities to finance the additional Electric Frac Fleet. In the event the Lender elects, in its sole discretion, to fund such Incremental Facility, (x) such Incremental Facility shall be accepted by the Borrower as the sole source of financing for such additional Electric Frac Fleet and funded in accordance with the terms of Section 2.01(c) and (y) the Electric Frac Fleet financed by such Incremental Facility shall be owned by a Guarantor. Should the Lender, in its sole and absolute discretion, elect not to fund such Incremental Facility, the Borrower may seek to enter into an alternative Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease.

b. In the event the Lenders do not elect to fund an Incremental Facility set forth in clause (A)(2), prior to the execution of any permitted Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease (as applicable): the Borrower shall (i) satisfy each of the conditions precedent set forth in Schedule 5.02(k) and (ii) deliver to the Administrative Agent a certificate of an Authorized Officer of Borrower, together with information reasonably requested by Administrative Agent,

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demonstrating compliance with each conditions precedent in Schedule 5.02(k) in connection with each such Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease. In the event the Lenders confirm such conditions precedent are satisfied, the Borrower or any other Loan Party shall be permitted to acquire the Equity Interests in an Equipment Finance SPV and cause such Equipment Finance SPV to enter into such Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease, provided that, the Equity Interests in such Equipment Finance SPV are pledged to the Term Loan Collateral Agent upon acquisition thereof.

xxiii. Payments by Equipment Finance SPV’s. Apply any amounts (including any amounts received by the Loan Parties) to pay any obligations under any Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease, other than cash internally generated by the Equipment Finance SPV or Distributable Cash, which amounts shall be applied solely to pay required scheduled amounts under any such Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease, provided that, notwithstanding anything to the contrary herein, in no event shall any Equipment Finance SPV apply any internally generated cash to make any optional prepayment under any such Non-Lender Financed Equipment Financing or Non-Lender Financed Capitalized Lease.

xxiv. Inventory. Permit the proceeds of the sale, transfer or disposition of any Inventory not directly and actively used in connection with the provision of services by the Loan Parties (including the sale of any Inventory to any third-party) to be deposited into any Collateral Account, other than the Prepayment Account or Reinvestment Account as required herein.

xxv. Required Horsepower.

1. From the period commencing on the Effective Date and ending on June 30, 2019, own and own and operate Frac Fleets representing less than 585,000 hydraulic horsepower;

2. From the period commencing on July 1, 2019 and ending on December 31, 2019, own and operate Frac Fleets representing less than 620,000 hydraulic horsepower; and

3. On and after January 1, 2020 and ending on the Fifth Amendment Effective Date, own and operate Frac Fleets representing less than 655,000 hydraulic horsepower.

4. On and after Fifth Amendment Effective Date, own and operate Frac Fleets representing less than 175,000 hydraulic horsepower.

xxvi. Judgment Appeal Account.

1. Permit the Borrower or any Loan Party to direct to any Person, or permit the Parent, the Borrower or any Loan Party, to deposit, any excess amounts released from the Judgment Appeal Account other than to the Borrower and/or the Loan Parties for application of such amounts in accordance with Section 2.04(b)(v).

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2. Permit the Borrower or any other Loan Party to provide any cash, assets or other collateral in respect of the June 2021 Judgment other than to deposit the proceeds of the Third Lien Notes into the Judgment Appeal Account.

3. Permit any Lien to be granted by the Borrower or any other Loan Party in respect of the proceeds in the Judgment Appeal Account, other than any Lien on the Judgment Appeal Account granted to the court in respect of the June 2021 Judgment.

xxvii. Equipment Finance SPVs. Permit the Borrower or any Loan Party to make any payment to any Equipment Finance SPV that is greater than the internally generated cash already received by the Borrower or such Loan Parties from the internally generated cash of such Equipment Finance SPV or from the amount on deposit in the Specified Distributable Cash Account.

c. Reporting Requirements. Until a Repayment Event has occurred, the Borrower will furnish to the Agents:

i. Notice of Material Events. As soon as possible and in any event within five (5) days after the Borrower or any other Loan Party obtains knowledge thereof:

1. the occurrence of each Default or any event, development or occurrence reasonably likely to have a Material Adverse Effect or to materially impair or interfere with the operations of any Frac Fleet, a written statement of a Responsible Officer of the Borrower setting forth details of such Default, event, development or occurrence and the action that the Borrower has taken and proposes to take with respect thereto;

2. any breach or default, any allegation of breach or default, or any event, development or occurrence under any Material Contract, to the extent such breach or default, or allegation thereof is reasonably likely to have a Material Adverse Effect (or to materially impair or interfere with the operations of any Frac Fleet for longer than three (3) months), a written statement of an officer of the Borrower setting forth details of such breach, default, allegation, event, development or occurrence and the action that the Borrower has taken and proposes to take with respect thereto;

3. receipt of any written notice of any investigation by a Governmental Authority or any litigation or proceeding commenced or threatened against any Loan Party or any Subsidiary that (i) seeks damages in excess of $5,000,000, (ii) seeks injunctive relief, (iii) alleges criminal misconduct by any Loan Party or any Subsidiary, or (iv) asserts liability on the part of any Loan Party or any Subsidiary in excess of $5,000,000 in respect of any tax, fee, assessment, or other governmental charge;

4. any Lien (other than Liens permitted under this Agreement) or claim made or asserted against any of the Collateral;

5. any change in any Loan Party’s information set forth on Schedule 4.01(b) or Schedule 4.01(c) or the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification.

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ii. Annual Financials. As soon as available and in any event within 120 days after the end of each Fiscal Year of the Borrower (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), a copy of the annual audit report for such year for the Parent and its Subsidiaries, including therein a Consolidated balance sheet of the Parent and its Subsidiaries as of the end of such Fiscal Year and a Consolidated statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by (i) an opinion as to such audit report of independent public accountants of recognized standing who are acceptable to the Administrative Agent and (ii) a certificate of a Responsible Officer of the Borrower (A) certifying such financial statements as having been prepared in accordance with GAAP and (B) stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto, provided that in the event the Parent and its Subsidiaries includes an Equipment Finance SPV on the date such annual report is being delivered, such annual report shall include a consolidating balance sheet, consolidating statement of income and consolidating statement of cash flows.

iii. Monthly/Quarterly Financials. As soon as available and in any event within:

1. sixty (60) days after the end of each Fiscal Quarter of the Borrower (or, if earlier, fifteen (15) days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), a Consolidated balance sheet of each of the Borrower and its Subsidiaries as of the end of such quarter and a Consolidated statement of income of the Borrower for the period commencing at the end of the previous Fiscal Quarter and ending with the end of such Fiscal Quarter and a Consolidated statement of income of the Borrower for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal year-end audit adjustments) by a Responsible Officer of the Borrower as having been prepared in accordance with GAAP, together with a certificate of said officer stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto, provided that, in the event the Parent and its Subsidiaries includes an Equipment Finance SPV on the date such quarterly financials are being delivered, such quarterly financials shall include a consolidating balance sheet, consolidating statement of income and consolidating statement of cash flows; and

2. if the shares of the Parent’s common stock are no longer publicly traded on a nationally recognized stock exchange and only if the Initial Lenders and their respective Affiliates (and/or any commonly-owned Affiliates thereof) are “Lenders” hereunder, thirty (30) days after the end of each calendar month, a Consolidated balance sheet of each of the Borrower and its Subsidiaries as of the end of such calendar month and a Consolidated statement of income of the Borrower for the period commencing at the end of the previous calendar month and ending with the end of such calendar month and a Consolidated statement of income of the Borrower for the period commencing at the end of the previous Fiscal Year and ending with the end of such calendar month, setting forth in each case in

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comparative form the corresponding figures for the corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal year-end audit adjustments) by a Responsible Officer of the Borrower as having been prepared in accordance with GAAP, together with a certificate of said officer stating that no Default has occurred and is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto, provided that, in the event the Parent and its Subsidiaries includes an Equipment Finance SPV on the date such monthly financials are being delivered, such monthly financials shall include a consolidating balance sheet, consolidating statement of income and consolidating statement of cash flows.

iv. Annual Budget. As soon as available and in any event no later than fifteen (15) days before the start of each Fiscal Year (or such longer period as the Administrative Agent may agree in its sole discretion), an annual budget, prepared on a quarterly basis for such Fiscal Year in substantially the same form as the Initial Operating Budget or in form otherwise acceptable to the Administrative Agent (with respect to each such Fiscal Year, the “Budget”), which Budget shall be certified by a Responsible Officer of the Borrower as having been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made.

v. Litigation. Promptly after the commencement thereof, notice of all actions, suits, litigation and proceedings before any Governmental Authority of the type described in Section 4.01(g) and/or Section 6.01(g).

vi. Agreement Notices; Etc.

1. Promptly, but in any event within five (5) calendar days of execution, after execution thereof, copies of any Material Contract entered into by any Loan Party after the date hereof with an individual value in excess of $1,000,000;

2. promptly (but in any event within ten (10) days) following any Loan Party’s entering into of any Material Contract after the date hereof (other than a Material Contract in replacement of a Material Contract for which no Consent and Agreement was required as of the Effective Date), a Consent and Agreement substantially in the form of Exhibit F-1 or Exhibit F-2, as applicable, in respect of such Material Contract; provided, that the Borrower shall be in compliance with this Section 5.03(f)(ii) if it uses commercially reasonable efforts to promptly obtain and furnish each such Consent and Agreement at the time such Loan Party’s enters into any such Material Contract;

3. promptly upon execution thereof, copies of any amendment, modification or waiver of any provision of any ABL Loan Document or any other Material Contract; and

4. promptly, but in any event within five (5) calendar days, notice of any termination of any Commercial Contract.

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vii. ERISA.

1. ERISA Events and ERISA Reports. (A) Promptly and in any event within 10 Business Days after any Loan Party or any ERISA Affiliate knows or has reason to know that any ERISA Event has occurred that could reasonably be expected to result in liability in excess of $5,000,000, a statement of a Responsible Officer of the Borrower describing such ERISA Event and the action, if any, that such Loan Party or such ERISA Affiliate has taken and proposes to take with respect thereto and (B) within ten (10) Business Days after the date any records, documents or other information must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and information.

2. Plan Terminations. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC stating its intention to terminate any Plan or to have a trustee appointed to administer any Plan.

3. Multiemployer Plan Notices. Promptly and in any event within ten Business Days after receipt thereof by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice concerning (A) the imposition of Withdrawal Liability that could reasonably be expected to result in liability in excess of $5,000,000 by any such Multiemployer Plan, (B) the reorganization or termination, within the meaning of Title IV of ERISA, of any such Multiemployer Plan that could reasonably be expected to result in liability in excess of $5,000,000 or (C) the amount of liability incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in connection with any event described in clause (A) or (B).

viii. Environmental Conditions.

1. Provide all written notices and perform all other reporting requirements set forth in Section 5.01(c).

2. Promptly after the assertion or occurrence thereof, provide notice of any Environmental Action against or of any noncompliance known to the Borrower by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect (or to materially impair or interfere with the operations of any Frac Fleet) or (ii) cause any property described in the Mortgages to be subject to any restrictions on use, ownership or transferability, or subject to any material Lien, under any Environmental Law.

ix. Real Property. To the extent there have been any changes during the preceding Fiscal Year, as soon as available and in any event within thirty (30) days after the end of each Fiscal Year, a report supplementing Schedules 4.01(q) and 4.01(r) hereto, including an identification of all owned and leased real property disposed of by the Borrower or any of its Subsidiaries during such Fiscal Year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, and, in the case of leases of property, lessor and lessee thereof) of all real property acquired or leased during such Fiscal Year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete.

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x. Insurance.

1. Promptly after the Borrower gains knowledge of the occurrence thereof, a report summarizing any changes in the insurance coverage of the Borrower and its Subsidiaries resulting from a change in the insurance markets of the type described in Section 2 of Schedule 5.01(d).

2. Promptly after the occurrence thereof, notice of any Casualty Event or Event of Eminent Domain affecting any Loan Party, whether or not insured, through fire, theft, other hazard or casualty involving a probable loss of $4,000,000 or more.

3. Promptly after receipt thereof, copies of any cancellation or receipt of written notice of threatened cancellation of any property damage insurance required to be maintained under Section 5.01(d).

xi. Net Cash Flow. Commencing with the first full Sweep Period following the Effective Date, and for each Sweep Period thereafter, promptly, but in any event not later than the fifteenth (15^th) Business Day following the last day of such Sweep Period, a certificate (a “Net Cash Flow Certificate”) setting forth for such Sweep Period, all Cash inflows and outflows of the Loan Parties and a detailed schedule of the application of funds held in the Revenue Account in accordance with Section 2.14(c).

xii. Frac Fleet Maintenance Report. Within thirty (30) days after the end of each calendar month, a Frac Fleet Maintenance Report.

xiii. Patriot Act, Etc. Promptly following any request therefor, (i) such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.

xiv. Other Reports and Filing. To the extent not otherwise delivered hereunder, promptly after the filing or delivery thereof, copies of all material financial information, proxy materials and reports, if any, which the Parent or any of its Subsidiaries shall publicly file with the U.S. Securities and Exchange Commission or any successor thereto (the “SEC”) (which delivery requirement shall be deemed satisfied by the posting of such information, materials or reports on EDGAR or any successor website maintained by the SEC so long as the Administrative Agent shall have been promptly notified in writing by the Borrower of the posting thereof) or deliver to holders (or any trustee, agent or other representative therefor) of any Debt permitted pursuant to Section 5.02(b).

xv. Other Information. Such other information respecting the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any of its Subsidiaries as any Agent, or any Lender through the Administrative Agent, may from time to time reasonably request.

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xvi. Post-Closing Reports. Within five (5) Business Days following the end of each calendar month following the Effective Date until each post-closing action required to be completed pursuant to Section 5.01(r)(iv) is complete, a report, together with reasonable supporting documentation, describing in reasonable detail the status of each certificate of title/ownership required to be obtained by the Loan Parties.

Documents required to be delivered pursuant to Section 5.03(b), (c) or (o) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent or the Borrower posts such documents, or provides a link thereto on the Internet at the Parent’s website address or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender following a request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by fax transmission or e-mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

EVENTS OF DEFAULT

a. Events of Default . If any of the following events (“Events of Default”) shall occur and be continuing:

i. Payment Defaults. (i) the Borrower shall fail to pay any principal of any Loan when the same shall become due and payable or (ii) the Borrower shall fail to pay any other payment under any Loan Document (including interest on any Loan) within three (3) Business Days after the same shall become due and payable;

ii. Misrepresentation. any representation or warranty made by any Loan Party (or any of its officers) under or in connection with any Loan Document shall prove to have been incorrect in any material respect when made; provided, however, that if (i) such Loan Party was not aware that such representation or warranty was false or incorrect at the time such representation or warranty was made, (ii) the fact, event or circumstance resulting in such false or incorrect representation or warranty is capable of being cured, corrected or otherwise remedied and (iii) such fact, event or circumstance resulting in such false or incorrect representation or warranty shall have been cured, corrected or otherwise remedied, within forty-five (45) days from the date on which the Borrower or any officer thereof first obtains knowledge thereof such that such incorrect or false representation or warranty (as cured, corrected or remedied) could not reasonably be expected to result in a Material Adverse Effect, then such incorrect or false representation or warranty shall not constitute a Default or Event of Default;

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iii. Certain Covenants. the Borrower or any other Loan Party (as applicable) shall fail to perform or observe any term, covenant or agreement contained in Section 2.11, 5.01(d), (e), (i)(A) (l), and (n), 5.02, Section 5.03(a) or Section 3 of the Third Amendment; or the Borrower or any other Loan Party (as applicable) shall suspend or threaten in writing to either cease or suspend the carrying on of its business in accordance with any term, covenant or agreement contained in Section 5.01(h); or it becomes unlawful in any pertinent jurisdiction or impossible for any Loan Party, Parent or Holdings to perform any material obligation or covenant under any Loan Document or to comply with any other obligation which is material in the context of the Loan Documents;

iv. Other Covenants. any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for thirty (30) days after the earlier of the date on which (i) any Responsible Officer of a Loan Party becomes aware of such failure or (ii) written notice thereof shall have been given to the Borrower by any Agent or any Lender;

v. Cross Default. (i) any Loan Party or any of its Subsidiaries shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Debt (other than as a result of the return to any lessor of any asset subject to a Capitalized Lease incurred pursuant to Section 5.02(b)(v), where the underlying Capitalized Lease is no longer economically attractive to the Parent and its Subsidiaries (as determined in good faith by the Borrower)) of such Loan Party or such Subsidiary (as the case may be) that is outstanding in a principal amount (or, in the case of any Hedge Agreement, an Agreement Value) of at least $10,000,000 either individually or in the aggregate (including the Debt incurred under the ABL Loan Documents or the Debt incurred under the Third Lien Notes) for all such Loan Parties and Subsidiaries (but excluding Debt outstanding hereunder), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause, such Debt to mature; or any such Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof, (ii) any “Event of Default” under and as defined in the ABL Loan Documents or (ii) any “Event of Default” under and as defined in the Third Lien Notes Agreement;

vi. Insolvency Event. any Loan Party or any of its Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property and, in

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the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any Loan Party or any of its Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (f);

vii. Judgments. any final judgments or orders, either individually or in the aggregate, for the payment of money in excess of (i) $5,000,000, in the case of judgments or orders that are superior in right of payment to any Obligation under this Agreement; provided that a final judgment or order in connection with any litigation listed on Schedule IV such payment of money is in excess of $20,000,000, or (ii) $20,000,000, in the case of any other judgment or order, in each case, shall be rendered against any Loan Party or any of its Subsidiaries by one or more Governmental Authorities, arbitral tribunals or other bodies having jurisdiction against such Loan Party and either (x) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (y) there shall be any period of sixty (60) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect or such judgment or order has not been otherwise discharged or satisfied within such sixty (60) day period; and provided, however, that any such judgment or order shall not give rise to an Event of Default under this Section 6.01(g) if and for so long as (A) the amount of such judgment or order in excess of the thresholds listed above is covered by a valid and binding policy of insurance in favor of such Loan Party or Subsidiary from an insurer that is rated at least “A” “XII” by A.M. Best Company, which policy covers full payment thereof and (B) such insurer has been notified, and has not denied the claim made for payment, of the amount of such judgment or order, and provided, further that, the June 2021 Judgment shall not give rise to an Event of Default under this Section 6.01(g) if and for so long as for the period commencing on or prior to the court deadline to deliver cash for the June 2021 Judgment through the date that is the final date required by the court to fund such cash with respect to the June 2021 Judgment, the Judgment Appeal Account is fully funded in the amount necessary to stay any enforcement of the June 2021 Judgment, by reason of pending appeal or otherwise;

viii. Non-Monetary Judgments. any non-monetary judgment or order shall be rendered against any Loan Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect, and there shall be any period of sixty (60) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;

ix. Invalidity. any provision of any Loan Document after delivery thereof pursuant to Section 3.01 or Section 5.01(j) shall for any reason (except as a result of acts or omissions of the Term Loan Secured Parties or pursuant to the terms thereof) cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan Party shall so state in writing;

x. Collateral.

1. any Term Loan Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or Section 5.01(j) shall for any reason (other than pursuant

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to the terms thereof) cease to create legal, valid, enforceable and perfected first priority Liens on and security interests in all Term Loan Priority Collateral (and on and after the Discharge of ABL Obligations, all Collateral) purported to be covered thereby; or

2. any Term Loan Collateral Document or financing statement after delivery thereof pursuant to Section 3.01 or Section 5.01(j) shall for any reason (other than pursuant to the terms thereof) cease to create a legal, valid, enforceable second priority Liens on and security interests in all ABL Priority Collateral purported to be covered thereby;

xi. Change of Control. a Change of Control shall occur;

xii. ERISA Event.

1. any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of the date of occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related to such ERISA Event) exceeds $10,000,000;

2. any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when aggregated with all other amounts required to be paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of the date of such notification), exceeds $10,000,000 or requires payments exceeding $5,000,000 per annum; or

3. any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or is being terminated, within the meaning of Title IV of ERISA, and as a result of such reorganization or termination the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that are then in reorganization or being terminated have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan year in which such reorganization or termination occurs by an amount exceeding $10,000,000;

xiii. Dissolution. any order, judgment or decree shall be entered against any Loan Party or any of its Subsidiaries decreeing the dissolution or split up of such Loan Party or Subsidiary and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days;

xiv. Material Contracts. (i) any Material Contract shall at any time cease to be valid and binding or in full force and effect (in each case, except in connection with its expiration in accordance with its terms in the ordinary course (and not related to any default thereunder)), or (ii) any Loan Party shall default in any material respect in the performance or observance of any covenant or agreement contained in any Material Contract to which it is a party and such default has continued beyond any applicable grace period specified therein, and in the case of (i) or (ii), such event could reasonably be expected to have a Material Adverse Effect, unless within 120 days

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of such termination or default, the applicable Loan Party replaces such Material Contract with a replacement agreement (x) similar in scope to and on terms not materially less favorable to the relevant Loan Party and the Lenders than the Material Contract being replaced or (y) in form and substance reasonably satisfactory to the Administrative Agent, and in each case with a counterparty of comparable or better standing in the applicable industry; provided that if at any time during such 120 day grace period the Administrative Agent reasonably determines that the applicable Loan Party is not diligently seeking to replace the applicable Material Contract, an Event of Default shall immediately occur, or

xv. ABL Financing Statement. The financing statement filed in connection with the ABL Credit Agreement is filed prior to the financing statement filed in connection with this Agreement (other than solely in the event such financing statement filed in connection with the ABL Credit Agreement is directly filed first by the Administrative Agent (or the Administrative Agent’s counsel)),

xvi. ABL.

1. On and following the expiration of the Deferral Period, a Cash Dominion Trigger Period is in effect or the ABL Administrative Agent (as defined in the ABL Credit Agreement) or the lenders under the ABL Credit Agreement elect to implement cash dominion over any Collateral Account, provided that, if the applicable Cash Dominion Trigger Period commences as set forth in clause (a)(ii) of the definition Cash Dominion Trigger Period, no Event of Default shall be triggered under this Section 6.01(p)(i) until such Cash Dominion Trigger Period has been in effect for six (6) consecutive calendar months or has been in effect for an aggregate ten (10) calendar months over any twelve (12) calendar month period,

2. On any day, there shall exist an Overadvance (as such term is defined in the ABL Credit Agreement as in effect on the date hereof) that is not promptly repaid pursuant to Section 2.05(b) of the ABL Credit Agreement, or

xvii. Frac Fleet 16 Commercial Agreement. The Commercial Agreement described on Schedule 6.01(q) at any time ceases to be valid and binding or in full force and effect or is terminated and no termination payment is paid by the counterparty to such Commercial Agreement in connection with such termination,

then, and in any such event, the Administrative Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Commitments of each Lender and the obligation of each Lender to make Loans to be terminated, whereupon the same shall forthwith terminate and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Loans, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Loans, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that, in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, (x) the Commitments of each Lender and the obligation of each Lender to make Loans shall

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automatically be terminated and (y) the Loans, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower. For the avoidance of doubt, payment defaults may be cured within the applicable cure period, if any, by equity contributions from one or more members of the Borrower without limitation as to the number of such cures. Upon any acceleration (whether elective or automatic) of the unpaid principal balance of any Loan pursuant to this Section 6.01 (including any acceleration upon the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under the Bankruptcy Code or any other Bankruptcy Law, including, without limitation, upon the occurrence of an Event of Default pursuant to Section 6.01(f)) during the Yield Maintenance Period and the Call Premium Period, as applicable, the applicable Lender shall be entitled to, and the Borrower shall pay as liquidated damages (it being agreed that the amount of damages that such Lender will suffer in each case are difficult to calculate) an amount equal to the Yield Maintenance Fee and Call Premium applicable to the principal balance of such Loan that has been accelerated, as the case may be, determined, in the case of a Loan, as if such Loan had been prepaid on the date of the acceleration thereof, less any interest accrued and paid thereon and attributable to the period from the date of acceleration to the date of payment, in each case in addition to all other amounts (including any Exit Fee) due and payable in respect of the Obligations hereunder.

b. Application of Funds. After the exercise of remedies provided for in Section 6.01 (or after the Loans have automatically become immediately due and payable as set forth in Section 6.01), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order, subject to the Intercreditor Agreement:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article II) payable to the Administrative Agent under this Agreement or any other Loan Document in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the Lenders arising under the Loan Documents and amounts payable under Article II), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting interest on the Term A Loans arising under the Loan Documents, ratably among the Term Loan A Lenders in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting interest on the Term B Loans arising under the Loan Documents, ratably among the Term Loan B Lenders in proportion to the respective amounts described in this clause Fourth payable to them;

Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Term A Loans and other Obligations relating to the Term A Loans (including the Yield Maintenance Fee, the Exit Fee and the Call Premium), in each case, ratably among the Administrative Agent, the Term Loan A Lenders in proportion to the respective amounts described in this clause Fifth held by them;

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Sixth, to payment of that portion of the Obligations constituting unpaid principal of the Term B Loans, Secured Hedge Agreements and Secured Bank Product Obligations (other than Secured Hedge Agreements) and other Obligations relating to the Term B Loans, Secured Hedge Agreements and Secured Bank Product Obligations (including the Yield Maintenance Fee, the Exit Fee and the Call Premium), in each case, ratably among the Administrative Agent and the Term Loan B Lenders, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Sixth held by them;

Seventh, to payment of all other Obligations ratably among the Secured Parties; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by applicable law.

Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section 6.02.

Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VII hereof for itself and its Affiliates as if a “Lender” party hereto.

THE AGENTS

a. Authorization and Action.

i. Each Lender (in its capacity as a Lender) hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Loan Documents (including, without limitation, enforcement of the Obligations or collection of the Obligations owing under the Loan Documents), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided,

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however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law. Without limiting the generality of the foregoing, each Lender hereby authorizes and instructs the Administrative Agent to enter into the documents to be entered into by the Administrative Agent expressly mentioned in Section 3.01.

ii. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Term Loan Collateral Documents or of exercising any rights and remedies thereunder at the direction of the Term Loan Collateral Agent) by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent, employee or attorney-in-fact that it selects in accordance with the foregoing provisions of this Section 7.01(b) in the absence of the Administrative Agent’s gross negligence or willful misconduct.

b. Administrative Agent’s Reliance, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (a) may consult with legal counsel (including counsel for any Loan Party), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (b) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents; (c) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents or to inspect the property (including the books and records) of any Loan Party; (d) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; and (e) shall incur no liability under or in respect of any Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by electronic communication) believed by it to be genuine and signed or sent by the proper party or parties.

c. Agents and Affiliates. With respect to its Commitments, the Loans made by it and any Notes issued to it, each Agent and its Affiliates shall have the same rights and powers under the Loan Documents as any other Lender and may exercise the same as though each were not an Agent or an Affiliate of an Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include each Agent and its Affiliates in their respective individual capacities. Each Agent and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party, any of its Subsidiaries and any Person that may do business with or own securities of any Loan Party or any such Subsidiary, all as if such Agent was not an Agent and without any duty to account therefor to the Lenders. No Agent shall have any duty to

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disclose any information obtained or received by it or any of its Affiliates relating to any Loan Party or any of its Subsidiaries to the extent such information was obtained or received in any capacity other than as such Agent.

d. Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on the financial statements referred to in Section 3.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

e. Indemnification.

i. Each Lender severally agrees to indemnify each Agent (to the extent not promptly reimbursed by the Borrower and without limiting its obligation to do so) from and against such Lender’s ratable share (determined as provided below) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against such Agent in any way relating to or arising out of the Loan Documents or any action taken or omitted by such Agent under the Loan Documents (collectively, the “Indemnified Costs”); provided, however, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender agrees to reimburse each Agent promptly upon demand for its ratable share of any costs and expenses (including, without limitation, reasonable fees and expenses of counsel) payable by the Borrower under Section 9.04, to the extent that such Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Each Agent is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all amounts it receives pursuant to the Loan Documents to or for the credit or the account of any Lender against any and all obligations of such Lender to such Agent now or hereafter existing under this Section 7.05; provided that the foregoing sentence shall only apply if such Lender fails to promptly pay such obligation following such Agent’s written request for payment; provided further that any obligation a Lender fails to promptly pay following the Agent’s written request for payment shall bear interest at the same rate as Default Interest and the Agent is authorized to set off against any such accrued interest in the manner described above.

ii. For purposes of Section 7.05(a), (i) each Lender’s ratable share of any amount shall be determined, at any time, according to the sum of the aggregate principal amount of the Loans outstanding at such time and owing to such Lender. The failure of any Lender to reimburse any Agent promptly upon demand for its ratable share of any amount required to be paid by the Lenders to such Agent as provided herein shall not relieve any other Lender of its obligation hereunder to reimburse such Agent for its ratable share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse such Agent for such other Lender’s ratable share of

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such amount. Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this Section 7.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan Documents.

f. Successor Administrative Agent. The Administrative Agent may resign at any time by giving thirty (30) days’ written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, with (so long as no Event of Default has occurred and is continuing) the consent of the Borrower (not to be unreasonably withheld or delayed), to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. If within forty-five (45) days after written notice is given of the retiring Administrative Agent’s resignation or removal under this Section 7.06 no successor Administrative Agent shall have been appointed and shall have accepted such appointment, then on such forty-fifth (45^th) day (a) the retiring Administrative Agent’s resignation or removal shall become effective, (b) the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under the Loan Documents and (c) the Required Lenders shall thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent shall have become effective, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

g. Term Loan Collateral Agent. Each of the Administrative Agent and the Lenders hereby designates and appoints CLMG as Term Loan Collateral Agent under this Agreement and the other Loan Documents and authorizes CLMG, in the capacity of Term Loan Collateral Agent, to (A) execute, deliver and perform the obligations, if any, of the Term Loan Collateral Agent, as applicable under this Agreement and each other Loan Document and (B) take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Term Loan Collateral Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto; provided, however, that the Term Loan Collateral Agent shall not be required to take any action that exposes the Term Loan Collateral Agent to personal liability or that is contrary to this Agreement or applicable law. Without limiting the generality of the foregoing, each of the Administrative Agent and the Lenders hereby authorizes and instructs CLMG, in the capacity of Term Loan Collateral Agent, to execute and deliver the documents to be entered into by the Term Loan Collateral Agent expressly mentioned in Section 3.01, and, without limiting any of the provisions of this Agreement, CLMG, in the

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capacity of Term Loan Collateral Agent, shall continue to be bound by and entitled to all the benefits and protections of all provisions of this Article VII (including the successor agent provisions) and Article IX as if set forth in full herein with respect thereto.

h. Secured Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 6.02, the Guaranty or any Collateral by virtue of the provisions hereof, of the Term Loan Security Agreement or any Term Loan Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Term Loan Security Agreement or any Term Loan Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article VII to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of termination of the Commitments and repayment in full of all Obligations hereunder.

[RESERVED]

MISCELLANEOUS

a. Amendments, Etc.

i. Subject to Section 5.3 of the Intercreditor Agreement and clause (b) below, no amendment or waiver of any provision of this Agreement, the Notes or any other Loan Document (including the Intercreditor Agreement), nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders (or the Administrative Agent on their behalf) and, in the case of an amendment, the Borrower on behalf of the Loan Parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that (i) no amendment, waiver or consent shall, unless in writing and signed by each Lender, do any of the following at any time:

(A) waive any of the conditions specified in Section 3.01 or, in the case of the initial Borrowing hereunder, Section 3.02;

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(B) change (1) the definition of “Required Lenders” or (2) the number of Lenders or the percentage of (x) the Commitments or (y) the aggregate unpaid principal amount of the Loans that, in each case, shall be required for the Lenders or any of them to take any action hereunder or under any other Loan Document;

(D) release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the Obligations owing to the Agents and the Lenders under the Guaranty) if such release or limitation is in respect of a material portion of the value of the Guaranty to the Lenders;

(E) release (i) any material portion of the Term Priority Collateral in any transaction or series of related transactions or (ii) other than as expressly contemplated by Section 5.1(a)(ii), any material portion of the ABL Priority Collateral in any transaction or series of related transactions;

(F) subordinate the Liens of the Lenders; or

(G) amend this Section 9.01,

and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Required Lenders and each Lender specified below for such amendment, waiver or consent:

(A) increase the Commitments of a Lender without the consent of such Lender;

(B) reduce or forgive the principal of, or stated rate of interest on, the Loans owed to a Lender or any fees or other amounts stated to be payable hereunder or under the other Loan Documents to such Lender without the consent of such Lender;

(C) postpone any date scheduled for any payment of principal of, or interest on, the Loans pursuant to Section 2.03 or 2.05, any or any date fixed for any payment of fees hereunder, in each case, payable to a Lender without the consent of such Lender;

(D) impose any restrictions on the rights of such Lender under Section 9.07 without the consent of such Lender;

(E) change the order of any prepayment of Loans from the application thereof set forth in the applicable provisions of Section 2.04(b) in any manner that materially adversely affects the Lenders without the consent of holders of a majority of the Commitments or Loans outstanding;

(F) [reserved];

(G) change the order of application of proceeds of Collateral and other payments set forth in Article IV of the Intercreditor Agreement in a manner that materially adversely affects any Lender without the consent of such Lender;

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(H) otherwise amend or modify any of the Intercreditor Agreement or any Term Loan Collateral Document in a manner which disproportionately affects any Lender vis-à-vis any other Secured Party without the written consent of such Lender; or

(I) amend or modify the provisions of Section 2.08(a)(i), Section 2.08(f) and Section 2.10 (including the definition of “Pro Rata Share”) in a manner that adversely affects any Lender without the consent of such Lender;

provided further that no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Agent under this Agreement or the other Loan Documents.

ii. Notwithstanding the other provisions of this Section 9.01, the Borrower, the Guarantors, the Term Loan Collateral Agent and the Administrative Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any Lender: (i) to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any additional rights or benefits to the Lenders or (iii) to make, complete or confirm any grant of Collateral permitted or required by this Agreement or any of the Term Loan Collateral Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Term Loan Collateral Documents.

b. Notices, Etc.

i. All notices and other communications provided for hereunder shall be either (x) in writing (including electronic communication) and mailed or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the proviso to this Section 9.02(a), in an electronic medium and delivered as set forth in Section 9.02(b), (i) if to any Loan Party, to the Borrower at its address as set forth on Schedule 9.02 attached hereto; (ii) if to any Lender identified on Schedule I hereto, at its Lending Office specified opposite its name on Schedule I hereto; (iii) if to any Initial Lender, at its Lending Office specified in Schedule I attached hereto; (iv) if to any other Lender, at its Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; (v) if to the Term Loan Collateral Agent or Administrative Agent, at its address as set forth on Schedule 9.02 attached hereto; or, as to the Borrower or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Administrative Agent; provided, however, that materials and information described in Section 9.02(b) shall be delivered to the Administrative Agent in accordance with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices and other communications shall, when mailed, e-mailed, be effective when deposited in the mails or sent by electronic communication, respectively, except that notices and communications to any Agent pursuant to Article II, Article III or Article VII shall not be effective until received by such Agent. Delivery by electronic communication of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes shall be effective as delivery of an original executed counterpart thereof.

ii. The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative

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Agent pursuant to the Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request for a new Borrowing (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit thereunder (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to an electronic mail address specified by the Administrative Agent to the Borrower. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on IntraLinks or a substantially similar electronic transmission system (the “Platform”).

iii. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

iv. The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth on Schedule 9.02 shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees (i) that notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to

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time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

c. No Waiver; Remedies. No failure on the part of any Lender or any Agent to exercise, and no delay in exercising, any right hereunder or under any Note or any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

d. Costs and Expenses.

i. The Borrower agrees to pay on demand (i) all reasonable and documented out-of-pocket costs and expenses of each Agent in connection with the preparation, execution, delivery, administration, modification and amendment of, or any consent or waiver under, the Loan Documents (including, without limitation, (A) all due diligence, collateral review, syndication, transportation, computer, duplication, appraisal, audit, insurance, consultant, search, filing and recording fees and expenses and (B) the reasonable and documented fees and expenses of counsel for each Agent with respect thereto, with respect to advising such Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and each Lender in connection with the enforcement of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors’ rights generally (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent and each Lender with respect thereto).

ii. The Borrower agrees to indemnify, defend and save and hold harmless each Agent, each Lender, each of their Affiliates and the respective officers, directors, employees, trustees, agents and advisors of each of the foregoing (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) the Facilities, the actual or proposed use of the proceeds of the Loans, the Loan Documents or any of the transactions contemplated thereby, (ii) [Reserved] or (iii) the actual or alleged presence of Hazardous Materials on any property, including any of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan Party or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity

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in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, shareholders or creditors, any Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated thereby are consummated. The Borrower also agrees not to assert any claim against any Agent, any Lender or any of their Affiliates, or any of their respective officers, directors, employees, trustees, agents and advisors, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Facilities, the actual or proposed use of the proceeds of the Loans, the Loan Documents or any of the transactions contemplated by the Loan Documents.

iii. If (i) any payment of principal of any Loan is made by the Borrower to or for the account of a Lender other than on an applicable payment date such Loan as a result of (A) acceleration of the maturity of the Loans pursuant to Section 6.01 or (B) a mandatory prepayment of the Loans pursuant to Section 2.04(b), or (ii) the Borrower fails to make any payment or prepayment of a Loan after the Borrower had delivered a notice of prepayment, whether, in the case of this clause (ii), pursuant to Section 2.03 or 6.01 or otherwise, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or such failure to pay or prepay, as the case may be, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loan.

iv. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including, without limitation, fees and expenses of counsel and indemnities or insurance premiums on account of insurance required hereunder, such amount may be paid on behalf of such Loan Party by the Administrative Agent or any Lender, in its sole discretion. The Borrower agrees to pay all such amounts on demand.

v. Without prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements and obligations of the Borrower contained in Sections 2.07 and 2.09 and this Section 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Loan Documents.

e. Right of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Loans due and payable pursuant to the provisions of Section 6.01, each Agent and each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Agent, such Lender or such Affiliate to or for the credit or the account of the Borrower against any and all of the Obligations of the Borrower now or hereafter existing under the Loan Documents, irrespective of whether such Agent or such Lender shall have made any demand under this Agreement and although such Obligations may be unmatured. Each Agent and each Lender agrees promptly to notify the Borrower after any such set-off and application; provided, however, that the

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failure to give such notice shall not affect the validity of such set-off and application. The rights of each Agent and each Lender and their respective Affiliates under this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Agent, such Lender and their respective Affiliates may have.

f. Binding Effect. This Agreement shall become effective when it shall have been executed by the Loan Parties and each Agent and the Administrative Agent shall have been notified by each initial Lender that such initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Loan Parties, each Agent and each Lender and their respective successors and permitted assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of each Lender. This Agreement is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto.

g. Assignments and Participations.

i. Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment or Commitments, the Loans owing to it, and the Note or Notes held by it); provided, however, that (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of the Facilities, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $2,000,000 (or such lesser amount as shall be approved by the Administrative Agent and, so long as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower), (iii) each such assignment shall be to an Eligible Assignee, (iv) no such assignments shall be permitted without the written consent of the Administrative Agent, which consent shall not be unreasonably withheld, and (v) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes (if any) subject to such assignment.

ii. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.07, 2.09 and 9.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

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iii. By executing and delivering an Assignment and Acceptance, each Lender assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon any Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.

iv. The Administrative Agent, acting for this purpose (but only for this purpose) as the agent of the Borrower, shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment under each Facility of, and principal amount of the Loans owing under each Facility to, each Lender from time to time (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Agent or any Lender at any reasonable time and from time to time upon reasonable prior notice.

v. Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee, together with any Note or Notes (if any) subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower and each other Agent. In the case of any assignment by a Lender, within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Note or Notes (if any) an amended and restated Note (which shall be marked “Amended and Restated”) to the order of such Eligible Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and, if any assigning Lender that had a Note or Notes prior to

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such assignment has retained a Commitment hereunder under such Facility, an amended and restated Note to the order of such assigning Lender in an amount equal to the Commitment retained by it hereunder. Such amended and restated Note or Notes shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as the case may be.

vi. Each Lender may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments, the Loans owing to it and the Note or Notes (if any) held by it); provided, however, that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitments) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom.

vii. Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information received by it from such Lender.

viii. Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Loans owing to it and the Note or Notes (if any) held by it) in favor of any Federal Reserve Bank or Federal Home Loan Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or similar laws and regulations relating to the Federal Home Loan Banks.

ix. Notwithstanding anything to the contrary contained herein, any Lender that is a Fund may, without the consent of the Borrower or any other Person, create a security interest in all or any portion of the Loans owing to it and any Note or Notes held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities; provided that, unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 9.07, (i) no such pledge shall release the pledging Lender from any of its obligations under the Loan Documents and (ii) such trustee shall not be entitled to exercise any of the rights of a Lender under the Loan Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or otherwise.

x. Notwithstanding anything herein to the contrary, no assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign all or a portion of its rights and obligations under this Agreement to such Person, unless (i) the Borrower has

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consented to such assignment in writing in its sole and absolute discretion, or (ii) an Event of Default has occurred and is continuing. For the avoidance of doubt, with respect to any assignee that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a notice pursuant to, and/or the expiration of the notice period referred to in, the definition of “Disqualified Institution”), (A) such assignee shall not retroactively be disqualified from becoming a Lender and (B) the execution by the Borrower of an Assignment and Acceptance with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Institution. Any assignment in violation of this Section 9.07(j) shall not be void, but the provisions of Section 9.07(k), 9.07(l) and 9.07(m) below shall apply.

xi. If any assignment or participation is made to any Disqualified Institution without the Borrower’s prior written consent in violation of Section 9.07(j), or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Institution and the Agents, (i) terminate any Commitment of such Disqualified Institution and repay all Obligations of the Borrower owing to such Disqualified Institution in connection with such Commitment, (ii) in the case of outstanding Loans held by Disqualified Institutions, purchase or prepay such Loans by paying the lesser of (A) the principal amount thereof and (B) the amount that such Disqualified Institution paid to acquire such Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and/or (C) require such Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.07), all of its interest, rights and obligations under this Agreement to one or more Eligible Assignees at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests, rights and obligations of such Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.

xii. Notwithstanding anything to the contrary contained in this Agreement, Disqualified Institutions (i) will not (A) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent, the Term Loan Collateral Agent or any Lender, (B) attend or participate in meetings attended by the Lenders and any of the Agents, or (C) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent, the Term Loan Collateral Agent or the Lenders and (ii) (A) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent, the Term Loan Collateral Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Institution will be limited to consenting to the matters specified in Section 9.07 (a)(i)(B), Section 9.07 (a)(i)(G) or Section 9.07 (a)(ii) and will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented to such matter, and (B) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to the Bankruptcy Code or any similar law (a “Plan of Reorganization”), each Disqualified Institution party hereto hereby agrees (x) not to vote on such Plan of Reorganization, (y) if such Disqualified Institution does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (x), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other Bankruptcy Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan of

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Reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other Bankruptcy Laws) and (z) not to contest any request by any party for a determination by a bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (y).

xiii. The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to provide the list of Disqualified Institutions provided by the Borrower and any updates thereto from time to time (collectively, the “DQ List”) to each Lender requesting the same.

xiv. The Administrative Agent and the Lenders shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, neither the Administrative Agent nor any Lender shall (i) be obligated to ascertain, monitor or inquire as to whether any other Lender or participant or prospective Lender or participant is a Disqualified Institution or (ii) have any liability with respect to or arising out of any assignment or participation of Loans or Commitments, or disclosure of confidential information, by any other Person to any Disqualified Institution.

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

i. Confidentiality. Neither any Agent nor any Lender shall disclose any Confidential Information to any Person without the consent of the Borrower, other than (a) to such Agent’s or such Lender’s Affiliates and their officers, directors, employees, trustees, agents and advisors who have a need to know as a result of being involved in the Facilities and then only on the condition that such matters may not be further disclosed and to actual or prospective Eligible Assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any similar organization or quasi-regulatory authority) regulating such Lender, (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Loan Parties received by it from such Lender, (e) in connection with any litigation or proceeding to which such Agent or such Lender or any of its Affiliates may be a party or (f) in connection with the exercise of any right or remedy under this Agreement or any other Loan Document. Each party hereto acknowledges that money damages would not be a sufficient remedy for any breach of the confidentiality provisions contained in this Section 9.09 by such party and that the other party would suffer irreparable harm as a result of any such breach. Accordingly, each party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of the confidentiality provisions contained in this Section 9.09 by the other party. Subject to the limitations contained in Section 9.15, the equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of the confidentiality provisions in this Section 9.09.

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j. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to the Administrative Agent or the Lenders (or to Administrative Agent, on behalf of the Lenders), or any Agent or Lender enforces any security interests or exercise its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Bankruptcy Law, any other state or federal law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.

k. Patriot Act Notice. Each Lender and each Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender or such Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. Each Loan Party shall, and shall cause each of its Subsidiaries to, provide such information and take such actions as are reasonably requested by any Agent or any Lender in order to assist the Agents and the Lenders in maintaining compliance with the Patriot Act.

l. Jurisdiction, Etc.

i. Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Except as provided in Section 9.15, nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.

ii. Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

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m. Governing Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

n. Waiver of Jury Trial. Each of the Loan Parties, the Agents and the Lenders irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to any of the Loan Documents, the Loans or the actions of any Agent or any Lender in the negotiation, administration, performance or enforcement thereof.

o. Limitation on Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS: (A) NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THEIR RESPECTIVE ACTIVITIES RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY, THE LOANS, OR OTHERWISE IN CONNECTION WITH THE FOREGOING; (B) WITHOUT LIMITING THE FOREGOING, NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL BE SUBJECT TO ANY EQUITABLE REMEDY OR RELIEF, INCLUDING SPECIFIC PERFORMANCE OR INJUNCTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY; (C) NONE OF THE ADMINISTRATIVE AGENT, THE LENDERS OR ANY INDEMNIFIED PARTY SHALL HAVE ANY LIABILITY TO THE LOAN PARTIES, FOR DAMAGES OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED THEREBY UNTIL THE EFFECTIVE DATE HAS OCCURRED; AND (D) IN NO EVENT SHALL LENDERS’ LIABILITY TO THE LOAN PARTIES FOR FAILURE TO FUND ANY LOAN EXCEED ACTUAL DIRECT DAMAGES INCURRED BY THE LOAN PARTIES OF UP TO $10,000,000 IN THE AGGREGATE.

SECTION 1.02. Acceptable Purchaser Schedule Updates. The parties hereto agree that either the Administrative Agent (on behalf of the Lenders) or the Borrower may request, upon 10 Business Days written notice, a modification to Schedule II to this Agreement, substantially in the form of Exhibit J, to add or delete a Person from such schedule of Acceptable Purchasers (each such notice, a “Proposed Acceptable Purchaser Update”). Prior to the proposed date for addition or deletion set forth in the Proposed Acceptable Purchaser Update, the Administrative Agent or the Borrower (as applicable) shall approve or reject such proposed update (such approval not to be unreasonably withheld). In the event such change is approved, Schedule II shall be updated as of such date for purposes of this Agreement.

SECTION 1.03. No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent and any Affiliate thereof, and the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party

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and their respective Affiliates, on the one hand, and the Administrative Agent and, as applicable, its Affiliates and the Lenders and their Affiliates (collectively, solely for purposes of this Section 9.17, the “Lenders”), on the other hand, (a)(ii) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party are capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent and its Affiliates and each Lender and its Affiliates each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (b)(ii) neither the Administrative Agent, any of its Affiliates nor any Lender or any of its Affiliates has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and its Affiliates and the Lenders and their Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any of its Affiliates nor any Lender or its Affiliates has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, any of its Affiliates or any Lender or its Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby.

p. Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

i. the application of any Write-Down and Conversion Powers by an the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

ii. the effects of any Bail-In Action on any such liability, including, if applicable:

1. a reduction in full or in part or cancellation of any such liability;

2. a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

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3. the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

q. Recognition of the U.S. Special Resolution Regimes. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

i. In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

ii. As used in this Section 9.19, the following terms have the following meanings:

1. “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

2. “Covered Entity” means any of the following:

a. a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);

b. a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or

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c. a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).

3. “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

4. “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

r. Intercreditor Agreement.

i. EACH LENDER PARTY HERETO (i) UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT (AND EACH OF ITS SUCCESSORS AND ASSIGNS) AND EACH OTHER LENDER (AND EACH OF THEIR SUCCESSORS AND ASSIGNS) SHALL BE BOUND BY THE INTERCREDITOR AGREEMENT, (ii) AUTHORIZES AND DIRECTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON ITS BEHALF, AND (iii) AGREES THAT ANY ACTION TAKEN BY AGENT PURSUANT TO THE INTERCREDITOR AGREEMENT SHALL BE BINDING UPON SUCH LENDER.

ii. THE PROVISIONS OF THIS SECTION 9.19 ARE NOT INTENDED TO SUMMARIZE OR FULLY DESCRIBE THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT THEMSELVES TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND THE ADMINISTRATIVE AGENT AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. A COPY OF THE INTERCREDITOR AGREEMENT MAY BE OBTAINED FROM THE ADMINISTRATIVE AGENT.

iii. THE INTERCREDITOR AGREEMENT IS AN AGREEMENT SOLELY AMONGST THE SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT) AND THEIR RESPECTIVE AGENTS (INCLUDING THEIR SUCCESSORS AND ASSIGNS) AND IS ACKNOWLEDGED AND AGREED TO BY THE LOAN PARTIES. AS MORE FULLY PROVIDED THEREIN, THE INTERCREDITOR AGREEMENT CAN ONLY BE AMENDED BY THE PARTIES THERETO IN ACCORDANCE WITH THE PROVISIONS THEREOF.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND THE INTERCREDITOR AGREEMENT, THE INTERCREDITOR AGREEMENT SHALL GOVERN.

s. No Partnership, Etc. The Secured Parties, the Borrower and the other Loan Parties intend that the relationship between them shall be solely that of creditor and debtor. Nothing contained in this Agreement, the Notes or in any of the other Loan Documents shall be deemed or construed to create a partnership, tenancy-in-common, joint tenancy, joint venture or

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co-ownership by or between or among the Secured Parties and the Borrower, the other Loan Parties or any other Person. The Secured Parties shall not be in any way responsible or liable for the debts, losses, obligations or duties of the Borrower, the other Loan Parties or any other Person with respect to the Frac Fleets or otherwise. All obligations to pay real property or other taxes, assessments, insurance premiums, and all other fees and charges arising from the ownership or operation of the Frac Fleets and to perform all obligations under other agreements and contracts relating to the Frac Fleets shall be the sole responsibility of the Borrower or the other Loan Parties, as applicable.

[Remainder of Page Intentionally Left Blank]

Page 138

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


U.S. WELL SERVICES, LLC, as Borrower

By:
Name:
Title:

U.S. WELL SERVICES, INC., as Parent

By:
Name:
Title:

USWS HOLDINGS LLC, as Holdings

By:
Name:
Title:

USWS FLEET 10, LLC, as Guarantor

By:
Name:
Title:

USWS FLEET 11, LLC, as Guarantor

By:
Name:
Title:

138


CLMG CORP., as Administrative Agent

By:
Name:
Title:

CLMG CORP., as Term Loan Collateral Agent

By:
Name:
Title:

Page 140


LNV CORPORATION, as Lender

By:
Name:
Title:

Page 141


LPP MORTGAGE, INC., as Lender

By:
Name:
Title:

Page 142

Exhibit 10.5

Execution Version

FOURTH AMENDMENT AND LIMITED CONSENT

TO ABL CREDIT AGREEMENT

THIS FOURTH AMENDMENT AND LIMITED CONSENT TO ABL CREDIT AGREEMENT (this “Amendment”), dated as of June 24, 2021, is by and among U.S. WELL SERVICES, LLC, a Delaware limited liability company (the “Borrower”), each Guarantor (as defined in the below referenced Credit Agreement) party hereto, U.S. WELL SERVICES, INC., a Delaware corporation (“Parent”), each Lender (as defined in the below referenced Credit Agreement) party hereto, and BANK OF AMERICA, N.A., as agent for the Lenders (“Administrative Agent”), a Swing Line Lender and an L/C Issuer.

RECITALS

WHEREAS, Borrower is a party to that certain ABL Credit Agreement, dated as May 7, 2019 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”; and the Credit Agreement, as in effect prior to giving effect hereto, the “Existing Credit Agreement”), among Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders;

WHEREAS, the Loan Parties previously informed the Administrative Agent and Lenders that the Borrower was owed unpaid outstanding receivables (the “Outstanding Receivables”) due from Sable Permian Resources LLC which initiated bankruptcy proceedings in Southern District of Texas, Houston Division (the “Proceedings”) in June 2020, and the Borrower made a claim in the Proceedings arising from the Outstanding Receivables;

WHEREAS, the Borrower received $5,554,221.49 on account of the Outstanding Receivables (“Sable Payment”) and the Term Loan Documents require that the Sable Payment be paid to the Term Loan Agent for application to the Term Loan Indebtedness, subject to the satisfaction of certain conditions in the Credit Agreement;

WHEREAS, the Loan Parties have requested that the Administrative Agent and Lenders (a) amend the Existing Credit Agreement in certain respects, (b) consent to the application of the Sable Payment to the Term Loan Indebtedness, and (c) consent to certain amendments and modifications to the CARES Act Loan Agreement and CARES Act Loan Collateral, which the Administrative Agent and Lenders are willing to do, on the terms and subject to the conditions set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Defined Terms. Any and all initially capitalized terms used in this Amendment without definition shall have the respective meanings specified in the Credit Agreement, as amended hereby.

1.2 Recitals. The Recitals above are incorporated herein as though set forth in full and the Loan Parties stipulate to the accuracy of each of the Recitals.

ARTICLE II

AMENDMENTS TO EXISTING CREDIT AGREEMENT

2.1 Amendments to Existing Credit Agreement. Subject to the satisfaction of the conditions set forth in Article IV below, and in reliance on the representations and warranties contained in Section 5.2 below, the Existing Credit Agreement is hereby amended as set forth in Exhibit A, with all revisions to the Existing Credit Agreement reflected in Exhibit A in redlined format (i.e., to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and (b) to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text). The amendments to the Existing Credit Agreement are limited to the extent specifically set forth herein and no other terms, covenants or provisions of the Existing Credit Agreement, as applicable, are intended to be affected hereby.

ARTICLE III

LIMITED CONSENT

3.1 Limited Consent.

(a) The Administrative Agent and Lenders hereby consent to the prepayment of the Term Loan Indebtedness using the proceeds of the Sable Payment so long as (a) such payment is made no later than July 15, 2021, (b) immediately prior to and after giving effect to such prepayment, and after giving effect to this Amendment, no Default or Event of Default shall have occurred and is continuing or would result therefrom and (c) immediately prior to and after giving effect to such prepayment, the sum of Availability and Borrower’s unrestricted cash (which is subject to no Liens other than the Liens of Administrative Agent, Term Loan Agent and Notes Agent) is greater than $15,000,000.

(b) The Administrative Agent and Lenders hereby consents to (i) the substitution of the existing collateral constituting CARES Act Loan Collateral on the date hereof (the “Pre-Release CARES Act Collateral”) with replacement collateral comprised of any proceeds or products of the assets commonly known as “Frac Fleet 16” or the individual assets thereof (the “Post-Release CARES Act Collateral”), (ii) each amendment or modification to the CARES Act Loan Agreement and related notes, collateral agreements and other loan documents entered into by any of the Loan Parties with Greater Nevada Credit Union, as lender (together with its successors and assigns, the “CARES Act Lender”) in order to effectuate a substitution of the Pre-Release CARES Act Collateral with Post-Release CARES Act Collateral, (iii) the sale of the Pre-Release CARES Act Collateral and any mandatory prepayment by any of the Loan Parties or Term Loan Indebtedness required under the Term Loan Credit Agreement (as defined the Intercreditor Agreement) from “CARES Act Collateral Proceeds” (as such term is defined in the Term Loan Credit Agreement, as amended on the date hereof), and (iv) any additional mandatory prepayment by any of the Loan Parties of Term Loan Indebtedness in respect of a “CARES Act Collateral Proceeds Shortfall” as defined in the Term Loan Credit Agreement, as amended on the date hereof; provided that the aggregate amount of such additional mandatory prepayment shall not exceed $5,000,000.

3.2 Limitation of Consent. The foregoing consents are one-time consents and apply only to the specified circumstances and do not modify or otherwise affect the Loan Parties’ obligations to comply with such applicable provisions of the Credit Agreement or any other provision of the Credit Agreement or any other Loan Document in any other instance. The agreements and consent set forth in this Article III are limited to the extent specifically set forth above and no other terms, covenants or provisions of the Loan Documents are intended to be affected hereby.

ARTICLE IV

CONDITIONS TO EFFECTIVENESS

4.1 Closing Conditions. This Amendment shall become effective as of the Fourth Amendment Date upon satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent):

(a) Executed Amendment. The Administrative Agent shall have received a copy of this Amendment duly executed by each of the Loan Parties, the Lenders and the Administrative Agent.

(b) Copy of Executed Amendment to Term Credit Agreement. The Administrative Agent shall have received a copy of the Fifth Amendment to the Term Credit Agreement duly executed by the parties thereto and on such terms and conditions as are satisfactory to the Administrative Agent.

(c) Executed Amended and Restated Intercreditor Agreement. The Administrative Agent shall have received a copy of the Amended and Restated Intercreditor Agreement duly executed by the parties thereto and on such terms and conditions as are satisfactory to the Administrative Agent.

(d) Executed Note Purchase Documents. The Administrative Agent shall have received copies of each of the Note Purchase Documents, duly executed by the parties thereto and on such terms and conditions as are satisfactory to the Administrative Agent.

(e) Conditions Precedent to Third Lien Notes Agreement. Each of the respective conditions set forth in Section 2.3 of the Third Lien Notes Agreement to the obligations of each party thereto to consummate the transactions contemplated thereby have been satisfied on or prior to the Fourth Amendment Date.

(f) Executed Fourth Amendment Fee Letter. The Administrative Agent shall have received an executed copy of the Fourth Amendment Fee Letter duly executed by the parties thereto and on such terms and conditions as are satisfactory to the Administrative Agent.

(g) No Default. After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing (other than the Existing Event of Default).

(h) Fees and Expenses. The Administrative Agent shall have received from the Borrower such other fees and expenses that are payable in connection with the consummation of the transactions contemplated hereby (including but not limited to the fees set forth in the Fourth Amendment Fee Letter and reasonable attorneys’ fees and costs).

(i) Secretary’s Certificate. The Administrative Agent shall have received a certificate of the secretary or assistant secretary or similar officer of each Loan Party dated the Fourth Amendment Date and certifying that (i) no changes have been made to the by-laws, limited partnership agreement, limited liability company agreement or other equivalent governing document of each Loan Party since the Closing Date, (ii) each Loan Party is authorized to execute, deliver and perform under the Loan Documents as amended by this Amendment, and (iii) no changes have been made to the articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent governing document of each Loan Party since the Closing Date.

(j) Officer’s Certificate. The Administrative Agent shall have received an officer’s certificate executed by a Responsible Officer attesting that as of the Fourth Amendment Date the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects (after giving effect to such qualification)) as of such date, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, Material Adverse Effect or similar language shall be true and correct in all respects (after giving effect to such qualification)) as of such earlier date).

ARTICLE V

MISCELLANEOUS

5.1 Amended Terms. On and after the Fourth Amendment Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

5.2 Representations and Warranties of Loan Parties. Each of the Loan Parties represents and warrants as follows:

(a) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.

(b) No action, consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by such Person of this Amendment, except for (a) the filing of Uniform Commercial Code financing statements, (b) filings with the United States

Patent and Trademark Office and the United States Copyright Office, (c) recordation of any Mortgages (or amendments thereto), (d) such as have been made or obtained and are in full force and effect and (e) such actions, consents, approvals, registrations or filings the failure to obtain or make which would not reasonably be expected to have a Material Adverse Effect.

(c) Immediately after giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.

5.3 Reaffirmation of Obligations. Each Loan Party hereby ratifies the Credit Agreement and other Loan Documents and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement and other Loan Documents applicable to it and (b) that it is responsible for the observance and full performance of its respective Obligations (to the extent specified in the Credit Agreement and the other Loan Documents).

5.4 Loan Document. This Amendment shall constitute a Loan Document under the terms of the Credit Agreement.

5.5 Expenses. The Borrower agrees to pay all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including without limitation the reasonable fees and expenses of the Administrative Agent’s legal counsel, in each case in accordance with Section 10.04 of the Credit Agreement.

5.6 Further Assurances. The Loan Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment, in each case to the extent required by Section 6.15 of the Credit Agreement.

5.7 Entirety. This Amendment and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

5.8 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall be effective as an original and shall constitute a representation that an original will be delivered.

5.9 No Actions, Claims, Etc. As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement on or prior to the date hereof.

5.10 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

5.11 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

5.12 General Release. In consideration of the Administrative Agent’s willingness to enter into this Amendment, on behalf of the Lenders, each Loan Party hereby releases and forever discharges the Administrative Agent, Swing Line Lender, the Lenders and the Administrative Agent’s, the Swing Line Lender’s and each Lender’s respective predecessors, successors, assigns, officers, managers, directors, employees, agents, attorneys, representatives, and affiliates (hereinafter all of the above collectively referred to as the “Bank Group”), from any and all claims, counterclaims, demands, damages, debts, suits, liabilities, actions and causes of action of any nature whatsoever, including, without limitation, all claims, demands, and causes of action for contribution and indemnity, whether arising at law or in equity, whether known or unknown, whether liability be direct or indirect, liquidated or unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not heretofore asserted, which any Loan Party may have or claim to have against any of the Bank Group in any way related to or connected with the Loan Documents and the transactions contemplated thereby; provided that the foregoing general release shall not be a release of any claim against any member of the Bank Group which arises from the gross negligence of willful misconduct of such member of the Bank Group.

5.13 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 10.14 and 10.15 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.


BORROWER:	U.S. WELL SERVICES, LLC

	By:	/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

PARENT:	U.S. WELL SERVICES, INC.

	By:	/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

GUARANTORS:	USWS FLEET 10, LLC

	By:	/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

	USWS FLEET 11, LLC

	By:	/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

	USWS HOLDINGS LLC

	By:	/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer


				BANK OF AMERICA, N.A.,
				as Administrative Agent, a Lender, an L/C Issuer and a Swing Line Lender

				By:		/s/ Tanner J. Pump
				Name:		Tanner J. Pump
				Title:		Senior Vice President

Exhibit A

See attached.

EXHIBIT A to

FOURTH AMENDMENT AND LIMITED CONSENT TO

ABL CREDIT AGREEMENT

ABL CREDIT AGREEMENT

Dated as of May 7, 2019

U.S. WELL SERVICES, LLC,

as the Borrower,

the GUARANTORS party hereto from time to time,

and

U.S. WELL SERVICES, INC.,

as Parent,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,

THE OTHER LENDERS PARTY HERETO

and

BANK OF AMERICA, N.A.,

as Sole Lead Arranger and Sole Bookrunner

TABLE OF CONTENTS


		Page
ARTICLE IARTICLE I DEFINITIONS AND ACCOUNTING TERMS			17

1.01	DEFINED TERMS		18

1.02	OTHER INTERPRETIVE PROVISIONS		57

1.03	ACCOUNTING TERMS		58

1.04	ROUNDING		59

1.05	TIMES OF DAY		59

1.06	LETTER OF CREDIT AMOUNTS		59

1.07	CURRENCY EQUIVALENTS GENERALLY		59

1.08	UNIFORM COMMERCIAL CODE		60

1.09	[RESERVED]		60

ARTICLE IIARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS			60

2.01	THE LOANS		60

2.02	BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS		60

2.03	LETTERS OF CREDIT		62

2.04	SWING LINE LOANS		71

2.05	PREPAYMENTS		74

2.06	TERMINATION OR REDUCTION OF COMMITMENTS		75

2.07	REPAYMENT OF LOANS		75

2.08	INTEREST		76

2.09	FEES		76

2.10	COMPUTATION OF INTEREST AND FEES		77

2.11	EVIDENCE OF DEBT		77

2.12	PAYMENTS GENERALLY; ADMINISTRATIVE AGENT’S CLAWBACK		78

2.13	SHARING OF PAYMENTS BY LENDERS		80

2.14	RESERVED		81

2.15	CASH COLLATERAL		81

2.16	DEFAULTING LENDERS		82

2.17	PROTECTIVE ADVANCES		83

2.18	OVERADVANCES		83

TABLE OF CONTENTS


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ARTICLE IIIARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY			83

3.01	TAXES		83

3.02	ILLEGALITY		87

3.03	INABILITY TO DETERMINE RATES		88

3.04	INCREASED COSTS; CAPITAL ADEQUACY		90

3.05	COMPENSATION FOR LOSSES		92

3.06	MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS		92

3.07	SURVIVAL		93

ARTICLE IVARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS			93

4.01	CONDITIONS OF INITIAL CREDIT EXTENSION		93

4.02	CONDITIONS TO ALL CREDIT EXTENSIONS		96

4.03	POST-CLOSING DATE CONDITIONS		97

ARTICLE VARTICLE V REPRESENTATIONS AND WARRANTIES			97

5.01	EXISTENCE, QUALIFICATION AND POWER		97

5.02	AUTHORIZATION; NO CONTRAVENTION		97

5.03	GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS		98

5.04	BINDING EFFECT		98

5.05	FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT		98

5.06	LITIGATION		99

5.07	NO DEFAULT		99

5.08	OWNERSHIP OF PROPERTY; LIENS; INVESTMENTS		99

5.09	ENVIRONMENTAL COMPLIANCE		99

5.10	INSURANCE		100

5.11	TAXES		100

5.12	ERISA COMPLIANCE		100

5.13	SUBSIDIARIES; EQUITY INTERESTS; LOAN PARTIES		101

5.14	MARGIN REGULATIONS; INVESTMENT COMPANY ACT		101

5.15	DISCLOSURE		102

5.16	COMPLIANCE WITH LAWS		102

5.17	INTELLECTUAL PROPERTY; LICENSES, ETC		102

TABLE OF CONENTS

(continued)


		Page
5.18	SOLVENCY		102

5.19	CASUALTY, ETC		103

5.20	LABOR MATTERS		103

5.21	COLLATERAL DOCUMENTS		103

5.22	SANCTIONS CONCERNS		103

5.23	EEA FINANCIAL INSTITUTIONS		103

ARTICLE VIARTICLE VI AFFIRMATIVE COVENANTS			103

6.01	FINANCIAL STATEMENTS; BORROWING BASE CERTIFICATE		103

6.02	CERTIFICATES; OTHER INFORMATION		105

6.03	NOTICES		107

6.04	PAYMENT OF OBLIGATIONS		108

6.05	PRESERVATION OF EXISTENCE, ETC		108

6.06	MAINTENANCE OF PROPERTIES		108

6.07	MAINTENANCE OF INSURANCE		108

6.08	COMPLIANCE WITH LAWS		109

6.09	BOOKS AND RECORDS		109

6.10	INSPECTION RIGHTS		109

6.11	USE OF PROCEEDS		110

6.12	COVENANT TO GUARANTEE OBLIGATIONS AND GIVE SECURITY		110

6.13	COMPLIANCE WITH ENVIRONMENTAL LAWS		113

6.14	PREPARATION OF ENVIRONMENTAL REPORTS		113

6.15	FURTHER ASSURANCES		113

6.16	COMPLIANCE WITH TERMS OF LEASEHOLDS		114

6.17	MATERIAL CONTRACTS		114

6.18	ADMINISTRATION OF DEPOSIT ACCOUNTS		114

6.19	DESIGNATION AND CONVERSION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES; COVENANTS WITH RESPECT TO UNRESTRICTED SUBSIDIARIES		114

6.20	CARES ACT LOAN		116

TABLE OF CONTENTS


		Page
ARTICLE VIIARTICLE VII NEGATIVE COVENANTS			116

7.01	LIENS		116

7.02	INDEBTEDNESS		118

7.03	INVESTMENTS		122

7.04	FUNDAMENTAL CHANGES		123

7.05	DISPOSITIONS		123

7.06	RESTRICTED PAYMENTS		124

7.07	CHANGE IN NATURE OF BUSINESS		125

7.08	TRANSACTIONS WITH AFFILIATES		125

7.09	BURDENSOME AGREEMENTS		125

7.10	USE OF PROCEEDS		126

7.11	CONSOLIDATED FIXED CHARGE COVERAGE RATIO		126

7.12	AMENDMENTS OF ORGANIZATION DOCUMENTS		126

7.13	ACCOUNTING CHANGES		126

7.14	PREPAYMENTS, ETC. OF INDEBTEDNESS		127

7.15	AMENDMENT, ETC OF INDEBTEDNESS		127

7.16	SANCTIONS		127

ARTICLE VIIIARTICLE VIII EVENTS OF DEFAULT AND REMEDIES			127

8.01	EVENTS OF DEFAULT		127

8.02	REMEDIES UPON EVENT OF DEFAULT		130

8.03	APPLICATION OF FUNDS		130

ARTICLE IXARTICLE IX ADMINISTRATIVE AGENT			132

9.01	APPOINTMENT AND AUTHORITY		132

9.02	RIGHTS AS A LENDER		132

9.03	EXCULPATORY PROVISIONS		132

9.04	RELIANCE BY ADMINISTRATIVE AGENT		134

9.05	DELEGATION OF DUTIES		134

9.06	RESIGNATION OF ADMINISTRATIVE AGENT		134

9.07	NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS		136

9.08	NO OTHER DUTIES, ETC		136

9.09	ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM; CREDIT BIDDING		136

TABLE OF CONENTS

(continued)


		Page
9.10	COLLATERAL AND GUARANTY MATTERS		138

9.11	SECURED CASH MANAGEMENT AGREEMENTS AND SECURED HEDGE AGREEMENTS		138

9.12	CERTAIN ERISA MATTERS		139

ARTICLE XARTICLE X MISCELLANEOUS			140

10.01	AMENDMENTS, ETC		140

10.02	NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS		142

10.03	NO WAIVER; CUMULATIVE REMEDIES; ENFORCEMENT		144

10.04	EXPENSES; INDEMNITY; DAMAGE WAIVER		144

10.05	PAYMENTS SET ASIDE		147

10.06	SUCCESSORS AND ASSIGNS		147

10.07	TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY		152

10.08	RIGHT OF SETOFF		153

10.09	INTEREST RATE LIMITATION		153

10.10	COUNTERPARTS; INTEGRATION; EFFECTIVENESS		154

10.11	SURVIVAL OF REPRESENTATIONS AND WARRANTIES		154

10.12	SEVERABILITY		154

10.13	REPLACEMENT OF LENDERS		154

10.14	GOVERNING LAW; JURISDICTION; ETC		155

10.15	WAIVER OF JURY TRIAL		156

10.16	NO ADVISORY OR FIDUCIARY RESPONSIBILITY		157

10.17	ELECTRONIC EXECUTION; ELECTRONIC RECORDS		157

10.18	USA PATRIOT ACT		158

10.19	KEEPWELL		159

10.20	CREDIT INQUIRIES		159

10.21	PERFORMANCE OF THE BORROWER’S OBLIGATIONS		159

10.22	WAIVERS BY THE BORROWER		159

10.23	ENTIRE AGREEMENT		160

10.24	ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS		160

10.25	INTERCREDITOR AGREEMENT		161


SCHEDULES

1.01(a)		Commitments and Applicable Percentages
1.01(c)		Eligible Accounts
5.13		Subsidiaries and Other Equity Investments; Loan Parties
6.12		Guarantors
6.18		Deposit Accounts
7.01		Existing Liens
7.02		Existing Indebtedness
7.03		Investments
8.02(h)		Certain Litigation
10.02		Administrative Agent’s Office, Certain Addresses for Notices


EXHIBITS

*Form of*

A		Revolving Credit Loan Notice
B		Swing Line Loan Notice
C		Note
D		Compliance Certificate
E		Assignment and Assumption
F		Notice of Loan Prepayment
G		Secured Party Designation Notice
H		Letter of Credit Report
I-1 –I-4		U.S. Tax Compliance Certificates
J		Borrowing Base Certificate

ABL CREDIT AGREEMENT

ARTICLE IThis ABL CREDIT AGREEMENT (“Agreement”) is entered into as of May 7, 2019 among U.S. Well Services, LLC, a Delaware limited liability company (the “Borrower”), each Guarantor from time to time party hereto, U.S. Well Services, Inc., a Delaware corporation (“Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, a Swing Line Lender and an L/C Issuer.

PRELIMINARY STATEMENTS:

The Borrower has requested that the Lenders provide a revolving credit facility in the initial amount of $75,000,000, and the Lenders have agreed to lend, and the L/C Issuers have agreed to issue letters of credit, in each case on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

DEFINITIONS AND ACCOUNTING TERMS

Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“ABL Priority Collateral” has the meaning given such term in the Intercreditor Agreement (it being understood and agreed that any time the Term Loan Credit Agreement is not in effect, the term “ABL Priority Collateral” shall mean all Collateral).

“Account” has the same meaning as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered.

“Account Debtor” means a Person obligated under an Account, Chattel Paper or General Intangible.

“Acquisition” means the acquisition, directly or indirectly, by any Person of (a) at least a majority of the Equity Interests of another Person, (b) all or substantially all of the assets of another Person or (c) all or substantially all of a line of business or division of another Person, in each case (i) whether or not involving a merger or a consolidation with such other Person and (ii) whether in one transaction or a series of related transactions.

“Acquisition Consideration” means, in connection with any Acquisition, the total cash and noncash consideration (including the fair market value of all Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on behalf of the Borrower and its Subsidiaries for such Acquisition.

“Additional Third Lien Notes” means 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026 issued by Parent under the Note Purchase Agreement as “Additional Cash Notes” or “Additional Exchange Notes” each as defined in the Note Purchase Agreement on the Fourth Amendment Date.

“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Aggregate Commitments” means the Commitments of all the Lenders. As of the Closing Date, the Aggregate Commitments were $75,000,000. As of the First Amendment Date, the Aggregate Commitments are $60,000,000. As of the Second Amendment Date, the Aggregate Commitments are $50,000,000.

“Agreement” means this ABL Credit Agreement.

“Anti-Terrorism Law” means any law relating to terrorism or money laundering, including the Patriot Act.

“Applicable Fee Rate” means, at any time, a per annum rate equal to (a) 0.375% if average daily Revolving Credit Usage was less than 50% of the Aggregate Commitments during the previous calendar quarter, or (b) 0.250% if average daily Revolving Credit Usage was greater than 50% of the Aggregate Commitments during such quarter.

“Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.16. If the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the Aggregate Commitments shall be determined based on the Applicable Percentage of such Lender in respect of the Aggregate Commitments most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.01(a) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

ARTICLE I“Applicable Rate” means the applicable percentage per annum set forth below for each fiscal quarter (each an “Applicable Quarter”) determined by reference to the

average daily Availability as a percentage of the Borrowing Base during the fiscal quarter immediately preceding such Applicable Quarter (as to each Applicable Quarter, the “Reference Quarter”) as determined by the Administrative Agent based on the Borrowing Base Certificates delivered by the Borrower to the Administrative Agent:


Applicable Rate
Pricing Level	Average Daily Availability as a Percentage of the Borrowing Base	LIBOR Rate Revolving Credit Loans (other than FILO Loans) & Letter of Credit Fee			Base Rate Loan (Other than FILO Loans)			LIBOR Rate FILO Loan			Base Rate FILO Loan
1	³66%		2.00	%		1.00	%		3.50	%		2.50	%
2	³33% but <66%		2.25	%		1.25	%		3.75	%		2.75	%
3	<33%		2.50	%		1.50	%		4.00	%		3.00	%

Any increase or decrease in the Applicable Rate for any Applicable Quarter resulting from a change in the average daily Availability for the applicable Reference Quarter shall become effective as of the first day of the first calendar month in the Applicable Quarter. If the Administrative Agent is unable to calculate average daily Availability for any Reference Quarter due to the Borrower’s failure to deliver any Borrowing Base Certificate when required pursuant to Section 6.01(e), then, at the option of the Administrative Agent or the Required Lenders, Pricing Level 3 shall apply during the Applicable Quarter until the first day of the calendar month following delivery of such Borrowing Base Certificate.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of the Lender or (c) an entity or an Affiliate of an entity that administers or manages the Lender.

“Arranger” means Bank of America in its capacity as lead arranger and bookrunner.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including an electronic documentation form generated by use of an electronic platform) approved by the Administrative Agent in its reasonable discretion.

“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on December 31, 2017, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP as in effect on December 31, 2017 if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.

“Audited Financial Statements” means the audited consolidated balance sheet of Parent and its Subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Parent and its Subsidiaries, including the notes thereto.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

“Availability” means, at any time, an amount equal to (a) the Borrowing Base minus (b) the Outstanding Amount.

ARTICLE II“Availability Period” means the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Lender to make Revolving Credit Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

“Availability Reserve” means the sum (without duplication) of (a) the Bank Product Reserve; (b) Rent and Charges Reserve, (c) the Dilution Reserve; (d) all accrued Royalties, whether or not then due and payable by any Loan Party; (e) the aggregate amount of liabilities secured by Liens upon the ABL Priority Collateral that are senior to Administrative Agent’s Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); and (f) such additional reserves, in such amounts and with respect to such matters, as Administrative Agent in its Permitted Discretion may elect to impose from time to time; provided that unless an Event of Default exists and is continuing (in which case no notice shall be required and any changes shall take effect immediately), no change in respect of a new category of additional reserves shall take effect until the third (3rd) Business Day following delivery by Administrative Agent of written notification to the Borrower of such new category (during which period Administrative Agent shall be available to discuss any such proposed new reserve category with the Borrower and Borrower may take such action as may be required to eliminate the event, condition or matter that is the basis for such new category).

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank of America” means Bank of America, N.A. and its successors.

“Bank Product” means any of the following products, services or facilities extended to the Borrower or a Subsidiary of the Borrower by a Lender or any of its Affiliates: (a) services under Cash Management Agreements; (b) products under Swap Contracts; and (c) other banking products or services, other than Letters of Credit.

“Bank Product Reserve” means the aggregate amount of reserves established by Administrative Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations.

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Prime Rate, and (c) LIBOR for a 30 day interest period as of such day plus 1.00%; provided that in no event shall the Base Rate be less than zero.

“Base Rate FILO Loan” shall mean a FILO Loan that bears interest based on the Base Rate.

“Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base Rate.

“Benchmark” means, initially, LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 3.03(b) then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” means:

For purposes of Section 3.03(b)(i), the first alternative set forth below that can be determined by the Administrative Agent:

the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or

the sum of: (i) Daily Simple SOFR and (ii) 0.26161% (26.161 basis points);

provided that, if initially LIBOR is replaced with the rate contained in clause (b) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Borrower and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a) above; and

(2) For purposes of Section 3.03(b)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;

provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than 1.0%, the Benchmark Replacement will be deemed to be 1.0% for the purposes of this Agreement and the other Loan Documents.

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, in form and substance reasonably satisfactory to Administrative Agent.

“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 and subject to 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”.

“Borrower” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02.

“Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.

“Borrowing Base” means, on any date of determination, an amount equal to the lesser of (a) the Aggregate Commitments; or (b) the sum, without duplication, of the following:

85% of the Value of Eligible Accounts,

plus the lesser of (A) 80% of the Value of Eligible Unbilled Accounts or (B) $15,000,000,

plus the FILO Amount,

minus the Availability Reserve.

No Borrowing Base calculation shall include the ABL Priority Collateral acquired in a Permitted Acquisition or otherwise outside the ordinary course of business until completion of applicable field examinations reasonably satisfactory to Administrative Agent (which shall not be included in the limits provided in Section 6.10(b).

“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit J or in such other form as is reasonably satisfactory to the Administrative Agent, by which the Borrower certifies the calculation of the Borrowing Base.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Loan, means any such day that is also a London Banking Day.

“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset; provided that Capital Expenditures shall not include any such expenditures relating to Capitalized Leases, purchase money obligations or Synthetic Lease Obligations, in each case, permitted pursuant to Section 7.02(f) or any such expenditures incurred in connection with Permitted Acquisitions permitted pursuant to Section 7.03(i). For purposes of this definition, the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent of the amount by which such purchase price exceeds the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such insurance proceeds, as the case may be.

“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

ARTICLE III“CARES Act Loan” means the loan made pursuant to the “Business and Industry CARES Act Program” of the CARES Act under the CARES Act Loan Agreement.

“CARES Act Loan Account” means a deposit account opened and maintained at Greater Nevada Credit Union and used solely for the purposes specified in Section 6.20 hereof.

“Cares Act Loan Agreement” means that certain Business Loan Agreement dated November 12, 2020, executed by the Borrower, Holdco and Parent, as co-borrowers and made payable to Greater Nevada Credit Union, as lender, providing for loans in the original principal amount of equal to $25,000,000.00 in aggregate and secured by CARES Act Loan Collateral.

“CARES Act Loan Collateral” means the “Collateral” as defined in the CARES Act Loan Agreement.

ARTICLE IV“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuers or the Swing Line Lenders (as applicable) and the Lenders, as collateral for L/C Obligations or Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the applicable L/C Issuer, and/or (c) if the L/C Issuers or Swing Line Lenders benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (x) the Administrative Agent and (y) the L/C Issuers, or the Swing Line Lenders (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Cash Dominion Trigger Period” means the period (a) commencing on the day that (i) an Event of Default occurs, or (ii) Availability is less than the greater of (x) 12.5% of the Borrowing Base or (y) $7,500,000, and (b) continuing until, during each of the preceding 30 consecutive days, no Default or Event of Default has existed and Availability has at all times exceeded the greater of (i) 12.5% of the Borrowing Base and (ii) $7,500,000.

“Cash Equivalents” means any of the following types of Investments, to the extent owned by Parent or any of its Restricted Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder):

(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof;

time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of

a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition thereof;

commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof; and

Investments, classified in accordance with GAAP as current assets of Parent or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are comprised of least 95% of Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.

ARTICLE V“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.

ARTICLE VI“Cash Management Bank” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement, in each case, in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, however, that for any of the foregoing to be included as a “Secured Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“CERCLA” means the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 9601 et seq.).

“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.

“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority, provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and

Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means an event or series of events by which

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan or excluding the Permitted Holders) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), on a fully-diluted basis and voting as one class, directly or indirectly, of over 35% of the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of Parent on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or

(b) During any period of 12 consecutive months, occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent ceases to be composed of individuals who were (x) directors of the Parent on the date of this Agreement or nominated or appointed by the board of directors of the Parent, (y) appointed by directors so nominated or appointed or (z) directors nominated or appointed by Crestview pursuant to that certain Subscription Agreement, dated July 13, 2018, entered into among the Parent, Crestview and certain other parties thereto (as in effect on the Closing Date); or

(d) a “change of control” or any comparable term under, and as defined in, any of the Term Loan Documents shall have occurred.

“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.

“Collateral Documents” means, collectively, the Security Agreement, Security Agreement Supplements, security agreements, pledge agreements, landlord’s agreements, control agreements or other similar agreements delivered to the Administrative Agent pursuant to Section 4.01 and Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

ARTICLE VII“Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01(a) under the caption “Commitment” or opposite such caption in the Assignment and Assumption or joinder agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of Parent and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period plus (a) without duplication, the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for federal, state, local and foreign income taxes (including franchise taxes, other taxes measured by income and imposed in lieu of income taxes and similar taxes) payable, (iii) depreciation and amortization expense (including amortization of intangibles, but excluding amortization of prepaid cash expenses that were paid in a prior Measurement Period), (iv) impairment (other than any impairment in respect of Collateral) and other expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) stock-based compensation expenses which do not represent a cash item in such period or any future period (in each case of or by Parent and its Restricted Subsidiaries for such Measurement Period), (vi) the write-off of unamortized deferred financing, legal and accounting costs in connection with the refinancing of any existing indebtedness on the Closing Date, (vii) prepayment premiums, redemption premiums, fees, and other amounts expensed in connection with the redemption or prepayment of any existing indebtedness on the Closing Date; (viii) with respect to any Investment or capital expenditure permitted hereunder in Frac Fleets made after the Closing Date, the actual non-capitalized cash costs associated with deploying such Frac Fleets for utilization in respect of a customer contract; provided that the aggregate amount of addbacks pursuant to this clause (viii) shall not to exceed $1,500,000 for each Frac Fleet during the term of this Agreement, (ix) investment banker fees (y) in the case of transactions which are not consummated, not to exceed $2,500,000 per annum and $5,000,000 during the terms of this

Agreement and (z) in the case of transactions which are consummated, without limit, (x) travel and expense reimbursements of board members and cash fees paid to independent members of the Loan Parties’ boards of directors, in all cases in an aggregate amount not to exceed $1,000,000 per annum, (xi) extraordinary or non-recurring losses not to exceed (y) $2,500,000 in any consecutive four Fiscal Quarter period or (z) $5,000,000 in the aggregate, (xii) costs, fees, and expenses incurred in connection with (y) any amendment or supplement to, or modification of, the Term Loan Credit Agreement or any Term Loan Document or (z) this Agreement or any other Loan Document and any amendment, restatement or supplement to, or modification thereof, (xiii) any reasonable and customary fees, expenses, charges or losses (other than depreciation or amortization expense) related to any public or private sale of Qualified Capital Stock of Parent or options, warrants or rights with respect to its Qualified Capital Stock (other than sales made to any Subsidiary of Parent and sales of Disqualified Capital Stock) made for cash after the Closing Date, any Material Acquisitions, any Material Dispositions or the incurrence of Indebtedness permitted to be incurred under this Agreement (including a refinancing thereof), in each case regardless of whether successful, and including such fees, expenses, charges or losses related to (a) the Indebtedness under this Agreement and the Term Loan Agreement and (b) any amendment or other modification of the Loan Documents and the Term Loan Documents, in each case, deducted (and not added back) in computing such Consolidated Net Income; provided that the amounts added pursuant to this clause subclause (xiii), together with any amounts added pursuant to subclause (xii), shall not in the aggregate exceed, in any Measurement Period, 15% of Consolidated EBITDA for such Measurement Period (prior to giving effect to the addbacks pursuant to this subclause (xiii) and subclause (xii)), and (xiv) the amount of any restructuring charge or reserve, integration cost or other business optimization expense during such Measurement Period and severance costs; provided that the amounts added pursuant to this clause subclause (xiv), together with any amounts added pursuant to subclause (xiii) above, shall not in the aggregate exceed, in any Measurement Period, 15% of Consolidated EBITDA for such Measurement Period (prior to giving effect to the addbacks pursuant to subclause (xii) and this subclause (xiv)), and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income (in each case of or by Parent and its Restricted Subsidiaries for such Measurement Period). Consolidated EBITDA shall be calculated for each Measurement Period, on a Pro Forma Basis, after giving effect to, without duplication, any Material Acquisition (as defined below) and any Material Disposition (as defined below) and, at the Borrower’s election, any other Acquisition or Disposition, in each case, made during each period commencing on the first day of such period to and including the date of such transaction (the “Reference Period”) as if such Acquisition or Disposition and any related incurrence or repayment of Indebtedness occurred on the first day of the Reference Period. As used in this definition, “Material Acquisition” means any Acquisition with Acquisition Consideration of $3,000,000 or more and “Material Disposition” means any Disposition resulting in net sale proceeds of $3,000,000 or more.

“Consolidated Fixed Charge Coverage Ratio” means the ratio, determined on a consolidated basis for Parent and its Restricted Subsidiaries for the most recent Measurement Period of (a) Consolidated EBITDA minus Capital Expenditures (except those financed with borrowed money other than Revolving Credit Loans or Equity Proceeds) and cash taxes paid, to (b) Consolidated Fixed Charges. Notwithstanding anything herein to the contrary, for the purposes of calculating the Consolidated Fixed Charge Coverage Ratio and the components

thereof, all Unrestricted Subsidiaries and their Subsidiaries (including their assets, liabilities, income, losses, cash flows, and the elements thereof) shall be excluded, except for any cash dividends or distributions actually paid by any Unrestricted Subsidiary or any of its Subsidiaries to a Loan Party, which shall be deemed to be income to such Loan Party when actually received by it.

“Consolidated Fixed Charges” means the sum of Consolidated Interest Charges (other than payment-in-kind or amortization of fees and other non-cash items treated as interest in accordance with GAAP), scheduled principal payments and voluntary prepayments made on borrowed money (including purchase money Indebtedness, Attributable Indebtedness and the deferred purchase price of property or services), and Restricted Payments (including Permitted Seller Payments) made other than Restricted Payments permitted pursuant to Section 7.06(h).

“Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations and (c) the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by Parent and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period.

“Consolidated Net Income” means, at any date of determination, the net income (or loss) of Parent and its Restricted Subsidiaries on a consolidated basis for the most recently completed Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary gains and extraordinary losses for such Measurement Period, (b) the net income of any Restricted Subsidiary during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Restricted Subsidiary during such Measurement Period, except that Parent’s equity in any net loss of any such Restricted Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, (c) any income (or loss) for such Measurement Period of any Person if such Person is not a Restricted Subsidiary, except that Parent’s equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Measurement Period to Parent or a Restricted Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Restricted Subsidiary, such Restricted Subsidiary is not precluded from further distributing such amount to the Borrower as described in clause (b) of this proviso), and (d) the effects of non-cash adjustments in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of “fresh start accounting” implemented in accordance with FASB ASC 852.

“Consolidated Tangible Assets” means, with respect to any Person as of any date, the amount which, in accordance with GAAP, would be set forth under the caption “Total Assets” (or any like caption) on a consolidated balance sheet of such Person and its consolidated Subsidiaries, less all assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“Crestview” means Crestview Partners III GP, L.P., Crestview III USWS, L.P. and Crestview III USWS TE, LLC.

“Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a LIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

ARTICLE VIII“Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, any Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date

when due, (b) has notified the Borrower, the Administrative Agent, the applicable L/C Issuer or the applicable Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) becomes subject to a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, each Swing Line Lender and each other Lender promptly following such determination.

ARTICLE IX“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.

ARTICLE X“Delaware Divided LLC” means any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.

ARTICLE XI“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

“Designated Jurisdiction” means any country or territory that is the target of a Sanction.

“Dilution Percent” means the percent, determined for the Borrower’s most recent fiscal quarter, equal to (a) bad debt write-downs or write-offs, discounts, returns, promotions, credits, credit memos and other dilutive items with respect to Accounts, divided by (b) gross sales.

“Dilution Reserve” means the aggregate amount of reserves in an amount equal to the Value of the Eligible Accounts multiplied by 1.0% for each percentage point (or portion thereof) that the Dilution Percent exceeds 5.0%.

“Disqualified Capital Stock” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable for any consideration other than solely an Equity Interest in such Person (which would constitute Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof for any consideration other than solely an Equity Interest in such Person (which would constitute Qualified Capital Stock) at the option of the holder thereof, in whole or in part on or prior to the date that is 181 days after the earlier of the Maturity Date and payment in full of the Obligations, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests other than Qualified Capital Stock, or (c) contains any repurchase obligation at the option of the holder thereof on or prior to the date that is 181 days after the earlier of the Maturity Date and payment in full of the Obligations.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division.

“Dollar” and “$” mean lawful money of the United States.

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.

“Dominion Account” means a special account established by the Borrower or any Guarantor at Bank of America or another bank reasonably acceptable to the Administrative Agent, over which the Administrative Agent has exclusive control for withdrawal purposes.

“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

“Early Opt-in Election” means the occurrence of:

(1) a determination by the Administrative Agent, or a notification by the Borrower to the Administrative Agent that the Borrower has made a determination, that U.S. dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 3.03(b), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

(2) the joint election by the Administrative Agent and the Borrower to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders.

“Earn Out Obligation” means those contingent obligations of any Loan Party incurred in favor of a seller (or other third party entitled thereto) under or with respect to any Permitted Acquisition.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.

“Eligible Account” means an Account owing to a Loan Party that arises in the ordinary course of business from the rendition of services, is invoiced and payable in Dollars and is deemed by the Administrative Agent, in its Permitted Discretion, to be an Eligible Account. Without limiting the foregoing, no Account shall be an Eligible Account if (a) it is unpaid for more than 60 days after the original due date, or more than 90 days after the original invoice date; (b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Accounts under the foregoing clause; (c) when aggregated with other Accounts owing by the same Account Debtor or affiliated Account Debtors, it exceeds (i) solely if the Account Debtor is (x) listed on Schedule 1.01(c) attached hereto (or otherwise approved by Administrative Agent in writing) or (y) is an Account Debtor whose corporate credit rating or senior debt rating, is BBB- or higher by S&P’s or Baa3 or higher by Moody’s 35% of the aggregate Eligible Accounts and (ii) otherwise, 20% of the aggregate Eligible Accounts (or such higher percentage as the Administrative Agent may establish for such Account Debtor from time to time) to the extent the obligations owing by such Account Debtor are in excess of such percentage; (d) any representation or warranty contained herein or in the Security Agreement with respect to such Account has been breached, or any covenant contained herein or in the Security Agreement with respect to such Account has been breached; (e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility shall be limited to the amount thereof); (f) an Insolvency Proceeding has been commenced by or against the Account Debtor; or the Account Debtor has failed, has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is subject to Sanctions or any specially designated

nationals list maintained by OFAC; or such Loan Party is not able to bring suit or enforce remedies against the Account Debtor through judicial process; (g) the Account Debtor is organized or has its principal offices or assets outside the United States or Canada, unless the Administrative Agent shall have consented to such Account Debtor or the Account is supported by a letter of credit (delivered to and directly drawable by the Administrative Agent) or credit insurance reasonably satisfactory in all respects to the Administrative Agent; (h) it is owing by a Governmental Authority, unless the Account Debtor is the United States government or any department, agency or instrumentality thereof and the Account has been assigned to the Administrative Agent in compliance with the federal Assignment of Claims Act; (i) it is not subject to a duly perfected, first priority Lien in favor of the Administrative Agent, or is subject to any other Lien other than Liens that are permitted by Section 7.01(c); (j) the goods giving rise to it have not been delivered to the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale; (k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment; (l) it arises from a sale of goods, from a sale to an Affiliate, from a sale on a cash-on-delivery, credit card, bill-and-hold, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes; (m) it represents a progress billing or retainage, or relates to services for which a performance, surety or completion bond or similar assurance has been issued; or (n) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof. In calculating delinquent portions of Accounts under clauses (a) and (b), credit balances more than 90 days old will be excluded.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (iv) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

“Eligible Unbilled Account” means an Account owing to a Loan Party which would qualify as an Eligible Account except that the invoice with respect thereto has not yet been submitted to the Account Debtor, so long as the period following the date on which such Loan Party recognizes such Account in its books and records and prior to the date of the issuance of the invoice with respect thereto is not more than 30 days.

“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination (provided, however, that debt securities that are or by their terms may be convertible or exchangeable into or for Equity Interests shall not constitute Equity Interests prior to conversion or exchange thereof).

“Equity Proceeds” means cash proceeds from the issuance of Qualified Capital Stock.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Default” has the meaning specified in Section 8.01.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Accounts” means (a) an account exclusively used for tax withholding, payroll, payroll taxes, employee benefits (including workers’ compensation, unemployed insurance or other forms of governmental insurance or benefits), (b) the CARES Act Loan Account to the extent used solely for the purposes specified in Section 6.20(iii) hereof, and (c) the Judgment Appeal Account.

“Excluded Property” shall have the meaning set forth in the Security Agreement.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.19 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

“Excluded Taxes” means, with respect to any Recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes (b) in the case of a Lender, any United States withholding Tax that is imposed on amounts payable to or for the account of such Lender pursuant to the Laws in effect on the date on which (i) such Lender acquires an interest in the Loan or Commitment, or (ii) such Lender designates a new Lending Office, except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01(a), (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e), and (d) any U.S. federal withholding Taxes imposed by FATCA.

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Rate” means, for any day, (a) the weighted average per annum interest rate on overnight federal funds transactions with members of the Federal Reserve System on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if the rate is not so published, the average per annum rate (rounded up to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by the Administrative Agent; provided, that in no event shall the Federal Funds Rate be less than zero.

“FILO Amount”: (a) the lesser of (i) $4,000,000 and (ii) 5% of the Value of Eligible Accounts; provided, that, notwithstanding anything else contained herein, commencing on the October 1, 2020, the amount set forth in clause (a)(i) above and the percentage set forth in clause (a)(ii) above shall be reduced by $222,222 per month with respect to clause (a)(i) and 0.278% per month with respect to clause (a)(ii) until reduced to zero in each case.

“FILO Loan” has the meaning specified in Section 2.01.

“Financial Covenant Trigger Period” means the period (a) commencing on the day that Availability is less than the greater of (i) 10.0% of the Borrowing Base or (ii) $6,000,000, and (b) continuing until, during each of the preceding 30 consecutive days, (i) Availability has at all times exceeded the greater of (x) 10.0% of the Borrowing Base and (y) $6,000,000.

“Financial Officer” means the chief executive officer, chief financial officer, treasurer or controller.

“First Amendment Date” shall mean April 1, 2020.

“Foreign Lender” means any Lender that is not a U.S. Person.

“Fourth Amendment Date” means June 24, 2021.

“Frac Fleet” means all equipment, vehicles, labor and materials used to perform hydraulic fracturing services as part of the exploration and production of oil, natural gas and related products.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, (b) with respect to the Swing Line Lenders, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (c) with respect to the Administrative Agent, such Defaulting Lender’s Applicable Percentage of Protective Advances other than Protective Advances as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP” means generally accepted accounting principles in the United States set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession) including, without limitation, the FASB Accounting Standards Codification, that are applicable to the circumstances as of the date of determination, consistently applied and subject to Section 1.03.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guarantors” means, collectively, the entities listed on Schedule 6.12 and each other Domestic Subsidiary of the Parent (other than another Borrower) that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12 and with respect to the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower.

“Guaranty” means the Guaranty made by the Guarantors in favor of the Secured Parties, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Hedge Bank” means any Person in its capacity as a party to Swap Contract that, (a) at the time it enters into an interest rate Swap Contract not prohibited under Article VI or VII, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to Swap Contract not prohibited under Article VI or VII, in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

“Holdco” means USWS Holdings LLC, a Delaware limited liability company.

“Immaterial Domestic Subsidiary” means any Domestic Subsidiary that (i) does not own any ABL Priority Collateral, (ii) generates less than 2.5% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of the Borrower are available, and (iii) owns net assets that have an aggregate fair market value of less than 2.5% of Consolidated Tangible Assets of the Borrower as of the end of the fiscal quarter most recently ended.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments; provided that Indebtedness shall not include such Person’s obligations with respect to any letter of credit to the extent that such obligations are cash collateralized;

net obligations of such Person under any Swap Contract;

all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more than 120 days (unless being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made));

indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; provided that, if such indebtedness is limited in recourse, then the amount of such indebtedness for purposes of this Agreement will not exceed the fair market value of such property;

all Attributable Indebtedness with respect to Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;

all Disqualified Capital Stock; and

all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitees” has the meaning specified in Section 10.04(b).

“Information” has the meaning specified in Section 10.07.

“Initial Third Lien Notes” means the 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026 issued by Parent under the Note Purchase Agreement on the “Initial Equity Linked Notes Closing Date” and the “License Linked Note Closing Date” each as defined in the Note Purchase Agreement as in effect on the Fourth Amendment Date.

“Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under the Bankruptcy Code of the United States, or any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its property; or (c) an assignment or trust mortgage for the benefit of creditors.

“Interest Payment Date” means, (a) as to any LIBOR Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date and (b) as to any Base Rate Loan or Swing Line Loan, the first day of each April, July, October and January and the Maturity Date.

“Interest Period” means, as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one, two or three months thereafter (in each case, subject to availability), as selected by the Borrower in its Revolving Credit Loan Notice; provided that:

(b) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

no Interest Period shall extend beyond the Maturity Date.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“Intercreditor Agreement” means an Amended and Restated Intercreditor Agreement among the Administrative Agent, the Term Loan Agent, the Notes Agent and the Borrower, each in form and substance reasonably satisfactory to the Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time

“IP Rights” has the meaning specified in Section 5.17.

“IRS” means the United States Internal Revenue Service.

“ISDA Definitions” means the 2006 Definitions (or successor definitional booklet for interest rate derivatives) published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time.

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an L/C Issuer and the Borrower (or any Subsidiary) or in favor of an L/C Issuer and relating to such Letter of Credit.

“Judgment Appeal Account” means the bank account(s) directed by the court in the SND Lawsuit to hold the funds to stay enforcement of the June 2021 Judgment while the June 2021 Judgment is on appeal (including an account held by the registrar of the court).

“June 2021 Judgment” means that certain Order of Final Judgment entered into on June 17, 2021, by the Superior Court of the State of Delaware in the SND Lawsuit.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“L/C Issuer” means each of Bank of America in its capacity as an issuer of Letters of Credit hereunder, or any additional issuer of Letters of Credit hereunder selected by the Borrower and acceptable to the Administrative Agent.

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes any Swing Line Lender.

“Lending Office” means, as to any Lender, the office or offices of such Lender described on Schedule 10.02 or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

“Letter of Credit” means any standby letter of credit issued hereunder.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by an L/C Issuer.

“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“Letter of Credit Fee” has the meaning specified in Section 2.03(h).

“Letter of Credit Report” means a certificate substantially the form of Exhibit H or any other form approved by the Administrative Agent in its reasonable discretion.

“Letter of Credit Sublimit” means an amount equal to $25,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.

“LIBOR” means the per annum rate of interest (rounded up to the nearest 1/8th of 1%) determined by the Administrative Agent at or about 11:00 a.m. (London time) two Business Days prior to an Interest Period, for a term equivalent to such period, equal to the London interbank offered rate, or comparable or successor rate approved by the Administrative Agent, as published on the applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time); provided that any comparable or successor rate shall be applied by the Administrative Agent, if administratively feasible, in a manner consistent with market practice; and provided further, that if, for any Interest Period, the per annum rate of interest determined by the Administrative Agent for the London interbank offered rate or any comparable or successor rate is less than 1.0%, then LIBOR shall be 1.0%.

“LIBOR FILO Loan” means a FILO Loan that bears interest based on LIBOR.

“LIBOR Loan” means a Loan that bears interest based on LIBOR or each set of Loans bearing interest based on LIBOR having a common length and commencement of Interest Period, as context requires.

“License” means any license or agreement under which a Loan Party is authorized to use IP Rights in connection with any manufacture, marketing, distribution or disposition of the ABL Priority Collateral, any use of property or any other conduct of its business.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Lien Waiver” means an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which, for any books and records of any Loan Party located on leased premises, the lessor waives or subordinates any Lien it may have on such Collateral, and agrees to permit the Administrative Agent to enter upon the premises and remove such Collateral or to use the premises to store or dispose of such Collateral.

“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Credit Loan or a Swing Line Loan.

“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Intercreditor Agreement, (f) each Issuer Document, (g) any arrangements entered into by any L/C Issuer and the Borrower pursuant to Section 2.03(a)(iii), and (h) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement.

“Loan Parties” means, collectively, the Borrower and each Guarantor.

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the Borrower or Parent and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of the Loan Parties, taken as a whole, to perform their obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“Material Contract” means, with respect to any Person, any agreement or instrument to which such Person is a party (other than the Loan Documents) (a) that is deemed to be a material contract under any securities law applicable to such Person, including the Securities Act of 1933, (b) that relates to Indebtedness of such Person with an aggregate principal amount in excess of $10,000,000 or (c) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.

“Material Loan Party” shall mean (a) the Borrower, (b) the Guarantors and (c) any Restricted Subsidiary that (i) owns any Collateral, (ii) generates more than 5.0% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of Parent and its Subsidiaries are available or (iii) owns net assets that have an aggregate fair market value of 5.0% or more of Consolidated Tangible Assets of the Borrower as of the end of the previous fiscal quarter.

“Maturity Date” means (a) the earlier of April 1, 2025 and (b) the date that is the 91^st day prior to the maturity date of the Term Loan Indebtedness or Notes Indebtedness; provided, however, that in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

“Measurement Period” means, (i) at any date of determination occurring on or after the First Amendment Date and on or prior to March 31, 2021, the period commencing on April 1, 2020 and ending on such date of determination, and (ii) at any other date of determination, (a) the most recently completed four fiscal quarters of Parent if a Monthly Financial Reporting Trigger Period is not then in effect and has not been in effect for the preceding 30 days or (b) at any other time, the most recently completed twelve calendar months.

“MG Finance Lease Agreement” means that certain Master Lease Agreement No. CW/1288-1, entered into on or around January 25, 2019, by and between the Parent, as lessee, and M/G Finance Co., Ltd., as lessor, pursuant to which certain assets constituting a portion of the CARES Act Loan Collateral are leased to Parent.

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during any period when a Lender constitutes a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i) or (a)(ii), an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their reasonable discretion.

“Monthly Financial Reporting Trigger Period” means the period (a) commencing on the day that Availability is less than the greater of (i) 12.5% of the Borrowing Base or (ii) $9,375,000, and (b) continuing until, during each of the preceding 30 consecutive days, Availability has at all times exceeded the greater of (i) 12.5% of the Borrowing Base or (ii) $9,375,000.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064(a) of ERISA.

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Revolving Credit Loans, made by such Lender, substantially in the form of Exhibit C.

“Note Purchase Agreement” means the Note Purchase Agreement dated as of June 24, 2021, entered into by Parent, the Purchasers party thereto, and Notes Agent, as such agreement may be refinanced, refunded, renewed or extended from time to time.

“Note Purchase Documents” means the “Transaction Documents” as defined in the Note Purchase Agreement, including the Notes Security Agreement.

ARTICLE XII“Notes Agent” means Wilmington Savings Fund Society, FSB.

ARTICLE XIII“Notes Indebtedness” means the Indebtedness incurred pursuant to the Note Purchase Agreement, including, without limitation, Indebtedness incurred under the Third Lien Notes.

“Notes Secured Parties” means the “Notes Secured Parties” as defined in the Intercreditor Agreement.

“Notes Security Agreement” means the Guarantee and Third Lien Collateral Agreement dated as of June 24, 2021, among the Loan Parties, and the Notes Agent, as amended, restated, supplemented or otherwise modified from time to time.

“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit F or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.

“NPL” means the National Priorities List under CERCLA.

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Protective Advance, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing

such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Rate Early Opt-in” means the Administrative Agent and the Borrower have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election and (2) Section 3.03(b)(ii) and paragraph (2) of the definition of “Benchmark Replacement”.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06(b)).

“Outstanding Amount” means (a) with respect to Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of the Loans, as the case may be, occurring on such date, and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Loan Parties of Unreimbursed Amounts.

“Overadvance” means the amount by which Total Outstandings exceed the Borrowing Base at any time.

“Parent” means U.S. Wells, Inc., a Delaware corporation.

“Participant” has the meaning specified in Section 10.06(d).

“Participant Register” has the meaning specified in Section 10.06(d).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).

“Payment Conditions” means, in the case of Acquisitions, Investments, prepayments of Indebtedness and Restricted Payments, that no Default or Event of Default has occurred and is continuing or would result therefrom and the following:

(a) either:

Availability shall be higher than the greater of (A) 17.5% of the Borrowing Base and (B) $13,125,000, in each case on a pro forma basis for each day during the consecutive 30-day period immediately preceding such transaction and after giving effect thereto as though such Acquisition, Investment, Restricted Payment or prepayment of Indebtedness (and any Loans being requested to fund any part thereof) had been made on the first day of such 30-day period; or

both (A) the Pro Forma Consolidated Fixed Charge Coverage Ratio after giving effect to such transaction shall be greater than 1.25 to 1.00 for the most recently reported Measurement Period, and (B) Availability shall be higher than the greater of (1) 15.0% of the Borrowing Base and (2) $11,250,000, in the case of this subclause (B) on a pro forma basis for each day during the consecutive 30-day period immediately preceding such transaction and after giving effect thereto as though such Acquisition, Investment, Restricted Payment or prepayment of Indebtedness (and any Loans being requested to fund any part thereof) had been made on the first day of such 30-day period;

delivery to Administrative Agent at least three (3) Business Days and not more than five (5) Business Days prior to the date of the proposed Acquisition, Investment, Restricted Payment or prepayment of Indebtedness of a certificate signed by a Financial Officer of the Borrower giving notice of the intent to consummate such Acquisition, prepayment of Indebtedness, Investment, Restricted Payment or prepayment of Indebtedness and certifying compliance with the applicable foregoing conditions (including calculations of Availability and Borrowing Base for the applicable days and, if applicable, of the Pro Forma Consolidated Fixed Charge Coverage Ratio).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Perfection Certificate” shall have the meaning set forth in the Security Agreement.

“Permitted Acquisition” means, with respect to the Borrower or any Guarantor, (i) any Acquisition by such Person for which the Acquisition Consideration consists solely of Qualified Capital Stock or Equity Proceeds or any combination of Qualified Capital Stock and Equity Proceeds of the Borrower, so long as no Default or Event of Default exists at the time of such Acquisition and the Acquisition could not reasonably be expected to cause a Default or Event of Default immediately after giving effect thereto, or (ii) any other Acquisition by such Person that satisfies each of the following requirements:

(a) no Default or Event of Default exists and the Acquisition could not reasonably be expected to cause a Default or Event of Default immediately after giving effect thereto;

the Acquisition is not hostile;

the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be substantially the same lines of business as one or more of the principal businesses of the Borrower and their Subsidiaries in the ordinary course;

the requirements of Section 6.12 are satisfied;

the Payment Conditions are satisfied before and after giving effect thereto; and

the Borrower shall have delivered to the Administrative Agent and each Lender, at least five Business Days prior to the date on which any such Acquisition is to be consummated, a certificate of a Responsible Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, certifying that all of the foregoing requirements have been satisfied or will be satisfied on or prior to the date on which such Acquisition is consummated.

“Permitted Discretion” means a determination made in good faith and in the exercise of commercially reasonable (from the perspective of a secured asset-based lender) business judgment.

“Permitted Holders” means Crestview, Regiment Capital Special Situations Fund V, L.P., and David J. Matlin, together with their respective Affiliates.

“Permitted Seller Payment” means aggregate cash distributions by Parent or its Subsidiaries to the former members of a limited liability company acquired by Parent or its Subsidiaries through an Acquisition and required to be paid under a tax receivable agreement or similar arrangement.

“Permitted Tax Distributions” means dividends or other distributions paid from time to time (which may be estimated and paid no more frequently than quarterly) by Borrower to the holders of its Equity Interests (and, in turn, by such holders to the respective holders of their Equity Interests) not to exceed in the aggregate in any fiscal year an amount equal to the federal and state income taxes of the holders of Borrower’s Equity Interests which are attributable to the taxable income of Borrower and its Subsidiaries reasonably estimated in good by the Borrower.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Platform” has the meaning specified in Section 6.02.

“Prime Rate” means the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including

its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement.

“Pro Forma Basis” means on a basis in accordance with GAAP and Regulation S X and otherwise reasonably satisfactory to the Administrative Agent.

“Pro Forma Consolidated Fixed Charge Coverage Ratio” means the Consolidated Fixed Charge Coverage Ratio, redetermined on a pro forma basis to include the prepayment of Indebtedness or Restricted Payment, as applicable, as a Consolidated Fixed Charge.

“Protective Advances” has the meaning specified in Section 2.17.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Public Lender” has the meaning specified in Section 6.02.

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“Qualified Capital Stock” of any Person means any capital stock of such person that is not Disqualified Capital Stock; provided that such capital stock shall not be deemed Qualified Capital Stock to the extent sold or owed to a Subsidiary of such person or financed, directly or indirectly, using funds (1) borrowed from such person or any Subsidiary of such person until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such person or any Subsidiary of such person (including, without limitation, in respect of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Capital Stock refers to Qualified Capital Stock of Parent.

“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Recipient” means (a) any Lender, (b) any L/C Issuer and (c) the Administrative Agent, as applicable.

“Register” has the meaning specified in Section 10.06(c).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Removal Effective Date” has the meaning set forth in Section 9.06.

ARTICLE XIV“Rent and Charges Reserve” means a reserve at least equal to three months rent and other charges that could be payable to any such Person on any locations where books and records of a Loan Party are located, unless it has executed a Lien Waiver. Rent payable under Capitalized Leases will not be included in the Rent and Charges Reserve.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

“Request for Credit Extension” means (a) with respect to a Revolving Credit Borrowing, conversion or continuation of Revolving Credit Loans, a Revolving Credit Loan Notice and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.

“Required Lenders” means, as of any date of determination, two or more unaffiliated Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“Resignation Effective Date” has the meaning set forth in Section 9.06.

“Responsible Officer” means (i) a Financial Officer of a Loan Party, (ii) solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and (iii) solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restricted Payment” means any (i) dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, (ii) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment or (iii) any Permitted Seller Payment.

“Restricted Subsidiary” means any direct or indirect Domestic Subsidiary of Parent that is not an Unrestricted Subsidiary.

“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

“Revolving Credit Loan” has the meaning specified in Section 2.01.

“Revolving Credit Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of LIBOR Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A, or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system, including electronic mail, as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

“Revolving Credit Usage” means the sum of (a) the Outstanding Amount of Revolving Credit Loans plus (b) the Outstanding Amount of L/C Obligations.

“Royalties” means all royalties, fees, expense reimbursement and other amounts payable by a Loan Party under a License.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

“Sanction” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Second Amendment Date” shall mean August 17, 2020.

“Secured Bank Product Obligations” means all debt, obligations and other liabilities owing under Secured Cash Management Agreements and Secured Hedge Agreements; provided that Secured Bank Product Obligations of a Loan Party shall not include the Excluded Swap Obligations of such Loan Party.

“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between the Borrower or any Subsidiary and any Cash Management Bank which has delivered a Secured Party Designation Notice.

“Secured Hedge Agreement” means any interest rate Swap Contract permitted under Article VII that is entered into by and between the Borrower or any Subsidiary and any Hedge Bank which has delivered a Secured Party Designation Notice.

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender, substantially in the form of Exhibit G, (a) describing the Secured Cash Management Agreement or Secured Hedge Agreement and setting forth the maximum amount to be secured by the Collateral and the methodology to be used in calculating such amount and (b) agreeing to be bound by Section 9.11.

“Security Agreement” means that certain Guarantee and Collateral Agreement dated as of the Closing Date, as amended, restated, supplemented or otherwise modified from time to time, executed by each of the Loan Parties in favor of the Administrative Agent.

“Security Agreement Supplement” means the form of supplement attached to the Security Agreement as Annex I.

“SND Lawsuit” means that certain lawsuit in the Superior Court of the State of Delaware styled Smart Sand, Inc., a Delaware Corporation, Plaintiff v. U.S. Well Services, LLC, a Delaware Limited Liability Company, Defendant, and filed as C.A. No. 19.C-01-144 PRW [CCLD].

ARTICLE XV“SOFR Early Opt-in” means the Administrative Agent and the Borrower have elected to replace LIBOR pursuant to (1) an Early Opt-in Election and (2) Section 3.03(b)(i) and paragraph (1) of the definition of “Benchmark Replacement”.

ARTICLE XVI“Solvent” and “Solvency” mean, with respect to any Person and its subsidiaries, when taken as a whole on a consolidated basis, on any date of determination, after taking into account all other payments made by, and indemnification payments from, and reimbursement and contribution obligations of, any other Persons with respect thereto, that on such date (a) the fair value of the property of such Person and its consolidated subsidiaries is greater than the total amount of liabilities, including contingent liabilities, of such Person and its consolidated subsidiaries, (b) the present fair saleable value of the assets of such Person and its consolidated subsidiaries is not less than the amount that will be required to pay the probable liability of such Person and its consolidated subsidiaries on its debts as they become absolute and matured, (c) such Person and its consolidated subsidiaries do not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s and its consolidated subsidiaries’ ability to pay such debts and liabilities as they mature, (d) such Person and its consolidated subsidiaries is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s and its consolidated subsidiaries’ property would constitute an unreasonably small capital, and (e) such Person and its consolidated subsidiaries is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Loan Party” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.19).

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

“Super Majority Lenders” means, as of any date of determination, two or more unaffiliated Lenders holding more than 66 2/3% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Super Majority Lenders.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Obligations” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

“Swing Line Lender” means Bank of America, in its capacity as provider of Swing Line Loans, and, at the request of the Borrower and subject to the consent of the Administrative Agent in its sole discretion, any other swing line lender that agrees to act as a provider of Swing Line Loans, or, in each case, any successor swing line lender hereunder acceptable to the Administrative Agent.

“Swing Line Loan” has the meaning specified in Section 2.04(a).

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

“Swing Line Sublimit” means, with respect to each Swing Line Lender, an amount equal to the lesser of (a) the amount set forth on Schedule 1.01(a) with respect to such Lender as its Swing Line Sublimit (as updated from time to time) and (b) the Aggregate Commitments. The Swing Line Sublimits are part of, and not in addition to, the Aggregate Commitments.

“Synthetic Debt” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Loan Agent” means the “Administrative Agent” as defined in the Term Loan Credit Agreement.

“Term Loan Credit Agreement” means an institutional term loan credit in the form of a term in form and substance reasonably satisfactory to the Administrative Agent, as such agreement may be refinanced, refunded, renewed or extended from time to time.

“Term Loan Documents” means the “Loan Documents” as defined in the Term Loan Credit Agreement.

ARTICLE XVII“Term Loan Indebtedness” means the Indebtedness incurred pursuant to the Term Loan Credit Agreement.

“Term Loan Priority Collateral” has the meaning assigned to such term in the Intercreditor Agreement.

“Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Third Amendment Date” shall mean November 12, 2020.

“Third Lien Notes” means the Initial Third Lien Notes and any Additional Third Lien Notes.

“Total Outstandings” means (a) the aggregate Outstanding Amount of all Loans (including Protective Advances) and all L/C Obligations less (b) the amount of L/C Obligations which are Cash Collateralized pursuant to Section 2.15(b).

“Total Swing Line Sublimit” means an amount equal to the aggregate Swing Line Sublimit. The Total Swing Line Sublimit is a part of, and not in addition to, the Aggregate Commitments.

“Type” means, with respect to a Loan, its character as a Base Rate Loan or a LIBOR Loan.

“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“United States” and “U.S.” mean the United States of America.

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

“Unrestricted Subsidiary” means any Subsidiary which Parent has designated in writing to the Administrative Agent to be an Unrestricted Subsidiary pursuant to Section 6.19(b) and each Subsidiary thereof.

“U.S. Loan Party” means any Loan Party that is organized under the laws of one of the states of the United States of America and that is not a CFC.

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii).

“Value” means, for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) that have been or could properly be claimed by the Account Debtor or any other Person.

“Weekly BBC Trigger Period” means (i) the period beginning on the First Amendment Date and continuing until the Administrative Agent’s receipt of a Borrowing Base Certificate for the month ended May 31, 2020 in accordance herewith, and (ii) at all other times, the period (a) commencing on the day that (I) an Event of Default occurs, or (II) for a period of 5 consecutive Business Days, Availability is less than the greater of (x) 12.5% of the Borrowing Base or (y) $9,375,000 and (b) continuing until, during each of the preceding 30 consecutive days, no Event of Default has existed and Availability has at all times exceeded the greater of (i) 12.5% of the Borrowing Base and (ii) $9,375,000.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending,

replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

Accounting Terms. (a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding any provision contained herein or any other Loan Document, any lease (or similar arrangement) that would have been characterized, classified or reclassified as an operating lease in accordance with GAAP prior to the date of Parent’s adoption of ASC 842 (or any other ASC having a similar result or effect) (and related interpretations) (whether or not such lease was in effect on such date) shall not constitute an obligation under a Capital Lease, and any such lease shall be, for all purposes of this Agreement and the other Loan Documents, treated as though it were reflected on Parent’s consolidated financial statements in the same manner as an operating lease would have been reflected prior to Parent’s adoption of ASC 842.

Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of Parent and its Subsidiaries or to the determination of any amount for the

Loan Parties and their Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Loan Parties is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Subsidiary as defined herein.

Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

Rounding. Any financial ratios required to be maintained by the Loan Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as applicable).

Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

Currency Equivalents Generally.

Any amount specified in this Agreement (other than in Articles II and IX) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars. For purposes of this Section 1.07, the “Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 10:00 a.m. on the date two Business Days prior to the date of such determination; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

The Administrative Agent does not warrant or accept responsibility for, nor shall the Administrative Agent have any liability with respect to, the administration, submission or any other matter related to any rate used in determining LIBOR or with respect to any comparable or successor rate thereto.

Uniform Commercial Code. Terms relating to Collateral used and not otherwise defined herein that are defined in the UCC shall have the meanings set forth in the UCC, as applicable and as the context requires.

[Reserved].

THE COMMITMENTS AND CREDIT EXTENSIONS

The Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “Revolving Credit Loan”) to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Outstandings shall not exceed the Borrowing Base and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Notwithstanding anything to the contrary in this Agreement, all Revolving Credit Loans outstanding from and after the First Amendment Date up to the FILO Amount (until the FILO Amount is $0) shall be deemed to be “FILO Loans”. Within the limits of the Borrowing Base, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans may be Base Rate Loans or LIBOR Loans, as further provided herein; provided, however, any Revolving Credit Borrowings made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a funding indemnity letter reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the date of such Revolving Credit Borrowing.

Borrowings, Conversions and Continuations of Loans. (b) Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of LIBOR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by: (i) telephone or (ii) a Revolving Credit Loan Notice. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Loans or of any conversion of LIBOR Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Revolving Credit Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or

continuation of LIBOR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Revolving Credit Loan Notice and each telephonic notice shall specify (i) whether the Borrower is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of LIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit Loans are to be converted and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Revolving Credit Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any such Revolving Credit Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a LIBOR Loan.

Following receipt of a Revolving Credit Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In the case of a Revolving Credit Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 noon on the Business Day specified in the applicable Revolving Credit Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided however, that if, on the date a Revolving Credit Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.

Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of an Interest Period for such LIBOR Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as LIBOR Loans without the consent of the Required Lenders.

The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than five (5) Interest Periods in effect with respect to LIBOR Loans.

Letters of Credit. (c) The Letter of Credit Commitment. (i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Borrowing Base, (x) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

No L/C Issuer shall issue any Letter of Credit if:

(A) subject to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or

(B) the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.

No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(C) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable L/C Issuer from issuing the Letter of Credit, or any Law applicable to the applicable L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the applicable

L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the applicable L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

(D) the issuance of the Letter of Credit would violate one or more policies of the applicable L/C Issuer applicable to letters of credit generally;

(E) except as otherwise agreed by the Administrative Agent and the applicable L/C Issuer, the Letter of Credit is in an initial stated amount less than $500,000;

(F) the Letter of Credit is to be denominated in a currency other than Dollars;

(G) any Lender is at that time a Defaulting Lender, unless the applicable L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion; or

(H) the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

Each L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.

Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by any L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuers with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuers.

Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit. (I) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application may be sent by fax transmission, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 10:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the applicable L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the applicable L/C Issuer may require. Additionally, the Borrower shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.

Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.

If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of

Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension.

Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

Drawings and Reimbursements; Funding of Participations. (J) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 10:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit (each such date, an “Honor Date”); provided that the Borrower has received notice of such drawing by 10:00 a.m. on such Honor Date (and if notice is received after 10:00 a.m., then on the next Business Day following such receipt), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Revolving Credit Loan Notice). Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 12:00 noon on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to such L/C Issuer.

With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.

Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Revolving Credit Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

If any Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, such

L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of such L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.

Repayment of Participations. (K) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.

If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

Obligations Absolute. The obligation of the Borrower to reimburse each L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be jointly and severally, absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), any L/C Issuer or any other Person, whether in connection with this Agreement or such Letter of Credit, the transactions contemplated hereby or any agreement or instrument relating thereto, or any unrelated transaction;

any draft, demand, endorsement, certificate or other document presented under or in connection with such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

waiver by any L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Borrower or any waiver by any L/C Issuer which does not in fact materially prejudice the Borrower;

honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

any payment made by any L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under, such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;

any payment by any L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by any L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any of its Subsidiaries.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.

Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful

misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable or responsible for any of the matters described in clauses (i) through (viii) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against any L/C Issuer, and any L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves, as determined by a final nonappealable judgment of a court of competent jurisdiction, were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Each L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower for, and each L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of any L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where such L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

Letter of Credit Fees. The Loan Parties shall pay to the Administrative Agent for the account of each Lender in accordance, subject to Section 2.16, with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and payable on the first day of each April, July, October and January, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If

there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Administrative Agent or the Required Lenders while any Event of Default exists (or automatically upon the occurrence of an Event of Default under Section 8.01(a) or Section 8.01(f)), all Letter of Credit Fees shall accrue at the Default Rate.

Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, equal to 0.125% per annum on the stated amount of each Letter of Credit issued by it, which fee shall be payable upon the issuance of such Letter of Credit and at the time of each renewal or extension of each Letter of Credit, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the first Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

L/C Issuer Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each L/C Issuer shall, in addition to its notification obligations set forth elsewhere in this Section, provide the Administrative Agent a Letter of Credit Report, as set forth below:

reasonably prior to the time that such L/C Issuer issues, amends, renews, increases or extends a Letter of Credit, the date of such issuance, amendment, renewal, increase or extension and the stated amount of the applicable Letters of Credit after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed);

on each Business Day on which such L/C Issuer makes a payment pursuant to a Letter of Credit, the date and amount of such payment;

on any Business Day on which the Borrower fails to reimburse a payment made pursuant to a Letter of Credit required to be reimbursed to such L/C Issuer on such day, the date of such failure and the amount of such payment;

on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such L/C Issuer; and

for so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall deliver to the Administrative Agent (A) on the last Business Day of each calendar month, (B) at all other times a Letter of Credit Report is required to be delivered pursuant to this Agreement, and (C) on each date that (1) an L/C Credit Extension occurs or (2) there is any expiration, cancellation and/or disbursement, in each case, with respect to any such Letter of Credit, a Letter of Credit Report appropriately completed with the information for every outstanding Letter of Credit issued by such L/C Issuer.

Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

Swing Line Loans. (d) The Swing Line. Subject to the terms and conditions set forth herein, each Swing Line Lender may in its sole discretion, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, make loans (each such loan, a “Swing Line Loan”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of its Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided however, that (i) after giving effect to any Swing Line Loan, (A) the Total Outstandings shall not exceed the Borrowing Base at such time, (B) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Commitment and (C) the aggregate Outstanding Amount of all Swing Line Loans at any time shall not exceed the Total Swing Line Sublimit, and provided further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, (ii) no Swing Line Lender shall be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure and (iii) no Swing Line Lender shall make any Swing Line Loan unless the conditions specified in Section 4.02 have been satisfied on and as of the date the applicable Swing Line Loan is to be made. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.

Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be given by: (i) telephone or (ii) a Swing Line Loan Notice. Each such notice must be received by the applicable Swing Line Lender and the Administrative Agent not later than 12:00 noon on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the applicable Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the applicable Swing Line Lender of any telephonic Swing Line Loan Notice, the applicable Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the applicable Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the applicable Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the applicable Swing Line Lender will, not later than 2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

Refinancing of Swing Line Loans. (A) Each Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes each Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Revolving Credit Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. The applicable Swing Line Lender shall furnish the Borrower with a copy of the applicable Revolving Credit Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Revolving Credit Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the applicable Swing Line Lender at the Administrative Agent’s Office not later than 12:00 noon on the day specified in such Revolving Credit Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable Swing Line Lender.

If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the applicable Swing Line Lender as set forth herein shall be deemed to be a request by such Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the applicable Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

If any Lender fails to make available to the Administrative Agent for the account of the applicable Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the applicable Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the applicable Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the applicable Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the applicable Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the applicable Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the applicable Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, (C) the existence of an Overadvance or (D) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

Repayment of Participations. (B) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the applicable Swing Line Lender receives any payment on account of such Swing Line Loan, such Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by such Swing Line Lender.

If any payment received by the applicable Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by such Swing

Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such Swing Line Lender in its discretion), each Lender shall pay to the applicable Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the applicable Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

Interest for Account of Swing Line Lender. Each Swing Line Lender shall be responsible for invoicing the Borrower for interest on such Swing Line Lender’s Swing Line Loans (provided that any failure of a Swing Line Lender to provide an invoice for interest on Swing Line Loans shall not release the Borrower from its obligation to pay such interest). Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the applicable Swing Line Lender.

Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the applicable Swing Line Lender.

Prepayments. (e) Optional. (i) The Borrower may, upon notice to the Administrative Agent pursuant to delivery to the Administrative Agent of a Notice of Loan Prepayment, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty subject to Section 3.05; provided that (A) such notice must be received by the Administrative Agent not later than 10:00 a.m. (x) three Business Days prior to any date of prepayment of LIBOR Loans and (y) on the date of prepayment of Base Rate Loans; (B) any prepayment of LIBOR Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBOR Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a LIBOR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.16, each such prepayment shall be applied to the Revolving Credit Loans of the Lenders in accordance with their respective Applicable Percentages.

The Borrower may, upon notice to the applicable Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the applicable Swing Line Lender and the Administrative Agent not later than 12:00 noon on the date of the prepayment, and (B) any such prepayment shall

be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of principal shall be accompanied by all accrued interest on the amount prepaid.

Mandatory. Subject to Section 2.18, if for any reason an Overadvance exists at any time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.

Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, the Letter of Credit Sublimit or the Total Swing Line Sublimit, or from time to time permanently reduce the Aggregate Commitments, the Letter of Credit Sublimit or the Total Swing Line Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 10:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Borrowing Base, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Total Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Total Swing Line Sublimit or the Outstanding Amount of Swing Line Loans owing to any Swing Line Lender would exceed such Swing Line Lender’s Swing Line Sublimit. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Aggregate Commitments under this Section 2.06. Upon any reduction of the Aggregate Commitments, the Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. Upon any reduction of the Total Swing Line Sublimit, each Swing Line Lender’s Swing Line Sublimit shall be reduced pro rata by an amount equal to such reduction amount. All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.

Repayment of Loans. (f) Revolving Credit Loans. The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Credit Loans outstanding on such date.

Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten (10) Business Days after such Loan is made and (ii) the Maturity Date.

Protective Advances. The Borrower shall repay each Protective Advance on the earlier to occur of (i) written demand therefor by the Administrative Agent and (ii) the Maturity Date.

Dominion Account. Borrower shall take all necessary steps to ensure that all payments on Accounts or otherwise relating to ABL Priority Collateral are made directly to a Dominion

Account (or a lockbox relating to a Dominion Account). If Borrower or Subsidiary receives cash or payment items with respect to any ABL Priority Collateral, it shall hold same in trust for Administrative Agent and promptly (not later than the next Business Day) deposit same into a Dominion Account. During any Cash Dominion Trigger Period if the Administrative Agent elects to implement cash dominion, the ledger balance in each Dominion Account as of the end of a Business Day shall be applied to the Obligations at the beginning of the next Business Day. If a credit balance results from such application, it shall not accrue interest in favor of the Loan Parties and shall be made available to the Borrower as long as no Default or Event of Default exists. At all times when a Cash Dominion Trigger Period is not in effect, Borrower shall have unrestricted access to amounts in Deposit Accounts.

Interest. (g) Subject to the provisions of Section 2.08(b), (i) each LIBOR Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to LIBOR for such Interest Period plus the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(A) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Administrative Agent or the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

Upon the request of the Administrative Agent or the Required Lenders, while any Event of Default exists or automatically upon the occurrence of an Event of Default under Section 8.01(a) or Section 8.01(f), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

Fees.

Certain Fees. The Borrower shall pay the fees described in Sections 2.03(h) and (i).

Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Fee Rate times the actual daily amount by which the Aggregate Commitments exceed the Revolving Credit Usage, subject to adjustment as provided in Section 2.16. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the first day of each April, July, October and January, commencing with the first full quarter to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Fee Rate separately for each period during such quarter that such Applicable Fee Rate was in effect.

Computation of Interest and Fees. (h) All computations of interest for Base Rate Loans (excluding Base Rate Loans determined by reference to LIBOR) shall be made on the basis of a year of 365 or 366 days (in the case of a leap year), as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Evidence of Debt. (i) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

Payments Generally; Administrative Agent’s Clawback. (j) General. All payments to be made by the Borrower shall be made free and clear and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.

(A) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of LIBOR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 p.m. (noon) on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the time at

which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuers, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

Obligations of Lenders Several. The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).

Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.

Payments with respect to FILO Loans. Notwithstanding anything to the contrary in this Agreement, any payment in respect of Revolving Credit Loans shall be applied first to the Revolving Credit Loans that are not FILO Loans until repaid in full, and then applied to FILO Loans.

Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then, in each case under clause (a) and (b) above, the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.15, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this Section shall apply).

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

Reserved.

Cash Collateral.

Certain Credit Support Events. Upon the request of the Administrative Agent or any L/C Issuer (i) if the applicable L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent, the L/C Issuers or the Swing Line Lenders, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (ii) above, after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

Voluntary Cash Collateralization of Letters of Credit. Upon prior notice to the Administrative Agent and any L/C Issuer, the Borrower or any other Loan Party may, in its discretion and at any time, Cash Collateralize all or a portion of the Outstanding Amount of L/C Obligations.

Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked deposit accounts at Bank of America which, in the case of Cash Collateral provided by any Loan Party, shall be interest bearing deposit accounts. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral. The Borrower, and to the extent provided by any Lender, such Lender, hereby grant to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the Swing Line Lenders), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as the ABL Priority Collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(d). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03, 2.04, 2.05, 2.06, 2.16 or 8.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi))), or (ii) the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (w) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the L/C Issuers or Swing Line Lenders, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement:

Waivers and Amendments. A Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.

Reallocation of Payments and Applicable Percentages. For purposes of determining Lenders’ obligations or rights to fund, participate in or receive collections with respect to Loans and Letters of Credit (including existing Swing Line Loans, Protective Advances and L/C Obligations), the Administrative Agent may in its discretion reallocate Applicable Percentages by excluding a Defaulting Lender’s Commitments and Loans from the calculation of thereof.

Payments; Fees. The Administrative Agent may, in its discretion, receive and retain any amounts payable to a Defaulting Lender under the Loan Documents, and a Defaulting Lender shall be deemed to have assigned to the Administrative Agent such amounts until all Obligations owing to the Administrative Agent, non-Defaulting Lenders and other Secured Parties have been paid in full. The Administrative Agent may use such amounts to cover the Defaulting Lender’s defaulted obligations, to Cash Collateralize such Lender’s Fronting Exposure, to readvance the amounts to the Borrower or to repay Obligations. A Lender shall not be entitled to receive any fees accruing hereunder while it is a Defaulting Lender and its unfunded Commitment shall be disregarded for purposes of calculating the commitment fee under Section 2.09(b). If any L/C Obligations owing to a Defaulting Lender are reallocated to other Lenders, fees attributable to such L/C Obligations under Section 2.03(h) shall be paid to such Lenders. The Administrative Agent shall be paid all fees attributable to L/C Obligations that are not reallocated.

Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lenders and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such

other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit, Swing Line Loans and Protective Advances to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(b)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

Protective Advances. The Administrative Agent shall be authorized, in its discretion, at any time that any condition in Section 4.02 is not satisfied, to make Base Rate Loans (“Protective Advances”) (a) up to an aggregate amount of $10,000,000 outstanding at any time, if the Administrative Agent deems such Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectability or repayment of Obligations, as long as such Loans do not cause Total Outstandings to exceed the Aggregate Commitments; or (b) to pay any other amounts chargeable to the Loan Parties under any Loan Documents, including interest, costs, fees and expenses. Lenders shall participate in Protective Advances outstanding from time to time in accordance with their respective Applicable Percentages. The Required Lenders may at any time revoke the Administrative Agent’s authority to make further Protective Advances under clause (a) by written notice to the Administrative Agent. Absent such revocation, the Administrative Agent’s determination that funding of a Protective Advance is appropriate shall be conclusive. No funding of a Protective Advance shall constitute a waiver by the Administrative Agent or the Lenders of any Event of Default relating thereto. No Loan Party shall be a beneficiary of this Section 2.17 nor authorized to enforce any of its terms.

Overadvances. Any Overadvance shall be repaid by the Borrower on demand by the Administrative Agent, and shall constitute an Obligation secured by the Collateral, entitled to all benefits of the Loan Documents. The Administrative Agent may require the Lenders to fund Base Rate Loans that cause or constitute an Overadvance and to forbear from requiring the Borrower to cure an Overadvance, as long as the total Overadvance does not exceed 10% of the Borrowing Base and does not continue for more than 30 consecutive days without the consent of Required Lenders. In no event shall Loans be required that would cause Total Outstandings to exceed the Aggregate Commitments. No funding or sufferance of an Overadvance shall constitute a waiver by the Administrative Agent or the Lenders of the Event of Default caused thereby.

TAXES, YIELD PROTECTION AND ILLEGALITY

Taxes. (k) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require an applicable withholding agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.

If any applicable withholding agent shall be required by applicable Law to withhold or deduct any Taxes, including both United States federal backup withholding and withholding Taxes, from any payment, then (A) such withholding agent shall withhold or make such deductions as are determined by such withholding agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) such withholding agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable Law, and (C) if such Tax subject to withholding or deduction is an Indemnified Tax, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

Tax Indemnifications. (A) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall, and does hereby, indemnify each Recipient and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or paid by the applicable Recipient and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or an L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to the amount of any such payment or liability delivered to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error.

Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of any Other Taxes. (i) Without limiting the provisions of subsection (a) or (b) above, each Lender and each L/C Issuer shall, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or such L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or such L/C Issuer, as the case may be, to the Administrative Agent pursuant to subsection (e). Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).

Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.

Status of Lenders; Tax Documentation. (B) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (B) and (D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

Without limiting the generality of the foregoing,

(C) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(D) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to

payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) executed originals of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable); or

(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner.

(E) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(F) if a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as

applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If the Administrative Agent, any Lender or any L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or such L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, such Lender or such L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such L/C Issuer in the event the Administrative Agent, such Lender or such L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent, any Lender or any L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.

[Reserved].

Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending

Office to make, maintain or fund Loans whose interest is determined by reference to LIBOR, or to determine or charge interest rates based upon LIBOR, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the LIBOR component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon LIBOR, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the LIBOR component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon LIBOR. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

Inability to Determine Rates.

The Administrative Agent will promptly notify the Borrower and Lenders if, in connection with any Loan or request with respect to a Loan, (a) Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable Loan amount or Interest Period, or (ii) adequate and reasonable means do not exist for determining LIBOR for the Loan or Interest Period (including with respect to calculation of the Base Rate); or (b) Agent or Required Lenders determine for any reason that LIBOR for the Interest Period does not adequately and fairly reflect the cost to Lenders of funding or maintaining the Loan. Thereafter, Lenders’ obligations to make or maintain affected LIBOR Loans and utilization of the LIBOR component (if affected) in determining Base Rate shall be suspended until Agent determines (or is instructed by Required Lenders) to withdraw the notice. Upon receipt of such notice, Borrower may revoke any pending request for funding, conversion or continuation of a LIBOR Loan or, failing that, will be deemed to have requested a Base Rate Loan, and the Administrative Agent may (or shall upon request by Required Lenders) immediately convert any affected LIBOR Loan to a Base Rate Loan.

Notwithstanding anything to the contrary herein or in any other Loan Document:

On March 5, 2021 the Financial Conduct Authority (“FCA”), the regulatory supervisor of LIBOR’s administrator (“IBA”), announced in a public statement the future

cessation or loss of representativeness of overnight/Spot Next, 1-week, 1-month, 2-month, 3-month, 6-month and 12- month U.S. dollar LIBOR tenor settings. On the earliest of (A) the date that all Available Tenors of U.S dollar LIBOR have permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative, (B) June 30, 2023 and (C) the Early Opt-in Effective Date in respect of a SOFR Early Opt-in, if the then-current Benchmark is LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.

(x) Upon (A) the occurrence of a Benchmark Transition Event or (B) a determination by the Administrative Agent that neither of the alternatives under clause (1) of the definition of Benchmark Replacement are available, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders (and any such objection shall be conclusive and binding absent manifest error); provided that solely in the event that the then-current Benchmark at the time of such Benchmark Transition Event is not a SOFR-based rate, the Benchmark Replacement therefor shall be determined in accordance with clause (1) of the definition of Benchmark Replacement unless the Administrative Agent determines that neither of such alternative rates is available.

(y) On the Early Opt-in Effective Date in respect of an Other Rate Early Opt-in, the Benchmark Replacement will replace LIBOR for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document.

At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. During the period referenced in the foregoing sentence, the component of Base Rate based upon the Benchmark will not be used in any determination of Base Rate.

In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

The Administrative Agent will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent pursuant to this Section 3.03(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 3.03(b).

At any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including Term SOFR or LIBOR), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for Benchmark (including Benchmark Replacement) settings and (B) the Administrative Agent may reinstate any such previously removed tenor for Benchmark (including Benchmark Replacement) settings.

Increased Costs; Capital Adequacy. (l) Increased Costs Generally. If any Change in Law shall:

impose, modify or deem applicable any reserve, liquidity, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in calculating LIBOR) or any L/C Issuer;

subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to LIBOR (or of maintaining its obligation to make any such Loan), or to increase the

cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.

Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof).

Reserves on LIBOR Loans. The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each LIBOR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive) and (ii) as long as such Lender shall be required

to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.

Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

any continuation, conversion, payment or prepayment of any LIBOR Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any LIBOR Loan on the date or in the amount notified by the Borrower; or

any assignment of a LIBOR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;

including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Loan made by it at LIBOR for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Loan was in fact so funded.

Mitigation Obligations; Replacement of Lenders. (m) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as

applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agree to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.

Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance with Section 10.13.

Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:

The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:

executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;

a Note executed by the Borrower in favor of each Lender requesting a Note;

the Intercreditor Agreement, duly executed by each of the parties thereto;

the Security Agreement, duly executed by each Loan Party, together with:

(A) proper financing statements in form appropriate for filing under the UCC in all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,

(B) UCC and Lien searches and other evidence satisfactory to the Administrative Agent that Liens in favor of the Administrative Agent are the only Liens upon the Collateral, except Liens permitted under Section 7.01,

(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,

(D) the Account Control Agreements (as defined in the Security Agreement) required pursuant to the Security Agreement and duly executed by the appropriate parties, and

(E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);

such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;

such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

a favorable written opinion of Gibson, Dunn & Crutcher LLP addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;

a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that, after giving effect to the issuance or deemed issuance of any Letters of Credit on the Closing Date, any additional Credit Extension on the Closing Date, the payment by the Borrower of all fees and expenses due hereunder and all payments due on the Closing Date, Revolving Credit Usage shall not exceed $20,000,000, and (C) that attached to such certificate are true and correct calculations evidencing satisfaction of the conditions described in clause (B) above;

a Borrowing Base Certificate as of March 31, 2019;

a financial forecast of Parent and its Subsidiaries on a consolidated basis prepared by management of Parent, including consolidated balance sheets and statements of income or operations and cash flows of Parent and its Subsidiaries on a quarterly basis for each of Parent’s fiscal years 2019 through and including 2024;

for the month ended March 31, 2019, a consolidated balance sheet of Parent and its Subsidiaries as at the end of such month, and the related consolidated statements of

income or operations, changes in shareholders’ equity, and cash flows for such month, all in reasonable detail, certified by a Financial Officer of Parent as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

a certificate from the Borrower attesting to the Solvency of each Material Loan Party before and after giving effect to entering into this Agreement and any repayment or incurrence of Indebtedness on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;

evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral;

duly executed payoff letters with respect to the existing indebtedness under each of the first lien credit agreement and the second lien credit agreement, together with all related release instruments and attachments thereto, in each case in form and substance reasonably satisfactory to the Administrative Agent;

[Reserved]; and

if applicable, a duly executed Letter of Credit Application for each Letter of Credit requested to be issued on the Closing Date, together with all other documents and information pertaining to such requested Letter of Credit issuance as the L/C Issuer or the Administrative Agent may reasonably require.

(i) All fees required to be paid to the Administrative Agent and any L/C Issuer on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Administrative Agent on behalf of the Lenders on or before the Closing Date shall have been paid.

Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced two days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

[reserved].

All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents to which it is a party shall be in full force and effect.

The Borrower shall have provided, in form and substance satisfactory to the Administrative Agent and each Lender, all documentation and other information as the Administrative Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If the Borrower or any other Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification to the Administrative Agent and the Lenders upon request.

Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Revolving Credit Loan Notice requesting only a conversion of Revolving Credit Loans to the other Type, or a continuation of LIBOR Loans) is subject to the following conditions precedent:

The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that (i) such representations and warranties are qualified by materiality or reference to “Material Adverse Effect”, in which case such representations and warranties shall be true and correct in all respects, and (ii) that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (without duplication of any materiality qualification applicable thereto) as of such earlier date; provided that for purposes of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively.

No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.

The Administrative Agent and, if applicable, the applicable L/C Issuer or the applicable Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

Each Request for Credit Extension (other than a Revolving Credit Loan Notice requesting only a conversion of Revolving Credit Loans to the other Type or a continuation of LIBOR Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

Post-Closing Date Conditions.

Within 90 days after the Closing Date or such longer time as the Administrative Agent permits in its sole discretion, the Borrower shall close any Deposit Accounts maintained at Wells Fargo Bank, N.A. and transfer all funds therein to an account of the Borrower maintained by the Administrative Agent and provide evidence of such closure to the Administrative Agent, in form and substance satisfactory to the Administrative Agent.

Within 45 days after Closing or such longer time as the Administrative Agent permits in its sole discretion, the Borrower shall delivered updated endorsements on its insurance policies reflecting the Lender’s requested changes.

REPRESENTATIONS AND WARRANTIES

Parent and the Borrower represents and warrants to the Administrative Agent and the Lenders that:

Existence, Qualification and Power. Each Loan Party and each of its Restricted Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, all information included in any Beneficial Ownership Certification is true and complete in all respects.

Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, under, or require any payment to be made under any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Restricted Subsidiaries, except for conflicts, breaches or contraventions that could not reasonably be expected to result in a Material Adverse Effect, (c) violate any Law or any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, except for violations that could not reasonably be expected to result in a Material Adverse Effect; or (d) result in the creation or imposition of any Lien on any property of the Borrower or any Restricted Subsidiary except Liens created under the Loan Documents.

Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or continuance of the Liens created under the Collateral Documents (including the first priority nature thereof with respect to the ABL Priority Collateral) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings which (i) have been duly obtained, taken, given or made and are in full force and effect, (ii) are required by the Loan Documents or (iii) in the case of any authorization, approval, action, notice or filing from or with a Person other than a Governmental Authority, the failure to have could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency or similar Laws of general application relating to the enforcement of creditors’ rights and by general principles of equity.

Financial Statements; No Material Adverse Effect. (n) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of Parent and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show or describe all material indebtedness and other liabilities, direct or contingent, of Parent and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

The consolidated forecasted balance sheet, statements of income and cash flows of Parent and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, Parent’s best estimate of its future financial condition and performance, recognizing that there are industry-wide risks normally associated with the types of business conducted by Parent and its Subsidiaries and that Parent does not warrant that such forecasts and estimates will ultimately prove to have been accurate.

Litigation. Other than the SND Lawsuit, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of their Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or (b) either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.

No Default. Neither any Loan Party nor any Restricted Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

Ownership of Property; Liens; Investments. Each Loan Party and each of its Restricted Subsidiaries has good title to, or valid leasehold interests in, all of their respective property necessary or used in the ordinary conduct of its business, except for Liens to secure the Term Loan Priority Collateral, liens otherwise permitted under Section 7.01 hereof and such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Environmental Compliance. (o) The Loan Parties and their respective Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

None of the properties currently owned or operated or, to the knowledge of any Loan Party, formerly owned or operated, by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property. Except as in accordance in all material respects with the requirements of all Environmental Laws: (i) there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries and (ii) Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries. Except as could not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect, there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries.

Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or

pursuant to the order of any Governmental Authority or the requirements of any Environmental Law except for any investigations, assessments or remedial or response actions not reasonably expected to result in any material liability to any Loan Party or any of its Subsidiaries. All Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in accordance with the requirements of all Environmental Laws in all material respects and in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.

The Borrower and its Subsidiaries have obtained all Environmental Permits necessary for the ownership and operation of its properties and assets and the conduct of its business except where the failure to do so could, either individually or in the aggregate, reasonably be expected to result in material liability to any Loan Party or any of its Subsidiaries. Except where the failure to do so could not, either individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect, the Borrower and each of its Subsidiaries have been and are in compliance with all terms and conditions of such Environmental Permits. There are no pending or, to the knowledge of the Borrower, threatened, claims against the Borrower or any Subsidiary under any Environmental Laws and neither the Borrower nor any Subsidiary has received any written notice of alleged non-compliance with applicable Environmental Laws or Environmental Permits which could, in each case, either individually or in the aggregate, reasonably be expected to (i) cause a Material Adverse Effect or (ii) result in material liability to any Loan Party or any of its Subsidiaries.

Insurance. The properties of the Borrower and its Restricted Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts (after giving effect to any self-insurance compatible with the following standards), with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Restricted Subsidiary operates.

Taxes. Parent and its Restricted Subsidiaries have filed all federal, state and other material Tax returns and reports required to be filed, and have paid all federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax assessment against Parent or any Restricted Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to any Tax sharing agreement.

ERISA Compliance.

There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

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Except as could not, either individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect: (i) no ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan; and (vii) the Borrower and each ERISA Affiliate have maintained each Plan (other than a Multiemployer Plan) in compliance with the applicable provisions of ERISA, the Code and other federal or state laws.

Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, no Loan Party has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable (if applicable) and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except those permitted under Section 7.01. As of the Closing Date, no Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13. Set forth on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business or chief executive office (as applicable) and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation.

Margin Regulations; Investment Company Act. (p) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.

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Neither the Borrower nor any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all written agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries or any other Loan Party is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No written report, financial statement, certificate or other information furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case as modified or supplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projections, budgets, estimates and other forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, recognizing that there are industry-wide risks normally associated with the types of business conducted by the Borrower and its Subsidiaries and that the Borrower does not warrant that such projections, budgets, estimates and other forward looking statements will ultimately prove to have been accurate.

Compliance with Laws. Each Loan Party and each Restricted Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Intellectual Property; Licenses, Etc. The Borrower and each of its Restricted Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person to the extent such conflict could reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Borrower or any of their Restricted Subsidiaries infringes upon any rights held by any other Person. Other than the SND Lawsuit, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Solvency. Each Material Loan Party is, together with its Subsidiaries on a consolidated basis, Solvent.

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Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its Restricted Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Labor Matters. There are no collective bargaining agreements or Multiemployer Plans covering the employees of the Borrower or any of its Restricted Subsidiaries as of the Closing Date and neither the Borrower nor any Restricted Subsidiary have suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years.

Collateral Documents. The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right, title and interest of the respective Loan Parties in the ABL Priority Collateral described therein and with respect to the Term Loan Priority Collateral a legal, valid and enforceable Lien. Except for filings contemplated hereby and by the Collateral Documents and for such other action completed on or promptly after the Closing Date, no filing or other action will be necessary to perfect or protect such Liens.

Sanctions Concerns. No Loan Party, nor any Subsidiary, nor, to the knowledge of the Loan Parties and their Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is, (a) currently the subject or target of any Sanctions or (b) located, organized or resident in a Designated Jurisdiction.

EEA Financial Institutions. No Loan Party is an EEA Financial Institution.

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Parent shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause each Restricted Subsidiary to:

Financial Statements; Borrowing Base Certificate. Deliver to the Administrative Agent for delivery to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:

as soon as available, but in any event within 90 days after the end of each fiscal year of Parent (or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC) (commencing with the fiscal year ending December 31, 2019), a consolidated balance sheet of Parent and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent

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certified public accountant of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit other than with respect to, or resulting from, (i) an upcoming maturity date or (ii) any potential inability to satisfy any financial covenant on a future date or for a future period;

as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Parent (or, if earlier, 5 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC (commencing with the fiscal quarter ending March 31, 2019)), a consolidated balance sheet of Parent and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal quarter and for the portion of the Loan Parties’ fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by a Financial Officer of the Loan Parties as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

if there are any Unrestricted Subsidiaries as of the end of any fiscal period covered by the financial statements referred to in Section 6.01(a) or (b), concurrently with the delivery of such financial statements, internally prepared consolidating financial statements reconciling the financial condition of Parent’s Restricted Subsidiaries and Unrestricted Subsidiaries, in a format reasonably acceptable to the Administrative Agent, certified by a Financial Officer of Parent as presenting fairly in all material respects the financial condition and results of operations of the Restricted Subsidiaries and Unrestricted Subsidiaries of Parent in accordance with GAAP;

if a Monthly Financial Reporting Trigger Period is in effect, as soon as available, but in any event within 30 days after the end of each month, a consolidated balance sheet of Parent and its Subsidiaries as at the end of such month, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such month and for the portion of Parent’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding month of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by a Financial Officer of Parent as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Parent and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

in connection with the delivery of financial statements referred to in Section 6.01(a), a financial forecast of the Loan Parties and their Subsidiaries on a consolidated and, if there are any Unrestricted Subsidiaries, consolidating basis prepared by management of Parent, in form reasonably satisfactory to the Administrative Agent, including consolidated and, if there are any Unrestricted Subsidiaries, consolidating balance sheets and statements of income or operations and cash flows of the Loan Parties and their Subsidiaries on a quarterly basis for the immediately following fiscal year (including the fiscal year in which the Maturity Date occurs);

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a Borrowing Base Certificate along with the reporting required in Section 5.10(b) of the Security Agreement, prepared as of the end of the applicable period, as soon as available, but in any event (i) when no Weekly BBC Trigger Period is in effect, not later than 20 days after the end of each month and (ii) when a Weekly BBC Trigger Period is in effect, not later than 3 Business Days after the end of each week. All calculations of Availability in any Borrowing Base Certificate shall originally be made by the Borrower and certified by a Financial Officer of the Borrower, provided that the Administrative Agent may from time to time review and adjust any such calculation (A) to reflect its reasonable estimate of declines in value of any ABL Priority Collateral, due to collections received in the Dominion Accounts or otherwise; and (B) to the extent the calculation is not made in accordance with this Agreement or does not accurately reflect the Availability Reserve.

As to any information contained in materials furnished pursuant to Section 6.02(d), the Borrower shall not be separately required to furnish such information under Section 6.01(a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in Sections 6.01(a) and (b) above at the times specified therein.

Certificates; Other Information. Deliver to the Administrative Agent for delivery to each Lender, in form and detail reasonably satisfactory to the Administrative Agent:

concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default under the financial covenants set forth herein or, if any such Default shall exist, stating the nature and status of such event;

concurrently with the delivery of the financial statements referred to in Sections 6.01(a), (b) and (c), a duly completed Compliance Certificate, including a calculation of the Consolidated Fixed Charge Coverage Ratio whether or not the financial covenant is being tested at such time, signed by a Financial Officer of the Borrower(which delivery may, unless the Administrative Agent, or a Lender requests executed originals at least three Business Days prior to the applicable deadline for delivery thereunder, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);

promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or written recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them;

promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Parent, and copies of all annual, regular, periodic and special reports and registration statements which Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

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promptly after the furnishing thereof, copies of any written statement or report furnished to any holder of debt securities of any Loan Party or of any of its Restricted Subsidiaries pursuant to the terms of the Term Loan Documents, Note Purchase Documents or any indenture, loan or credit or similar agreement with respect to Indebtedness in excess of $10,000,000 (other than this Agreement, the Term Loan Agreement or Note Purchase Agreement) and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;

in connection with the delivery of financial statements under Section 6.1(a) (or such later period as the Administrative Agent may agree in its discretion), a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Restricted Subsidiaries and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;

promptly, and in any event within five Business Days after receipt thereof by Parent or any Loan Party or any Restricted Subsidiary thereof, copies of each written notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;

[Reserved];

promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have a Material Adverse Effect; and

promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request, including without limitation, information for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation.

Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d), (e) or (i) or (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent or the Borrower posts such documents, or provides a link thereto on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender following a request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by fax transmission or e-mail) of the posting of any such

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documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Debt Domain, Syndtrak, ClearPar, or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”.

Notices. Promptly notify the Administrative Agent and each Lender:

of the occurrence of any Default;

(i) the breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Restricted Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Restricted Subsidiary and any Governmental Authority; (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Restricted Subsidiary, including pursuant to any applicable Environmental Laws, (iv) or any other matter, in each case, that has resulted or could reasonably be expected to result in a Material Adverse Effect;

the commencement of, or any material development in, any investigation, litigation or proceeding affecting the Borrower or any Restricted Subsidiary pursuant to any applicable Environmental Laws which could, either individually or in the aggregate, reasonably be expected to result in material liability to any Loan Party or any of its Restricted Subsidiaries;

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of the occurrence of any ERISA Event;

of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof, including any determination by the Borrower referred to in Section 2.10(b); and

notice of receipt by a Loan Party of a fee for the early termination of any contract with a customer.

Each notice pursuant to Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

Payment of Obligations. Pay and discharge as the same shall become due and payable, all its material Tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Restricted Subsidiary.

Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect the Borrower’s and the Material Loan Parties’ legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.

Maintenance of Insurance. (q) Maintain insurance with respect to the Collateral, covering casualty, hazard, theft, malicious mischief, flood and other risks, in amounts, with endorsements and with financially sound and reputable insurers of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated. In connection with the delivery of financial statements under Section 6.1(a), the Borrower shall deliver to the Administrative Agent certificates evidencing its insurance policies. Unless the Administrative Agent shall agree otherwise, each policy shall include reasonably satisfactory endorsements that (i) provide for not less than 30 days prior notice to the Administrative Agent of termination, lapse or cancellation of

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such insurance (10 days prior notice in connection to the Administrative Agent of termination, lapse or cancellation due to non-payment) and (ii) with respect to insurance covering Collateral, name the Administrative Agent as loss payee. If the Borrower fails to provide and pay for any insurance, the Administrative Agent may, within 5 days after providing notice to the Borrower, at its option, but shall not be required to, procure the insurance and charge the Borrower therefor. The Borrower agrees to deliver to the Administrative Agent, promptly as rendered, copies of all reports made to insurance companies. Unless an Event of Default has occurred and is continuing, the Loan Parties may settle, adjust or compromise any insurance claim, as long as the proceeds are delivered to the Administrative Agent. Unless an Event of Default has occurred and is continuing, the Administrative Agent shall be authorized to settle, adjust and compromise such claims.

In addition to the insurance required under clause (a) with respect to Collateral, maintain insurance with financially sound and reputable insurers, with respect to the properties and business of the Loan Parties, of such type, in such amounts, and with such coverages and deductibles as are at the time of placing such insurance customary for companies similarly situated engaged in similar businesses and which are available at commercially reasonable rates.

Compliance with Laws. Comply in all material respects with the requirements of all Laws (including Anti-Terrorism Laws) and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply (other than failure to comply with Anti-Terrorism Laws) therewith could not reasonably be expected to have a Material Adverse Effect.

Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in all material respects in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Restricted Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Restricted Subsidiary, as the case may be.

Inspection Rights. (r) Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that when an Event of Default has occurred and is continuing, the Administrative Agent (or any of its respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

Subject to the reimbursement limitations contained in the next sentence, at any time upon the Administrative Agent’s reasonable request, the Loan Parties will allow the Administrative Agent (or its designee) to conduct field examinations to ensure the adequacy of Collateral

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included in any Borrowing Base and related reporting and control systems, and prepared on a basis reasonably satisfactory to the Administrative Agent, such field examinations to include, without limitation, information required by applicable Law. The Borrower shall reimburse the Administrative Agent for all reasonable and documented out-of-pocket charges, costs and expenses (including a reasonable per diem field examination charge) related thereto with respect to no more than one such field examination during each calendar year; provided that if Availability is at any time less than the greater of (i) 20.0% of the Borrowing Base and (ii) $10,000,000, the Borrower shall reimburse the Administrative Agent for all reasonable and documented out-of-pocket charges, costs and expenses (including a reasonable per diem field examination charge) incurred in connection with a second such field examination during such calendar year (without any obligation on the part of the Administrative Agent to conduct such examination); and provided, further, that when an Event of Default has occurred and is continuing, there shall be no limitation on the number or frequency of field examinations that shall be at the sole expense of the Borrower. For the purposes of clarity, any field examination commenced when an Event of Default has occurred and is continuing may be completed at the Borrower’s sole expense notwithstanding the cessation of such Event of Default. The Secured Parties shall have no duty to any Loan Party to make any inspection, nor to share any results of any inspection, appraisal or report with any Loan Party. The Borrower acknowledges that all inspections, appraisals and reports are prepared by the Administrative Agent and/or the Lenders are for their purposes, and the Borrower shall not be entitled to rely upon them.

Use of Proceeds. Use the proceeds of the Credit Extensions (i) to refinance certain existing indebtedness and to pay related costs and expenses, (ii) to issue standby or commercial Letters of Credit, (ii) to finance working capital needs and for other general corporate purposes, including the financing of Permitted Acquisitions, Investments permitted by Section 7.03 and any other use permitted by the Loan Documents in each case not in contravention of any Law or of any Loan Document.

17.12 Covenant to Guarantee Obligations and Give Security. (a) With respect to (x) any Person that becomes a direct or indirect Subsidiary after the Closing Date (other than a CFC, a Subsidiary that is held directly or indirectly by a CFC, any Immaterial Domestic Subsidiary created or acquired after the Closing Date and any Unrestricted Subsidiary), (y) any Immaterial Domestic Subsidiary that ceases to be an Immaterial Domestic Subsidiary and (z) any Subsidiary that is designated as a Restricted Subsidiary in accordance with Section 6.19(c), then the Borrower shall, at the Borrower’s expense:

within 30 days (or such longer time as the Administrative Agent may agree in its discretion) after such formation, acquisition, ceasing to be an Immaterial Domestic

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Subsidiary or designation as a Restricted Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a Security Agreement Supplement and other security and pledge agreements, as specified by and in form and substance reasonably satisfactory to the Administrative Agent (including delivery of other instruments of the type specified in Section 4.01(a)(iv)), securing payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Loan Documents and constituting Liens on all such property (other than Excluded Properties) purported to be subject to such Collateral Document,

within 30 days (or such longer time as the Administrative Agent may agree in its discretion) after such formation, acquisition, ceasing to be an Immaterial Domestic Subsidiary or designation as a Restricted Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to take whatever action (including the filing of UCC financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Security Agreement Supplement and security and pledge agreements delivered pursuant to this Section 6.12, enforceable against all third parties in accordance with their terms, and

within 60 days (or such longer time as the Administrative Agent may agree in its discretion) after such formation, acquisition, ceasing to be an Immaterial Domestic Subsidiary or designation as a Restricted Subsidiary (or such longer period as may be agreed by the Administrative Agent in its sole discretion), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i), (ii) and (iii) above, and as to such other matters as the Administrative Agent may reasonably request.

Upon the acquisition of any property by any Loan Party of a type that is intended to be Collateral, if such property, in the reasonable judgment of the Administrative Agent, shall not already be subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the Borrower shall, at the Borrower’s expense:

within 30 days (or such longer time as the Administrative Agent may agree in its discretion) after such acquisition (or such longer period as may be agreed by the Administrative Agent in its sole discretion), furnish to the Administrative Agent a description of the property so acquired in detail satisfactory to the Administrative Agent,

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execute and deliver to the Administrative Agent Security Agreement Supplements and other security and pledge agreements, as specified by and in form and substance reasonably satisfactory to the Administrative Agent, securing payment of all the Obligations of the applicable Loan Party under the Loan Documents and constituting Liens on all such personal properties and (B) cause the applicable Loan Party to take whatever action (including the filing of UCC financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Required Lenders to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties, and

within 60 days (or such longer time as the Administrative Agent may agree in its discretion) after such acquisition (or such longer period as may be agreed by the Administrative Agent in its sole discretion), deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent as to the matters contained in clause (ii) above and as to such other matters as the Administrative Agent may reasonably request.

At any time upon the written request of the Administrative Agent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may reasonably deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Security Agreement Supplements and other security and pledge agreements.

Upon any other Domestic Subsidiary that is a Restricted Subsidiary becoming a guarantor of the Term Loan Indebtedness or Notes Indebtedness, such Person shall be deemed to be a “Guarantor” for purposes of this Agreement and the Borrower shall promptly cause such Person to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents and to deliver such other Loan Documents and take such other actions specified in clause (a) above within the time frames specified therein.

Notwithstanding the foregoing, if, as of the end of any fiscal quarter, the Immaterial Domestic Subsidiaries collectively (i) generated more than 5% of Consolidated EBITDA for the Measurement Period most recently ended for which financial statements of the Parent and its Restricted Subsidiaries are available or (ii) own net assets that have an aggregate fair market value equal to or greater than 5.0% of Consolidated Tangible Assets of the Parent and its Restricted Subsidiaries, then in each case the Borrower shall cause one or more of such Immaterial Domestic Subsidiaries to execute a joinder agreement (or agreements) such that after giving effect thereto, (A) all such remaining Immaterial Domestic Subsidiaries that are not Guarantors generated less than 5% of Consolidated EBITDA for such Measurement Period and (B) the total net assets owned by all such remaining Immaterial Domestic Subsidiaries that are not Guarantors will have an aggregate fair market value of less than 5.0% of the Consolidated Tangible Assets of the Parent and its Restricted Subsidiaries.

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Compliance with Environmental Laws. Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws in all material respects; provided, however, that neither the Loan Parties nor any of their Restricted Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

Preparation of Environmental Reports. At the request of the Required Lenders during the occurrence and continuance of an Event of Default, provide to the Lenders within 60 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such request, at the expense of the Borrower, an environmental site assessment report for any of its properties described in such request, prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent, indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any Hazardous Materials on such properties. Without limiting the generality of the foregoing, if the Administrative Agent reasonably determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and agrees to cause any Restricted Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment.

Further Assurances. Promptly upon the reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable Law, subject any Loan Party’s or any of its Restricted Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Restricted Subsidiaries is or is to be a party, and cause each of its Restricted Subsidiaries to do so.

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Compliance with Terms of Leaseholds. Make all payments and otherwise perform all obligations in respect of all leases of real property to which Parent or any of its Restricted Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, and cause each of its Restricted Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.

Material Contracts. Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Administrative Agent and, upon request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Restricted Subsidiaries is entitled to make under such Material Contract, and cause each of its Restricted Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

Administration of Deposit Accounts. Section V of the Perfection Certificate sets forth all deposit accounts maintained by the Loan Parties, including all Dominion Accounts. The Loan Parties shall take all actions necessary to establish all deposit account with Bank of America (other than Excluded Accounts and except as provided in the Intercreditor Agreement). The applicable Loan Party shall be the sole account holder of each deposit account (other than Excluded Accounts) and shall not allow any other Person (other than Administrative Agent, the Term Loan Agent to the extent required under the Term Loan Credit Agreement or the Notes Agent to the extent required under the Note Purchase Agreement) to have control over such deposit accounts or any property deposited therein. The Borrower shall promptly notify the Administrative Agent of any opening or closing of a deposit account (other than an Excluded Account) by any Loan Party and, with the consent of Administrative Agent, will amend Section V of the Perfection Certificate to reflect same.

Designation and Conversion of Restricted and Unrestricted Subsidiaries; Covenants With Respect to Unrestricted Subsidiaries.

Unless designated as an Unrestricted Subsidiary in accordance with Section 6.19(b), any Person that becomes a Subsidiary of Parent or any of its Restricted Subsidiaries shall be classified as a Restricted Subsidiary.

The Borrower may designate, by written notification thereof to the Administrative Agent, any Restricted Subsidiary, including a newly formed or newly acquired Subsidiary, as an Unrestricted Subsidiary if (i) prior, and immediately after giving effect, to such designation (including after giving effect to the reclassification of any Investments in, Indebtedness of, and/or Liens on the assets of, such Subsidiary), no Default or Event of Default exists, (ii) such designation is deemed to be an Investment in an Unrestricted Subsidiary in an amount equal to the fair market value as of the date of such designation of the Borrower’s direct and indirect

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ownership interest in such Subsidiary and such Investment would be permitted to be made at the time of such designation under Section 7.03, (iii) immediately after giving effect to such designation, the Total Outstandings shall not exceed the lesser of (x) the Aggregate Commitments of the Lenders and (y) the Borrowing Base (after giving effect to the removal from the Borrowing Base of any of such Restricted Subsidiary’s Accounts which were included in the Borrowing Base immediately prior to such designation), and (iv) such Subsidiary is not a “restricted subsidiary” or a guarantor with respect to the Term Loan Documents or the Note Purchase Documents. Except as provided in this Section 6.19(b), no Restricted Subsidiary may be designated or redesignated as an Unrestricted Subsidiary.

The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary if after giving effect to such designation, (i) the representations and warranties of the Loan Parties and such Restricted Subsidiary contained in each of the Loan Documents with respect to such Restricted Subsidiary are true and correct in all material respects on and as of such date as if made on and as of the date of such redesignation (or, if stated to have been made expressly as of an earlier date, were true and correct as of such date), (ii) no Default would be caused by such designation, and (iii) the applicable Loan Party and such Restricted Subsidiary each comply with the applicable requirements under Section 6.12, at which time such Subsidiary shall cease to be an “Unrestricted Subsidiary” and shall become a “Restricted Subsidiary” for purposes of this Agreement and the other Loan Documents without any amendment, modification or other supplement to any of the foregoing. Any such designation shall be treated as a recovery of the applicable Loan Party’s Investment in such Unrestricted Subsidiary in an amount equal to the lesser of the fair market value at such time of the applicable Loan Party’s direct and indirect ownership interest in such Subsidiary or the amount of the applicable Loan Party’s Investment previously made in (and not previously recovered from) such Unrestricted Subsidiary.

The Loan Parties:

will cause the management, business and affairs of Parent and its Restricted Subsidiaries to be conducted in such a manner (including, without limitation, by keeping separate books of account, furnishing separate balance sheets and income statements of Unrestricted Subsidiaries to creditors and potential creditors thereof (to the extent required hereunder) and by not permitting assets of Unrestricted Subsidiaries to be commingled with those of the Loan Parties) so that each Unrestricted Subsidiary will be treated as an entity separate and distinct from the Loan Parties and their Restricted Subsidiaries;

will cause each Unrestricted Subsidiary to refrain from maintaining its assets in such a manner that would make it costly or difficult to segregate, ascertain or identify as its individual assets from those of any other Loan Party;

will not, and will not permit any other Loan Party to, incur, assume, guarantee or be or become liable for any Indebtedness of any of the Unrestricted Subsidiaries except to the extent permitted by this Agreement; and

the Loan Parties will not permit any Unrestricted Subsidiary to hold any Equity Interest in, or any Indebtedness of, any Loan Party or any Restricted Subsidiary.

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CARES Act Loan.

(i) keep detailed records of the Loan Parties’ utilization of the proceeds of the CARES Act Loan;

(ii) shall apply proceeds of the CARES Act Loan to the payment of obligations under the MG Finance Lease Agreement when due and payable and for other purposes approved under the CARES Act Loan Agreement to the extent permissible under the CARES Act;

(iii) shall use the CARES Act Loan Account solely for the purpose of depositing proceeds of the CARES Act Loan and making payments in accordance with this Section 6.20;

(iv) promptly upon repayment of the CARES Act Loan in full, all assets comprising the CARES Act Loan Collateral shall become part of the Collateral and the Borrower shall make all filings and other actions necessary to perfect and protect the security interest in such assets pursuant to the terms of the Collateral Documents and the Intercreditor Agreement;

(v) promptly provide Administrative Agent upon its request with copies of all material correspondence and documentation regarding the CARES Act Loan; and

(vi) use commercially reasonably efforts to ensure that, at all times, an amount equal to no less than ninety percent (90%) of the CARES Act Loan is guaranteed by the U.S. Department of Agriculture.”

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, Parent shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly:

Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or sign or file or, to the knowledge of any Loan Party, suffer to exist under the UCC of any jurisdiction a financing statement that names Parent or any of its Restricted Subsidiaries as debtor, or assign any accounts or other right to receive income, other than the following:

Liens pursuant to any Loan Document;

Liens existing on the date hereof and listed on Schedule 7.01 and any renewals, refinancing, refunding, replacement or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.02(d);

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Liens for Taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

carriers’, landlord’s, warehousemen’s, mechanics’, materialmen’s, repairmen’s, laborer’s, or other like Liens arising in the ordinary course of business which do not secure Indebtedness for borrowed money and which are not overdue for a period of more than 90 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

pledges or deposits in the ordinary course of business in connection with workers’ compensation, self-insurance obligations, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

Liens on deposits to secure the performance of bids, tenders, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);

Liens securing Indebtedness permitted under Section 7.02(f) including such Liens outstanding on the date hereof; provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;

Leases, subleases, licenses and sublicenses with respect to the assets or properties of any Loan Party or any Restricted Subsidiary, in each case entered into in the ordinary course of such Person’s business so long as such leases do not apply to Collateral or are subordinate in all respects to the Liens granted and evidenced by the Collateral Documents and do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of Loan Party or any Restricted Subsidiary or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;

Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

Liens on property of the Borrower and the Guarantors securing Indebtedness permitted under Section 7.02(g), subject to the Intercreditor Agreement;

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Liens on property of a Person existing at the time such Person is acquired or merged into or consolidated with the Borrower or any Guarantor or becomes a Restricted Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or Investment and do not extend to any assets other than those of the Person merged into or consolidated with the Borrower or such Guarantor or acquired by the Borrower or such Guarantor, and the applicable Indebtedness secured by such Lien is permitted under Section 7.02(j);

rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such deposit accounts in the ordinary course of business;

in connection with any Indebtedness permitted under Section 7.02(o), Liens solely on the proceeds received or to be received by any Loan Party in connection with the termination of any insurance policy financed by such Indebtedness;

Liens solely on any cash earnest money deposits made by a Loan Party in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;

Liens arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, any operating lease;

Liens arising from UCC financing statements filed solely for obligations arising from the deferred purchase price of property or services (x) not overdue by more than 120 days and incurred in the ordinary course of such Person’s business or (y) being contested in good faith by appropriate proceedings for which reserves and other appropriate provisions, if any, required by GAAP shall have been made;

other Liens incident to the ordinary course of business that are not incurred in connection with the incurrence of any Indebtedness in respect of an aggregate amount of obligations with a value not to exceed $500,000 at any one time outstanding;

Liens on CARES Act Collateral securing the indebtedness incurred under the CARES Act Loan Agreement as of the Third Amendment Date;

Liens created under the Note Purchase Documents; provided that, (i) such Liens only secure Indebtedness permitted under Section 7.02(s), (ii) such Liens are subject to the terms of the Intercreditor Agreement and rank third in priority to all Liens securing the ABL Priority Collateral, and (iii) any lender or issuing bank (or any agent or trustee thereof, including the Notes Agent) with respect to such Indebtedness shall have become a party to the Intercreditor Agreement as, and shall have the obligations of a Notes Secured Party thereunder.

Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:

obligations (contingent or otherwise) existing or arising under any interest rate Swap Contract, provided that (i) such obligations are (or were) entered into by such Person to hedge against (including cap, collar, or exchange) interest rates or foreign exchange rates, which are incurred in the ordinary course of business and not for speculative purposes and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

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Indebtedness among the Loan Parties and their wholly owned Restricted Subsidiaries, which Indebtedness shall (i) be on terms (including subordination terms) reasonably acceptable to the Administrative Agent and (ii) be otherwise permitted under the provisions of Section 7.03;

Indebtedness under the Loan Documents;

Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any refinancing, refunding, replacement, renewal or extension, in whole or in part, of the foregoing; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal, or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal, or extension, (ii) the stated maturity date of such refinancing, refunding, renewing or extending Indebtedness is no earlier than six months after the Maturity Date, and (iii) the refinanced debt is retired in full on the issuance date of the refinancing debt;

Guarantees of any Loan Party or any Restricted Subsidiary in respect of Indebtedness otherwise permitted hereunder of any Loan Party;

Indebtedness with respect to the extent and in the amounts permitted under Section 5.02(b)(iii) and (v) of the Term Loan Credit Agreement;

(x) the Term Loan Indebtedness incurred in connection with the Term Loan Credit Agreement provided that the aggregate principal amount of such Indebtedness shall not exceed $275,000,000 at any time outstanding, so long as (i) the Term Loan Agent on behalf of the Secured Parties (as defined in the Term Loan Credit Agreement) has entered into the Intercreditor Agreement, (ii) the Term Loan Secured Parties are granted a first priority Lien solely in the Term Loan Priority Collateral and the Excluded ABL Collateral (as defined in the Intercreditor Agreement) and (iii) such Secured Parties are granted a second priority Lien solely in the ABL Priority Collateral and (y) any refinancings, refundings, renewals or extensions thereof permitted by the Intercreditor Agreement, provided with respect to this clause (y) that (A) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal, or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal, or extension, (B) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (C) such Indebtedness’ scheduled maturity is no earlier than ninety-one (91) days after the Maturity Date, (D) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to maturity; provided that, for the avoidance of doubt, this clause (D) shall not prohibit customary high yield indenture provisions requiring offers to repurchase in connection with asset sales (such offer not exceeding 100% of the outstanding principal balance of such Indebtedness) or any change of control (such offer not exceeding 101% of the outstanding principal balance of such Indebtedness) and provisions regarding prepayment from the net cash proceeds of certain debt issuances, casualty events,

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extraordinary receipts, tax receipts and equity issuances, in each case, only to the extent not required to be applied first to the Obligations pursuant to the terms of the Loan Documents, (E) no indenture or other agreement governing such Indebtedness contains (1) maintenance financial covenants or (2) covenants or events of default that are more restrictive in any material respect on the Borrower or any of their Restricted Subsidiaries than then applicable market terms and conditions for comparable issuers and issuances, (F) if secured, such Indebtedness shall not be secured by a first lien on any of the ABL Priority Collateral and the administrative agent or trustee therefor shall have entered into an Intercreditor Agreement with the Administrative Agent in form and substance reasonably satisfactory to it and (G) the aggregate principal amount of such Indebtedness does not exceed $275,000,000;

Indebtedness in respect of workers’ compensation claims, unemployment insurance, employee compensation and benefits, self-insurance obligations, performance bonds, surety appeal or similar bonds and completion guarantees provided by any Loan Party or a Restricted Subsidiary in the ordinary course of its business;

Indebtedness in respect of (i) self-insurance obligations or completion, bid, performance, appeal or surety bonds issued for the account of the Borrower or any wholly-owned Restricted Subsidiary in the ordinary course of business, including guarantees or obligations of the Borrower or any wholly-owned Restricted Subsidiary with respect to letters of credit supporting such self-insurance, completion, bid, performance, appeal or surety obligations (in each case other than for an obligation for money borrowed) or (ii) obligations represented by letters of credit for the account of the Borrower or any wholly-owned Restricted Subsidiary, as the case may be, in order to provide security for workers’ compensation claims;

indemnification, adjustment of purchase price, earn-out or similar obligations (including without limitation any Earn Out Obligations), in each case, incurred or assumed in connection with any Permitted Acquisition or disposition of any business or assets of the Borrower or any wholly-owned Restricted Subsidiary or Equity Interests of a wholly-owned Restricted Subsidiary, other than guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such Permitted Acquisition; provided that (i) any amount of such obligations included on the face of the balance sheet of the Borrower or any wholly-owned Restricted Subsidiary shall not be permitted under this clause (j) unless such obligation arises with respect to a Permitted Acquisition approved by all Lenders and (ii) in the case of a disposition, the maximum aggregate liability in respect of all such obligations outstanding under this clause (j) shall at no time exceed the gross proceeds actually received by the Borrower and the wholly-owned Restricted Subsidiaries in connection with such disposition;

The CARES Act Loan, as in effect on November 12, 2020, provided that the Borrower shall not enter into any amendment, restatement, renewal, extension or other modification of such CARES Act Loan without the prior written consent of the Administrative Agent and provided further that the sole collateral that maybe pledged under the CARES Act Loan is CARES Act Loan Collateral;

Indebtedness of Loan Parties arising from endorsing negotiable instruments for collection in the ordinary course of business;

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Indebtedness of the Loan Parties consisting of take-or-pay obligations contained in supply arrangements in the ordinary course of business;

Indebtedness of the Loan Parties under company debit cards, stored value cards, commercial cards or cash management services incurred in the ordinary course of business in an amount not to exceed $500,000 in the aggregate at any time outstanding;

Indebtedness owing to any insurance company in connection with the financing of insurance premiums in the ordinary course of business;

Indebtedness in the form of obligations for the deferred purchase price of property or services incurred in the ordinary course of business which are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been established; and

Indebtedness of the Loan Parties arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness (i) does not exceed $100,000 at any time outstanding or (ii) is extinguished within 10 Business Days of receipt of notice from the applicable financial institution of such occurrence;

(vii) non-current pay, non-amortizing, unsecured and subordinated junior debt with a maturity date beyond the Maturity Date and which is subordinated in right of payment in full to the Obligations, subject to execution by such junior debt lenders of a subordination agreement in a form as may be acceptable to the Administrative Agent in its sole discretion;

(x) the Notes Indebtedness incurred in connection with the Note Purchase Agreement provided that the aggregate principal amount of such Indebtedness shall not exceed $155,000,000 (plus any interest that is capitalized to the principal of the notes) at any time outstanding, so long as (i) the Notes Agent on behalf of the Notes Secured Parties has entered into the Intercreditor Agreement, and (ii) the Notes Agent is granted a third priority Lien in the Collateral (as defined in the Intercreditor Agreement) and (y) any refinancings, refundings, renewals or extensions thereof permitted by the Intercreditor Agreement, provided with respect to this clause (y) that (A) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal, or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal, or extension, (B) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (C) such Indebtedness’ scheduled maturity is no earlier than ninety-one (91) days after the Maturity Date, (D) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to maturity, (E) no indenture or other agreement governing such Indebtedness contains (1) maintenance financial covenants or (2) covenants or events of default that are more restrictive in any material respect on the Borrower or any of their Restricted Subsidiaries than then applicable market terms and conditions for comparable issuers and issuances, (F) if secured, such Indebtedness shall not be secured by a first lien on any of the Collateral and the administrative agent or trustee therefor shall have entered into an Intercreditor Agreement with the

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Administrative Agent in form and substance reasonably satisfactory to it and (G) the aggregate principal amount of such Indebtedness does not exceed $155,000,000 (plus any interest that is capitalized to the principal of the notes); and

unsecured Indebtedness incurred in the ordinary course of business not otherwise permitted under this Section 7.02 in an aggregate principal amount not to exceed $500,000 at any time outstanding.

Investments. Make or hold any Investments, except:

Investments held by the Parent and its Restricted Subsidiaries in the form of (A) Cash and Cash Equivalents, (B) direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal and interest on which are fully guaranteed by the United States of America and (C) certificates of deposit fully insured by the Federal Deposit Insurance Corporation in national, state or foreign commercial banks whose outstanding long term debt is rated at least A or the equivalent by S&P or Moody’s;

expenditures in respect of purchase money Indebtedness and Capital Leases permitted by Section 7.02;

to the extent constituting Investments, transactions permitted under Sections 7.02 and 7.05;

advances to officers, directors and employees of the Loan Parties and their Restricted Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

Investments by and among Loan Parties in other Loan Parties;

Investments (i) consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, (ii) Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss or (iii) advances made in connection with the purchase of goods or services in the ordinary course of business;

Guarantees permitted by Section 7.02;

Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and identified on Schedule 7.03 or otherwise set forth on Schedule 7.03;

the Borrower and the Guarantors may (by purchase or merger) consummate Permitted Acquisitions; provided that, in the case of a merger or consolidation, the Borrower or a Guarantor, as applicable, is the surviving entity;

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to the extent constituting Investments, Investments in contracts and agreements (including, without limitation, interest rate Hedge Agreements), including prepaid deposits and expenses thereunder, to the extent permitted under the Loan Documents;

[Reserved]; and

other Investments; provided that the Payment Conditions with respect to each such Investments are satisfied before and after giving effect to such Investment.

Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:

(i) a Loan Party may merge with one or more of its Restricted Subsidiaries, provided that the Loan Party shall be the continuing or surviving Person, and (ii) any of its Restricted Subsidiaries may merge with any of its other Restricted Subsidiaries provided that if any of such Restricted Subsidiaries is a Guarantor, a Guarantor shall be the surviving Person;

any Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Guarantor;

any Restricted Subsidiary that is not a Guarantor may dispose of all or substantially all its assets (including any Disposition that is in the nature of a liquidation) (i) to the Borrower or another Restricted Subsidiary that is not a Loan Party or (ii) to a Loan Party; and

the Borrower or any Guarantor may merge or consolidate with any Person in accordance with Section 7.03(i); and

(i) any Loan Party (other than Parent or the Borrower) may dissolve; provided that the assets thereof are transferred to or become the property of another Loan Party and (ii) any Restricted Subsidiary that is not a Loan Party may dissolve; provided that the assets thereof are transferred to or become the property of a Loan Party or another Restricted Subsidiary that is not a Loan Party.

Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:

sales, transfers or other dispositions in the ordinary course of its business of Property that is surplus, obsolete, defective, worn-out, damaged, or that individually or in the aggregate is not reasonably necessary for the continued operation of any Loan Party, which, in the case of any such sale, transfer or disposition exceeding $1,000,000.00 in value, shall be so certified by a Responsible Officer of the Borrower and agreed by the Administrative Agent;

Dispositions of inventory in the ordinary course of business in connection with services provided to a customer;

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Dispositions of property by any Restricted Subsidiary to the Borrower, to any wholly-owned Restricted Subsidiary; provided that if the transferor of such property is a Guarantor, the transferee thereof must either be Borrower or a Guarantor;

Dispositions permitted by Section 7.04;

sales, transfers or other dispositions of assets, so long as such assets are exchanged for like-kind (replacement) assets or the proceeds of such sales, transfers or other dispositions are applied contemporaneously to acquire like-kind (replacement) property (which, in each case, will become Collateral);

Dispositions of any Term Loan Priority Collateral to the extent permitted under the Term Loan Credit Agreement;

sales and issuances of Equity Interests in the Parent and Holdings;

the liquidation, sale or use of Cash and Cash Equivalents; and

sales or non-exclusive grants of licenses or sublicenses to use the patents, trade secrets, know-how and other intellectual property, and licenses, leases or subleases of other assets, of the Borrower or any Restricted Subsidiary to the extent not materially interfering with the business of the Borrower or any Restricted Subsidiary.

provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(g) (other than Dispositions to a Loan Party) shall be for fair market value.

Notwithstanding the above Section 7.05(a) through Section 7.05(g), without the prior written consent of Administrative Agent which shall not be unreasonably withheld, conditioned or delayed, the Loan Parties shall not sell or otherwise dispose of any inventory other than a sale or consumption of inventory in connection with services provided to a customer.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:

each Restricted Subsidiary may make Restricted Payments to a Loan Party, any Restricted Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

Parent or any of its Subsidiaries may make payments in respect of Swap Contracts permitted by the terms of this Agreement, to the counterparties thereof;

[Reserved];

the Loan Parties may make Restricted Payments with the proceeds received from the substantially concurrent issue of Qualified Capital Stock;

[Reseved];

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so long as no Event of Default shall have occurred and be continuing at the time of any such action or would result therefrom, (A) the redemption, repurchase or other acquisition or retirement for value of Equity Interests of the Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either upon any such individual’s death or disability; provided that in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed $1,000,000 during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year) and (B)(i) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (ii) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding Taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; provided that in any case, that the aggregate repurchases, redemptions or other acquisitions or retirements shall not exceed $100,000 in the aggregate;

the payment of cash in lieu of fractional Equity Interests in an amount not to exceed $100,000;

Permitted Tax Distributions;

so long as no Event of Default shall have occurred and be continuing at the time of any such action or would result therefrom, payments or distributions to dissenting stockholders pursuant to applicable Law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 7.04;

the Parent may declare and pay dividends with respect to its Equity Interests payable solely in Qualified Capital Stock; and

So long as the Payment Conditions are satisfied with respect thereto, Restricted Payments not otherwise allowed to be made in clauses (a) through (j) above.

Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Restricted Subsidiaries on the Closing Date, any other business or businesses in the hydraulic fracturing and related oilfield services industry and other businesses reasonably related or ancillary thereto.

Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Loan Parties, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable, taken as a whole, to the Loan Parties or such Restricted Subsidiary as would be obtainable by the Loan Parties or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to (a) transactions solely between or among the Loan Parties, (b) compensation to, and the terms of any employment contracts with, individuals who are officers, managers or directors of the Loan Parties in the ordinary course of business (including any indemnity provided for the benefit of directors (or comparable managers) of such

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Loan Parties, provided that, to the extent such approval is required, such compensation is approved by such Loan Party’s board of directors (or equivalent governing body), (c) any issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock options and stock ownership plans in each case, as permitted by this Agreement, (d) Restricted Payments permitted pursuant to Section 7.06.

Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document, the Term Loan Credit Agreement, any Term Loan Document or the Note Purchase Agreement or any other Note Purchase Document) that (a) limits the ability (i) of any Restricted Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on the date hereof and set forth on Schedule 7.09 or (B) at the time any Person becomes a Restricted Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower, (ii) of any Restricted Subsidiary to Guarantee the Obligations or (iii) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on its property to secure the Obligations; provided, however, that (x) this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.02(f) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness or customary restrictions on assignment, encumbrances or subletting in leases and other contracts and (y) this clause (iii) and the preceding clause (i) shall not prohibit customary restrictions and conditions contained in agreements relating to the sale of a Loan Party or an asset pending such sale, provided that such restrictions and conditions apply only to such Loan Party or such asset that is to be sold and such sale is permitted under this Agreement; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure the Obligations.

Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period to be less than 1.00 to 1.00 while a Financial Covenant Trigger Period is in effect, commencing with the most recent Measurement Period for which financial statements were, or were required to be, delivered hereunder prior to the commencement of the Financial Covenant Trigger Period.

Amendments of Organization Documents. Amend any of its Organization Documents in a manner which could materially and adversely affect the interests of the Administrative Agent or the Lenders.

Accounting Changes. Make any change in (a) its accounting policies or reporting practices, except as required by GAAP, or (b) its fiscal year.

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Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase or defease in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in accordance with the terms of this Agreement, (b) regularly scheduled payments of principal of Indebtedness set forth on Schedule 7.02, (c) mandatory prepayments or redemptions of the Term Loan Indebtedness as required under the Term Loan Indebtedness Documents as in effect on the date hereof, (d) refinancings, refundings, extensions or renewals of Indebtedness to the extent such refinancing, refunding, extension or renewal is permitted by Sections 7.02(d) or 7.02(g)(ii), as applicable, (e) the conversion to or exchange for Equity Interests of convertible or exchangeable debt securities, and customary payments in cash in lieu of fractional shares in connection therewith, and (f) other prepayments or redemptions with respect to Indebtedness not otherwise permitted pursuant to this Section 7.14; provided that, in the case of this clause (f), the applicable Payment Conditions are satisfied before and after giving effect thereto. Notwithstanding the above, neither Parent, nor any Restricted Subsidiary shall make any cash payments with respect to the Notes Indebtedness without the prior written consent of Administrative Agent and the Required Lenders.

Amendment, Etc of Indebtedness.

Amend, modify or change in any manner any term or condition of the Term Loan Documents or Note Purchase Documents in a manner materially adverse to the Lender except as provided in the Intercreditor Agreement.

Sanctions. Directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.

EVENTS OF DEFAULT AND REMEDIES

Events of Default. Any of the following shall constitute an Event of Default:

Non-Payment. The Borrower or any other Loan Party fail to (i) pay when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

Specific Covenants. (i) The Borrower or any other Loan Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02(a), 6.02(b), 6.03(a), 6.03(b), 6.05, 6.07, 6.10, 6.11, 6.12, 6.14, 6.19 or Article VII or (ii) the Borrower or any other Loan Party fails to perform or observe any term, covenant or agreement contained in Section 6.02 (other than Section 6.02(a) and 6.02(b)) or Section 6.03 (other than Section 6.03(a) and 6.03(b)) and such failure continues for 5 days; or

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Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or

Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made; or

Cross-Default. (i) Any Loan Party or any Restricted Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $10,000,000 (including the Term Loan Indebtedness and Notes Indebtedness), or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness (other than secured Indebtedness that becomes due as a result of the voluntary sale or transfer, casualty or condemnation of the assets securing such Indebtedness) or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event under this clause (B) is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined); or

Insolvency Proceedings, Etc. Any Loan Party or any Restricted Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

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Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary thereof becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or

Judgments. There is entered against any Loan Party or any Restricted Subsidiary thereof (i) a final judgment or order, either individually or in the aggregate, for the payment of money in excess of (i) $20,000,000, in the case of a final judgment or order in connection with any litigation listed on Schedule 8.01(h) or (ii) $20,000,000, in the case of any other judgment or order, in each case, shall be rendered against any Loan Party or any of its Subsidiaries by one or more Governmental Authorities, arbitral tribunals or other bodies having jurisdiction against such Loan Party and either (x) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (y) there shall be any period of sixty (60) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect or such judgment or order has not been otherwise discharged or satisfied within such sixty (60) day period; and provided, however, that any such judgment or order shall not give rise to an Event of Default under this Section 8.01(h) if and for so long as (A) the amount of such judgment or order in excess of the thresholds listed above is covered by a valid and binding policy of insurance in favor of such Loan Party or Subsidiary from an insurer that is rated at least “A” “XII” by A.M. Best Company, which policy covers full payment thereof and (B) such insurer has been notified, and has not denied the claim made for payment, of the amount of such judgment or order, and provided, further that, the June 2021 Judgment shall not give rise to an Event of Default under this Section 6.01(g) if and for so long as for the period commencing on or prior to the court deadline to deliver cash/security for the June 2021 Judgment through the date that is the final date required by the court to fund such cash/security with respect to the June 2021 Judgment, the Judgment Appeal Account is fully funded in the amount necessary to stay any enforcement of the June 2021 Judgment but not to exceed $55,000,000, by reason of pending appeal or otherwise; or

ERISA. (i) An ERISA Event occurs with respect to a Pension Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect or the imposition of a Lien on the assets of a Loan Party, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan and such failure to pay has resulted or could reasonably be expected to result in a Material Adverse Effect or the imposition of a Lien on the assets of a Loan Party; or

Invalidity of Loan Documents. Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or

Change of Control. There occurs any Change of Control; or

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Collateral Documents. Any Collateral Document after delivery thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01) on Collateral consisting of Accounts of the type included in the Borrowing Base unless such occurrence results solely from action of the Administrative Agent or any Lender and involves no Default by the Borrower or any Guarantor hereunder or under any Collateral Document.

Remedies upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

declare the commitment of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and

exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable Law or equity;

provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.15 and 2.16, be applied by the Administrative Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent under this Agreement or any other Loan Document in its capacity as such and to the payment of Protective Advances;

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Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuers arising under the Loan Documents and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings, Secured Hedge Agreements and Secured Bank Product Obligations (other than Secured Hedge Agreements) up to the amount of the Bank Product Reserve existing therefor and to the Administrative Agent, for the account of the applicable L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.15, in each case, ratably among the Administrative Agent, the Lenders, the L/C Issuers, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to payment of all other Obligations ratably among the Secured Parties; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

Subject to Section 2.03(c) and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.

Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Secured Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.

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ADMINISTRATIVE AGENT

Appointment and Authority. (a) Each Secured Party hereby irrevocably appoints, designates and authorizes Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and each of the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust, financial, advisory, underwriting or other business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders or to provide notice to or consent of the Lenders with respect thereto.

Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, each of the Administrative Agent and its Related Parties:

shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

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shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

shall not, except as expressly set forth herein and in the other Loan Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

Neither the Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by the Administrative Agent under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby or thereby (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by Borrower, a Lender or an L/C Issuer.

Neither the Administrative Agent nor any of its Related Parties have any duty or obligation to any Lender or participant or any other Person to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

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Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall be fully protected in relying upon and shall not incur any liability for relying upon, any notice, request, certificate, communication, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall be fully protected in relying and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. For purposes of determining compliance with the conditions specified in Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objections.

Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

Resignation of Administrative Agent.

Notice. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right which successor must be approved by the Borrower (which approval shall not be required while an Event of Default has accrued and is continuing), to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring

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Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent, which successor must be approved by the Borrower(which approval shall not be required while an Event of Default has accrued and is continuing) meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

Defaulting Lender. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the Required Lenders give notice of removal (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

Effect of Resignation or Removal. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

Swing Line Lender. Any resignation or removal by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as a Swing Line Lender. If Bank of America resigns as a Swing Line Lender, it shall retain all the rights of a Swing Line

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Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment by the Borrower of a successor Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender and (ii) the retiring Swing Line Lender shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents.

Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Arranger, Syndication Agent or Documentation Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.

Administrative Agent May File Proofs of Claim; Credit Bidding. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise.

to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including, to the extent owed hereunder or under any other Loan Document, any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(h) and (i), 2.09 and 10.04) allowed in such judicial proceeding; and

to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent, to the extent owed hereunder or under any other Loan Document, any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding.

The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (h) of Section 10.01 of this Agreement), and (iii) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

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Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and each of the L/C Issuers irrevocably authorize the Administrative Agent, at its option and in its discretion,

to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank of Hedge Bank shall have been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, (iii) any property owned by a Restricted Subsidiary that is designated as an Unrestricted Subsidiary in accordance with Section 6.19, or (iv) if approved, authorized or ratified in writing in accordance with Section 10.01;

to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder (including designation of such Person as an Unrestricted Subsidiary in accordance with Section 6.19); and

to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i).

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10. Subject in each case to this Section 9.10, upon any Loan Party’s request, the Administrative Agent, shall (and is hereby irrevocably authorized by each Lender (including in its capacity as a Secured Party) and each of the L/C Issuers to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.

The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

Secured Cash Management Agreements and Secured Hedge Agreements . Except as otherwise expressly set forth herein, no Cash Management Bank or Hedge Bank that obtains the benefit of the provisions of Section 8.03, the Guaranty or any Collateral by virtue of

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the provisions hereof, of the Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) (or to notice of or to consent to any amendment, waiver or modification of the provisions hereof or of the Guaranty or any Collateral Document) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements except to the extent expressly provided herein and unless the Administrative Agent has received a Secured Party Designation Notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements in the case of termination of the Aggregate Commitments and repayment in full of all Obligations hereunder.

Certain ERISA Matters.

Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, that at least one of the following is and will be true:

such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,

the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this

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Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

MISCELLANEOUS

Amendments, Etc. Subject to Section 5.3(a) of the Intercreditor Agreement, no amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Administrative Agent, the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided however, that no such amendment, waiver or consent shall:

waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i) or (c)), or, in the case of the initial Credit Extension, Section 4.02, without the written consent of each Lender;

extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;

postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to any Lender without the written consent of such Lender;

reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document (including interest accruing at the Default Rate pursuant to Section 2.03(c)(iii) or Section 2.08(b)) without the written consent of each Lender entitled to such amount;

change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

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change (i) any provision of this Section 10.01 or (ii) the definitions of “Required Lenders” or “Super Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;

subject to Section 5.3(a) of the Intercreditor Agreement, release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;

change the definition of “Borrowing Base” to increase any of the advance rates or dollar sublimits contained therein, without the written consent of each Lender;

change (i) the definition of “Borrowing Base” to add any new categories of eligible assets or (ii) the definition of any defined term used in the definition of “Borrowing Base” in a manner that increases Availability, in each case, without the written consent of the Super Majority Lenders; or

release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);

and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of the applicable L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lenders in addition to the Lenders required above, affect the rights or duties of the Swing Line Lenders under this Agreement; and (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to the other affected Lenders shall require the consent of such Defaulting Lender.

Notwithstanding anything to the contrary herein, the Administrative Agent may, with the prior written consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.

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If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrower may replace such Non-Consenting Lender in accordance with Section 10.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

Notices; Effectiveness; Electronic Communications. (b) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax transmission or e-mail transmission as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, if to the Borrower, the Administrative Agent, the L/C Issuers or the Swing Line Lenders, to the address, fax number, e-mail address or telephone number specified for such Person on Schedule 10.02.

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by fax transmission shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).

Electronic Communications. Notices and other communications to the Administrative Agent, the Lenders, the Swing Line Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail, FPML messaging and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender, Swing Line Lenders or the L/C Issuers pursuant to Article II if such Lender, Swing Line Lender or L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, each Swing Line Lender, each L/C Issuer or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement) and (ii) notices and other communications posted to an Internet or intranet website shall be deemed received by the intended recipient upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail address or other written acknowledgement) indicating that such notice or communication is available and identifying the website address therefor; provided that for both clauses (i) and (ii), if such notice or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

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The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging services, or through the Internet.

Change of Address, Etc. Each of the Borrower, the Administrative Agent, each L/C Issuer and each Swing Line Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, fax number or telephone number or e-mail address for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swing Line Lenders. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, fax number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States federal or state securities laws.

Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including, without limitation, telephonic or electronic notices, Revolving Credit Loan Notices, Notice of Loan Prepayment and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, reasonable and documented out-of-pocket costs and expenses

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and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and all the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuers or the Swing Line Lenders from exercising the rights and remedies that inure to their respective benefit (solely in their respective capacities as an L/C Issuer or a Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

Expenses; Indemnity; Damage Waiver.

Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements of one counsel for the Administrative Agent and, if reasonably necessary, a local counsel for each jurisdiction for which local counsel is reasonably necessary), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and documented out-of-pocket expenses

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incurred by any L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or any L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. Expenses being reimbursed by the Loan Parties under this Section 10.04(a) include, without limiting the generality of the foregoing, fees, costs and expense incurred in connection with (i) collateral monitoring, collateral reviews, appraisals and insurance reviews and (ii) field examinations and the preparation of reports based on the fees charged by a third party retained by the Administrative Agent or the internally allocated fees for each Person employed by the Administrative Agent with respect to each field examination. All reasonable and documented out-of-pocket expenses of protecting, storing, warehousing, insuring, handling, maintaining and shipping any Collateral, all Taxes payable with respect to any Collateral (including any sale thereof), and all other payments required to be made by the Administrative Agent to any Person to realize upon any Collateral, shall be borne and paid by the Borrower. The Administrative Agent shall not be liable or responsible in any way for the safekeeping of any Collateral, for any loss or damage thereto (except for reasonable care in its custody while Collateral is in the Administrative Agent’s actual possession in accordance with the Security Agreement), for any diminution in the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency or other Person whatsoever, but the same shall be at Borrower’s sole risk.

Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby (including, without limitation, the Indemnitee’s reliance on any Communication executed using an Electronic Signature, or in the form of an Electronic Record), the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or

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any other theory, whether brought by a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) arose out of any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower, any other Loan Party or any of their Affiliates and that is brought solely by an Indemnitee against another Indemnitee; provided that the Arranger, Swing Line Lenders, L/C Issuers, and Administrative Agent shall remain indemnified in such capacities.

Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the applicable L/C Issuer, the applicable Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the applicable L/C Issuer, the applicable Swing Line Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), such L/C Issuer or such Swing Line Lender in its capacity as such or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such L/C Issuer or such Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).

Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Parties hereto shall not assert, and hereby waives, any claim against any other Parties hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof except to the extent addressed in Section 10.07. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

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Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

Survival. The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuers and the Swing Line Lenders, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

Successors and Assigns. (c) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(e) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its

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Commitment(s) and the Loans (including for purposes of this Section 10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

Minimum Amounts.

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);

Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement and the other Loan Documents with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lenders’ rights and obligations in respect of Swing Line Loans;

Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(C) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;

(D) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender; and

(E) the consent of the L/C Issuers and the Swing Line Lenders shall be required for any assignment.

Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.

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No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural person.

Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d).

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Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for U.S. Tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participations.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 (other than those in the proviso in Section 10.01(d)) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such

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Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America or any other Lender assigns all of its Commitment and Revolving Credit Loans pursuant to Section 10.06(b), Bank of America or such other Lender may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as an L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as a Swing Line Lender. In the event of any such resignation as an L/C Issuer or a Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or successor Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America or such other Lender as an L/C Issuer or a Swing Line Lender, as the case may be. If Bank of America or another Lender resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America or another Lender resigns as a Swing Line Lender, it shall retain all the rights of a Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer with respect to Bank of America and/or a successor Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the resigning L/C Issuer to effectively assume the obligations of such resigning L/C Issuer with respect to such Letters of Credit.

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Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c), (ii) any actual or prospective counterparty (or its Related Parties) to any swap or derivative transaction relating to the Borrower and its obligations, or (iii) on a confidential basis to (A) any rating agency in connection with rating Parent or its Subsidiaries or the credit facilities provided hereunder, (B) the provider of any Platform or other electronic delivery service used by the Administrative Agent, the L/C Issuers and/or the Swing Line Lenders to deliver Borrower Materials or notices to the Lenders or (C) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. For purposes of this Section, “Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States federal and state securities Laws.

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The Loan Parties and their Affiliates agree that they will not in the future issue any press releases or other public disclosure using the name of the Administrative Agent or any Lender or their respective Affiliates or referring to this Agreement or any of the Loan Documents without the prior written consent of the Administrative Agent, unless (and only to the extent that) the Loan Parties or such Affiliate is required to do so under law and then, in any event the Loan Parties or such Affiliate will use commercial reasonable efforts to consult with such Person before issuing such press release or other public disclosure.

The Loan Parties consent to the publication by the Administrative Agent or any Lender of customary advertising material relating to the transactions contemplated hereby using the name, product photographs, logo or trademark of the Loan Parties.

Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

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Counterparts; Integration; Effectiveness. This Agreement and each of the other Loan Documents may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the applicable L/C Issuer or the applicable Swing Line Lenders, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required

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by, Section 10.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.06(b);

such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;

such assignment does not conflict with applicable Laws; and

in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

Governing Law; Jurisdiction; Etc. (d) GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST ANY OTHER PARTY IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY

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THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent and any Affiliate thereof, the Arranger and the Lenders are arm’s-length commercial transactions between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and, as applicable, its Affiliates and the Lenders and their Affiliates (including the Arranger) (collectively, solely for purposes of this Section, the “Lenders”), on the other hand, (ii) each of the Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower and each other Loan Party are capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent and its Affiliates and each Lender and its Affiliates (including the Arranger) each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary, for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (ii) neither the Administrative Agent, any of its Affiliates nor any Lender or any of its Affiliates (including the Arranger) has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and its Affiliates and the Lenders and their Affiliates (including the Arranger) may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent, any of its Affiliates nor any Lender or its Affiliates (including the Arranger) has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent, any of its Affiliates or any Lender or its Affiliates (including the Arranger) with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transactions contemplated hereby.

Electronic Execution; Electronic Records. This Agreement, any Loan Document and any other Communication, including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Loan Parties and each of the Administrative Agent, the L/C Issuer, the Swing Line Lender, and each Lender (collectively, each a “Credit Party”) agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on such Person to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another

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format, for transmission, delivery and/or retention. The Administrative Agent and each of the Credit Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, neither the Administrative Agent, L/C Issuer nor Swing Line Lender is under any obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by such Person pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Administrative Agent, L/C Issuer and/or Swing Line Lender has agreed to accept such Electronic Signature, the Administrative Agent and each of the Credit Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Loan Party and/or any Credit Party without further verification and regardless of the appearance or form of such Electronic Signature, and (b) upon the request of the Administrative Agent or any Credit Party, any Communication executed using an Electronic Signature shall be promptly followed by a manually executed counterpart.

Neither the Administrative Agent, L/C Issuer nor Swing Line Lender shall be responsible for or have any duty to ascertain or inquire into the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s, L/C Issuer’s or Swing Line Lender’s reliance on any Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means). The Administrative Agent, L/C Issuer and Swing Line Lender shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Loan Document by acting upon, any Communication or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).

Each of the Loan Parties and each Credit Party hereby waives (i) any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document based solely on the lack of paper original copies of this Agreement, such other Loan Document, and (ii) any claim against the Administrative Agent, each Credit Party for any liabilities arising solely from the Administrative Agent’s and/or any Credit Party’s reliance on or use of Electronic Signatures, including any liabilities arising as a result of the failure of the Loan Parties to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.

USA PATRIOT Act. The Administrative Agent and the Lenders hereby notify the Borrower and the other Loan Parties that pursuant to the Patriot Act, Administrative Agent and Lenders are required to obtain, verify and record information that identifies each Loan Party, including its legal name, address, tax ID number and other information that will allow the Administrative Agent and the Lenders to identify it in accordance with the Patriot Act. The Loan Parties shall, promptly upon request, provide all documentation and other information as the Administrative Agent, any L/C Issuer or any Lender may request from time to time for purposes of complying with any “know your customer,” anti-money laundering rules and regulations, or other requirements of applicable Law, including the Patriot Act and Beneficial Ownership Regulation.

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Keepwell. Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 10.19 voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. The Borrower intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.

Credit Inquiries. The Administrative Agent and the Lenders may (but shall have no obligation) to respond to usual and customary credit inquiries from third parties concerning any Loan Party or Subsidiary.

Performance of the Borrower’s Obligations. The Administrative Agent may, in its discretion at any time and from time to time, at the Borrower’s expense, pay any amount or do any act required of the Borrower or any other Loan Party under any Loan Documents or otherwise lawfully requested by the Administrative Agent to (a) enforce any Loan Documents or collect any Obligations; (b) protect, insure, maintain or realize upon any Collateral; or (c) defend or maintain the validity or priority of the Administrative Agent’s Liens in any Collateral, including any payment of a judgment, insurance premium, warehouse charge, finishing or processing charge, or landlord claim, or any discharge of a Lien. All payments, costs and expenses of the Administrative Agent under this Section shall be reimbursed to the Administrative Agent by the Borrower, on demand, with interest from the date incurred until paid in full, at the Default Rate applicable to Base Rate Loans. Any payment made or action taken by the Administrative Agent under this Section shall be without prejudice to any right to assert an Event of Default or to exercise any other rights or remedies under the Loan Documents.

Waivers by the Borrower. To the fullest extent permitted by applicable law, the Borrower waives (a) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and guaranties at any time held by the Administrative Agent on which the Borrower may in any way be liable, and hereby ratifies anything the Administrative Agent may do in this regard; (b) notice prior to taking possession or control of any Collateral; (c) any bond or security that might be required by a court prior to allowing the Administrative Agent to exercise any rights or remedies; (d) the benefit of all valuation, appraisement and exemption laws; (e) any claim against an Indemnitee, on any theory

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of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to any enforcement action, Obligations, Loan Documents or transactions relating thereto; and (f) notice of acceptance hereof. Borrower acknowledges that the foregoing waivers are a material inducement to the Administrative Agent, the L/C Issuers and the Lenders entering into this Agreement and that they are relying upon the foregoing in their dealings with the Borrower. The Borrower has reviewed the foregoing waivers, including the waiver of jury trial in Section 10.15, with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

the effects of any Bail-In Action on any such liability, including, if applicable:

a reduction in full or in part or cancellation of any such liability;

a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

The provisions of this Section 10.24 are intended to comply with, and shall be interpreted in light of, Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union.

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Intercreditor Agreement.

EACH LENDER PARTY HERETO (i) UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT (AND EACH OF ITS SUCCESSORS AND ASSIGNS) AND EACH OTHER LENDER (AND EACH OF THEIR SUCCESSORS AND ASSIGNS) SHALL BE BOUND BY THE INTERCREDITOR AGREEMENT, (ii) AUTHORIZES AND DIRECTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT ON ITS BEHALF, AND (iii) AGREES THAT ANY ACTION TAKEN BY AGENT PURSUANT TO THE INTERCREDITOR AGREEMENT SHALL BE BINDING UPON SUCH LENDER.

THE PROVISIONS OF THIS SECTION 10.25 ARE NOT INTENDED TO SUMMARIZE OR FULLY DESCRIBE THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT THEMSELVES TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND THE ADMINISTRATIVE AGENT AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. A COPY OF THE INTERCREDITOR AGREEMENT MAY BE OBTAINED FROM THE ADMINISTRATIVE AGENT.

THE INTERCREDITOR AGREEMENT IS AN AGREEMENT SOLELY AMONGST THE SECURED PARTIES (AS DEFINED IN THE INTERCREDITOR AGREEMENT) AND THEIR RESPECTIVE AGENTS (INCLUDING THEIR SUCCESSORS AND ASSIGNS) AND IS ACKNOWLEDGED AND AGREED TO BY THE LOAN PARTIES. AS MORE FULLY PROVIDED THEREIN, THE INTERCREDITOR AGREEMENT CAN ONLY BE AMENDED BY THE PARTIES THERETO IN ACCORDANCE WITH THE PROVISIONS THEREOF.

IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND THE INTERCREDITOR AGREEMENT, THE INTERCREDITOR AGREEMENT SHALL GOVERN.

10.27 Acknowledgement Regarding Supported QFCs.

To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

Covered Party. If a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a

161

U.S. Special Resolution Regime, transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regimes if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. If a Covered Party or BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regimes if the Supported QFC and Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a defaulting lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

Definitions. As used in this Section, (a) “BHC Act Affiliate” means an “affiliate,” as defined in and interpreted in accordance with 12 U.S.C. § 1841 (k); (b) “Default Right” has the meaning assigned in and interpreted in accordance with 12 C.F.R. §§252.81 , 47.2 or 382.1, as applicable; and (c) “QFC” means a “qualified financial contract,” as defined in and interpreted in accordance with 12 U.S.C. § 5390 (c)(8)(D).

[Remainder of This Page Intentionally Left Blank]

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Exhibit 10.6

Execution Version

The lien and security interest created by this Agreement on the collateral described herein is junior and subordinate to the lien on such collateral created by any security agreement, mortgage, deed of trust or similar instrument now or hereafter granted to the ABL Agent, and the Term Loan Agent and their respective successors and assigns, in such collateral, in accordance with the provisions of, and the exercise of any right or remedy by the Notes Agent hereunder are subject to the provisions of, the Amended and Restated Intercreditor Agreement dated as of June 24, 2021, among U.S. Well Services, LLC a Delaware limited liability company as Borrower, CLMG Corp. as Term Loan Agent, Bank of America, N.A. as ABL Agent, and Wilmington Savings Fund Society, FSB, as Notes Agent and each other Person that becomes a Secured Party thereunder from time to time.

GUARANTEE AND THIRD LIEN COLLATERAL AGREEMENT

dated as of

June 24, 2021

among

U.S. WELL SERVICES, INC.,

U.S. WELL SERVICES LLC,

USWS HOLDINGS LLC,

and THE OTHER GRANTORS referred to herein

in favor of

WILMINGTON SAVINGS FUND SOCIETY, FSB,

as Notes Agent

TABLE OF CONTENTS


		Page
SECTION 1. DEFINED TERMS			1

1.1.	Definitions		1
1.2.	Other Definitional Provisions		7

SECTION 2. GUARANTEE			7

2.1.	Guaranty, Limitation of Liability		7
2.2.	Guaranty Absolute		8
2.3.	Waivers and Acknowledgments		9
2.4.	Subrogation		10
2.5.	Subordination		10
2.6.	Reserved		11
2.7.	Reserved		11
2.8.	Reserved		11

SECTION 3. GRANT OF SECURITY INTEREST			11

SECTION 4. REPRESENTATIONS AND WARRANTIES			13

4.1.	Title; No Other Liens		13
4.2.	Perfected Liens		13
4.3.	Name; Jurisdiction of Organization, etc		14
4.4.	Investment Property and Pledged Securities		14
4.5.	Intellectual Property		15
4.6.	Reserved		15
4.7.	Reserved		15
4.8.	Margin Regulations		15
4.9.	Reserved		16

SECTION 5. COVENANTS			16

5.1.	Delivery of Pledged Securities; Certificated Securities		16
5.2.	Maintenance of Perfected Security Interest Further Documentation		17
5.3.	Changes in Locations, Name, Jurisdiction of Incorporation, etc		17
5.4.	Intellectual Property		17
5.5.	Commercial Tort Claims		18
5.6.	Deposit Accounts; Securities Accounts		18
5.7.	Records; Statements and Schedules		18
5.8.	Improper Distributions		18
5.9.	Bankruptcy; Dissolution		19
5.10.	Vehicles		19

SECTION 6. REMEDIAL PROVISIONS			19

6.1.	Communications with Obligors; Grantors Remain Liable		19
6.2.	Pledged Securities		20
6.3.	Proceeds to be Turned Over to Notes Agent		21
6.4.	Application of Proceeds		21
6.5.	Code and Other Remedies		22
6.6.	Remedies for Intellectual Property		25
6.7.	Waiver; Deficiency		26


SECTION 7. THE NOTES AGENT		26

7.1.	Notes Agent’s Appointment as Attorney-in-Fact, etc	26
7.2.	Duty of Notes Agent	27
7.3.	Execution of Financing Statements, Intellectual Property Filings	28
7.4.	Authority of Notes Agent	28
7.5.	No Individual Foreclosure, Etc	29
7.6.	Reserved	29

SECTION 8. INDEMNITY, SUBROGATION AND SUBORDINATION		29

8.1.	Indemnity and Subrogation	29
8.2.	Contribution and Subrogation	29
8.3.	Subordination	29

SECTION 9. MISCELLANEOUS		30

9.1.	Amendments in Writing	30
9.2.	Notices	30
9.3.	No Waiver by Course of Conduct; Cumulative Remedies	30
9.4.	Enforcement Expenses; Indemnification	30
9.5.	Successors and Assigns	30
9.6.	Reserved	30
9.7.	Counterparts	31
9.8.	Severability	31
9.9.	Section Headings	31
9.10.	Integration	31
9.11.	GOVERNING LAW	31
9.12.	Submission to Jurisdiction; Waivers	31
9.13.	Additional Grantors	32
9.14.	Releases	32
9.15.	No Fiduciary Duty	32
9.16.	WAIVER OF JURY TRIAL	32
9.17.	Intercreditor Agreement Governs	32


EXHIBITS

Exhibit A		Intellectual Property Security Agreement

ANNEXES

Annex 1		Assumption Agreement

GUARANTEE AND THIRD LIEN COLLATERAL AGREEMENT

This GUARANTEE AND THIRD LIEN COLLATERAL AGREEMENT dated as of June 24, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) made by U.S. WELL SERVICES, INC., a Delaware corporation (the “Company”), U.S. Well Services, LLC, a Delaware limited liability company (“US LLC”), USWS Holdings LLC, a Delaware limited liability company (including its permitted successors, “Holdings”) and each other subsidiary of the Company from time to time party hereto (together with the Company and any other entity that may become a party hereto as provided herein, the “Grantors”), in favor of WILMINGTON SAVINGS FUND SOCIETY, FSB, a federal savings bank (together with its successors in such capacities, the “Notes Agent”), as collateral agent for the Secured Parties (as hereinafter defined).

W I T N E S S E T H:

WHEREAS, pursuant to the Note Purchase Agreement dated as of the date hereof, among the Company, the Purchasers (as defined therein) and the Notes Agent (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), the Holders desire to purchase certain Notes (as defined in the Note Purchase Agreement);

WHEREAS, the Company and the other Grantors will derive substantial direct and indirect benefit from the Purchasers’ consummation of the transactions contemplated by the Note Purchase Agreement;

WHEREAS, it is a condition precedent to the obligation of the Holders to consummate the transactions contemplated by the Note Purchase Agreement that the Grantors shall have executed and delivered this Agreement granting a third priority security interest in the Collateral to the Notes Agent for the benefit of the Secured Parties; and

WHEREAS, this Agreement is subject in all respects to the terms and conditions of the Intercreditor Agreement (as defined in the Note Purchase Agreement).

NOW, THEREFORE, in consideration of the above premises the parties hereto hereby agree as follows:

SECTION 1. DEFINED TERMS

1.1. Definitions.

(a) Unless otherwise defined herein, terms defined in the Note Purchase Agreement and used herein shall have the meanings given to them in the Note Purchase Agreement; provided that each term defined in Article 9 of the UCC (as defined below) and not defined in this Agreement shall have the meaning specified in Article 9 of the UCC.

(b) The following terms shall have the following meanings:

“ABL Credit Agreement”: as defined in the Intercreditor Agreement.

“After-Acquired Intellectual Property”: as defined in Section 5.4(c).

“Agreement”: this Guarantee and Third Lien Collateral Agreement.

“Applicable Date”: with respect to any Grantor, (i) the date of this Agreement if such Grantor is a party hereto on the date hereof and (ii) the date on which an Assumption Agreement is executed and delivered by such Grantor if such Grantor is not a party hereto on the Closing Date.

“Assumption Agreement”: an Assumption Agreement in the form of Annex 1 hereto.

“Cash”: money, currency or a credit balance in any demand account or deposit account.

“Cash Equivalents”: any of the following: (a) direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America; and (b) certificates of deposit fully insured by the Federal Deposit Insurance Corporation in national, state or foreign commercial banks whose outstanding long-term debt is rated at least “A” or the equivalent by S&P or Moody’s.

“Closing Date”: as defined in the Note Purchase Agreement.

“Collateral”: as defined in Section 3(a).

“Collateral Account”: any collateral deposit account established by the Notes Agent or a Grantor and maintained under the Notes Agent’s control (as defined in and subject to Section 9-104 of the UCC) to hold cash pending application to the Obligations.

“Company Obligations”: the Note Obligations (as defined in the Note Purchase Agreement) of the Company.

“Contractual Obligations”: as applied to any Person, any provision of any Equity Interests issued by such Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its properties is bound.

“Copyright Licenses”: any written agreement naming any Grantor as licensor or licensee, providing for the granting by or to any Grantor of any right in or to any Copyright.

“Copyrights”: (i) all United States and foreign copyrights, whether or not the underlying works of authorship have been published and whether as author, assignee, transferee or otherwise, including but not limited to copyrights in software and databases, and all works of authorship, all right, title and interest to make and exploit all derivative works based on or adopted from works covered by such copyrights, and all copyright registrations, copyright applications, and any renewals or extensions thereof, including each registration and application identified in Schedule 1(b) attached to the Perfection Certificate, and (ii) the rights to print, publish and distribute any of the foregoing.

“Discharge of Obligations”: the repayment in full of the Obligations or the conversion of the Obligations into Equity Interests of the Parent or into a license agreement (except for indemnities and other obligations which by the express terms of the relevant Transaction Document survive repayment of the Notes) under the terms of the Note Purchase Agreement and the Notes.

“Discharge of ABL Obligations”: is defined in the Intercreditor Agreement.

“Discharge of Term Loan Obligations”: is defined in the Intercreditor Agreement.

“Equity Interests”: with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

“Excluded Account”: the Payroll Account, Workers’ Compensation Account, Specified Distributable Cash Account and the Judgment Appeal Account (each as defined in the Term Loan Credit Agreement).

“Excluded Property”: the following:

(a) any assets over which the granting of Liens under the Notes Collateral Documents in such assets would be prohibited by contract or agreement (to the extent existing (x) on the Closing Date or (y) at the time such assets are acquired and not entered into in contemplation of such acquisition), applicable law or regulation (other than to the extent that such prohibition would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Law) or would require the consent of any Person (other than the Company or any of its Affiliates) that has not been obtained (to the extent such consent right (x) existed on the Closing Date or (y) at the time such assets are acquired and not in contemplation thereof) or would require the consent of any Governmental Authority or regulatory body unless such consent has been obtained (in each case, other than to the extent that such consent requirement would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Law); provided that any such asset or, to the extent severable, any portion thereof, will be an Excluded Property only to the extent and for so long as such prohibition or consent requirement is effective and will cease to be an Excluded Property and will become subject to the Lien granted under the Notes Collateral Documents, immediately and automatically, at such time as such prohibition or consent requirement is no longer effective;

(b) any lease, license, contract, property right, general intangible, agreement, asset or property to which the Company is a party or has rights, or which is otherwise subject to a purchase money security interest, or any of its rights or interests thereunder, if and only for so long as the grant of a Lien under the Notes Collateral Documents would constitute or result in a breach, termination or default under, or would invalidate, any such lease, license, contract, property right, general intangible, agreement, asset or property or purchase money arrangement or create a right of termination in favor of any party thereto (other than the Company or any of its Affiliates) (other than to the extent that any term of such lease, license, contract, property right, general intangible, agreement, asset or property or purchase money arrangement would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Law); provided that such lease, license, contract, property right or agreement or purchase money arrangement or, to the extent severable, any portion thereof, will be an Excluded Property only to the extent and for so long as the consequences specified above will result and will cease to be an Excluded Property and will become subject to the Lien granted under the Notes Collateral Documents, immediately and automatically, at such time as such consequences will no longer result;

(c) any governmental permits, franchises, approvals, charters, authorizations or licenses or state or local permits, franchises, approvals, charters, authorizations or licenses, to the extent a grant of a Lien under the Notes Collateral Documents in any such permit, franchise, approval, charter, authorization or license is prohibited or restricted thereby (other than to the extent that any such prohibition or restriction would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Law); provided that any such permit, franchise, approval, charter, authorization or license or, to the extent severable, any portion thereof, will be an Excluded Property only to the extent and for so long as such prohibition or restriction is effective and will cease to be an Excluded Property and will become subject to the Lien granted under the Notes Collateral Documents, immediately and automatically, at such time as such prohibition is no longer effective; and

(d) any Excluded Account,

provided that notwithstanding anything to the contrary in this Agreement, to the extent that any Grantor grants a Lien on any asset or right described in clauses (a) through (d) above to secure any obligations under any of its other debt (including, without limitation, the ABL Credit Agreement or the Term Loan Credit Agreement), such asset or right will cease to be Excluded Property and will become subject to the Lien granted under the Notes Collateral Documents, immediately and automatically. Excluded Property shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds products, substitutions or replacements would otherwise constitute Excluded Property.)

“Grantors”: as defined in the preamble hereto.

“Guarantor Obligations”: the Note Obligations (as defined in the Note Purchase Agreement) of each Guarantor.

“Guarantors”: with respect to the Guarantor Obligations, each Grantor (other than the Guarantor Obligations with respect to such Grantor), and with respect to the Company Obligations, each Grantor (other than the Company).

“Guaranty” the guaranty of the Guarantors set forth in Section 2.

“Guaranteed Obligations”: as defined in Section 2.1(a).

“Indemnified Amount”: as defined in Section 8.2.

“Infringement”: infringement, misappropriation, dilution or other impairment or violation, and “Infringe” or “Infringing” shall have a correlative meaning.

“Indebtedness”: as defined in the Intercreditor Agreement.

“Insolvency or Liquidation Proceeding”: as defined in the Intercreditor Agreement.

“Intellectual Property”: the collective reference to all rights in intellectual property, whether arising under United States, state, multinational, or foreign laws or otherwise, including Copyrights, Patents, industrial designs, Trademarks, service marks, domain names, software, Intellectual Property Licenses, technology, know-how and processes, recipes, formulas, Trade Secrets and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

“Intellectual Property Licenses”: all Copyright Licenses, Patent Licenses, and Trademark Licenses, or other license or sublicense agreement relating to Intellectual Property to which any Grantor is a party.

“Intellectual Property Security Agreement”: an agreement substantially in the form of Exhibit A hereto.

“Intercompany Note”: any promissory note evidencing loans made by any Grantor to Company or any of its Subsidiaries.

“Intercreditor Agreement”: means that certain Amended and Restated Intercreditor Agreement, dated as of June 24, 2021, by and among the CLMG Corp., Bank of America, N.A., and the ABL Agent, Notes Agent, USLLC and the other Persons party thereto from time to time, as amended, restated, supplemented or otherwise modified from time to time.

“Investment Property”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the UCC, (ii) security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such book-entry securities, and (iii) whether or not constituting “investment property” as so defined under clause (i), all Pledged Securities; provided that the term “Investment Property” shall not at any time include Excluded Property.

“Issuers”: the collective reference to each issuer of a Pledged Security that is pledged by a Grantor hereunder.

“Note Purchase Agreement”: as defined in the preamble hereto.

“Notes Collateral Documents”: as defined in the Intercreditor Agreement.

“Obligations”: the collective reference to the Company Obligations and the Guarantor Obligations.

“Patent License”: all written agreements naming any Grantor as licensor or licensee, providing for the granting by or to any Grantor of any right in or to a Patent.

“Patents”: (i) all United States and foreign patents, patent applications and patentable inventions, including each issued patent and patent application identified in Schedule 1(a) attached to the Perfection Certificate, all certificates of invention or similar property rights, and all registrations thereof, (ii) all inventions and improvements described and claimed therein, and (iii) all reissues, divisions, reexaminations, continuations, continuations-in-part, substitutes, renewals, and extensions thereof and all improvements thereon.

“Perfection Certificate”: the Perfection Certificate dated as of the date hereof, executed by the Grantors, as such certificate may be amended, restated, supplemented or otherwise modified from time to time.

“Permitted Liens”: any and all Liens permitted to exist under the terms of the ABL Credit Agreement or the Term Loan Credit Agreement.

“Pledged Debt Securities”: all debt securities now owned or hereafter acquired by any Grantor, including the debt securities listed in Section IX of the Perfection Certificate, provided that the Pledged Debt Securities shall not include any Excluded Property.

“Pledged Equity Interests”: all shares or other equity interests constituting Equity Interests now owned or hereafter acquired by such Grantor, including all shares of Equity Interests described on Section IX of the Perfection Certificate (as such certificate may be amended from time to time), and the certificates, if any, representing such Equity Interests and any interest of such Grantor in the entries on the books of the issuer of such Equity Interests and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Equity Interests and any other warrant, right or option to acquire any of the foregoing, provided that the Pledged Equity Interests shall not include any Excluded Property.

“Pledged Notes”: all promissory notes and other evidences of Indebtedness that constitute Instruments now owned or hereafter acquired by any Grantor, including those listed in Section IX of the Perfection Certificate and all Intercompany Notes at any time issued to any Grantor, provided that the Pledged Notes shall not include any Excluded Property.

“Pledged Securities”: the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Equity Interests.

“Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the UCC and, in any event, shall include all dividends or other income from the Pledged Securities, collections thereon or distributions or payments with respect thereto.

“Receivable”: all accounts, Payment Intangibles and any other right to payment for goods or other property sold, leased, licensed or otherwise disposed of or for services rendered, whether or not such right is evidenced by an Instrument or Chattel Paper or classified as a Payment Intangible and whether or not it has been earned by performance.

“Registered Intellectual Property”: as defined in Section 4.5(a).

“Secured Parties”: collectively, the Notes Agent, the Holders, and each co-agent or sub-agent appointed by the Notes Agent from time to time.

“Subordinated Obligations”: as defined in Section 2.5.

“Term Loan Credit Agreement”: as defined in the Intercreditor Agreement.

“Trademark License”: any written agreement naming any Grantor as licensor or licensee providing for the granting by or to any Grantor of any right in or to any Trademark.

“Trademarks”: (i) all United States, state and foreign trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade dress, trade styles, logos, or other indicia of origin or source identification, Internet domain names, trademark and service mark registrations, designs and general intangibles of like nature, and applications for trademark or service mark registrations and any renewals thereof, including each registration and application identified in Schedule 1(a) attached to the Perfection Certificate and (ii) the goodwill of the business connected with the use of, and symbolized by, each of the above.

“Trade Secrets”: all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information, formulae, parts, diagrams, drawings, specifications, blue prints, lists of materials, and production manuals.

“UCC”: the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.

“USCO”: the United States Copyright Office.

“USPTO”: the United States Patent and Trademark Office.

“Vehicles”: all cars, trucks, trailers, construction and earth moving equipment and other vehicles that require a certificate of title for purposes of registration in the relevant jurisdiction, and all tires and other appurtenances to any of the foregoing.

1.2. Other Definitional Provisions.

(a) Except as otherwise expressly set forth herein, the rules of construction specified in Section 11.1 of the Note Purchase Agreement also apply to this Agreement.

(b) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

(c) All references herein to provisions of the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC.

SECTION 2. GUARANTEE

2.1. Guaranty, Limitation of Liability.

(a) Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of each other Grantor now or hereafter existing under or in respect of the Transaction Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”), and agrees to pay any and all expenses (including, without limitation, the reasonable and documented fees and expenses of counsel) incurred by the Notes Agent or any Holder in enforcing any rights under this Guaranty or any other Transaction Document. Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Grantor to any Holder under or in respect of the Transaction Documents but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency or Liquidation Proceeding involving such other Grantor.

(b) Each Guarantor, and by its acceptance of this Guaranty, the Notes Agent (on behalf of each Holder), hereby confirms that it is the intention of all such Persons that this Guaranty and the obligations of each Guarantor hereunder not constitute a fraudulent transfer, fraudulent conveyance or fraudulent incurrence of a debt for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Notes Agent, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will not render the obligations of such Guarantor under this Guaranty subject to avoidance as a fraudulent transfer, fraudulent conveyance or fraudulent incurrence of a debt under any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law, and not any greater amount. Each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.

(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Holder under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Holders under or in respect of the Transaction Documents.

2.2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Transaction Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Holder with respect thereto. The obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other Grantor under or in respect of the Transaction Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Company or any other Grantor or whether the Company or any other Grantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of any Transaction Document or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Obligations of any other Grantor under or in respect of the Transaction Documents, or any other amendment or waiver of or any consent to departure from any Transaction Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Grantor or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any Grantor under the Transaction Documents or any other assets of any Grantor or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of any Grantor or any of its Subsidiaries;

(f) any failure of any Holder to disclose to any Grantor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Grantor now or hereafter known to such Holder (each Guarantor waiving any duty on the part of the Holders to disclose such information);

(g) the failure of any other Person to execute or deliver this Agreement or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations; or

(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by any Holder that might otherwise constitute a defense available to, or a discharge of, any Grantor or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Holder or any other Person upon the insolvency, bankruptcy or reorganization of the Company or any other Grantor or otherwise, all as though such payment had not been made.

2.3. Waivers and Acknowledgments.

(a) Each Guarantor hereby agrees that its Guaranty hereunder constitutes a continuing, absolute, irrevocable and unconditional guarantee of payment when due and not of collection and waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Holder protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Grantor or any other Person or any Collateral.

(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Holder that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Grantors, any other guarantor or any other Person or any Collateral, (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder, and (iii) any right to require that any resort be had by the Notes Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any Deposit Account or credit on the books of the Notes Agent or any other Secured Party in favor of the Company or any other person.

(d) Each Guarantor acknowledges that the Notes Agent may, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this

Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to the recovery by the Notes Agent and the other Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.

(e) Each Guarantor assumes all responsibility for being and keeping itself informed of the Company’s and each other Grantor’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Notes Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.

(f) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Holder to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Grantor or any of its Subsidiaries now or hereafter known by such Holder.

(g) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the arrangements contemplated by the Transaction Documents and that the waivers set forth in Section 2.2 and this Section 2.3 are knowingly made in contemplation of such benefits.

2.4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Company or any other Grantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under or in respect of this Guaranty or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Holder against the Company, any other Grantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Company or any other Grantor directly or indirectly, in Cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in Cash. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment in full in Cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the Discharge of Obligations, and (c) the Maturity Date, such amount shall be received and held in trust for the benefit of the Holders, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Notes Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Transaction Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) any Guarantor shall make payment to any Holder of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in Cash, and (iii) the Discharge of Obligations shall have occurred, the Holders will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.

2.5. Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Guarantor by each other Grantor (the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 2.5:

(a) Prohibited Payments, Etc. Except during the continuance of any Event of Default, each Guarantor may receive regularly scheduled payments from any other Grantor on account of the Subordinated Obligations in compliance with the Intercreditor Agreement. Upon the occurrence and during the continuance of any Event of Default, however, unless the Requisite Holders otherwise agree, no Guarantor shall demand, accept or take any action to collect any payment on account of the Subordinated Obligations other than to the extent payment of such Subordinated Obligations is permitted under the terms of the Intercreditor Agreement and the other Transaction Documents.

(b) Prior Payment of Guaranteed Obligations. In any Insolvency or Liquidation Proceeding relating to any other Grantor, each Guarantor agrees that the Secured Parties shall be entitled to receive payment in full in Cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of an Insolvency or Liquidation Proceeding, whether or not constituting an allowed claim in such proceeding (“Post-Petition Interest”)) before such Guarantor receives payment of any Subordinated Obligations.

(c) Turn-Over. Upon the occurrence and during the continuance of any Event of Default, each Guarantor shall, if the Notes Agent so requests in writing, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Secured Parties and deliver such payments to the Notes Agent on account of the Guaranteed Obligations (including all Post-Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Guarantor under the other provisions of this Guaranty.

(d) Notes Agent Authorization. After the occurrence and during the continuance of any Event of Default, the Notes Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each Guarantor, to collect and enforce, and to submit claims in respect of, the Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to require each Guarantor (A) to collect and enforce, and to submit claims in respect of, the Subordinated Obligations and (B) to pay any amounts received on such obligations to the Notes Agent for application to the Guaranteed Obligations (including any and all Post-Petition Interest).

2.6. Reserved.

2.7. Reserved.

2.8. Reserved.

SECTION 3. GRANT OF SECURITY INTEREST

(a) Each Grantor hereby pledges and grants to the Notes Agent, for the ratable benefit of the Secured Parties, a third priority security interest in, all of such Grantor’s right, title and interest in and to all of its personal property, in each case, wherever located and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, but subject to the last sentence of this Section 3(a), the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations:

(i) all Accounts and Receivables;

(ii) all Chattel Paper;

(iii) all Money, cash, cash equivalents and Deposit Accounts, Securities Accounts and Commodity Accounts (excluding, for the avoidance of doubt, any cash, cash equivalents and Deposit Accounts, Securities Accounts and Commodity Accounts, in each case, constituting Excluded Property);

(iv) all Documents and Material Contracts;

(v) all Equipment;

(vi) all Fixtures;

(vii) all General Intangibles;

(viii) all Instruments;

(ix) all Intellectual Property;

(x) all Inventory;

(xi) all Investment Property;

(xii) all Letter of Credit Rights;

(xiii) all Goods not otherwise described above;

(xiv) all Collateral Accounts;

(xv) all Commercial Tort Claims listed on Section XII of the Perfection Certificate;

(xvi) all Vehicles and all title documents with respect to Vehicles;

(xvii) all books and records evidencing or pertaining to the Collateral; and

(xviii) to the extent not otherwise included, all other personal property of the Grantor and all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security, Supporting Obligations and guarantees given by any Person with respect to any of the foregoing.

Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Property and none of the Excluded Property shall constitute Collateral; provided, however, that a security interest shall immediately be granted to the Notes Agent (for the benefit of the Secured Parties) and attach to, and Collateral shall immediately include, any asset (or portion thereof) upon such asset (or portion thereof) ceasing to be an Excluded Property.

(b) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all of its obligations in respect of the Collateral and nothing contained herein is intended or shall be a delegation of duties to any Secured Party, (ii) each Grantor jointly and severally agrees to indemnify and hold harmless the Notes Agent and the Secured Parties from and against any and

all liability for performance under each contract, agreement or instrument relating to the Collateral, (iii) each Grantor shall remain liable (as between itself and any relevant counterparty) under each of its agreements included in the Collateral and shall perform all of its obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Notes Agent nor any other Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto, nor shall the Notes Agent nor any other Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral, and (iv) the exercise by the Notes Agent or the other Secured Parties (or any of their respective directors, officers, employees, affiliates or agents) of any of its rights, remedies or powers hereunder shall not release any Grantor from any of its Obligations, duties or obligations under the contracts and agreements included in the Collateral.

(c) This Agreement, and the Liens granted and created herein in the Collateral, secure the payment and the performance of all Obligations now or hereafter in effect, whether direct or indirect, absolute or contingent, and including all amounts that constitute part of the Obligations and would be owed by the Grantors but for the fact that they are unenforceable or not allowed due to a pending Insolvency or Liquidation Proceeding.

SECTION 4. REPRESENTATIONS AND WARRANTIES

To induce the Notes Agent and the Holders to enter into the Note Purchase Agreement and to induce the Holders to consummate the transactions contemplated thereby, each Grantor and/or Guarantor hereby, jointly and severally, represents and warrants to the Notes Agent as and when required by the Note Purchase Agreement, for the benefit of the Secured Parties that each representation and warranty contained in Article IV of the Note Purchase Agreement relating to such Grantor and/or Guarantor is true and correct in all material respects (or in the case of any such representation that is qualified by materiality, in all respects) as if made by such Grantor and/or Guarantor herein, provided, that to the extent any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects (or in the case of any such representation that is qualified by materiality, in all respects) as of such date or for such period, and further represents and warrants that:

4.1. Title; No Other Liens. Such Grantor owns (or has the power to transfer rights in) each item of the Collateral free and clear of any and all Liens except for Permitted Liens. No effective financing statement, fixture filing or other public notice under applicable law with respect to all or any part of the Collateral, to the extent authorized by any Grantor, is on file or of record in any public office, except those as have been filed in favor of the Notes Agent, for the benefit of the Secured Parties, pursuant to this Agreement or the other Transaction Documents or as are not prohibited by the Note Purchase Agreement or as are contemplated by the Intercreditor Agreement.

4.2. Perfected Liens. The security interests granted pursuant to this Agreement constitute legal, valid, binding and enforceable and, subject to the Intercreditor Agreement, and any Permitted Liens, third lien security interests in all of the Collateral in favor of the Notes Agent, for the benefit of the Secured Parties, as collateral security for the Obligations, enforceable against each applicable Grantor in accordance with the terms hereof, except as enforceability may be limited by applicable Bankruptcy Law and by general equitable principles (whether enforcement is sought in proceedings in equity or at law) and, other than with respect to Collateral in which a security interest cannot be perfected in such a manner, as of the Applicable Date for such Grantor, when financing statements in appropriate form are filed in the appropriate filing offices and appropriate assignments or notices are filed in each applicable IP Office have been completed and upon the payment of all filing fees, will be perfected and, subject to the Intercreditor Agreement and the first priority liens and second priority liens described therein, are prior to the Liens on the Collateral of any other Person (except for Permitted Liens).

4.3. Name; Jurisdiction of Organization, etc. As of the Applicable Date for each Grantor, such Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of formation or organization), jurisdiction of organization, organizational identification number, if any, and the location of such Grantor’s chief executive office or sole place of business, as the case may be, are specified in Section I of the Perfection Certificate. Except as specified in Section I of the Perfection Certificate, no Person that is a Grantor on the date hereof has (a) changed its name, jurisdiction of organization, chief executive office or sole place of business (as the case may be) within the four (4) calendar months immediately prior to the Applicable Date, or (b) any books and records concerning the Collateral at any location other than at such chief executive office or sole place of business.

4.4. Investment Property and Pledged Securities.

(a) As of the Applicable Date, such Grantor is the record and beneficial owner of all Pledged Equity Interests pledged by it hereunder which is issued by any Subsidiary of a Grantor, and such Grantor has good title to all such Pledged Equity Interests and to all other Investment Property pledged by it hereunder, free of any and all Liens, except Permitted Liens.

(b) Section IX of the Perfection Certificate sets forth as of the Applicable Date for Company and each other Grantor, with respect to such Grantor under the heading “Equity Interests” all of the Pledged Equity Interests owned by such Grantor, and such Pledged Equity Interests as of such Applicable Date constitutes the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial interest of the respective issuers thereof indicated on such certificate, as applicable. Section X of the Perfection Certificate sets forth as of the Applicable Date for each Grantor, with respect to such Grantor under the heading “Debt Instruments” all of the Pledged Debt Securities and Pledged Notes, owned by any Grantor that are required to be delivered to the Notes Agent pursuant to Section 5.1(a).

(c) The shares of Pledged Equity Interests pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of the Equity Interests of each issuer of Equity Interests included in the Collateral owned by such Grantor. All the shares of the Pledged Equity Interests issued by the Company or any Subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable.

(d) All the Pledged Debt Securities and Pledged Notes issued by the Company or any Subsidiary of the Company have been duly and validly authorized and issued and are legal, valid and binding obligations of the issuers thereof.

(e) Each Grantor (i) as of the Applicable Date for such Grantor, is and, subject to any transfers made in compliance with the ABL Credit Agreement or the Term Loan Credit Agreement, will continue to be the direct owner, beneficially and of record, of the Pledged Securities indicated in Section IX of the Perfection Certificate as owned by such Grantor and (ii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Securities, except as permitted by the ABL Credit Agreement or the Term Loan Credit Agreement.

(f) Except for restrictions and limitations imposed by the Transaction Documents, the Intercreditor Agreement, the Term Loan Credit Agreement, the ABL Credit Agreement, or

securities laws generally or otherwise permitted to exist pursuant to the terms of the Note Purchase Agreement, the Pledged Securities are and will continue to be freely transferable and assignable, and as of the Applicable Date, none of the Pledged Securities are or will be subject to outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments that might materially prohibit, impair, delay or otherwise in a manner material and adverse to the Secured Parties affect the sale or disposition thereof pursuant hereto or the exercise by the Notes Agent of rights and remedies hereunder.

4.5. Intellectual Property.

(a) Section VII of the Perfection Certificate lists as of the Applicable Date for such Grantor all issued Patents and pending Patent applications of any Grantor with the USPTO, all registered Copyrights, and pending Copyright applications of any Grantor with the USCO, all registered Trademarks and pending Trademark applications of any Grantor with the USPTO (collectively, “Registered Intellectual Property”), and all exclusive Copyright Licenses.

(b) Except as would not have or reasonably be expected to have a Material Adverse Effect (as defined in the Term Loan Credit Agreement):

(i) each Grantor owns or has the right to use all Intellectual Property that is material to its business as currently conducted, free of all Liens other than Permitted Liens, and takes reasonable actions to protect, preserve and maintain such Intellectual Property;

(ii) as of the Applicable Date, all Intellectual Property owned or exclusiving licensed by such Grantor is valid, unexpired, enforceable, and has not been abandoned and all exclusive Copyright Licenses are in full force and effect;

(iii) as of the Applicable Date, to each Grantor’s knowledge, the business and operations of such Grantor do not Infringe the intellectual property rights of any other person, and no Person is Infringing any rights in any Intellectual Property owned by such Grantor;

(iv) as of the Applicable Date, no holding, decision or judgment has been rendered by any Governmental Authority or arbitrator which would limit, cancel or challenge the validity, enforceability, ownership or use of such Grantor’s rights in any Intellectual Property owned by the Grantor in any respect, and such Grantor knows of no valid basis for same; and

(v) no action or proceeding is pending or, to the knowledge of such Grantor, threatened in writing, in each case, on the date hereof seeking to limit, cancel or challenge the validity, enforceability, ownership or use of any Intellectual Property owned by the Grantor or such Grantor’s interest therein.

4.6. Reserved.

4.7. Reserved.

4.8. Margin Regulations. The pledge of Collateral pursuant to this Agreement does not violate Regulations T, U or X of the Board of Governors of the Federal Reserve System, as in effect from time to time.

4.9. Reserved.

SECTION 5. COVENANTS

Each Grantor and/or Guarantor covenants and agrees with the Notes Agent, for the benefit of the Secured Parties, that, until the Discharge of Obligations, in each case subject to the requirements of the Intercreditor Agreement, each applicable Grantor and/or Guarantor covenants and agrees that such Grantor and/or Guarantor will comply, and will cause each of its Subsidiaries to comply, with all of the applicable provisions, covenants and agreements contained in Article V of the Note Purchase Agreement relating to such Grantor and/or Guarantor or its Subsidiaries, and it will take or will refrain from taking, as the case may be, all actions that are necessary to be taken or not taken so that no violation of any provision, covenant or agreement contained in Article V of the Note Purchase Agreement, and so that no Event of Default, is caused by the actions of such Grantor and/or Guarantor or any of its Subsidiaries, and that:

5.1. Delivery of Pledged Securities; Certificated Securities.

(a) Following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, if any of the Collateral consists of an Instrument with value in excess of $100,000, note or debt security, such Instrument, note or debt security shall be delivered to the Notes Agent (i) on the Closing Date (in the case of any such Collateral owned by a Grantor on the Closing Date or such later date as the Notes Agent may agree) or (ii) promptly after such Collateral is acquired (in the case of any other such Collateral) and in any event no later than 10 Business Days after such acquisition (or such later date as the Notes Agent may agree in its reasonable discretion), in each case accompanied by proper instruments of assignment duly executed by the applicable Grantor in blank in a manner and form reasonably satisfactory to the Notes Agent (in each case to the extent delivery of such instruments of assignment are customary under applicable requirements of law), to be held as Collateral pursuant to this Agreement.

(b) Following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, if any of the Collateral consisting of Equity Interests of a Subsidiary of a Grantor is a “security” within the meaning of Article 8 of the UCC and is or shall become evidenced or represented by any certificate, such certificate shall be delivered to the Notes Agent (i) on the Closing Date (in the case of any such Collateral owned by a Grantor that is evidenced or represented by a certificate on the Closing Date) (or such later date as the Notes Agent may agree) or (ii) in the case of any other such Collateral that is acquired or becomes evidenced or represented by a certificate after the Closing Date, promptly after such Collateral is acquired or becomes so evidenced or represented and in any event no later than 10 Business Days after such acquisition or representation (or such later date as the Notes Agent may agree in its reasonable discretion), in each case accompanied by undated stock powers or other instruments of transfer duly executed by the applicable Grantor in blank in a manner and form reasonably satisfactory to the Notes Agent, to be held as Collateral pursuant to this Agreement.

(c) Each Grantor acknowledges and agrees that to the extent each interest in any limited liability company or limited partnership that is a Subsidiary of a Grantor and pledged hereunder is a “security” within the meaning of Article 8 of the UCC and is governed by Article 8 of the UCC, such interest shall be (i) certificated and each such interest shall at all times hereafter continue to be such a security and represented by such certificate or (ii) if not so certificated, following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, subject to a control agreement in favor of the Notes Agent unless constituting Excluded Property. Each Grantor further acknowledges and agrees that with respect to any interest in any limited liability company or limited partnership that is a Subsidiary of a Grantor and pledged hereunder that is not

a “security” within the meaning of Article 8 of the UCC, such Grantor shall, following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, at no time thereafter elect to treat any such interest as a “security” within the meaning of Article 8 of the UCC, nor shall such interest be represented by a certificate, unless such Grantor provides prompt written notification to the Notes Agent of such election and such interest is thereafter represented by a certificate that is delivered to the Notes Agent.

5.2. Maintenance of Perfected Security Interest Further Documentation.

(a) Subject to the provisions of Section 3(b) hereof, and provided that in no event shall any Grantor be required to deliver Pledged Securities not required to be delivered pursuant to Section 5.1 hereof, such Grantor shall (i) maintain the security interest created by this Agreement on the Collateral as a perfected security interest having at least the priority described in Section 4.2 hereof until the Collateral is released from such security interest in connection with the Discharge of Obligations, pursuant to the terms of the Intercreditor Agreement or by operation of law or by agreement of at least the Requisite Holders and shall cause such Collateral to remain free of Liens other than Permitted Liens, and (ii) defend the right, title and interest of the Notes Agent and the other Secured Parties in and to the Collateral against the claims and demands of all Persons whomsoever.

(b) Subject to the provisions of Section 3(b) hereof, at any time and from time to time, upon the written request of the Notes Agent, and at the sole expense of such Grantor, such Grantor will promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as the Notes Agent may reasonably request to better assure, preserve, protect and perfect the security interests granted hereby, the full benefits of this Agreement and the rights and powers herein granted, including (i) the payment of any fees and taxes required in connection with the execution and delivery of this Agreement and the granting and perfecting of the security interests, and (ii) the filing of any financing or continuation statements under the UCC with respect to the security interests created hereby. Each Grantor will provide to the Notes Agent from time to time upon reasonable request, evidence reasonably satisfactory to the Notes Agent as to the perfection (to the extent required by this Agreement and allowed under the Intercreditor Agreement) and priority of the Lien created or intended to be created pursuant to this Agreement.

5.3. Changes in Locations, Name, Jurisdiction of Incorporation, etc. If any Grantor intends to change its (i) jurisdiction of organization or, in the case of Grantors which are not registered organizations (within the meaning of the UCC), the location of its chief executive office or the sole place of business from that referred to in Section I of the Perfection Certificate, (ii) name or (iii) type of organization, such Grantor shall not undertake any such action until it has given to the Notes Agent not less than five (5) Business Days’ prior written notice of its intention to do so, specifying such new jurisdiction, location, name or type of organization (as applicable), and within 10 Business Days of taking any such action (or such later date as the Notes Agent may agree in its reasonable discretion), such Grantor shall deliver to the Notes Agent all additional financing statements and any other documents and take other any action necessary to maintain the validity, perfection and priority of the security interests in the Collateral provided for herein, subject to the provisions of and Section 3(b) hereof.

5.4. Intellectual Property.

(a) Such Grantor will not (and will not affirmatively permit any licensee or sublicensee thereof to) do any act, or omit to do any act, whereby any material Intellectual Property owned by such Grantor may become forfeited, abandoned or dedicated to the public, except as shall

be consistent with such Grantor’s commercially reasonable business judgment that the maintenance thereof is no longer necessary to or useful for the conduct of such Grantor’s business and as permitted under the ABL Credit Agreement or the Term Loan Credit Agreement. Each Grantor shall take all commercially reasonable steps which it (or during the continuation of an Event of Default, the Notes Agent) deems reasonable and appropriate under the circumstances to maintain, preserve and protect each item of its material Intellectual Property.

(b) Such Grantor agrees to execute an Intellectual Property Security Agreement, with respect to its Registered Intellectual Property and exclusive Copyright Licenses (other than Excluded Property) included in the Collateral in order to record the security interest granted herein to the Notes Agent for the benefit of the Secured Parties with the USPTO or the USCO, as applicable, as and when required by Section 5.4(c).

(c) Such Grantor agrees that, should it obtain an ownership interest in any item of Registered Intellectual Property or be granted any exclusive Copyright Licenses after the date hereof (other than Excluded Property) (the “After-Acquired Intellectual Property”), (i) the provisions of Section 3 hereof shall automatically apply thereto and (ii) any such After-Acquired Intellectual Property shall automatically become part of the Collateral. Upon the reasonable request of the Notes Agent after notice of any newly acquired, created or developed Registered Intellectual Property owned by such Grantor or new rights granted to such Grantor under any exclusive Copyright License, such Grantor shall execute an Intellectual Property Security Agreement with respect to its After-Acquired Intellectual Property, in order to record the security interest granted herein to the Notes Agent for the benefit of the Secured Parties with the USPTO or the USCO, as applicable.

5.5. Commercial Tort Claims. If such Grantor shall obtain an interest in any Commercial Tort Claim with an estimated value in excess of $100,000, such Grantor shall (a) on the Closing Date (in the case of any such interest in any Commercial Tort Claims owned by a Grantor on the Closing Date) or (b) promptly after such interest is obtained (in the case of any other such interest in a Commercial Tort Claim) and in any event no later than 10 Business Days after such interest is obtained (or such later date as the Notes Agent may agree in its reasonable discretion) sign and deliver documentation reasonably requested by and acceptable to the Notes Agent granting a security interest under the terms and provisions of this Agreement in and to such Commercial Tort Claim and the proceeds thereof. In the event the Perfection Certificate shall set forth any Commercial Tort Claim, Section 3(a)(xv) hereof shall be deemed to be supplemented to include the reference to such Commercial Tort Claim (and the description thereof), in the same form as such reference and description are set forth on the Perfection Certificate.

5.6. Deposit Accounts; Securities Accounts. Each Grantor shall comply with the applicable requirements set forth in the ABL Credit Agreement or Term Loan Credit Agreement, as applicable.

5.7. Records; Statements and Schedules. Each Grantor shall keep and maintain, at its own cost and expense, records of the Collateral owned by it, including records of all payments received with respect thereto, and it shall make the same available to the Notes Agent for inspection at such Grantor’s chief executive office, at its own cost and expense upon reasonable prior written notice (except after the occurrence and during the continuance of an Event of Default) during normal business hours. The Grantor shall furnish to the Notes Agent from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Notes Agent may reasonably request in writing, all in reasonable detail.

5.8. Improper Distributions. Notwithstanding any other provision contained in this Agreement, no Grantor shall accept any distributions, dividends or other payments (or any collateral in lieu thereof) in respect of the Collateral, except to the extent the same are permitted by the terms of this Agreement, the ABL Credit Agreement or the Term Loan Credit Agreement.

5.9. Bankruptcy; Dissolution. None of the Company nor Holdings shall authorize or permit US LLC to:

(a) except upon compliance with the requirements of its constituent documents, (i) commence a voluntary Insolvency or Liquidation Proceeding seeking liquidation, reorganization or other relief with respect to the US LLC or the US LLC’s debts or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or any substantial part of the US LLC’s property, (ii) consent to any such relief or to the appointment of or taking possession by any such official in an involuntary Insolvency or Liquidation Proceeding against US LLC, or (iii) make a general assignment for the benefit of the US LLC’s creditors;

(b) commence or join with any other Person (other than the Notes Agent and the other Secured Parties) in commencing any Insolvency or Liquidation Proceeding against US LLC; or

(c) except as permitted by the Transaction Documents, liquidate, wind up or dissolve, or sell or lease or otherwise transfer or dispose of all or any substantial part of its property, assets or business or combine, merge or consolidate with or into any other entity, or change its legal form, or implement any material acquisition or purchase of assets from any Person.

5.10. Vehicles.

(a) Following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, no Grantor shall permit (i) the certificate of title/ownership for any Vehicle to be transferred to another jurisdiction without notifying the Notes Agent thirty (30) days (or such shorter period as the Notes Agent may agree in its reasonable discretion) prior to such transfer and demonstrating compliance with such other jurisdiction’s certificate of title statute in order to properly perfect the Notes Agent’s security interest in such Vehicle and (ii) any Vehicle to be removed from the state which has issued such Vehicle’s certificate of title/ownership for a period that is in excess of the statutory period which would require such Vehicle to be “re-titled” in any other jurisdiction, unless a new certificate of title/ownership is delivered for such new jurisdiction within such statutory period.

(b) Following the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, with respect to any Vehicles acquired by such Grantor subsequent to the date thereof, within sixty (60) days after the date of acquisition thereof (or such later period as may be consented to by the Notes Agent), all applications for certificates of title/ownership indicating the Notes Agent’s security interest in the Vehicle covered by such certificate, and any other necessary documentation, shall be filed in each office in each jurisdiction which the Notes Agent shall deem advisable to perfect its security interests in the Vehicles.

SECTION 6. REMEDIAL PROVISIONS

6.1. Communications with Obligors; Grantors Remain Liable. The Notes Agent may at any time after an Event of Default has occurred and is continuing require any Grantor to notify the account debtor or counterparty on any Receivable constituting Collateral of the security interest of the Notes Agent therein. In addition, after the occurrence and during the continuance of an Event of Default, the Notes Agent may require any Grantor to notify the Account Debtor or counterparty to make all payments under the Receivables constituting Collateral as directed by the Notes Agent.

6.2. Pledged Securities.

(a) Unless an Event of Default shall have occurred and be continuing and the Notes Agent shall have given three (3) Business Days’ prior written notice to the relevant Grantor of the Notes Agent’s intent to exercise its corresponding rights pursuant to Section 6.2(b) (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under Section 6.01(e), Section 6.01(f), or Section 6.01(g) of the Note Purchase Agreement, other than to the extent such right is waived or revoked in writing by the Requisite Holders), each Grantor shall be permitted to (i) receive all dividends, interest, principal or other payments or distributions paid or made in respect of the Pledged Securities, to the extent not prohibited by the Note Purchase Agreement and (ii) exercise all voting and corporate or other ownership rights with respect to the Pledged Securities; provided, however, that no vote shall be cast or corporate or other ownership right exercised or other action taken which would reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Securities or the rights and remedies of the Notes Agent or the other Secured Parties under this Agreement or any other Transaction Document or the ability of the Secured Parties to exercise the same or which would violate any provision of this Agreement or any other Transaction Document.

(b) If an Event of Default shall occur and be continuing and the Notes Agent shall have given three (3) Business Days’ prior written notice to the Company of the Notes Agent’s intent to execute its rights pursuant to this Section 6.2(b) (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under Section 6.01(e), Section 6.01(f), or Section 6.01(g) of the Note Purchase Agreement, other than to the extent such right is waived or revoked in writing by the Requisite Holders): (i) the Notes Agent shall have the right to receive any and all dividends, interest, principal or other payments or distributions paid in respect to the Pledged Securities included in the Collateral and make application thereof to the Obligations in accordance with Section 6.4, (ii) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Notes Agent which shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights and (iii) the Notes Agent shall have the right, without notice to any Grantor, to transfer all or any portion of the Investment Property included in the Collateral to its name or the name of its nominee or agent or the name of the applicable Grantor, endorsed or assigned in blank in favor of the Notes Agent, and each Grantor will, upon request, promptly give to the Notes Agent copies of any notices or other communications received by it with respect to Pledged Securities included in the Collateral registered in the name of such Grantor. In addition, if an Event of Default has occurred and is continuing, the Notes Agent shall have the right at any time, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Property included in the Collateral for certificates or instruments of smaller or larger denominations. In order to permit the Notes Agent to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder if an Event of Default has occurred and is continuing, each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Notes Agent all proxies, dividend payment orders and other instruments as the Notes Agent may from time to time reasonably request, and each Grantor acknowledges that the Notes Agent may utilize the power of attorney set forth herein. All dividends, interest, principal or other payments or distributions received by any Grantor contrary to the provisions of this Section 6.2(b) shall be segregated and held in trust for the benefit of the Notes Agent and shall be promptly delivered to the Notes Agent in the same form as so received (with any necessary endorsement reasonably requested by the Notes Agent).

(c) Any notice given by the Notes Agent to the Company or any other Grantor under this Section 6.2 (i) may be given with respect to one or more of the Grantors at the same or different times and (ii) may suspend the rights of the Grantors under paragraph (a) or (b) of this Section 6.2 in part without suspending all such rights (as specified by the Notes Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Notes Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

(d) Subject to the Intercreditor Agreement, each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it after the occurrence and during the continuation of an Event of Default from the Notes Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Notes Agent.

6.3. Proceeds to be Turned Over to Notes Agent. Subject to the Intercreditor Agreement, if an Event of Default shall occur and be continuing, at the written request of the Notes Agent, all Proceeds of Collateral received by any Grantor consisting of cash, Cash Equivalents and checks shall be segregated and held in trust by such Grantor for the Secured Parties, and shall, forthwith upon receipt by such Grantor, be turned over to the Notes Agent in the exact form received by such Grantor (duly endorsed by such Grantor to the Notes Agent, if reasonably required). All such Proceeds of Collateral received by the Notes Agent under this Section 6.3 shall be held by the Notes Agent in a Collateral Account maintained under its control (as defined in and subject to Section 9104 of the UCC). All such Proceeds while held by the Notes Agent in a Collateral Account (or by such Grantor for the Secured Parties) shall continue to be held as collateral security for all the Obligations and shall not constitute payment thereof until applied as provided in Section 6.4.

6.4. Application of Proceeds.

(a) Subject to the Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, at any time at the Notes Agent’s election, the Notes Agent may apply all or any part of the net Proceeds (after deducting fees and expenses as provided in Section 6.5 below) of Collateral realized through the exercise by the Notes Agent of its remedies hereunder, whether or not held in any Collateral Account, and any proceeds of the guarantee set forth in Section 2 hereof, in payment of the Obligations in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts payable to the Notes Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts payable to the Secured Parties (including amounts payable under Section 2 of this Agreement), ratably among them in proportion to the amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Notes, ratably among the holders of such Obligations in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Notes then due and payable, ratably among the holders of such Obligations in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to the payment of all other Obligations of the Grantors that are then due and payable to the Notes Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Notes Agent and the other Secured Parties on such date; and

Last, the balance, if any, after all of the Obligations have been paid in full, to the Company or as otherwise required by applicable Law.

(b) Subject to the Intercreditor Agreement and except as provided herein or in any other Transaction Document, the Notes Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Notes Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of proceeds in the amount agreed upon by the Notes Agent or by the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Agent or such officer or be answerable in any way for the misapplication thereof

6.5. Code and Other Remedies.

(a) Subject to the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, and except for an Event of Default under Section 6.1(e), Section 6.1(f), or Section 6.1(g) of the Note Purchase Agreement (other than to the extent such right is waived or revoked in writing by the Requisite Holders), the Notes Agent’s notice of its intent to exercise such rights to the relevant Grantor or Grantors delivered in accordance with the terms of this Agreement, to the extent required by law, each Grantor agrees to deliver each item of Collateral to the Notes Agent promptly after demand therefor, and it is agreed that the Notes Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the UCC or its rights under any other applicable law or in equity, including to pursue any of the following separately, successively or simultaneously: (i) require any Grantor to, and each Grantor hereby agrees that is shall at its expense and promptly upon request of the Notes Agent forthwith, assemble all or part of the Collateral as directed by the Notes Agent and make it available to the Notes Agent at a place to be designated by the Notes Agent that is reasonably convenient to both parties; (ii) subject to the express written terms of any applicable lease, sublease, landlord consent, landlord waiver, bailee letter, collateral access agreement or other similar agreement, enter onto the property where any Collateral is located and take possession thereof with or without judicial process; (iii) prior to the disposition of the Collateral, store, process, repair or recondition the Collateral or otherwise prepare the Collateral for disposition in any manner to the extent the Notes Agent deems reasonably appropriate and while the Collateral shall be so stored, provide such security and maintenance services as shall be commercially reasonable to protect the same and to preserve and maintain them in good condition; (iv) without notice except as specified below or under the UCC, sell, assign, lease, license (on an exclusive or nonexclusive basis), grant an option or options to purchase or otherwise dispose of, deliver, or otherwise realize upon, the Collateral or any part thereof in one or more parcels at public or private sale (which sales may be adjourned or continued from time to time with or without notice and may take place at such Grantor’s premises, at any of the Notes Agent’s

offices or elsewhere, for cash, on credit or for future delivery without assumption of any credit risk, at such time or times and at such price or prices and upon such other terms as the Notes Agent may deem commercially reasonable); (v) apply any monies constituting Collateral or proceeds thereof in accordance with the provisions of Section 6.4; (vi) demand, sue for, collect or receive any money or property at any time payable or receivable in respect of the Collateral including instructing part of the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Notes Agent, and in connection with any of the foregoing, compromise, settle, extend the time for payment and make other modifications with respect thereto and (vii) subject to Section 6.2(a), exercise any and all rights as beneficial and legal owner of the Collateral, including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Collateral. Without limiting the generality of the foregoing, the Notes Agent, without demand of performance or other demand or defense, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses (other than the defense of payment or performance of the Discharge of Obligations), presentment, protest, advertisements and notices are hereby waived to the extent permitted by applicable law), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent (or not consent) to the use by any Grantor of any cash collateral arising in respect of the Collateral on such terms as the Notes Agent deems reasonable, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk, it being understood that any sale pursuant to the provisions of this Section 6.5 shall be deemed to conform to the commercially reasonable standards under the UCC, with respect to any disposition of Collateral. Each Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. To the fullest extent permitted by applicable law, each purchaser at any such sale shall hold the property sold to it absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten (10) days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Notes Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Subject to the Intercreditor Agreement, the Notes Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Subject to the Intercreditor Agreement, the Notes Agent may sell the Collateral without giving any warranties as to the Collateral. The Notes Agent may specifically disclaim or modify any warranties of title or the like. To the fullest extent permitted by applicable law, this procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. Each Grantor agrees that it would not be commercially unreasonable for the Notes Agent to dispose of the Collateral or any portion thereof by using Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor

now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. As an alternative to exercising the power of sale herein conferred upon it, the Notes Agent may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. In the event of a foreclosure by the Notes Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Notes Agent or any Holder may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Notes Agent, at the direction of the Requisite Holders, as agent for and representative of the Secured Parties (but not any Holder or Holders in its or their respective individual capacities unless the Requisite Holders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Notes Agent on behalf of the Secured Parties at such sale or other disposition. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof and the Notes Agent shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Notes Agent shall have entered into such an agreement all Events of Default shall have been remedied and the Obligations paid in full. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against the Notes Agent or any Secured Party arising out of the exercise by them of any of their rights hereunder. Each Grantor further agrees, at the Notes Agent’s reasonable request, if an Event of Default has occurred and is continuing, to assemble the Collateral and make it available to the Notes Agent at places which the Notes Agent shall reasonably select, whether at such Grantor’s premises or elsewhere.

(b) Subject to the Intercreditor Agreement, the Notes Agent shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable and documented out-of-pocket costs and expenses of the Notes Agent of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Secured Parties hereunder, including reasonable and documented out-of-pocket attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations in accordance with Section 6.4 and only after such application and after the payment by the Notes Agent of any other amount required by any provision of law, including Section 9-615(a) of the UCC, need the Notes Agent account for the surplus, if any, to any Grantor. If the Notes Agent sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Notes Agent and applied to debt of the purchaser. In the event the purchaser fails to pay for the Collateral, the Notes Agent may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any Secured Party arising out of the exercise by them of any rights hereunder.

(c) In view of the position of the Grantors in relation to the Collateral, or because of other current or future circumstances, a question may arise under the U.S. Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (the U.S. Securities Act of 1933 and any such similar statute as from time to time in effect being called the “Securities Laws”) with respect to any disposition of the Collateral permitted hereunder. Each Grantor understands that compliance with the Securities Laws might very strictly limit the course of conduct of the Notes Agent if the Notes Agent were to attempt to dispose of all or any part of the Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Collateral could dispose of the same. Similarly, there may be other

legal restrictions or limitations affecting the Notes Agent in any attempt to dispose of all or part of the Collateral under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Notes Agent may, with respect to any sale of the Collateral, limit the purchasers to those who will agree, among other things, to acquire such Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Notes Agent, in its sole and absolute discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Collateral or part thereof shall have been filed under the Securities Laws, and (b) may approach and negotiate with a limited number of potential purchasers (including a single potential purchaser) to effect such sale. Each Grantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Notes Agent shall incur no responsibility or liability for selling all or any part of the Collateral at a price that the Notes Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a limited number of purchasers (or a single purchaser) were approached. The provisions of this Section 6.5 will apply notwithstanding the existence of a public or private market upon which the quotations or sales prices may exceed substantially the price at which the Notes Agent sells.

6.6. Remedies for Intellectual Property.

Subject to the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, it is agreed that the Notes Agent shall have the right to take any of or all of the following actions at the same or different times with respect to any Collateral consisting of Intellectual Property, on demand, to cause the security interest granted hereunder to become an assignment, transfer and conveyance of any of or all such Collateral by the applicable Grantor to the Notes Agent, for the benefit of the Secured Parties, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral throughout the world on such terms and conditions and in such manner as the Notes Agent shall determine (other than in violation of any then-existing licensing arrangements to the extent that waivers cannot be obtained).

For the purpose of enabling the Notes Agent to exercise rights and remedies under this Agreement at such time as the Notes Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Notes Agent an irrevocable (until the Discharge of Obligations or the release of a Lien as set forth in Section 9.15), nonexclusive license (exercisable without payment of royalty or other compensation to the Grantors), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof; provided that such (i) license shall automatically terminate upon the Discharge of Obligations or the release of a Lien as set forth in Section 9.15, and (ii) such license shall be subject to the rights of any licensee under any exclusive license permitted under this Agreement granted prior to such Event of Default. The use of such license by the Notes Agent may be exercised, at the option of the Notes Agent, only upon the occurrence and during the continuation of an Event of Default; provided, however, that any license, sublicense or other transaction entered into by the Notes Agent in accordance herewith shall be binding upon each Grantor notwithstanding any subsequent cure of an Event of Default.

6.7. Waiver; Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the fees and disbursements of any attorneys employed by any Secured Party to collect such deficiency.

SECTION 7. THE NOTES AGENT

7.1. Notes Agent’s Appointment as Attorney-in-Fact, etc.

(a) Each Grantor hereby irrevocably (until the Discharge of Obligations) constitutes and appoints the Notes Agent and any officer or agent thereof, with full power of substitution, as its true and lawful proxy and attorney-in-fact with full irrevocable (until the Discharge of Obligations) power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Notes Agent the power and right, on behalf of such Grantor, to do any or all of the following:

(i) in the name of such Grantor or its own name, or otherwise, take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable constituting Collateral or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Notes Agent for the purpose of collecting any and all such moneys due under any Receivable or with respect to any other Collateral whenever payable;

(ii) in the case of any Intellectual Property, execute and deliver, and record or have recorded, any and all agreements, instruments, documents and papers as the Notes Agent may reasonably request to evidence the Secured Parties’ security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

(iii) pay or discharge taxes, assessments, charges, fees, Liens, security interests or other encumbrances levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; provided, however, that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance of, or imposing any obligation on the Notes Agent or any Secured Party to cure or perform, any covenants or other promises of any Grantor with respect to Taxes, assessments, charges, fees, Liens, security interests or other encumbrances and maintenance as set forth herein or in the other Transaction Documents;

(iv) execute, in connection with the exercise of any right or remedy provided for in Section 6 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and

(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Notes Agent or as the Notes Agent shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral and to give discharges and

releases of all or any of the Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) send verifications of Receivables to any Account Debtor; (5) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (6) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (7) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Notes Agent may deem appropriate; (8) assign any Copyright, Patent or Trademark (along with the goodwill of the business to which any such Trademark pertains and subject to the covenant set forth in Section 5.4(b) hereof) included in the Collateral, throughout the world for such term or terms, on such conditions, and in such manner, as the Notes Agent shall in its sole discretion determine; and (9) generally, sell, transfer, pledge and make any agreement with respect to, or consent to any use of cash collateral arising in respect of, or otherwise deal with any of the Collateral as fully and completely as though the Notes Agent were the absolute owner thereof for all purposes, and do, at the Notes Agent’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Notes Agent reasonably deems necessary to protect, preserve or realize upon the Collateral and the Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do.

Anything in this Section 7.1(a) to the contrary notwithstanding, the Notes Agent agrees that, except as expressly provided in Section 7.1(b), it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing and the Notes Agent shall have given the Company notice of its intent to exercise remedies under this Agreement (it being understood and agreed that the failure of the Notes Agent to provide notice pursuant to this paragraph shall not alter the Notes Agent’s ability to foreclose upon, or any other rights it may have with respect to, any Collateral).

(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the Notes Agent, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement; provided, however, that unless an Event of Default has occurred and is continuing, the Notes Agent shall not exercise this power without first making demand on the Grantor and the Grantor failing to comply therewith within any applicable period of grace.

(c) The expenses of the Notes Agent incurred in connection with actions undertaken as provided in this Section 7.1 shall be payable by such Grantor to the Notes Agent in accordance with Article X of the Note Purchase Agreement.

(d) Each Secured Party, by its authorization of the Notes Agent’s entering into this Agreement, consents to the exercise by the Notes Agent of any power, right or remedy provided for herein. All powers, authorizations and agencies contained in this Agreement, including Section 7.1(a), are coupled with an interest, are irrevocable until the termination of this Agreement and the release of the security interests created hereby.

7.2. Duty of Notes Agent. Neither the Notes Agent nor any other Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request

of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Secured Parties hereunder are solely to protect the Secured Parties’ interests in the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers, other than a duty of reasonable care in the custody and preservation of the Collateral in its possession. The Notes Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Notes Agent accords its own property. The Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted directly from their own gross negligence, bad faith or willful misconduct or a material breach of their obligations under the Transaction Documents.

7.3. Execution of Financing Statements, Intellectual Property Filings.

(a) Each Grantor hereby authorizes the Notes Agent to file or record financing or continuation statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral in such form and in such offices as the Notes Agent reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Notes Agent under this Agreement, provided however, that the Notes Agent shall have no obligation to make such filings or recordings absent express direction from the Requisite Holders. Each Grantor agrees that such financing statements may describe the Collateral in the same manner as described in the Notes Collateral Documents or as “all assets” or “all personal property” of the undersigned, whether now owned or hereafter existing or acquired by the undersigned or such other description as the Notes Agent reasonably determines is necessary or advisable.

(b) The Notes Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest in each item of Intellectual Property included in the Collateral that is owned by each Grantor that is subject to registration or an application to register in the USPTO or the USCO and each item of Intellectual Property included in the Collateral consisting of exclusive Copyright Licenses, in all cases naming any Grantor or the Grantors as debtors and the Notes Agent as secured party and shall provide written notice to the Grantor prior to filing any such documents, provided however, that the Notes Agent shall have no obligation to make such filings or recordings absent express direction from the Requisite Holders.

7.4. Authority of Notes Agent. Each Grantor acknowledges that the rights and responsibilities of the Notes Agent under this Agreement with respect to any action taken (or not taken) by the Notes Agent or the exercise or non-exercise by the Notes Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Notes Agent and the other Secured Parties, be governed by the Note Purchase Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Notes Agent and the Grantors, the Notes Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority. Without limiting the foregoing, in entering into this Agreement, or in taking (or forbearing from) any action under or pursuant to this Agreement, the Notes Agent shall have and be protected by all of the rights, immunities, indemnities and other protections granted to it under Article X of the Note Purchase Agreement. As among the Notes Agent and the Secured Parties, it is understood that any determination, request, direction, consent or

election, deeming any action or document reasonable, appropriate or satisfactory, exercising discretion, or exercising any right or duty under this Agreement to be made by the Notes Agent shall be pursuant to direction from the “Requisite Holders” or such other higher percentage of Holders under the Transaction Documents as shall be required to consent pursuant to the terms thereof.

7.5. No Individual Foreclosure, Etc. No Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guarantee of the Obligations except to the extent expressly contemplated by this Agreement or the other Transaction Documents, it being understood and agreed that all powers, rights and remedies under the Transaction Documents may be exercised solely by the Notes Agent on behalf of the Secured Parties in accordance with the terms thereof. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the guarantees of the Obligations provided hereunder and under any other Transaction Documents, to have agreed to the foregoing provisions and the other provisions of this Agreement. Without limiting the generality of the foregoing, each Secured Party authorizes the Notes Agent to credit bid all or any part of the Obligations held by it.

7.6. Reserved.

SECTION 8. INDEMNITY, SUBROGATION AND SUBORDINATION

8.1. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 8.3), the Company agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement, the Company shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment, and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Transaction Document to satisfy in whole or in part a claim of any Secured Party, the Company shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.

8.2. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 8.3) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation, or assets of any other Guarantor shall be sold pursuant to any Transaction Document to satisfy any Obligation owed to any Secured Party, and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Company as provided in Section 8.1, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to (i) the amount of such payment, or (ii) the greater of the book value or the fair market value of such assets, as the case may be (the “Indemnified Amount”), in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Guarantor as of the date of the payment of such Obligation and the denominator shall be the aggregate net worth of all the Guarantors as of the date of the payment of such Obligation (or, in the case of any Guarantor becoming a party hereto pursuant to Section 9.14 hereof, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 8.2 shall be subrogated to the rights of such Claiming Guarantor under Section 8.1 to the extent of such payment.

8.3. Subordination.

(a) Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 8.1 and 8.2 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Obligations. No failure on the part of the Company or any Guarantor to make the payments required by Sections 8.1 and 8.2 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall remain liable for the full amount of its obligations hereunder.

(b) The Company and each Guarantor hereby agree that all Indebtedness and other monetary obligations owed by it to the Company or any other Subsidiary of the Company shall be fully subordinated to the Discharge of Obligations.

SECTION 9. MISCELLANEOUS

9.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 11.3 of the Note Purchase Agreement or pursuant to an Assumption Agreement; provided that the Perfection Certificate referenced herein may be amended or supplemented by any Grantor at any time by delivering such amended or supplemented schedule to the Notes Agent.

9.2. Notices. All notices, requests and demands to or upon the Notes Agent or any Grantor hereunder shall be effected in the manner provided for in Section 11.6 of the Note Purchase Agreement. All communications and notices hereunder to any Guarantor shall be given to it in care of the Company as provided in Section 11.6 of the Note Purchase Agreement.

9.3. No Waiver by Course of Conduct; Cumulative Remedies. No Secured Party shall by any act (except by a written instrument pursuant to Section 9.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

9.4. Enforcement Expenses; Indemnification. Each Grantor agrees that the provisions of Section 8.1 of the Notes Purchase Agreement are incorporated herein by reference, mutatis mutandis.

9.5. Successors and Assigns. This Agreement (including the Guaranty) shall (a) remain in full force and effect until the Discharge of Obligations has occurred, (b) be binding upon each Grantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Holders and the Notes Agent and their respective successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, and subject to Section 11.4(b) of the Note Purchase Agreement, any Holder may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, the Guaranty, or all or any portion of any Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Holder herein or otherwise, in each case as and to the extent provided in Section 11.4(a) of the Note Purchase Agreement. No Grantor shall have the right to assign, transfer or delegate its rights hereunder or any interest herein without the prior written consent of the Requisite Holders (which consent may be granted or withheld in the Requisite Holders’ sole and absolute discretion) and any purported assignment, transfer or delegation without such consent shall be void ab initio.

9.6. Reserved.

9.7. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when it shall have been executed by the Notes Agent and when the Notes Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement.

9.8. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

9.9. Section Headings. Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

9.10. Integration. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law. This Agreement and the other Transaction Documents and any separate letter agreements with respect to fees payable to the Notes Agent represent the entire agreement of the Grantors, the Notes Agent and the other Secured Parties with respect to the subject matter hereof and thereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

9.11. GOVERNING LAW. This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be construed in accordance with and governed by the law of the State of New York.

9.12. Submission to Jurisdiction; Waivers.

(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the State and Federal Courts of the State of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, any Secured Party may bring an action or proceeding in a jurisdiction where Collateral is located.

(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section 9.12. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.2. Nothing in this Agreement or any other Transaction Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

9.13. Additional Grantors. Each Guarantor that (i) is required to become a party to this Agreement pursuant to Section 5.1(j) of the Note Purchase Agreement or (ii) otherwise becomes a party to this Agreement shall become a Grantor and a Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an Assumption Agreement. Upon execution and delivery by the Notes Agent and such Guarantor of an Assumption Agreement, such Guarantor shall become a Guarantor and a Grantor hereunder with the same force and effect as if originally named as a Guarantor and a Grantor herein. The execution and delivery of any such instrument shall not require the consent of any other Grantor hereunder. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.

9.14. Releases.

(a) Subject to Section 2.4, (i) this Agreement shall continue in effect until the Discharge of Obligations and (ii) in the circumstances described in Section 5.1 of the Intercreditor Agreement, subject to the instructions of the Holders, (1) the applicable Liens granted hereby (including any irrevocable licenses granted to the Notes Agent granted hereunder) shall automatically terminate and be released and (2) each applicable Guarantor shall automatically be released from its Guaranteed Obligations hereunder. In connection with any such termination or release, the Notes Agent shall promptly (and, without limiting the Notes Agent’s right to seek direction, each Secured Party, by its authorization of the Notes Agent’s entering into this Agreement, hereby authorizes the Notes Agent to) take such actions and execute any such documents as may be reasonably requested by any Grantor or Guarantor and at such Grantor’s or Guarantor’s expense, as applicable, to further document and evidence any such termination and release of Liens or Guaranteed Obligations, as the case may be.

(b) All releases or other documents delivered by the Notes Agent pursuant to this Section 9.14 shall be without recourse to, or warranty by, the Notes Agent.

9.15. No Fiduciary Duty. Each Grantor agrees that the provisions of Article XI of the Note Purchase Agreement are incorporated herein by reference, mutatis mutandis.

9.16. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

9.17. Intercreditor Agreement Governs. Notwithstanding anything herein to the contrary, the Liens and security interests granted to the Notes Agent, for the benefit of the Secured Parties pursuant to this Agreement, and the exercise of any right or remedy by the Notes Agent and the other Secured Parties

hereunder, in each case, with respect to the Collateral and Liens securing any Notes Obligations are subject to the provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of the Intercreditor Agreement and this Agreement with respect to the Collateral and Liens securing any Notes Obligations, as applicable, including with respect to (i) any obligation to deliver Pledged Securities or provide control with respect to any Collateral, and (ii) any representation, warranty or covenant herein relating to the priority of any security interest in the Collateral, the provisions of the Intercreditor Agreement shall prevail. As used in this Section 9.17, “Notes Obligations” shall have the meaning given to such term in the Intercreditor Agreement.

(signature pages follow)

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.


GRANTORS:

U.S. WELL SERVICES, INC.

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

USWS HOLDINGS, LLC

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

U.S. WELL SERVICES, LLC

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer


GRANTORS (CONT.):

USWS FLEET 10, LLC

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer

USWS FLEET 11, LLC

By:		/s/ Kyle O’Neill
Name:		Kyle O’Neill
Title:		Chief Financial Officer


WILMINGTON SAVINGS FUND SOCIETY, FSB,
as Notes Agent

By:		/s/ Geoffrey J. Lewis
Name:		Geoffrey J. Lewis
Title:		Vice President

Exhibit 10.7

Execution Version

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

by and among

BANK OF AMERICA, N.A.,

as ABL Agent,

CLMG CORP.,

as Term Loan Agent,

WILMINGTON SAVINGS FUND SOCIETY, FSB

as Notes Agent

and

U.S. WELL SERVICES, LLC,

for purposes of Sections 5.5(g), 5.5(h) and 9.3(c)

Dated as of June 24, 2021

Relating to:

U.S. WELL SERVICES, INC.,

USWS HOLDINGS LLC,

U.S. WELL SERVICES, LLC

and

CERTAIN OF THEIR AFFILIATES

TABLE OF CONTENTS


		Pages
SECTION 1 DEFINITIONS; RULES OF CONSTRUCTIONS			2

1.1	Defined Terms		2
1.2	Rules of Construction		14
1.3	UCC Definitions		15

SECTION 2 PRIORITY OF LIENS			15

2.1	Subordination of Liens		15
2.2	Prohibition on Contesting Liens		16
2.3	No New Liens		17
2.4	Perfection of Liens		19
2.5	Waiver of Marshaling		19

SECTION 3 ENFORCEMENT			20

3.1	Exercise of Remedies		20
3.2	Actions Upon Breach		26

SECTION 4 PAYMENTS.			27

4.1	Revolving Nature of ABL Obligations		27
4.2	Application of Proceeds of ABL Priority Collateral		28
4.3	Application of Proceeds of Term Loan Priority Collateral		28
4.4	Payments Over		29

SECTION 5 OTHER AGREEMENTS			32

5.1	Releases		32
5.2	Insurance.		36
5.3	Amendments to ABL Loan Documents, Term Loan Documents and Notes Documents		38
5.4	Rights as Unsecured Creditors		42
5.5	First Priority Agent as Gratuitous Bailee for Perfection		43
5.6	Access to Premises and Cooperation		46
5.7	Required Provisions		50

SECTION 6 INSOLVENCY PROCEEDINGS			50

6.1	DIP Financing		50
6.2	Relief from the Automatic Stay		54
6.3	Adequate Protection		55
6.4	Post-Petition Interest		58
6.5	Avoidance Issues		60
6.6	Application		61
6.7	Waivers		61
6.8	Separate Grants of Liens		61
6.9	Asset Sales		62
6.10	Plan of Reorganization		63

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SECTION 7 PURCHASE OPTIONS		65

7.1	Notice of Exercise	65
7.2	Purchase and Sale	66
7.3	Payment of Purchase Price	66
7.4	Limitation on Representations and Warranties	68

SECTION 8 RELIANCE; WAIVERS; ETC.		68

8.1	Reliance	68
8.2	No Warranties or Liability	68
8.3	ABL Obligations Unconditional	70
8.4	Term Loan Obligations Unconditional	70
8.5	Notes Obligations Unconditional	71

SECTION 9 MISCELLANEOUS		71

9.1	Conflicts	71
9.2	Term of this Agreement; Severability	71
9.3	Amendments; Waivers	72
9.4	Information Concerning Financial Condition of the Borrower and the Subsidiaries	74
9.5	Subrogation	75
9.6	Application of Payments	76
9.7	Consent to Jurisdiction; Waivers	77
9.8	Notices	77
9.9	Further Assurances	78
9.10	Governing Law	78
9.11	Specific Performance	78
9.12	Section Titles	78
9.13	Counterparts	78
9.14	Authorization	78
9.15	No Third Party Beneficiaries; Successors and Assigns	79
9.16	Effectiveness	79
9.17	ABL Agent, Term Loan Agent	79
9.18	Limitation on Term Loan Agent’s, ABL Agent’s and Notes Agent’s Responsibilities	80
9.19	Relationship with Other Intercreditor Agreements	80
9.20	Relative Rights	80
9.21	Additional Grantors	81
9.22	Amendment and Restatement	81

EXHIBITS:


Exhibit A		Form of Intercreditor Agreement Joinder

-ii-

AMENDED AND RESTATED INTERCREDITOR AGREEMENT

This AMENDED AND RESTATED INTERCREDITOR AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms hereof, this “Agreement”) is entered into as of June 24, 2021, by and among

(i)

BANK OF AMERICA, N.A., in its capacity as agent under the ABL Loan Documents (together with its successors and assigns in such capacity, the “ABL Agent”),

(ii)

CLMG CORP. (“CLMG”), as agent under the Term Loan Documents (together with its successors and assigns in such capacity, the “Term Loan Agent”),

(iii)

WILMINGTON SAVINGS FUND SOCIETY, FSB, as collateral agent under the Notes Documents (together with its successors and assigns in such capacity, the “Notes Agent”), and

(iv)

for purposes of Sections 5.5(f), 5.5(g) and 9.3(c), U.S. WELL SERVICES, LLC, a, Delaware limited liability company, (the “Borrower”).

RECITALS

A. Pursuant to that certain ABL Credit Agreement dated as of May 7, 2019 (as amended, restated, supplemented, modified, renewed or Refinanced in accordance with the terms of this Agreement, the “ABL Credit Agreement”) among U.S. WELL SERVICES, INC. a Delaware corporation (the “Parent”), USWS HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Borrower, the financial institutions, lenders and investors party from time to time to the ABL Credit Agreement (as defined below) (including any letter of credit issuers under the ABL Credit Agreement) (such financial institutions, lenders and investors, together with their respective successors and assigns, the “ABL Lenders”), the ABL Agent, and the other parties thereto, the ABL Lenders have agreed to make certain loans and other extensions of credit to or for the account of the Borrower.

B. As a condition to the effectiveness of the ABL Credit Agreement and to secure the obligations of the Borrower and the ABL Guarantors under and in connection with the ABL Loan Documents, the Borrower and the ABL Guarantors have granted to the ABL Agent (for the benefit of the ABL Secured Parties) Liens on the ABL Collateral.

C. Pursuant to that certain Term Loan Credit Agreement dated as of May 7, 2019 (as amended, restated, supplemented, modified, renewed or Refinanced in accordance with the terms of this Agreement, the “Term Loan Credit Agreement”) among the Parent, Holdings, the Borrower, the financial institutions, lenders and investors party from time to time to the Term Loan Credit Agreement, (as defined below) (such financial institutions, lenders and investors, together with their respective successors and assigns, the “Term Loan Lenders”) and the Term Loan Agent, the Term Loan Lenders have agreed to make certain loans to the Borrower.

D. As a condition to the effectiveness of the Term Loan Credit Agreement and to secure the obligations of the Borrower and the Term Loan Guarantors under and in connection with the Term Loan Documents, the Borrower and the Term Loan Guarantors have granted to the Term Loan Agent (for the benefit of the Term Loan Secured Parties) Liens on the Term Loan Collateral.

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E. Pursuant to that certain Note Purchase Agreement dated of even date herewith (as amended, restated, supplemented, modified, renewed or Refinanced in accordance with the terms of this Agreement, the “Note Purchase Agreement”) among the Parent, purchasers party thereto, as purchasers (the “Notes Secured Parties”) and the Notes Agent, the Parent has agreed to issue and the Notes Secured Parties agreed to purchase certain 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026.

F. As a condition to the effectiveness of the Note Purchase Agreement and to secure the obligations of the Parent and the other Note Parties under and in connection with the Notes Documents, the Parent and the other Note Parties have granted to the Notes Agent (for the benefit of itself and the Purchasers) Liens on the Notes Collateral

G. Each of the ABL Agent (on behalf of the ABL Secured Parties), the Term Loan Agent (on behalf of the Term Loan Secured Parties), and the Notes Agent (on behalf of the Notes Secured Parties) and, by their acknowledgment hereof, the ABL Loan Parties, the Term Loan Parties and the Note Parties desire to agree to the relative priority of Liens on the Collateral and certain other rights, priorities and interests as provided herein.

H. The ABL Agent (on behalf of the ABL Secured Parties), the Term Loan Agent (on behalf of the Term Loan Secured Parties), and Borrower desire to amend and restate in its entirety that certain Intercreditor Agreement dated May 7, 2019 (as amended prior to the date hereof, the “Original Intercreditor Agreement”), to which they are parties on the terms and conditions set forth in this Agreement.

AGREEMENT

Accordingly, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

SECTION 1 DEFINITIONS; RULES OF CONSTRUCTIONS.

1.1 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“ABL Agent” shall have the meaning assigned to that term in the preamble to this Agreement.

“ABL Cash Collateral” shall have the meaning set forth in Section 6.1.

“ABL Cash Management Bank” shall mean any “Cash Management Bank” as defined in the ABL Credit Agreement.

Page 2

“ABL Collateral” shall mean all of the assets of any Grantor, whether real, personal or mixed, upon which a Lien is granted or purported to be granted to the ABL Agent under any of the ABL Collateral Documents; provided, that the ABL Collateral shall at no time include the Excluded ABL Collateral.

“ABL Collateral Documents” shall mean the “Collateral Documents” (as defined in the ABL Credit Agreement).

“ABL Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.

“ABL Declined Lien” shall have the meaning set forth in Section 2.3 hereof.

“ABL DIP Financing” shall have the meaning set forth in Section 6.1.

“ABL Guarantors” shall mean the “Guarantors” as defined in the ABL Guarantee and

Collateral Agreement.

“ABL Hedge Bank” shall mean “Hedge Bank” (as defined in the ABL Credit Agreement) party to a Specified ABL Hedging Agreement.

“ABL Lender Cash Management Obligations” shall mean “all ABL Obligations in respect, of any Secured Cash Management Agreement” as defined in the ABL Credit Agreement.

“ABL Lender Hedging Obligations” shall mean all ABL Obligations in respect of any “Secured Cash Management Agreement” as defined in the ABL Credit Agreement.

“ABL Lenders” shall have the meaning assigned to that term in the recitals to this Agreement.

“ABL Loan Documents” shall mean the ABL Credit Agreement and the “Loan Documents” as defined in the ABL Credit Agreement.

“ABL Loan Parties” shall mean the “Loan Parties” as defined in the ABL Credit Agreement.

“ABL Loans” shall mean “Loans” as defined in the ABL Credit Agreement.

“ABL Obligations” shall mean any and all Obligations of every nature of each ABL Loan Party from time to time owed to the ABL Secured Parties, or any of them, under, in connection with, or evidenced or secured by any ABL Loan Document, including, without limitation, all the “Obligations,” or similar term as defined in the ABL Credit Agreement as in effect on the date hereof.

“ABL Priority Collateral” shall mean all Common Collateral consisting of the following:

(1) all Accounts, other than Accounts which constitute identifiable proceeds of Term Loan Priority Collateral (including proceeds from the sale, license, assignment or other disposition of Inventory to a third party not in connection with the provision of services);

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(2) all Chattel Paper (including Tangible Chattel Paper and Electronic Chattel Paper) to the extent evidencing, governing, securing or otherwise related to Accounts described in sub-clause (1);

(3) all collection accounts, Deposit Accounts (other than Deposit Accounts that constitute Term Loan Priority Collateral), lock-boxes, securities accounts (other than securities accounts that constitute Term Loan Priority Collateral) and commodity accounts (other than securities accounts that constitute Term Loan Priority Collateral) and any cash or other assets and all “Cash Equivalents” as defined in the ABL Credit Agreement on the date hereof (or as modified from time to time to the extent such modifications are permitted under Section 5.3) in any such accounts (other than identifiable cash proceeds in respect of real estate, Fixtures or Equipment or other Term Loan Priority Collateral (including proceeds from the sale, license, assignment or other disposition of Inventory to a third party not in connection with the provision of services)); excluding (i) the Reinvestment Account, (ii) the Loss Proceeds Account and (iii) the Prepayment Account, which, in the case of clause (i), (ii) and (iii), constitute Term Loan Priority Collateral;

(4) Indebtedness representing on-lent ABL Loans and any intercompany revolving loan notes to the extent evidencing such Indebtedness;

(5) to the extent evidencing or governing any of the items referred to in the preceding sub-clauses (1) through (4), all Documents, Documents of Title, General Intangibles (including all Payment Intangibles but excluding Intellectual Property), Instruments (including promissory notes and except to the extent relating to the sale, license, assignment or other disposition of Term Loan Priority Collateral (including proceeds from the sale, license, assignment or other disposition of Inventory to a third party not in connection with the provision of services)), Letter-of-Credit Rights and Commercial Tort Claims or other claims and causes of action, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing;

(6) to the extent evidencing or governing any of the items referred to in the preceding sub-clauses (1) through (5), all Supporting Obligations;

(7) all books and records relating to the foregoing (including all books, databases, customer lists and records, whether tangible or electronic, that contain any information relating to any of the foregoing); and

(8) all collateral security and guarantees with respect to any of the foregoing and all cash, Money, Instruments, Securities, Financial Assets, Deposit Accounts and insurance payments directly received as proceeds of any ABL Priority Collateral.

“ABL Recovery” shall have the meaning set forth in Section 6.5.

“ABL Secured Parties” shall mean any ABL Cash Management Bank and any ABL Hedge Bank, together with the ABL Agent and the ABL Lenders and any other Secured Parties under, and as defined in, the ABL Credit Agreement.

“ABL Security Agreement” shall mean the ABL Security Agreement dated as of the date hereof among the Parent, Holdings, the other ABL Loan Parties party thereto and the ABL Agent, as amended, restated, supplemented or otherwise modified from time to time.

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“ABL Standstill Period” shall have the meaning set forth in Section 3.1(b).

“ABL/Term Loan Cash Collateral” shall have the meaning set forth in Section 6.1.

“Additional Debt” shall have the meaning set forth in Section 9.3(e).

“Agent” shall mean each of the ABL Agent, the Term Loan Agent and the Notes Agent.

“Agreement” shall have the meaning assigned to such term in the preamble to this Agreement.

“Bank of America” shall mean Bank of America, N.A. and its successors.

“Bankruptcy Code” shall mean Title 11 of the United States Code (11 U.S.C. § 101, et seq.).

“Borrower” shall have the meaning assigned to that term in the recitals to this Agreement.

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Las Vegas, Nevada are authorized or required by law to remain closed.

“Call Premium” shall have the meaning set forth in the Term Loan Credit Agreement.

“cash collateral” shall mean any Common Collateral consisting of Money or cash equivalents, any Security Entitlement and any Financial Assets.

“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended.

“Collateral” shall mean, collectively, the ABL Collateral, the Term Loan Collateral and the Notes Collateral.

“Common Collateral” shall mean, at any time, Collateral in which holders of any ABL Obligations (or the ABL Agent), holders of any Term Loan Obligations (or the Term Loan Agent), and holders of any Notes Obligations hold or are permitted pursuant to the applicable ABL Loan Documents, Term Loan Documents or Notes Documents to hold a Lien at such time; provided that Common Collateral does not include the Excluded ABL Collateral.

“Credit Agreements” shall mean, collectively, the ABL Credit Agreement and the Term Loan Credit Agreement.

“Debtor Relief Laws” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Deposit Account Collateral” shall mean that part of the Common Collateral comprised of and/or contained in Deposit Accounts.

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“DIP Financing” shall have the meaning set forth in Section 6.1.

“Discharge of ABL Obligations” shall mean, the time at which all of the ABL Obligations (other than contingent indemnification and reimbursement obligations as to which no claim has been asserted by the Person entitled thereto) have been paid in full in cash, all Letters of Credit (as defined in the ABL Credit Agreement as in effect on the date hereof) have expired or been terminated (other than Letters of Credit for which other arrangements reasonably satisfactory to the ABL Agent and each applicable L/C Issuer (or similar term) (as defined in the ABL Credit Agreement as in effect on the date hereof) have been made), all Commitments (as defined in the ABL Credit Agreement as in effect on the date hereof) have been terminated and any ABL Lender Hedging Obligations and ABL Lender Cash Management Obligations have either been paid in full, cash collateralized on terms reasonably satisfactory to each applicable counterparty (or other arrangements reasonably satisfactory to the applicable counterparty shall have been made) or are no longer secured by the Collateral pursuant to the terms of the ABL Credit Agreement; provided that the Discharge of ABL Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other ABL Obligations that constitute an exchange or replacement for or a Refinancing of such ABL Obligations, subject to compliance with Section 5.3 and 9.3 hereof. In the event the ABL Obligations are modified and the Obligations in respect thereof are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code or other applicable Debtor Relief Law, the ABL Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such Obligations and any obligations pursuant to such new indebtedness shall have been satisfied.

“Discharge of Notes Obligations” shall mean, the time at which all Notes Obligations (other than contingent indemnification as to which no claim has been asserted by the Person entitled thereto) have been converted into equity interests of Parent or into a license agreement under the terms of the Note Purchase Agreement and the Notes. In the event any class of Notes Obligations is modified and the Obligations in respect thereof are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code or other applicable Debtor Relief Law, such Notes Obligations shall be deemed to be discharged when the final payment is made in cash in respect of such Obligations or all Notes Obligations have been converted into equity interest of Parent or into a license agreement under the terms of the Note Purchase Agreement, in respect of such Obligations.

“Discharge of Term Loan Obligations” shall mean, the time at which all the Term Loan Obligations (other than contingent indemnification and reimbursement obligations as to which no claim has been asserted by the Person entitled thereto) have been paid in full in cash, all letters of credit (if any) under the Term Loan Credit Agreement have expired or been terminated (other than letters of credit for which other arrangements reasonably satisfactory to the Term Loan Agent and each applicable issuing bank (or similar term) under the Term Loan Credit Agreement) have been made and all Commitments (as defined in the Term Loan Credit Agreement as in effect on the date hereof) have been terminated, and any Term Loan Lender Hedge Obligations and Term Loan Cash Management Obligations have either been paid in full, cash collateralized on terms reasonably satisfactory to each applicable counterparty (or other arrangements reasonably satisfactory to the applicable counterparty shall have been made) or are no longer secured by the Collateral pursuant to the terms of the Term Loan Credit Agreement; provided that the Discharge of Term Loan Obligations shall not be deemed to have occurred if such payments are made with the proceeds of

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other Term Loan Obligations that constitute an exchange or replacement for or a Refinancing of such Obligations or Term Loan Obligations, subject to compliance with Section 9.3. In the event any class of Term Loan Obligations is modified and the Obligations in respect thereof are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code or other applicable Debtor Relief Law, such Term Loan Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such Obligations and any obligations pursuant to such new indebtedness shall have been satisfied.

“Equity Interests” shall have the meaning given to the term in the Credit Agreements as in effect on the date hereof.

“Excluded ABL Collateral” shall mean the Initial Growth Capex Reserve Account, in the name of, otherwise held or owned by, each Grantor that is held at Beal Bank USA and/or any of its affiliates.

“Exercise Any Secured Creditor Remedies” or “Exercise of Any Secured Creditor Remedies” shall mean, except as otherwise provided in the final sentence of this definition:

(a) the taking by any Secured Party of any action to enforce or realize upon any Lien, including the institution of any foreclosure proceedings or the noticing of any public or private sale pursuant to Article 9 of the Uniform Commercial Code or other applicable law;

(b) the exercise by any Secured Party of any remedy provided to a secured creditor on account of a Lien under any of the ABL Loan Documents, the Term Loan Documents, or the Notes Documents, as applicable, under applicable law, in an Insolvency Proceeding or otherwise, including the election to retain any of the Common Collateral in satisfaction of a Lien;

(c) the taking of any action by any Secured Party or the exercise of any right or remedy by any Secured Party in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Common Collateral or the proceeds thereof;

(d) the appointment, directly or on the application of a Secured Party or of a trustee, receiver, receiver and manager, interim receiver or similar official of all or part of the Common Collateral;

(e) the sale, lease, license or other disposition of all or any portion of the Common Collateral by private or public sale conducted by a Secured Party or by any other means at the direction of a Secured Party permissible under applicable law (including, without limitation, any sale, transfer or other disposition effected pursuant to Section 5.1(a)(ii) or 5.1(b)(ii) hereof);

(f) the exercise of any other right of a secured creditor under Part 6 of Article 9 of the Uniform Commercial Code or under provisions of similar effect or other applicable law;

(g) the exercise by a Secured Party of any voting rights relating to any Equity Interest included in the Common Collateral; or

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(h) the delivery of any notice, claim or demand relating to the Common Collateral to any Person (including any securities intermediary, depository bank or landlord) in possession or control of any Common Collateral;

For the avoidance of doubt, none of the following shall be deemed to constitute an Exercise of Any Secured Creditor Remedies: (i) the filing of a proof of claim in any Insolvency Proceeding of any Loan Party or seeking adequate protection in compliance with this Agreement, (ii) the exercise of rights by the ABL Agent upon the occurrence of a Cash Dominion Trigger Period (as defined in the ABL Credit Agreement as in effect on the date hereof) of the type provided in the ABL Credit Agreement as in effect on the date hereof (or any substantially similar provision in any replacement ABL Credit Agreement), including the notification of account debtors, depository institutions or any other Person to deliver proceeds of ABL Priority Collateral to the ABL Agent in accordance with the ABL Credit Agreement (or any substantially similar provision in any replacement ABL Credit Agreement), (iii) filing any necessary or appropriate responsive or defensive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Agent or Secured Party, to the extent not in contravention of this Agreement, (iv) subject to the restrictions set forth in this definition and not otherwise in contravention of this Agreement, filing any pleadings, objections, motions or agreements which assert rights or interests available to secured creditors solely with respect to the Term Loan Priority Collateral, in the case of the Term Loan Secured Parties, or the ABL Priority Collateral, in the case of the ABL Secured Parties, as applicable, (v) voting on any Plan in any Insolvency Proceeding of any Loan Party, (vi) the consent by the ABL Agent or the ABL Secured Parties to a going out of business sale or other disposition by any Grantor of any of the ABL Priority Collateral (other than after the occurrence of an “Event of Default” as defined in the ABL Credit Agreement as in effect on the date hereof), (vii) the changing of advance rates, ineligibles or sublimits by the ABL Agent and the ABL Secured Parties, (viii) the imposition or modification of the Availability Reserve (as defined in the ABL Credit Agreement as in effect on the date hereof) by the ABL Agent, (ix) the acceleration of loans under the ABL Credit Agreement, the Term Loan Credit Agreement or the Note Purchase Agreement in accordance with the terms hereof, (x) the consent of the Term Loan Agent to the disposition by any Grantor of any Term Loan Priority Collateral (other than after the occurrence of an “Event of Default” as defined in the Term Loan Credit Agreement as in effect on the date hereof), (xi) the imposition of a default rate, or (xii) the conversion of the Notes Obligations into equity interests of Parent or into a license agreement pursuant to the terms of the Note Purchase Agreement and the Notes issued thereunder.

“Exit Fees” shall have the meaning set forth in the Term Loan Credit Agreement.

“First Priority Agent” shall mean, with respect to (a) any ABL Priority Collateral, the ABL Agent, and (b) any Term Loan Priority Collateral, the Term Loan Agent.

“First Priority Claims” shall mean, with respect to (a) any ABL Priority Collateral, the ABL Obligations, and (b) any Term Loan Priority Collateral, the Term Loan Obligations.

“First Priority Secured Parties” shall mean, with respect to (a) any ABL Priority Collateral, the ABL Secured Parties, and (b) any Term Loan Priority Collateral, the Term Loan Secured Parties.

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“Grantors” shall mean the Parent, Holdings, the Borrower, the other ABL Loan Parties, the other Term Loan Parties and the other Notes Parties.

“Hedging Agreement” shall mean a (i) “Hedge Agreement” as such term is defined in the Term Loan Credit Agreements or (ii) “Secured Hedge Agreement” as such term is defined in the ABL Credit Agreement.

“Holdings” shall have the meaning set forth in the preamble to this Agreement.

“Indebtedness” shall (i) in the case of the Term Loan Credit Agreement, shall mean “Debt” as such term is defined in the Term Loan Credit Agreement in effect on the date hereof and (ii) in the case of the ABL Credit Agreement, shall have the meaning provided in the ABL Credit Agreement as in effect on the date hereof.

“Initial Growth Capex Reserve Account” shall have the meaning give to the term in the Term Loan Credit Agreement as of the date hereof.

“Insolvency Proceeding” shall mean (a) any case commenced by or against any Grantor under the Bankruptcy Code or any other Debtor Relief Law, any other proceeding for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshaling of the assets or liabilities of any Grantor, any receivership or assignment for the benefit of creditors relating to any Grantor or any similar case or proceeding relative to any Grantor or its creditors, as such, or with respect to any material portion of any Grantor’s property, in each case whether or not voluntary; (b) any liquidation, dissolution, marshaling of assets or liabilities or other winding up of or relating to any Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or (c) any other proceeding of any type or nature in which substantially all claims of creditors of any Grantor are determined and any payment or distribution is or may be made on account of such claims.

“Intellectual Property” shall have the meaning set forth in each of the Specified Collateral Documents in effect on the date hereof (whether or not such agreements are then in effect).

“Intercreditor Agreement Joinder” shall mean, with respect to any Grantor or any New ABL Agent or New Term Loan Agent, an agreement substantially in the form of Exhibit A hereto, executed by the applicable Grantor, New ABL Agent, New Term Loan Agent, and delivered by it to the Term Loan Agent, the ABL Agent and the Notes Agent.

“Lien” shall have the meaning given to the term in the Credit Agreements as in effect on the date hereof.

“Loans” shall mean the collective reference to the ABL Loans and the Term Loans.

“Loss Proceeds Account” shall have the meaning give to the term in the Term Loan Credit Agreement as of the date hereof.

“New ABL Agent” shall have the meaning set forth in Section 9.3(c).

“New Term Loan Agent” shall have the meaning set forth in Section 9.3(c).

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“New York Courts” shall have the meaning set forth in Section 9.7.

“Note Purchase Agreement” shall have the meaning set forth in the recitals to this Agreement.

“Notes” shall mean the 16% Convertible Senior Secured (Third Lien) PIK Notes due 2026 issued by Parent under the Note Purchase Agreement on the initial closing date and any additional notes issued by the Parent under the Note Purchase Agreement thereafter.

“Notes Agent” shall have the meaning assigned to that term in the preamble to this Agreement.

“Notes Collateral” shall mean all of the assets of any Grantor, whether real, personal or mixed, upon which a Lien is granted or purported to be granted to the Notes Agent under any of the Notes Documents.

“Notes Collateral Documents” shall mean the Notes Security Agreement and each of the collateral documents, instrument and agreements delivered pursuant to the Note Purchase Agreement (including intellectual property security agreements) that creates or purports to create a Lien in favor of the Notes Agent for the benefit of the Notes Secured Parties, in each case, as amended, restated, supplemented or otherwise modified from time to time.

“Notes Documents” shall mean the Notes, the Notes Collateral Documents, and all of the “Transaction Documents” as defined in the Note Purchase Agreement.

“Notes Obligations” shall mean any and all Obligations of every nature of each Notes Party from time to time owed to the Notes Secured Parties, or any of them, under, in connection with, or evidenced or secured by any Notes Document, including, without limitation, all the “Note Obligations,” or similar term as defined in the Note Purchase Agreement as in effect on the date hereof.

“Notes Parties” shall mean the Parent, Holdings, Borrower and any of the “Grantors” as defined in or party to the Notes Security Agreement.

“Notes Secured Parties” shall mean the Notes Agent and the Purchasers under and as defined in, the Note Purchase Agreement.

“Notes Security Agreement” shall mean that certain Guarantee and Third Lien Collateral Agreement, dated as of the date hereof among the Parent, Holdings, the other Notes Parties party thereto and the Notes Agent, as amended, restated, supplemented or otherwise modified from time to time.

“Obligations” shall mean, with respect to any Person, any payment, performance or other obligations of such Person of any kind, including any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any Insolvency Proceeding. Without limiting the generality of the foregoing, the Obligations of any

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Grantor under any ABL Loan Document, Term Loan Document or Notes Document include the obligations to pay principal, reimbursement obligations under letters of credit, interest (including all interest, fees and expenses that, but for the filing of a petition in bankruptcy with respect to any Grantor, would have accrued on any such obligations, whether or not a claim therefor is allowed or allowable against such Grantor in such bankruptcy proceeding) or premium on any Indebtedness, letter of credit commissions (if applicable), charges, expenses, fees, yield maintenance (including Yield Maintenance Fees (if applicable)), Exit Fees (if applicable), premiums (including Call Premium (if applicable)), attorneys’ fees and disbursements, indemnities, and other amounts payable by such Grantor to reimburse any amount in respect of any of the foregoing that any ABL Secured Party, any Term Loan Secured Party or any Notes Secured Party, in each case in its sole discretion, many elect to pay or advance on behalf of such Grantor.

“Parent” shall have the meaning set forth in the recitals to this Agreement.

“Patent” shall have the meaning set forth in each of the Specified Collateral Documents in effect on the date hereof (whether or not such agreements are then in effect).

“Person” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.

“Plan” shall mean any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any Insolvency Proceeding under the Bankruptcy Code or any other Debtor Relief Laws.

“Pledged Collateral” shall mean the Common Collateral in the possession of the ABL Agent (or its agents or bailees), the Term Loan Agent (or its agents or bailees), or the Notes Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the Uniform Commercial Code or other applicable law.

“Prepayment Account” shall have the meaning give to the term in the Term Loan Credit Agreement as of the date hereof.

“Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew, retire, defease, amend, modify, supplement, amend and restate, restructure, replace, refund or repay, or to issue other Indebtedness in exchange or replacement for, such Indebtedness in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.

“Reinvestment Account” shall have the meaning give to the term in the Term Loan Credit Agreement as of the date hereof.

“Required Lenders” shall mean, with respect to any Credit Agreement, those Lenders (as defined under the applicable Credit Agreement) the approval of which is required to approve an amendment or modification of, termination or waiver of any provision of or consent to any departure from such Credit Agreement (or would be required to effect such consent under this Agreement if such consent were treated as an amendment of the Credit Agreement).¹

¹	Note to Draft: Voting mechanics for the NPA to be reflected upon receipt.

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“Second Priority Agent” shall mean, with respect to (a) any ABL Priority Collateral, the Term Loan Agent, and (b) any Term Loan Priority Collateral, the ABL Agent.

“Second Priority Claims” shall mean, with respect to (a) any ABL Priority Collateral, the Term Loan Obligations, and (b) any Term Loan Priority Collateral, the ABL Obligations.

“Second Priority Documents” shall mean, with respect to (a) any ABL Priority Collateral, the Term Loan Documents, and (b) any Term Loan Priority Collateral, the ABL Loan Documents.

“Second Priority Secured Parties” shall mean, with respect to (a) any ABL Priority Collateral, the Term Loan Secured Parties, and (b) any Term Loan Priority Collateral, the ABL Secured Parties.

“Secured Parties” shall mean the collective reference to the ABL Secured Parties, the Term Loan Secured Parties, and the Notes Secured Parties.

“Specified ABL Hedging Agreement” shall mean a “Specified Hedge Agreement” as such term is defined in the ABL Credit Agreement.

“Specified Collateral Documents” shall mean the ABL Security Agreement, the Term Security Agreement, and the Notes Security Agreement.

“Specified Term Loan Hedging Agreement” shall mean a “Specified Hedge Agreement” as such term is defined in the Term Loan Credit Agreement.

“Subsidiary” shall mean any “Subsidiary” of Parent under (and as defined in) each of the Credit Agreements as in effect on the date hereof.

“Term Declined Lien” shall have the meaning set forth in Section 2.3 hereof.

“Term DIP Financing” shall have the meaning set forth in Section 6.1.

“Term Loan Agent” shall have the meaning set forth in the preamble to this Agreement.

“Term Loan Cash Collateral” shall have the meaning set, forth in Section 6.1.

“Term Loan Cash Management Bank” shall mean any “Qualified Counterparty” (as defined in the Term Loan Credit Agreement) holding any Term Loan Obligations constituting Term Loan Lender Cash Management Obligations.

“Term Loan Collateral” shall mean all of the assets of any Grantor, whether real, personal or mixed, upon which a Lien is granted or purported to be granted to the Term Loan Agent under any of the Term Loan Collateral Documents, including the Initial Growth Capex Account.

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“Term Loan Collateral Documents” shall have the meaning set forth in the Term Loan Credit Agreement.

“Term Loan Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.

“Term Loan Documents” shall mean “Loan Documents” as defined in the Term Loan Credit Agreement.

“Term Loan Guarantors” shall mean the “Guarantors” as defined in the Term Loan Credit Agreement.

“Term Loan Hedge Bank” shall mean each “Qualified Counterparty” (as defined in the Term Loan Credit Agreement) party to a Specified Term Loan Hedging Agreement.

“Term Loan Lender Cash Management Obligations” shall mean “Cash Management Obligations” as defined in the Term Loan Credit Agreement.

“Term Loan Lender Hedging Obligations” shall mean all amounts owing under any Specified Term Loan Hedging Agreement.

“Term Loan Lenders” shall have the meaning set forth in the preamble to this Agreement.

“Term Loan Obligations” shall mean any and all Obligations of every nature of each Term Loan Party from time to time owed to the Term Loan Secured Parties, or any of them, under, in connection with, or evidenced or secured by any Term Loan Document, including, without limitation, all the “Obligations,” or similar term as defined in the Term Loan Credit Agreement as in effect on the date hereof.

“Term Loan Parties” shall mean the “Loan Parties” as defined in the Term Loan Credit Agreement.

“Term Loan Priority Collateral” shall mean all Common Collateral other than ABL Priority Collateral, and all collateral security and guarantees with respect to any Term Loan Priority Collateral, and all cash, Money, Instruments, Securities, Financial Assets and Deposit Accounts directly received as proceeds of, or constituting, any Term Loan Priority Collateral, including, without limitation, Equipment, Inventory sold, licensed, assigned or otherwise disposed of a third party not in connection with the provision of services, Intellectual Property, the Loss Proceeds Account, the Prepayment Account and the Reinvestment Account (each as defined the Term Loan Credit Agreement as in effect on the date hereof).

“Term Loan Recovery” shall have the meaning set forth in Section 6.5 hereof.

“Term Loan Secured Parties” shall mean any Term Loan Cash Management Bank and any Term Loan Hedge Bank, together with the Term Loan Agent and the Term Loan Lenders and any other Secured Parties under, and as defined in the Term Loan Credit Agreement.

“Term Loans” shall mean the “Loans” as defined in the Term Loan Credit Agreement.

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“Term Loan Standstill Period” shall have the meaning set forth in Section 3.1(a).

“Term Security Agreement” shall mean the Term Loan Guarantee and Collateral Agreement, dated as of the date hereof among the Parent, Holdings, the other Term Loan Parties party thereto and the Term Loan Agent, as amended, restated, supplemented or otherwise modified from time to time.

“Third Priority Agent” shall mean the Notes Agent.

“Third Priority Claims” shall mean the Notes Obligations.

“Third Priority Documents” shall mean the Notes Documents.

“Third Priority Secured Parties” shall mean the Notes Secured Parties.

“Trademark” shall have the meaning set forth in each of the Specified Collateral Documents, each as in effect on the date hereof (whether or not such agreements are then in effect).

“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if, by reason of mandatory provisions of law, perfection or the effect of perfection or non-perfection or the priority of a security interest in any Collateral or the availability of any remedy is governed by the Uniform Commercial Code as in effect in a United States jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other United States jurisdiction for purposes of the provisions of any Loan Document relating to such perfection or effect of perfection or non-perfection or priority or availability of such remedy, as the case may be.

“WSFS” shall mean Wilmington Savings Fund Society, FSB and its successors and assigns.

“Yield Maintenance Fees” shall have the meaning set forth in the Term Loan Credit Agreement.

1.2 Rules of Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting and shall be deemed to be followed by the phrase “without limitation,” and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument or document shall include all alterations, amendments, changes, restatements, extensions, modifications, renewals, substitutions, joinders and supplements thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, restatements, extensions, modifications, renewals, substitutions, joinders and supplements set forth herein). Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Except as otherwise provided herein, any reference herein to the repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in such other manner as may be approved in writing by the requisite holders or representatives in respect of such obligation.

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1.3 UCC Definitions. The following terms, which are defined in uncapitalized form or otherwise used in the Uniform Commercial Code are used herein as so defined or used, as the context requires:

Accounts, Cash Equivalents, Chattel Paper, Deposit Account, Document, Document of Title, Electronic Chattel Paper, Equipment, Financial Asset, Fixtures, General Intangible, Instrument, Inventory, Letter-of-Credit Right, Money, Payment Intangible, Proceeds, Records, Securities, Securities Account, Security Entitlement, Supporting Obligation and Tangible Chattel Paper.

SECTION 2 PRIORITY OF LIENS.

2.1 Subordination of Liens. Notwithstanding (i) the date, time, method, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) of any Liens granted to the ABL Agent for the benefit of the ABL Secured Parties on the Common Collateral, granted to the Term Loan Agent for the benefit of the Term Loan Secured Parties on the Common Collateral, or granted to the Notes Agent for the benefit of the Notes Secured Parties on the Common Collateral, (ii) any provision of the UCC, the Bankruptcy Code, or any other applicable Debtor Relief Law or other law or the ABL Loan Documents, the Term Loan Documents, or the Notes Documents, (iii) whether the ABL Agent, the Term Loan Agent, or the Notes Agent either directly or through agents, holds possession of, or has control over, all or any part of the Common Collateral, (iv) the fact that any such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v) any other circumstance of any kind or nature whatsoever, the ABL Agent, on behalf of itself and each ABL Secured Party, the Term Loan Agent, on behalf of itself and each applicable Term Loan Secured Party, and the Notes Agent, on behalf of itself and each applicable Notes Secured Party hereby agree that:

(a)

all Liens on the ABL Priority Collateral securing any ABL Obligations now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the ABL Priority Collateral securing any Term Loan Obligations or Notes Obligations,

(b)

all Liens on the ABL Priority Collateral securing any Term Loan Obligations, now or hereafter held by or on behalf of a Term Loan Agent, any Term Loan Secured Parties or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be (i) junior and subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL Obligations and (ii) senior in all respects and prior to any Lien on the ABL Priority Collateral securing any Notes Obligations,

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(c)

all Liens on the ABL Priority Collateral securing any Notes Obligations, now or hereafter held by or on behalf of the Notes Agent or any Notes Secured Party or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the ABL Priority Collateral securing any ABL Obligations or any Term Loan Obligations,

(d)

all Liens on the Term Loan Priority Collateral securing any Term Loan Obligations now or hereafter held by or on behalf of the Term Loan Agent, any Term Loan Secured Parties or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Term Loan Priority Collateral securing any ABL Obligations or any Notes Obligations,

(e)

all Liens on the Term Loan Priority Collateral securing any ABL Obligations, now or hereafter held by or on behalf of the ABL Agent or any ABL Secured Parties or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be (i) junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral securing any Term Loan Obligations and (ii) shall have priroity over and be senior in all respects and prior to any Lien on the Term Loan Priority Collateral securing any Notes Obligations,

(f)

any Lien on the Term Loan Priority Collateral securing any Notes Obligations, now or hereafter held by or on behalf of the Notes Agent or any Notes Secured Party or any agent, trustee, receiver, interim receiver or similar Person therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Term Loan Priority Collateral securing any Term Loan Obligations or ABL Obligations.

All Liens on the ABL Priority Collateral securing any ABL Obligations shall be and remain senior in all respects and prior to all Liens on the ABL Priority Collateral securing any Term Loan Obligations or Notes Obligations for all purposes, whether or not such Liens securing any ABL Obligations are subordinated to any Lien securing any other obligation of the Borrower, any other Grantor or any other Person. All Liens on the Term Loan Priority Collateral securing any Term Loan Obligations shall be and remain senior in all respects and prior to all Liens on the Term Loan Priority Collateral securing any ABL Obligations or Notes Obligations for all purposes, whether or not such Liens securing any Term Loan Obligations are subordinated to any Lien securing any other obligation of the Borrower, any other Grantor or any other Person.

2.2 Prohibition on Contesting Liens. The ABL Agent, for itself and on behalf of each ABL Secured Party, the Term Loan Agent, for itself and on behalf of each Term Loan Secured Party, and the Notes Agent, for itself and on behalf of each Notes Secured Party agrees that it shall

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not (and hereby waives any right to) take any action to challenge, contest or support any other Person in contesting or challenging, directly or indirectly, in any proceeding (including any Insolvency Proceeding), the validity, perfection, priority or enforceability of (a) any Lien securing any ABL Obligations held (or purported to be held) by or on behalf of the ABL Agent or any of the ABL Secured Parties or any agent, or trustee, receiver, interim receiver or similar Person therefor in any ABL Collateral, (b) any Lien securing any Term Loan Obligations held (or purported to be held) by or on behalf of any Term Loan Secured Party in any Term Loan Collateral, or (c) any Lien securing any Notes Obligations held (or purported to be held) by or on behalf of any Notes Secured Party in any Notes Collateral, as the case may be; provided, however, that nothing in this Agreement shall be construed (x) to prevent or impair the rights of the ABL Agent or any ABL Secured Party to enforce this Agreement (including the priority of the Liens securing the ABL Obligations as provided in Section 2.1 with respect to any Collateral, including any ABL Priority Collateral) or any of the ABL Loan Documents or (y) to prevent or impair the rights of a Term Loan Agent or any Term Loan Secured Party to enforce this Agreement (including the priority of the Liens securing the Term Loan Obligations as provided in Section 2.1 with respect to any Collateral, including any Term Loan Priority Collateral) or any of the Term Loan Documents.

2.3 No New Liens.

(a)

So long as the Discharge of ABL Obligations has not occurred, the Term Loan Agent agrees, for itself and on behalf of each applicable Term Loan Secured Party, whether or not any Insolvency Proceeding has been commenced by or against the Borrower, or any other Grantor, that it shall not, except as otherwise provided herein, acquire or hold any Lien on any assets of the Borrower or any other Grantor securing any Term Loan Obligations that, to the extent permissible under applicable law, are not also subject to the Liens in respect of the ABL Obligations under the ABL Loan Documents; provided that this provision will not be violated with respect to any ABL Obligations if the ABL Agent is given a reasonable opportunity to accept a Lien on any asset or property and the ABL Agent states in writing that the ABL Loan Documents in respect thereof prohibit the ABL Agent from accepting a Lien on such asset or property or the ABL Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Lien, an “ABL Declined Lien”). If the Term Loan Agent or any Term Loan Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any collateral of a Grantor that is not also subject to the Liens in respect of the ABL Obligations under the ABL Loan Documents (other than an ABL Declined Lien), then the Term Loan Agent shall, to the extent permissible under applicable law, without the need for any further consent of any party and notwithstanding anything to the contrary in any other document, be deemed to also hold and have held such Lien for the benefit of the ABL Agent as security for the ABL Obligations (subject to the Lien priority and other terms hereof) and shall promptly notify the ABL Agent in writing of the existence of such Lien and in any event take such actions as may be requested by the ABL Agent to assign or release such Liens to the ABL Agent (and/or its designees) as security for the ABL Obligations.

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(b)

So long as the Discharge of Term Loan Obligations has not occurred, the ABL Agent agrees, for itself and on behalf of each ABL Secured Party, whether or not any Insolvency Proceeding has been commenced by or against the Borrower, or any other Grantor, that it shall not, except as otherwise provided herein, acquire or hold any Lien on any assets of the Borrower or any other Grantor securing any ABL Obligations that, to the extent permissible under applicable law, are not also subject to the Liens in respect of the Term Loan Obligations under the Term Loan Documents; provided that this provision will not be violated with respect to any Term Loan Obligations if the Term Loan Agent is given a reasonable opportunity to accept a Lien on any asset or property and the Term Loan Agent states in writing that the Term Loan Documents in respect thereof prohibit the Term Loan Agent from accepting a Lien on such asset or property or the Term Loan Agent otherwise expressly declines to accept a Lien on such asset or property (any such prohibited or declined Lien, a “Term Declined Lien”). If the ABL Agent or any ABL Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any collateral of a Grantor that is not also subject to the Liens in respect of the Term Loan Obligations under the Term Loan Documents (other than a Term Declined Lien), then the ABL Agent shall, to the extent permissible under applicable law, without the need for any further consent of any party and notwithstanding anything to the contrary in any other document, be deemed to also hold and have held such Lien for the benefit of the Term Loan Agent as security for the Term Loan Obligations (in each case, subject to the Lien priority and other terms hereof) and shall promptly notify the Term Loan Agent in writing of the existence of such Lien and in any event take such actions as may be requested by the Term Loan Agent to assign or release such Liens to the Term Loan Agent (and/or its designees) as security for the Term Loan Obligations.

(c)

So long as the Discharge of ABL Obligations or the Discharge of Term Loan Obligations has not occurred, the Notes Agent agrees, for itself and on behalf of each applicable Notes Secured Parties, whether or not any Insolvency Proceeding has been commenced by or against the Borrower, or any other Grantor, that it shall not, except as otherwise provided herein, acquire or hold any Lien on any assets of the Borrower or any other Grantor securing any Notes Obligations that, to the extent permissible under applicable law, are not also subject to the Liens in respect of the Liens of the ABL Secured Parties and Term Loan Secured Parties under the ABL Documents and the Term Loan Documents, respectively. If the Notes Agent or any Notes Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any collateral of a Grantor that is not also subject to the Liens in respect of the ABL Obligations under the ABL Loan Documents (other than an ABL Declined Lien) or the Term Loan Obligations under the

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Term Loan Documents (other than the Term Declined Lien), then the Notes Agent shall, to the extent permissible under applicable law, without the need for any further consent of any party and notwithstanding anything to the contrary in any other document, be deemed to also hold and have held such Lien for the benefit of the ABL Agent as security for the ABL Obligations (subject to the Lien priority and other terms hereof) and the Term Loan Agent as security for the Term Loan Obligations and shall promptly notify the ABL Agent and the Term Loan Agent in writing of the existence of such Lien and in any event take such actions as may be requested by the ABL Agent or the Term Loan Agent to assign or release such Liens to the ABL Agent (and/or its designees) as security for the ABL Obligations and the Term Loan Agent (and/or its designees) as security for the Term Loan Obligations.

Notwithstanding anything in this Agreement to the contrary, Excluded ABL Collateral shall only constitute Term Loan Collateral subject to a lien in favor of the Term Loan Agent and shall in no event constitute ABL Collateral, Notes Collateral, or Common Collateral and shall not be subject to any lien in favor of the ABL Agent hereunder or under any ABL Document and shall not be subject to a lien in favor of the Notes Agent hereunder or under any Notes Document.

2.4 Perfection of Liens. With respect to any portion of the Common Collateral, except as expressly set forth in Section 5.5, neither the First Priority Agent nor the First Priority Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Common Collateral for the benefit of (a) the Second Priority Agent and the Second Priority Secured Parties, or (b) the Third Priority Agent and the Third Priority Secured Parties. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the ABL Secured Parties as a class, the Term Loan Secured Parties as a class, and the Notes Secured Parties as a class, and shall not impose on the ABL Agent, the Term Loan Agent, the Notes Agent, the ABL Secured Parties, the Term Loan Secured Parties, the Notes Secured Parties, or any agent, trustee, receiver, interim receiver or similar Person therefor any obligations in respect of the disposition of proceeds of any Common Collateral that would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.

2.5 Waiver of Marshaling.

(a)

Until the Discharge of ABL Obligations, the Term Loan Agent, on behalf of itself and the applicable Term Loan Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Priority Collateral or any other similar rights a junior secured creditor may have under applicable law with respect to the ABL Priority Collateral.

(b)

Until the Discharge of Term Loan Obligations, the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees not to assert and hereby waives,

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to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Term Loan Priority Collateral or any other similar rights a junior secured creditor may have under applicable law with respect to the Term Loan Priority Collateral.

(c)

Until the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, the Notes Agent, on behalf of itself and the Notes Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or the Term Loan Collateral or any other similar rights a junior secured creditor may have under applicable law with respect to the ABL Collateral or Term Loan Collateral.

SECTION 3 ENFORCEMENT.

3.1 Exercise of Remedies.

(a)

So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency Proceeding has been commenced by or against the Borrower or any other Grantor, subject to Section 5.6 and 6.2, (i) none of the Term Loan Agent, any Term Loan Secured Party, Notes Agent or any Notes Secured Party will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff or recoupment) with respect to any ABL Priority Collateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the ABL Priority Collateral by the ABL Agent or any ABL Secured Party in respect of the ABL Obligations, the exercise of any right by the ABL Agent or any ABL Secured Party (or any agent or sub-agent on their behalf) in respect of the ABL Obligations, or any other exercise by any such party of any rights and remedies relating to the ABL Priority Collateral under the ABL Loan Documents or otherwise in respect of ABL Obligations, or (z) object to the forbearance by the ABL Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the ABL Priority Collateral in respect of ABL Obligations and (ii) except as otherwise provided herein, the ABL Agent and the ABL Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the ABL Priority Collateral without any consultation with or the consent of the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party; provided, however, that (A) in any

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Insolvency Proceeding commenced by or against the Borrower or any other Grantor, the Term Loan Agent may file a proof of claim or statement of interest with respect to the Term Loan Obligations and the Notes Agent may file a proof of claim or statement of interest with respect to the Notes Obligations, and (B) the Term Loan Agent and the Notes Agent may take any action (not adverse to the Liens on the ABL Priority Collateral securing the ABL Obligations, or the rights of the ABL Agent or the ABL Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the ABL Priority Collateral; provided, further, that the Term Loan Agent or any Term Loan Lender may exercise any or all of such rights, powers, or remedies after a period of at least 180 days has elapsed since (1) a Term Loan Agent has declared the existence of an “Event of Default” under the Term Loan Credit Agreement, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all Term Loan Obligations and demanded payment thereof and (2) the ABL Agent has received notice thereof from the Term Loan Agent; provided further, however, that neither the Term Loan Agent nor any other Term Loan Secured Party shall exercise any rights or remedies with respect to the ABL Priority Collateral if, notwithstanding the expiration of such 180 day period, the ABL Agent or the other ABL Lenders (A) shall have commenced, whether before or after the expiration of such 180 day period and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the ABL Priority Collateral (prompt written notice of such exercise to be given to the Term Loan Agent and the Notes Agent), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (including any “automatic stay” during an Insolvency Proceeding) (the period during which the Term Loan Agent and the Term Loan Secured Parties may not pursuant to this Section 3.1(a)(ii) exercise any rights, powers or remedies with respect to the ABL Priority Collateral, the “Term Loan Standstill Period”); and provided further, however, the Notes Agent or any the Notes Secured Party may exercise any or all of such rights, powers, or remedies after the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, the “Notes Standstill Period for ABL Priority Collateral”). In exercising rights and remedies with respect to the ABL Priority Collateral, the ABL Agent and the ABL Secured Parties may enforce the provisions of the ABL Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion consistent with the terms of the ABL Loan Documents and this Agreement. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of ABL Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.

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(b)

So long as the Discharge of Term Loan Obligations has not occurred, whether or not any Insolvency Proceeding has been commenced by or against the Borrower, or any other Grantor, subject to Section 5.6 and 6.2, (i) none of the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Party will (x) Exercise Any Secured Creditor Remedies or seek to Exercise Any Secured Creditor Remedies (including setoff or recoupment) with respect to any Term Loan Priority Collateral, or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure but excluding any exercise of cash dominion), (y) contest, protest or object to any foreclosure proceeding or action brought with respect to the Term Loan Priority Collateral by the Term Loan Agent or any Term Loan Secured Party in respect of the Term Loan Obligations, the exercise of any right by the Term Loan Agent or any Term Loan Secured Party (or any agent or sub-agent on their behalf) in respect of the Term Loan Obligations, or any other exercise by any such party of any rights and remedies relating to the Term Loan Priority Collateral under the Term Loan Documents or otherwise in respect of Term Loan Obligations, or (z) object to the forbearance by the Term Loan Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other Exercise of Any Secured Creditor Remedies relating to the Term Loan Priority Collateral in respect of Term Loan Obligations and (ii) except as otherwise provided herein, the Term Loan Agent and the Term Loan Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Term Loan Priority Collateral without any consultation with or the consent of the ABL Agent or any ABL Secured Party; provided, however, that (A) in any Insolvency Proceeding commenced by or against the Borrower or any other Grantor, the ABL Agent may file a proof of claim or statement of interest with respect to the ABL Obligations and the Notes Agent may file a proof of claim or statement of interest with respect to the Notes Obligations and (B) the ABL Agent and the Notes Agent may take any action (not adverse to the Liens on the Term Loan Priority Collateral securing the Term Loan Obligations, or the rights of the Term Loan Agent or the Term Loan Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Term Loan Priority Collateral; provided, further, that the ABL Agent or any ABL Lender may exercise any or all of such rights, powers, or remedies after a period of a least 180 days has elapsed since (1) the ABL Agent has declared the existence of an “Event of Default” under the ABL Credit Agreement, accelerated (to the extent such amount was not already due and owing) the payment of the principal amount of all ABL Obligations, and demanded payment thereof and (2) the Term Loan Agent has received notice thereof from the ABL Agent; provided further, however,

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that neither the ABL Agent nor any other ABL Lender shall exercise any rights or remedies with respect to the Term Loan Priority Collateral if, notwithstanding the expiration of such 180 day period, the Term Loan Agent or the other Term Loan Lenders (A) shall have commenced, whether before or after the expiration of such 180 day period and be diligently pursuing the exercise of their rights, powers, or remedies with respect to all or any material portion of the Term Loan Priority Collateral (prompt written notice of such exercise to be given to the ABL Agent), or (B) shall have been stayed by operation of law or any court order from pursuing any such exercise of remedies (including any “automatic stay” during an Insolvency Proceeding) (the period during which the ABL Agent and the ABL Lenders may not pursuant to this Section 3.1(b)(ii) exercise any rights, powers or remedies with respect to the Term Loan Priority Collateral, the “ABL Standstill Period”); provided further, however, the Notes Agent or any Notes Secured Party may exercise any or all of such rights, powers, or remedies after the occurrence of the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, the “Notes Standstill Period for Term Priority Collateral”). In exercising rights and remedies with respect to the Term Loan Priority Collateral, the Term Loan Agent and the Term Loan Secured Parties may enforce the provisions of the Term Loan Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion consistent with the terms of the Term Loan Documents. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of Term Loan Priority Collateral or other collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code or other applicable law and of a secured creditor under Debtor Relief Laws of any applicable jurisdiction.

(c)

So long as the Discharge of ABL Obligations has not occurred, the Term Loan Agent, on behalf of itself and each applicable Term Loan Secured Party, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any ABL Priority Collateral or otherwise. Without limiting the generality of the foregoing, unless and until the Discharge of ABL Obligations has occurred, except as expressly provided in the provisos in clause (ii) of Section 3.1(a), the sole right of the Term Loan Agent and the Term Loan Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Term Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of ABL Obligations has occurred. So long as the Discharge of ABL Obligations and the Discharge of Term Loan Obligations has not occurred, the Notes Agent, on behalf of itself and each applicable Notes Secured Party, agrees that it will not take or receive any ABL Priority Collateral or any proceeds of ABL Priority Collateral in connection with the

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exercise of any right or remedy (including setoff or recoupment) with respect to any ABL Priority Collateral or otherwise. Without limiting the generality of the foregoing, unless and until the Discharge of ABL Obligations and the Discharge of Term Loan Obligations has occurred, the sole right of the Notes Agent and the Notes Secured Parties with respect to the ABL Priority Collateral is to hold a Lien on the ABL Priority Collateral pursuant to the Notes Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of ABL Obligations and the Discharge of Term Loan Obligations have occurred. So long as the Discharge of Term Loan Obligations has not occurred, the ABL Agent, on behalf of itself and each ABL Secured Party, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term Loan Priority Collateral or otherwise. Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Obligations has occurred, except as expressly provided in the provisos in clause (ii) of Section 3.1(b), the sole right of the ABL Agent and the ABL Secured Parties with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the ABL Loan Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Obligations has occurred. So long as the Discharge of Term Loan Obligations and the Discharge of ABL Obligations has not occurred, the Notes Agent, on behalf of itself and each Notes Secured Party, agrees that it will not take or receive any Term Loan Priority Collateral or any proceeds of Term Loan Priority Collateral in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Term Loan Priority Collateral or otherwise. Without limiting the generality of the foregoing, unless and until the Discharge of Term Loan Obligations and the Discharge of ABL Obligations have occurred, the sole right of the Notes Agent and the Notes Secured Parties with respect to the Term Loan Priority Collateral is to hold a Lien on the Term Loan Priority Collateral pursuant to the Notes Documents for the period and to the extent granted therein and to receive a share of the proceeds thereof, if any, after the Discharge of Term Loan Obligations and the Discharge of ABL Obligations have occurred.

Subject to the provisos in clause (ii) of Section 3.1(a) above and Section 5.6 and 6.2, (i) the Term Loan Agent, for itself and on behalf of each applicable Term Loan Secured Party, agrees that the Term Loan Agent and the Term Loan Secured Parties will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by the ABL Agent or the ABL Secured Parties with respect to the ABL Priority Collateral under the ABL Loan Documents, including any sale, lease, exchange, transfer or other disposition of the ABL Priority Collateral, whether by foreclosure or otherwise, and (ii) the Term Loan Agent, for itself and on behalf of each applicable Term Loan Secured Party, hereby waives any and all rights it or any such Term Loan Secured Party may have as a junior lien creditor or otherwise with respect to the ABL Priority Collateral to object to the manner in which the ABL Agent or the ABL Secured Parties seek to enforce or collect the

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ABL Obligations with respect to the ABL Priority Collateral or the Liens granted in any of the ABL Priority Collateral, regardless of whether any action or failure to act by or on behalf of the ABL Agent or ABL Secured Parties is adverse to the interests of the Term Loan Secured Parties in the ABL Priority Collateral. Subject to the provisos in clause (ii) of Section 3.1(b) above and Section 5.6 and 6.2, (i) the ABL Agent, for itself and on behalf of each ABL Secured Party, agrees that the ABL Agent and the ABL Secured Parties will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by the Term Loan Agent or the Term Loan Secured Parties with respect to the Term Loan Priority Collateral under the Term Loan Documents, including any sale, lease, exchange, transfer or other disposition of the Term Loan Priority Collateral, whether by foreclosure or otherwise, and (ii) the ABL Agent, for itself and on behalf of each ABL Secured Party, hereby waives any and all rights it or any ABL Secured Party may have as a junior lien creditor or otherwise with respect to the Term Loan Priority Collateral to object to the manner in which the Term Loan Agent or the Term Loan Secured Parties seek to enforce or collect the Term Loan Obligations with respect to the Term Loan Priority Collateral or the Liens granted in any of the Term Loan Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Term Loan Agent or Term Loan Secured Parties is adverse to the interests of the ABL Secured Parties in the Term Loan Priority Collateral. The Notes Agent, for itself and on behalf of each applicable Notes Secured Party, agrees that the Notes Agent and the Notes Secured Parties will not take any action that would hinder any Exercise of Any Secured Creditor Remedies undertaken by the ABL Agent or the ABL Secured Parties with respect to the ABL Collateral or the Term Loan Priority Collateral under the ABL Loan Documents, or undertaken by the Term Loan Agent or the Term Loan Secured Parties with respect to the Term Loan Priority Collateral or ABL Priority Collateral under the Term Loan Documents including any sale, lease, exchange, transfer or other disposition of the Term Loan Collateral, whether by foreclosure or otherwise, and (ii) the Notes Agent, for itself and on behalf of each other Notes Secured Party, hereby waives any and all rights it or any other Notes Secured Party may have as a junior lien creditor or otherwise with respect to the ABL Collateral to object to the manner in which the ABL Agent, the other ABL Secured Parties, the Term Loan Agent or the Term Loan Secured Parties seek to enforce or collect the ABL Obligations or the Term Loan Obligations (as applicable) with respect to the ABL Collateral or the Liens granted in any of the ABL Collateral, regardless of whether any action or failure to act by or on behalf of the ABL Agent, the other ABL Secured Parties, Term Loan Agent or the other Term Loan Secured Parties is adverse to the interests of the Notes Secured Parties in the ABL Collateral, and (iii) the Notes Agent, for itself and on behalf of each other Notes Secured Parties, hereby waives any and all rights it or any such Note Secured Party may have as a junior lien creditor or otherwise with respect to the Term Loan Collateral to object to the manner in which the Term Loan Agent, the other Term Loan Secured Parties, the ABL Agent or the other ABL Secured Parties seek to enforce or collect the Term Loan Obligations or the ABL Obligations (as applicable) with respect to the Term Loan Collateral or the Liens granted in any of the Term Loan Collateral, regardless of whether any action or failure to act by or on behalf of the Term Loan Agent or Term Loan Secured Parties is adverse to the interests of the Notes Secured Parties in the Term Loan Collateral.

(d)

The Term Loan Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Term Loan Document shall be deemed to restrict in any way the rights and remedies of the ABL Agent or the ABL Secured Parties with respect to the ABL Priority Collateral as set forth in this Agreement and the ABL Loan Documents. The ABL Agent

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hereby acknowledges and agrees that no covenant, agreement or restriction contained in any ABL Loan Document shall be deemed to restrict in any way the rights and remedies of the Term Loan Agent or the Term Loan Secured Parties with respect to the Term Loan Priority Collateral as set forth in this Agreement and the Term Loan Documents. The Notes Agent and each Notes Secured Party hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Notes Document shall be deemed to restrict in any way the rights and remedies of the ABL Agent, any other ABL Secured Parties, the Term Loan Agent or any other Term Loan Secured Parties with respect to the Common Collateral, including the ABL Priority Collateral and the Term Loan Priority Collateral as set forth in this Agreement and the Notes Documents.

3.2 Actions Upon Breach.

(a)

If any Term Loan Secured Party, in contravention of the terms of this Agreement, in any way takes or attempts or threatens to take any action with respect to the ABL Priority Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement except as provided in the provisos to Section 3.1(a)(ii)), this Agreement shall create an irrebuttable presumption and admission by such Term Loan Secured Party that relief against such Term Loan Secured Party by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm to the ABL Secured Parties, it being understood and agreed by the Term Loan Agent on behalf of each applicable Term Loan Secured Party that (i) the ABL Secured Parties’ damages from its actions may at that time be difficult to ascertain and may be irreparable, and (ii) each Term Loan Secured Party waives any defense that the Grantors and/or the ABL Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.

(b)

If any ABL Secured Party, in contravention of the terms of this Agreement, in any way takes or attempts or threatens to take any action with respect to the Term Loan Priority Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement except as provided in the provisos to Section 3.1(b)(ii)), this Agreement shall create an irrebuttable presumption and admission by such ABL Secured Party that relief against such ABL Secured Party by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm to the Term Loan Secured Parties, it being understood and agreed by the ABL Agent on behalf of each ABL Secured Party that (i) the applicable Term Loan Secured Parties’ damages from its actions may at that time be difficult to ascertain and may be irreparable, and (ii) each ABL Secured Party waives any defense that the Grantors and/or the Term Loan Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.

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(c)

If any Notes Secured Party, in contravention of the terms of this Agreement, in any way takes or attempts or threatens to take any action with respect to the ABL Collateral or the Term Loan Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement except as provided in the provisos to Section 3.1(a)(ii) and to Section 3.1(b)(ii)), this Agreement shall create an irrebuttable presumption and admission by such Notes Secured Party that relief against such Notes Secured Party by injunction, specific performance and/or other appropriate equitable relief is necessary to prevent irreparable harm to the ABL Secured Parties and the Term Loan Secured Parties, it being understood and agreed by the Notes Agent on behalf of each Notes Secured Party that (i) the applicable ABL Secured Parties’ and the applicable Term Loan Secured Parties’ damages from its actions may at that time be difficult to ascertain and may be irreparable, and (ii) the Notes Agent and each Notes Secured Party waives any defense that the Grantors, the ABL Secured Parties or the Term Loan Secured Parties cannot demonstrate damage and/or be made whole by the awarding of damages.

SECTION 4 PAYMENTS.

4.1 Revolving Nature of ABL Obligations. The Term Loan Agent on behalf of itself and the Term Loan Lenders, and the Notes Agent on behalf of itself and the Notes Secured Parties, each expressly acknowledge and agree that (i) the ABL Credit Agreement includes a revolving commitment, that in the ordinary course of business the ABL Agent and the ABL Lenders will apply payments and make advances thereunder, and that no application of any ABL Priority Collateral or the release of any Lien by the ABL Agent upon any portion of the ABL Priority Collateral in connection with a permitted disposition by the Grantors under the ABL Credit Agreement and the Term Loan Credit Agreement shall constitute the Exercise of Any Secured Creditor Remedies under this Agreement; (ii) the amount of the ABL Obligations that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and that subject to Sections 5.3 and 9.3, the terms of the ABL Obligations may be modified, extended or amended from time to time, and that the aggregate amount of the ABL Obligations may be increased, replaced or refinanced, in each event, without notice to or consent by the Term Loan Secured Parties or the Notes Secured Parties and without affecting the provisions hereof; and (iii) all ABL Priority Collateral or the proceeds thereof received by the ABL Agent may be applied, reversed, reapplied, credited or reborrowed, in whole or in part, to the ABL Obligations at any time in accordance with the provisions of this Agreement; provided, however, that from and after the date on which the ABL Agent (or any ABL Lender) commences the Exercise of Any Secured Creditor Remedies or the date on which an Insolvency Proceeding commences, all ABL Priority Collateral and the proceeds thereof received by the ABL Agent or any ABL Lender shall, except as otherwise provided in Section 6, shall be applied as specified in this Section 4. The Lien Priority shall not be altered or otherwise affected by any such amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement, renewal, restatement or refinancing of either the ABL Obligations, the Term Loan Obligations, or the Notes Obligations, or any portion thereof.

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4.2 Application of Proceeds of ABL Priority Collateral. The ABL Agent, the Term Loan Agent and the Notes Agent each hereby agree that all ABL Priority Collateral and the proceeds thereof, including (x) whatever is recoverable or recovered when any ABL Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily, including any additional or replacement ABL Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding on account of, or from, ABL Priority Collateral, an interest in the ABL Priority Collateral or the value of any ABL Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any ABL Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by ABL Priority Collateral, in each case, received by either of them from the Exercise of Any Secured Creditor Remedies, or in connection with any Insolvency Proceeding (including for this purpose, any sale, transfer or other disposition of all or any portion of the ABL Priority Collateral by a Grantor with the consent of the ABL Agent at any time that an Event of Default under the ABL Credit Agreement has occurred and is continuing), shall, except as otherwise expressly provided in Section 6.10, shall be applied:

(a)

first, to the payment of the ABL Obligations in accordance with the ABL Loan Documents until a Discharge of ABL Obligations has occurred;

(b)

second, to the payment of the Term Loan Obligations in accordance with the Term Loan Documents until a Discharge of Term Loan Obligations has occurred;

(c)

third, to the payment of the Notes Obligations in accordance with the Notes Documents until a Discharge of Notes Obligations has occurred; and

(d)

fourth, the balance, if any, to the Grantors or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

4.3 Application of Proceeds of Term Loan Priority Collateral. The ABL Agent, the Term Loan Agent and the Notes Agent each hereby agree that all Term Loan Priority Collateral and proceeds thereof, including (x) whatever is recoverable or recovered when any Term Loan Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily, including any additional or replacement Term Loan Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding on account of, or from, Term Loan Priority Collateral, an interest in the Term Loan Priority Collateral or the value of any Term Loan Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any Term Loan Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by Term Loan Priority Collateral, in each case received by either of them from the Exercise of Any Secured Creditor Remedies, or in connection with any Insolvency Proceeding (including for this purpose, any sale, transfer or other disposition of all or any portion of the Term Loan Priority Collateral by a Grantor with the consent of the Term Loan Agent at any time that an Event of Default under the Term Loan Credit Agreement has occurred and is continuing), shall, except as otherwise expressly provided in Section 6.10, shall be applied:

(a)

first, to the payment of the Term Loan Obligations in accordance with the Term Loan Documents until a Discharge of Term Loan Obligations has occurred;

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(b)

second, to the payment of the ABL Obligations in accordance with the ABL Loan Documents until a Discharge of ABL Obligations has occurred;

(c)

third, to the payment of the Notes Obligations in accordance with the Notes Documents until a Discharge of Notes Obligations has occurred; and

(d)

fourth, the balance, if any, to the Grantors or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

4.4 Payments Over.

(a)

ABL Priority Collateral:

(i)

Prior to the Discharge of ABL Obligations, any ABL Priority Collateral or proceeds thereof including (x) whatever is recoverable or recovered when any ABL Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any additional or replacement ABL Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding or otherwise) on account of, or from, ABL Priority Collateral, an interest in the ABL Priority Collateral or the value of any ABL Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any ABL Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by ABL Priority Collateral, received by the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party in connection with the Exercise of Any Secured Creditor Remedy relating to the ABL Priority Collateral or otherwise (including as a result of misdirected proceeds) shall be segregated and held in trust for the benefit of and forthwith paid over to the ABL Agent (and/or its designees) for the benefit of the ABL Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The ABL Agent is hereby authorized to make any such endorsements as agent for the Term Loan Agent, any such Term Loan Secured Party, the Notes Agent or any such Notes Secured Party. This authorization is coupled with an interest and is irrevocable.

(ii) On and after the occurrence of the Discharge of ABL Obligations, any ABL Priority Collateral or proceeds thereof including (x) whatever is recoverable or recovered

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when any ABL Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any additional or replacement ABL Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding or otherwise) on account of, or from, ABL Priority Collateral, an interest in the ABL Priority Collateral or the value of any ABL Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any ABL Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by ABL Priority Collateral, received by the Notes Agent or any Notes Secured Party in connection with the Exercise of Any Secured Creditor Remedy relating to the ABL Priority Collateral or otherwise (including as a result of misdirected proceeds) shall be segregated and held in trust for the benefit of and forthwith paid over to the Term Loan Agent (and/or its designees) for the benefit of the Term Loan Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Term Loan Agent is hereby authorized to make any such endorsements as agent for the Notes Agent or any such Notes Secured Party. This authorization is coupled with an interest and is irrevocable.

(b)

Term Loan Priority Collateral.

(i)

Prior to the Discharge of Term Loan Obligations, any Term Loan Priority Collateral or proceeds thereof including (x) whatever is recoverable or recovered when any Term Loan Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any additional or replacement Term Loan Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding or otherwise) on account of, or from, Term Loan Priority Collateral, an interest in the Term Loan Priority Collateral or the value of any Term Loan Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any Term Loan Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by Term Loan Priority Collateral, received by the ABL Agent, any ABL Secured Party, the Notes Agent, or any Notes Secured Party in connection with the Exercise of Any Secured Creditor Remedy relating to the Term Loan Priority Collateral or otherwise (including as a result of misdirected proceeds) shall be segregated and held in trust for the benefit of and forthwith paid over to the Term Loan Agent (and/or its designees) for the benefit of the Term Loan Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Term Loan Agent is hereby authorized to make any such endorsements as agent for the ABL Agent, any such ABL Secured Party, the Notes Agent or any Notes Secured Party. This authorization is coupled with an interest and is irrevocable.

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(ii) On and after the occurrence of the Discharge of Term Loan Obligations, any Term Loan Priority Collateral or proceeds thereof including (x) whatever is recoverable or recovered when any Term Loan Priority Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any additional or replacement Term Loan Priority Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding or otherwise) on account of, or from, Term Loan Priority Collateral, an interest in the Term Loan Priority Collateral or the value of any Term Loan Priority Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any Term Loan Priority Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by Term Loan Priority Collateral, received by the Notes Agent, or any Notes Secured Party in connection with the Exercise of Any Secured Creditor Remedy relating to the Term Loan Priority Collateral or otherwise (including as a result of misdirected proceeds) shall be segregated and held in trust for the benefit of and forthwith paid over to the ABL Agent (and/or its designees) for the benefit of the ABL Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The ABL Agent is hereby authorized to make any such endorsements as agent for the Notes Agent or any Notes Secured Party. This authorization is coupled with an interest and is irrevocable.

(c)

Common Collateral. Prior to the Discharge of Term Loan Obligations and the Discharge of ABL Obligations, any Common Collateral or proceeds thereof including (subject to the provisions of and priorities set forth in this Agreement, including the foregoing clauses (a) and (b) of this Section 4.4), (x) whatever is recoverable or recovered when any Common Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any additional or replacement Common Collateral provided during any Insolvency Proceeding and any payment or property received during an Insolvency Proceeding or otherwise) on account of, or from, Common Collateral, an interest in the Common Collateral or the value of any Common Collateral and (y) any distribution received in respect of any of the foregoing or in respect of any Lien on any Common Collateral or any “secured claim” within the meaning of section 506(a) of the Bankruptcy Code to the extent such claim is secured by Common Collateral, received by the Notes Agent or any Notes Secured Party in connection with the Exercise of Any Secured Creditor Remedy relating to the Common Collateral or otherwise (including as a result of misdirected proceeds) shall be segregated and held in trust for the benefit of and forthwith paid over to the Term Loan Agent (and/or its designees) for the benefit of the Term Loan Secured Parties or the ABL Agent (and/or its designees) for the benefit of the ABL Secured Parties, as applicable, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The First Priority Agent is hereby authorized to make any such endorsements as agent for the Notes Agent or any Notes Secured Party. This authorization is coupled with an interest and is irrevocable.

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(d)

Notice. Promptly upon the Discharge of ABL Obligations, the ABL Agent shall deliver written notice confirming the same to the Term Loan Agent and the Notes Agent; provided that the failure to give any such notice shall not result in any liability of the ABL Agent or the ABL Secured Parties hereunder or in the modification, alteration, impairment, or waiver of the rights of any party hereunder. Promptly upon the Discharge of Term Loan Obligations, the Term Loan Agent shall deliver written notice confirming the same to the ABL Agent and the Notes Agent; provided that the failure to give any such notice shall not result in any liability of the Term Loan Agent or the Term Loan Secured Parties hereunder or in the modification, alteration, impairment, or waiver of the rights of any party hereunder. Promptly upon the Discharge of Notes Obligations, the Notes Agent shall deliver written notice confirming the same to the Term Loan Agent and the ABL Agent; provided that the failure to give any such notice shall not result in any liability of the Notes Agent or the Notes Secured Parties hereunder or in the modification, alteration, impairment, or waiver of the rights of any party hereunder.

(e)

Until such time as the Discharge of ABL Obligations and Discharge of Term Loan Obligations has occurred, if in any Insolvency or Liquidation Proceeding the Notes Agent or any other Notes Secured Party shall receive any distribution of money or other property (including as recovery for such Notes Agent or Notes Secured Party’s deficiency claim or any other claims), such money or other property shall be segregated and held in trust and forthwith paid over to the First Priority Agent or the Second Priority Agent (as applicable) for the benefit of the ABL Secured Parties and the Term Loan Secured Parties in the same form as received, with any necessary endorsements. Any Lien received by the Notes Agent or any Notes Secured Parties in any Insolvency or Liquidation Proceeding shall be subject to the terms of this Agreement.

SECTION 5 OTHER AGREEMENTS.

5.1 Releases.

(a)

If, at any time any Grantor or the holder of any ABL Obligations delivers notice to the Term Loan Agent or Notes Agent, or after the Discharge of ABL Obligations, the holder of any Term Loan Obligations delivers notice to the Notes Agent, that any ABL Priority Collateral is sold, transferred or otherwise disposed of (including for such purpose, in the case of the sale of Equity Interest of any Subsidiary, any ABL Priority Collateral held by such Subsidiary or any direct or indirect Subsidiary thereof) or any other release of ABL Priority Collateral has occurred in accordance with the provisions of the ABL Credit Agreement or, after the Discharge of ABL Obligations, the Term Loan Credit Agreement:

(i)

in a transaction permitted under the ABL Credit Agreement and the Term Loan Credit Agreement; or

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(ii)

during the existence of any Event of Default under (and as defined in, as in effect on the date hereof) the ABL Credit Agreement by the owner of such ABL Priority Collateral (to the extent the ABL Agent has consented to such sale, transfer or disposition) or by the ABL Agent in connection with the Exercise of Any Secured Creditor Remedies or, after the Discharge of ABL Obligations, during the existence of any Event of Default under (and as defined in, as in effect on the date hereof) the Term Loan Credit Agreement by the owner of such ABL Priority Collateral (to the extent the Term Loan Agent has consented to such sale, transfer or disposition) or by the Term Loan Agent in connection with the Exercise of Any Secured Creditor Remedies;

then (whether or not any Insolvency Proceeding is pending at the time) the Liens in favor of the Term Loan Secured Parties and the Notes Secured Parties upon such ABL Priority Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such ABL Priority Collateral securing ABL Obligations (and, as applicable, the guarantee granted by any Term Loan Guarantor or Notes Party that, as a result of such sale, transfer or other disposition is no longer a Subsidiary of Holdings) are released and discharged; provided that the proceeds of such sale, transfer or other disposition shall be applied as specified in the ABL Credit Agreement or, after the Discharge of ABL Obligations, the Term Loan Credit Agreement; provided, further, that if the Exercise of Any Secured Creditor Remedies has occurred in respect of any ABL Obligations such proceeds shall be applied in accordance with Section 4 hereof. Upon delivery to the Term Loan Agent and the Notes Agent of a notice from the ABL Agent stating that any release or discharge of Liens by the ABL Agent or, after the Discharge of ABL Obligations, the Term Loan Agent securing or supporting the ABL Obligations or, after the Discharge of ABL Obligations, the Term Loan Obligations on any ABL Priority Collateral has become effective (or shall become effective upon the Term Loan Agent’s and Notes Agent’s release), the Term Loan Agent and the Notes Agent will each promptly execute, file and deliver such instruments, releases, termination statements, discharges or other documents (including UCC-3 termination statements, or discharges or registration, mortgage releases, and termination of USPTO and copyright filings) confirming such release or discharge or non-crystallization on customary terms at the expense of the Borrower.

The Term Loan Agent, for itself and on behalf of each applicable Term Loan Secured Party, hereby irrevocably constitutes and appoints (which appointment being coupled with an interest) the ABL Agent and any officer or agent of the ABL Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Term Loan Agent or such Term Loan Secured Party (as applicable) or in the ABL Agent’s own name, from time to time in the ABL Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1(a), to take any and all appropriate action and to execute any and all documents and instruments and make filings that may be necessary or desirable to accomplish the purposes of this Section 5.1(a), including filing any termination statements, discharges or registrations, endorsements or other instruments of transfer, discharge or release; provided that the

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ABL Agent shall not exercise such power of attorney unless the Term Loan Agent have failed to comply with their obligations under this Section 5.1(a) within two Business Days after demand by the ABL Agent.

The Notes Agent, for itself and on behalf of each applicable Notes Secured Party, hereby irrevocably constitutes and appoints (which appointment being coupled with an interest) the ABL Agent and any officer or agent of the ABL Agent and, after the Discharge of ABL Obligations, the Term Loan Agent and any officer or agent of the Term Loan Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Notes Agent or such Notes Secured Party (as applicable) or in the ABL Agent’s or, after the Discharge of ABL Obligations, Term Loan Agent’s own name, from time to time in the ABL Agent’s or, after the Discharge of ABL Obligations, the Term Loan Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1(a), to take any and all appropriate action and to execute any and all documents and instruments and make filings that may be necessary or desirable to accomplish the purposes of this Section 5.1(a), including filing any termination statements, discharges or registrations, endorsements or other instruments of transfer, discharge or release; provided that the ABL Agent or the Term Loan Agent (as applicable) shall not exercise such power of attorney unless the Notes Agent has failed to comply with their obligations under this Section 5.1(a) within two Business Days after demand by the ABL Agent or the Term Loan Agent (as applicable).

(b)

If, at any time any Grantor or the holder of any Term Loan Obligation delivers notice to the ABL Agent or the Notes Agent, or after the Discharge of Term Loan Obligations, the holder of ABL Obligations, that any specified Term Loan Priority Collateral (including all or substantially all of the Equity Interest of a Grantor or any of its Subsidiaries) (including for such purpose, in the case of the sale of Equity Interest of any Subsidiary, any Term Loan Priority Collateral held by such Subsidiary or any direct or indirect Subsidiary thereof) is sold, transferred or otherwise disposed of or any other release of Term Loan Priority Collateral has occurred in accordance with the provisions of the Term Loan Credit Agreement:

(i)

in a transaction permitted under the Term Loan Credit Agreement and the ABL Credit Agreement; or

(ii)

during the existence of any Event of Default under (and as defined in, as in effect on the date hereof) the Term Loan Credit Agreement by the owner of such Term Loan Priority Collateral (to the extent the Term Loan Agent has consented to such sale, transfer or disposition) or by the Term Loan Agent in connection with the Exercise of Any Secured Creditor Remedies or, after the Discharge of Term Loan Obligations, during the existence of any Event of Default under (and as defined in, as in effect on the date hereof) the ABL Credit Agreement by the owner of such Term Loan Priority Collateral (to the extent the ABL Agent has consented to such sale, transfer or disposition) or by the ABL Agent in connection with the Exercise of Any Secured Creditor Remedies;

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then (whether or not any Insolvency Proceeding is pending at the time) the Liens in favor of the ABL Secured Parties and the Notes Secured Parties upon such Term Loan Priority Collateral will automatically be released and discharged as and when, but only to the extent, such Liens on such Term Loan Priority Collateral securing Term Loan Obligations (and, as applicable, the guarantee granted by any ABL Guarantor or any Notes Party that, as a result of such sale, transfer or other disposition is no longer a Subsidiary of Holdings) are released and discharged; provided that the proceeds of such sale, transfer or other disposition shall be applied as specified in the Term Loan Credit Agreement or, after the Discharge of Term Loan Obligations, the ABL Credit Agreement; provided, further, that, if the Exercise of Any Secured Creditor Remedies has occurred in respect of any Term Loan Obligations or, after the Discharge of Term Loan Obligations, the ABL Obligations, such proceeds shall be applied in accordance with Section 4 hereof. Upon delivery to the ABL Agent and the Notes Agent of a notice from the Term Loan Agent, or after the Discharge of Term Loan Obligations, the ABL Agent, stating that any release or discharge of Liens by the Term Loan Agent or the ABL Agent (as applicable) securing or supporting the Term Loan Obligations or, after the Discharge of Term Loan Obligations, the ABL Obligations on any Term Loan Priority Collateral has become effective (or shall become effective upon the ABL Agent’s and Notes Agent’s release), the ABL Agent and the Notes Agent will each promptly execute, file and deliver such instruments, discharges, releases, termination statements, debt assignments or transfers or other documents (including UCC-3 termination statements, or discharges or registration, mortgage releases, and termination of USPTO and copyright filings) confirming such release or discharge or non-crystallization on customary terms at the expense of the Borrower.

The ABL Agent, for itself and on behalf of each ABL Secured Party, hereby irrevocably constitutes and appoints (which appointment being coupled with an interest) the Term Loan Agent and any office or agent of the Term Loan Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the ABL Agent or such ABL Secured Party (as applicable) or in the Term Loan Agent’s own name, from time to time in the Term Loan Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1(b), to take any and all appropriate action and to execute any and all documents and instruments and make any filings that may be necessary or desirable to accomplish the purposes of this Section 5.1(b), including filing any termination statements, discharges or registrations, endorsements or other instruments of transfer, discharge or release; provided that the Term Loan Agent shall not exercise such power of attorney unless the ABL Agent has failed to comply with its obligations under this Section 5.1(b) within two Business Days after demand by the Term Loan Agent.

The Notes Agent, for itself and on behalf of each Notes Secured Party, hereby irrevocably constitutes and appoints (which appointment being coupled with an interest) the Term Loan Agent and any office or agent of the Term Loan Agent, and after the Discharge of Term Loan Obligations, the ABL Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Notes Agent or such Notes Secured Party (as applicable) or in the Term Loan Agent’s, or after the Discharge of Term Loan Obligations, the ABL Agent’s own name, from time to time in the Term Loan Agent’s, or after the Discharge of Term Loan Obligation the ABL Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1(b), to take any and all appropriate action and to execute any and all documents and instruments and make any filings that may be necessary or desirable to accomplish the purposes of this Section 5.1(b), including filing any termination statements, discharges or

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registrations, endorsements or other instruments of transfer, discharge or release; provided that the Term Loan Agent, or after the Discharge of Term Loan Obligations, the ABL Agent, shall not exercise such power of attorney unless the Notes Agent has failed to comply with its obligations under this Section 5.1(b) within two Business Days after demand by the Term Loan Agent, or after the Discharge of Term Loan Obligation, the ABL Notes Agent.

(c)

Unless and until the Discharge of ABL Obligations has occurred, the Term Loan Agent, for itself and on behalf of each applicable Term Loan Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of ABL Priority Collateral to the repayment of ABL Obligations pursuant to the ABL Credit Agreement; provided that nothing in this Section 5.1(c) shall be construed to prevent or impair the rights of the Term Loan Agent or the Term Loan Secured Parties to receive proceeds in connection with the Term Loan Obligations not otherwise in contravention of this Agreement. Unless and until the Discharge of ABL Obligations and the Discharge of Term Loan Obligations has occurred, the Notes Agent, for itself and on behalf of each applicable Notes Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of ABL Priority Collateral to the repayment of ABL Obligations pursuant to the ABL Credit Agreement; provided that nothing in this Section 5.1(c) shall be construed to prevent or impair the rights of the Notes Agent or the Notes Secured Parties to receive proceeds in connection with the Notes Obligations not otherwise in contravention of this Agreement.

(d)

Unless and until the Discharge of Term Loan Obligations has occurred, the ABL Agent, for itself and on behalf of each ABL Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of Term Loan Priority Collateral to the repayment of Term Loan Obligations pursuant to the Term Loan Credit Agreement; provided that nothing in this Section 5.1(d) shall be construed to prevent or impair the rights of the ABL Agent or the ABL Secured Parties to receive proceeds in connection with the ABL Obligations not otherwise in contravention of this Agreement. Unless and until the Discharge of Term Loan Obligations and the Discharge of ABL Obligations has occurred, the Notes Agent, for itself and on behalf of each applicable Notes Secured Party, hereby consents to the application, whether prior to or after a default, of proceeds of Term Loan Priority Collateral to the repayment of Term Loan Obligations pursuant to the Term Loan Credit Agreement; provided that nothing in this Section 5.1(c) shall be construed to prevent or impair the rights of the Notes Agent or the Notes Secured Parties to receive proceeds in connection with the Notes Obligations not otherwise in contravention of this Agreement.

5.2 Insurance.

(a)

Proceeds of Common Collateral include insurance proceeds and, therefore, the Lien priority set forth in this Agreement shall govern the ultimate disposition of casualty insurance proceeds.

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(b)

(x) Unless and until the Discharge of ABL Obligations has occurred, the ABL Agent and the ABL Secured Parties and (y) following the Discharge of ABL Obligations until the Discharge of Term Loan Obligations has occurred, the Term Loan Agent and the Term Loan Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the ABL Loan Documents or the Term Loan Documents (as applicable), to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation, expropriation or similar proceeding affecting the ABL Priority Collateral; provided that if any insurance claim includes both ABL Priority Collateral and Term Loan Priority Collateral, the insurer will not settle such claim separately with respect to ABL Priority Collateral and Term Loan Priority Collateral, and if the ABL Agent and the Term Loan Agent are unable after negotiating in good faith to agree on the settlement for such claim, either such Person may apply to a court of competent jurisdiction to make a determination as to the settlement of such claim, and the court’s determination shall be binding upon the parties. Unless and until the Discharge of ABL Obligations and the Discharge of Term Loan Obligations has occurred, all proceeds of any such policy and any such award in respect of the ABL Priority Collateral shall be paid in accordance with the terms of Section 4.2. If the Term Loan Agent or any Term Loan Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the ABL Agent in accordance with the terms of Section 4.4. If the Notes Agent or any Notes Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the ABL Agent or the Term Loan Agent in accordance with the terms of Section 4.4.

(c)

(x) Unless and until the Discharge of Term Loan Obligations has occurred, the Term Loan Agent and the Term Loan Secured Parties and (y) following the Discharge of Term Loan Obligations until the Discharge of ABL Obligations, the ABL Agent and the ABL Secured Parties shall have the sole and exclusive right, subject to the rights of the Grantors under the Term Loan Documents, to adjust settlement for any insurance policy covering the Term Loan Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation, expropriation or similar proceeding affecting the Term Loan Priority Collateral; provided that, if any insurance claim includes both ABL Priority Collateral and Term Loan Priority Collateral, the insurer will not settle such claim separately with respect to ABL Priority Collateral and Term Loan Priority Collateral, and if the ABL Agent and the Term Loan Agent are unable after negotiating in good faith to agree on the settlement for such claim, either such Person may apply to a court of competent jurisdiction to make a determination as to the settlement of such claim, and the court’s determination shall be binding upon the parties. Unless and until the Discharge of Term Loan Obligations

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and the Discharge of ABL Obligations has occurred, all proceeds of any such policy and any such award in respect of the Term Loan Priority Collateral shall be paid in accordance with the terms of Section 4.3. If the ABL Agent or any ABL Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Term Loan Agent in accordance with the terms of Section 4.4. If the Notes Agent or any Notes Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Term Loan Agent or the ABL Agent in accordance with the terms of Section 4.4.

5.3 Amendments to ABL Loan Documents, Term Loan Documents and Notes Documents.

(a)

The Term Loan Agent, on behalf of itself and the applicable Term Loan Secured Parties, and the Notes Agent, on behalf of itself and the applicable Notes Secured Parties, hereby agrees that, without affecting the obligations of the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent, and the Notes Secured Parties hereunder, the ABL Agent and the ABL Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to the Term Loan Agent, any Term Loan Secured Parties, the Notes Agent or any Notes Secured Parties(except to the extent such notice or consent is required pursuant to the express provisions of this Agreement), and without incurring any liability to the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Parties, or impairing or releasing the Lien subordination provided for herein, amend, restate, supplement, replace, Refinance, extend, consolidate, restructure, or otherwise modify any of the ABL Loan Documents in any manner whatsoever (subject to compliance with Section 9.4, to the extent applicable), including to:

(i)

change the manner, place, time or terms of payment or renew or alter or increase all or any of the ABL Obligations or otherwise amend, restate, supplement or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the ABL Obligations or any of the ABL Loan Documents;

(ii)

retain or, subject to Section 2.3, obtain a Lien on any property of any Person to secure any of the ABL Obligations, and in connection therewith to enter into any additional ABL Loan Documents;

(iii)

amend, or grant any waiver, compromise or release with respect to, or consent to any departure from, any guaranty or other obligations of any Person obligated in any manner under or in respect of the ABL Obligations;

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(iv)

subject to Section 5.1, release or discharge its Lien on any Common Collateral or other property;

(v)

exercise or refrain from exercising any rights against the Borrowers, any Grantor or any other Person;

(vi)

retain or obtain the primary or secondary obligation of any other Person with respect to any of the ABL Obligations; and

(vii)

otherwise manage and supervise the ABL Obligations as the ABL Agent shall deem appropriate.

(b)

The ABL Agent, on behalf of itself and the ABL Secured Parties, and the Notes Agent, on behalf of itself and the Notes Secured Parties, hereby agrees that, without affecting the obligations of the ABL Agent, the ABL Secured Parties, the Notes Agent and the Notes Secured Parties hereunder, the Term Loan Agent and the Term Loan Secured Parties may, at any time and from time to time, in their sole discretion without the consent of or notice to the ABL Agent, any ABL Secured Party, the Notes Agent, or any Notes Secured Party (except to the extent such notice or consent is required pursuant to the express provisions of this Agreement), and without incurring any liability to the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Parties, or impairing or releasing the Lien subordination provided for herein, amend, restate, supplement, replace, Refinance, extend, consolidate, restructure or otherwise modify any of the Term Loan Documents in any manner whatsoever (subject to compliance with Section 9.3, to the extent applicable), including to:

(i)

change the manner, place, time, or terms of payment or renew, alter or increase all or any of the Term Loan Obligations or otherwise amend, restate, supplement or otherwise modify in any manner, or grant any waiver or release with respect to, all or any part of the Term Loan Obligations or any of the Term Loan Documents;

(ii)

retain or, subject to Section 2.3, obtain a Lien on any property of any Person to secure any of the Term Loan Obligations, and in connection therewith to enter into any additional Term Loan Documents;

(iii)

(iv)

subject to Section 5.1, release its respective Lien on any Common Collateral or other property;

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(v)

exercise or refrain from exercising any rights against the Borrower, any Grantor or any other Person;

(vi)

retain or obtain the primary or secondary obligation of any other Person with respect to any of the Term Loan Obligations; and

(vii)

otherwise manage and supervise the Term Loan Obligations as the Term Loan Agent shall deem appropriate.

(c)

The ABL Obligations and the Term Loan Obligations may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the Refinancing transaction under any ABL Loan Document or any Term Loan Document) of, the ABL Agent, the ABL Secured Parties, the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent or the Notes Secured Parties, as the case may be, all without affecting the Lien priorities provided for herein or the other provisions hereof; provided, however, that the holders of such Refinancing Indebtedness (or an authorized agent, trustee, receiver, interim receiver or similar Person on their behalf) comply with Section 9.3 (to the extent applicable), and any such Refinancing transaction shall be in accordance with any applicable provisions of the ABL Loan Documents and the Term Loan Documents.

(d)

In the event that the ABL Agent or the ABL Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the ABL Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL Collateral Document or changing in any manner the rights of the ABL Agent, the ABL Secured Parties, the Borrower or any other Grantor thereunder in respect of the ABL Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of each comparable Term Loan Collateral Document (but solely as to ABL Priority Collateral) without the consent of the Term Loan Agent or any Term Loan Secured Party and without any action by the Term Loan Secured Parties, the Borrower or any other Grantor; provided that such amendment, waiver or consent may not materially adversely affect the rights of the applicable Term Loan Secured Parties or the interests of the applicable Term Loan Secured Parties in the ABL Priority Collateral, in each case, in a manner inconsistent with the terms of this Agreement, unless the rights and interests of all other creditors of the Borrower or such Grantor, as the case may be, that have a security interest in the affected collateral are affected in a like or similar manner (without regard to the fact that the Lien of such ABL Collateral Document is senior to the Lien of the comparable Term Loan Collateral Document). The ABL Agent shall give written notice of such amendment, waiver or consent to the Term Loan Agent; provided that the failure to give such notice shall not affect the effectiveness of such amendment, waiver or consent with respect to the provisions of any Term Loan Collateral Document as set forth in this Section 5.3(d).

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(e)

In the event that a Term Loan Agent or the Term Loan Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the Term Loan Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any Term Loan Collateral Document or changing in any manner the rights of the Term Loan Agent, the Term Loan Secured Parties, the Borrower or any other Grantor thereunder in respect of the Term Loan Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of each comparable ABL Collateral Document (but solely as to Term Loan Priority Collateral) without the consent of the ABL Agent or any ABL Secured Party and without any action by the ABL Secured Parties, the Borrowers or any other Grantor; provided that such amendment, waiver or consent may not materially adversely affect the rights of the ABL Secured Parties or the interests of the ABL Secured Parties in the Term Loan Priority Collateral, in each case, in a manner inconsistent with the terms of this Agreement, unless the rights and interests of all other creditors of the Borrower or such Grantor, as the case may be, that have a security interest in the affected collateral are affected in a like or similar manner (without regard to the fact that the Lien of such Term Loan Collateral Document is senior to the Lien of the comparable ABL Collateral Document). The Term Loan Agent shall give written notice of such amendment, waiver or consent to the ABL Agent; provided that the failure to give such notice shall not affect the effectiveness of such amendment, waiver or consent with respect to the provisions of any ABL Collateral Document as set forth in this Section 5.3(e).

(f)

In the event that the ABL Agent, the ABL Secured Parties, the Term Loan Agent or the Term Loan Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the ABL Collateral Documents or any Term Loan Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL Collateral Document or any Term Loan Collateral Document or changing in any manner the rights of the ABL Agent, the ABL Secured Parties, the Term Loan Agent, the Term Loan Secured Parties, the Borrower or any other Grantor thereunder in respect of the ABL Priority Collateral or the Term Loan Priority Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of each comparable Notes Collateral Document without the consent of the Notes Agent or any Notes Secured Party and without any action by the Notes Secured Parties, the Borrower or any other Grantor; provided that such amendment, waiver or consent may not materially adversely affect the rights of the applicable Notes Secured Parties or the interests of the applicable Notes Secured Parties in the ABL Priority Collateral or the Term Loan Priority Collateral (as applicable), in each case, in a manner

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inconsistent with the terms of this Agreement, unless the rights and interests of all other creditors of the Borrower or such Grantor, as the case may be, that have a security interest in the affected collateral are affected in a like or similar manner (without regard to the fact that the Lien of such ABL Collateral Document or such Term Loan Collateral Document is senior to the Lien of the comparable Notes Collateral Document). The ABL Agent or the Term Loan Agent (as applicable) shall give written notice of such amendment, waiver or consent to the Notes Agent; provided that the failure to give such notice shall not affect the effectiveness of such amendment, waiver or consent with respect to the provisions of any Notes Collateral Document as set forth in this Section 5.3(f).

5.4 Rights as Unsecured Creditors.

(a)

The Second Priority Agents and the Second Priority Secured Parties may exercise rights and remedies as an unsecured creditor against Holdings, the Borrower or any Subsidiary that has guaranteed the Second Priority Claims in accordance with the terms of the applicable Second Priority Documents and applicable law, in each case to the extent not inconsistent with or contrary to the provisions of this Agreement (including any provisions prohibiting or restricting any party from taking various actions or making various objections). Except as provided herein, including, without limitation, Sections 6.3, 6.4, 6.9 and 6.10, nothing in this Agreement shall prohibit the receipt by any Second Priority Agent or any Second Priority Secured Party of the required payments of interest and principal so long as such receipt is not the direct or indirect result of (a) the exercise by any Second Priority Agent or any Second Priority Secured Party of rights or remedies as a secured creditor (including setoff) in respect of that portion of the Common Collateral on which the Second Priority Agents and the Second Priority Secured Party have a Second Priority Claim or (b) enforcement in contravention of this Agreement or any other applicable intercreditor agreement of any Lien in respect of Second Priority Claims held by any of them. In the event any Second Priority Agent or any Second Priority Secured Party becomes a judgment lien creditor or other secured creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Second Priority Claims or otherwise, such judgment or other lien shall be subordinated to the Liens securing First Priority Claims on the same basis as the other Liens securing the Second Priority Claims are so subordinated to such Liens securing First Priority Claims under this Agreement. Nothing in this Agreement impairs or otherwise adversely affects (1) any rights or remedies the ABL Agent or the ABL Secured Parties may have with respect to the ABL Priority Collateral, or any rights or remedies the Term Loan Agent or the Term Loan Secured Parties may have with respect to the Term Loan Priority Collateral or (2) subject to the priorities and other provisions set forth in this

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Agreement (solely as between the Term Loan Secured Parties and the ABL Secured Parties), any rights or remedies the ABL Agent or the ABL Secured Parties may have with respect to the ABL Collateral, or any rights or remedies the Term Loan Agent or the Term Loan Secured Parties may have with respect to the Term Loan Collateral.

(b)

The Third Priority Agent and the Third Priority Secured Parties may exercise rights and remedies as an unsecured creditor against Parent, Holdings, the Borrower or any Subsidiary that has guaranteed the Third Priority Claims in accordance with the terms of the applicable Third Priority Documents and applicable law, in each case to the extent not inconsistent with or contrary to the provisions of this Agreement (including any provisions prohibiting or restricting any party from taking various actions or making various objections). The Notes Agent and each Notes Secured Party hereby agrees that receipt by any Third Priority Agent or any Third Priority Secured Party of payments of cash interest and principal (other than an increase in the principal amount as a result of the capitalization of interest) shall be expressly prohibited prior to the Discharge of Term Loan Obligations and the Discharge of ABL Obligations. In the event any Third Priority Secured Party becomes a judgment lien creditor or other secured creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of Third Priority Claims or otherwise, such judgment or other lien shall be subordinated to the Liens securing First Priority Claims and Liens securing Second Priority Claims on the same basis as the other Liens securing the Third Priority Claims are so subordinated to such Liens securing First Priority Claims and Liens securing Second Priority Claims under this Agreement.

5.5 First Priority Agent as Gratuitous Bailee for Perfection.

(a)

The ABL Agent, and after the Discharge of ABL Obligations, the Term Loan Agent, agrees to hold the Pledged Collateral that is part of the ABL Priority Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the Term Loan Agent and any assignee solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the Term Loan Collateral Documents and for the Notes Agent and any assignee, in each case solely for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the Notes Collateral Documents, subject to the terms and conditions of this Section 5.5 (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC or similar provision of other applicable law). The Term Loan Agent, and after the Discharge of Term Loan Obligations, the ABL Agent agrees to hold the Pledged Collateral that is part of the Term Loan Priority Collateral in its possession or control (or in the possession or control of its agents or bailees) as gratuitous bailee for the ABL Agent and any assignee, and for the Notes Agent and any assignee, in each case solely

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for the purpose of perfecting the security interest granted in such Pledged Collateral pursuant to the ABL Collateral Documents and the Notes Collateral Documents, as applicable, subject to the terms and conditions of this Section 5.5 (such bailment being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8- 301(a)(2) and 9-313(c) of the UCC or similar provisions of other applicable law).

(b)

The ABL Agent, and after the Discharge of ABL Obligations, the Term Loan Agent agrees to hold the Deposit Account Collateral that is part of the Collateral and controlled by the ABL Agent as gratuitous bailee for the Term Loan Agent and any assignee, and for the Notes Agent and any assignee, solely for the purpose of perfecting the security interest granted in such Deposit Account Collateral pursuant to the Term Loan Collateral Documents and the Notes Collateral Documents, as applicable, subject to the terms and conditions of this Section 5.5, and hereby acknowledges that to the extent it has “control” (as defined in Section 9-104 of the UCC) of such Deposit Account Collateral, such control is also for the benefit of the Term Loan Agent and the Term Loan Secured Parties, and for the Notes Agent and Notes Secured Parties, solely for the purpose of perfecting the security interest granted in such Deposit Account Collateral pursuant to the Term Loan Collateral Documents and the Notes Documents, as applicable.

(c)

Except as otherwise specifically provided herein (including Sections 3.1, 4 and 8.2), until the Discharge of ABL Obligations has occurred, the ABL Agent, and following the Discharge of ABL Obligations and until the Discharge of Term Loan Obligations, the Term Loan Agent shall be entitled to deal with the Pledged Collateral constituting ABL Priority Collateral in accordance with the terms of the ABL Loan Documents as if the Liens under the Term Loan Collateral Documents and the Notes Collateral Documents did not exist. The rights of the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent and the Notes Secured Parties with respect to such Pledged Collateral shall at all times be subject to the terms of this Agreement. Except as otherwise specifically provided herein (including Sections 3.1, 4 and 8.2), until the Discharge of Term Loan Obligations has occurred, the Term Loan Agent shall be entitled to deal with the Pledged Collateral constituting Term Loan Priority Collateral in accordance with the terms of the Term Loan Documents as if the Liens under the ABL Collateral Documents and the Notes Collateral Documents did not exist. The rights of the ABL Agent, the ABL Secured Parties, the Notes Agent and Notes Secured Parties with respect to such Pledged Collateral shall at all times be subject to the terms of this Agreement.

(d)

The First Priority Agent shall have no obligation whatsoever to any Second Priority Agent, any Second Priority Secured Party, any Third Priority Agent or any Third Priority Secured Party to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the applicable portion of the

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Common Collateral except as expressly set forth in this Section 5.5. The duties or responsibilities of the First Priority Agent or Second Priority Agent (as applicable) under this Section 5.5 shall be limited solely to holding the Pledged Collateral (and, in the case of the ABL Agent, and, following the Discharge of ABL Obligations, the Term Loan Agent, the Deposit Account Collateral) as gratuitous bailee for the Second Priority Agent for purposes of perfecting the Lien held by the Second Priority Secured Party and for the Notes Agent for purposes of perfecting the Lien held by the Notes Secured Parties. The Second Priority Agent shall have no obligation whatsoever to any Third Priority Agent or any Third Priority Secured Party to assure that the Pledged Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the applicable portion of the Common Collateral except as expressly set forth in this Section 5.5.

(e)

The First Priority Agent shall not have by reason of the Second Priority Documents, the Third Priority Documents or this Agreement or any other document a fiduciary relationship in respect of any Second Priority Agent, any Second Priority Secured Party, any Third Priority Agent, or any Third Priority Secured Party, and the Second Priority Agent, the Second Priority Secured Parties, the Third Priority Agent, and the Third Priority Secured Parties hereby waive and release the First Priority Agent from all claims and liabilities arising pursuant to the First Priority Agent’s role, under this Section 5.5, as agent and gratuitous bailee with respect to the applicable portion of the Common Collateral.

(f)

The Second Priority Agent shall not have by reason of the Third Priority Documents or this Agreement or any other document a fiduciary relationship in respect of any Third Priority Agent, or any Third Priority Secured Party, and the Second Priority Agent, the Second Priority Secured Parties, the Third Priority Agent, and the Third Priority Secured Parties hereby waive and release the Second Priority Agent from all claims and liabilities arising pursuant to the Second Priority Agent’s role, under this Section 5.5, as agent and gratuitous bailee with respect to the applicable portion of the Common Collateral.

(g)

Upon the Discharge of ABL Obligations and prior to the Discharge of Term Loan Obligations, the ABL Agent shall deliver to the Term Loan Agent, to the extent that it is legally permitted to do so, the remaining Pledged Collateral (if any) constituting ABL Priority Collateral in its possession or under its control, together with any necessary endorsements (or otherwise allow the Term Loan Agent to obtain control of such Pledged Collateral) or as a court of competent jurisdiction may otherwise direct. The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the ABL Agent for loss or damage suffered by the ABL Agent as a result of such transfer except for loss or damage suffered by the ABL Agent as a result of its own willful misconduct, gross negligence or bad faith. No ABL Agent has any obligation to follow instructions from a Term Loan Agent in contravention of this Agreement.

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(h)

Upon the Discharge of Term Loan Obligations, and prior to the Discharge of ABL Obligations the Term Loan Agent shall deliver to the ABL Agent, to the extent that it is legally permitted to do so, the remaining Pledged Collateral (if any) constituting Term Loan Priority Collateral in its possession or under its control, together with any necessary endorsements (or otherwise allow the ABL Agent to obtain control of such Pledged Collateral) or as a court of competent jurisdiction may otherwise direct. The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the Term Loan Agent for loss or damage suffered by such Term Loan Agent as a result of such transfer except for loss or damage suffered by such Term Loan Agent as a result of its own willful misconduct, gross negligence or bad faith. No Term Loan Agent has any obligation to follow instructions from the ABL Agent in contravention of this Agreement.

(i)

Upon the occurrence of both the Discharge of ABL Obligations and Discharge of Term Loan Obligations, the ABL Agent or Term Loan Agent, as applicable, shall deliver to the Notes Agent, to the extent that it is legally permitted to do so, the remaining Pledged Collateral (if any) constituting ABL Collateral or Term Loan Collateral, as applicable in its possession or under its control, together with any necessary endorsements (or otherwise allow the Notes Agent to obtain control of such Pledged Collateral) or as a court of competent jurisdiction may otherwise direct. The Borrower shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify the ABL Agent and the Term Loan Agent, as applicable, for loss or damage suffered by such Agent as a result of such transfer except for loss or damage suffered by such Agent as a result of its own willful misconduct, gross negligence or bad faith. No ABL Agent has any obligation to follow instructions from the Notes Agent in contravention of this Agreement. No Term Loan Agent has any obligation to follow instructions from the Notes Agent in contravention of this Agreement.

5.6 Access to Premises and Cooperation.

(a)

If the ABL Agent takes any enforcement action with respect to the ABL Priority Collateral, the Term Loan Agent, the Term Loan Secured Parties (i) shall use commercially reasonable efforts to cooperate with the ABL Agent (at the sole cost and expense of the ABL Agent and the ABL Secured Parties and subject to the condition that the Term Loan Agent and the Term Loan Secured Parties shall have no obligation or duty to take any action or refrain from taking any action that the Term Loan Agent or the Term Loan Secured Parties determine could reasonably be expected to result in the incurrence of any liability or damage, or otherwise could be disadvantageous, to the Term Loan Agent or the Term Loan Secured Parties, in its efforts to enforce

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its security interest in the ABL Priority Collateral), and (ii) shall permit the ABL Agent, its employees, agents, advisers and representatives, at the sole cost and expense of the ABL Secured Parties and upon reasonable advance notice during normal business hours, for so long as such Term Loan Priority Collateral is owned by, or in the possession of, the Term Loan Secured Parties and provided that such access does not violate (i) any contract or other agreement to which a Term Loan Secured Party and/or any Grantor is a party or (ii) any applicable law, rule, regulation or order of a governmental authority or court of competent jurisdiction, to use the Term Loan Priority Collateral (including equipment, processors, computers and other machinery related to the storage or processing of records, documents or files, in each case only to the extent and for so long as required to effect an enforcement action with respect to the ABL Priority Collateral), for a period not to exceed 60 days after the initial taking of such enforcement action, for purposes of (A) removing and transporting any or all of the ABL Priority Collateral located in or on such Term Loan Priority Collateral, if any, and/or (B) taking reasonable actions to protect, secure, and otherwise enforce the rights of the ABL Agent and the ABL Secured Parties in and to the ABL Priority Collateral; provided, however, that nothing contained in this Agreement shall restrict the rights of the Term Loan Agent or the Term Loan Secured Parties from selling, assigning or otherwise transferring all or any part of the Term Loan Priority Collateral prior to the expiration of such 60-day period (including during any applicable tolling period). If all of the Term Loan Priority Collateral has been sold by the applicable Term Loan Secured Parties prior to such expiration, the Term Loan Agent shall endeavor to provide, if permitted under the applicable sale agreement(s), the ABL Agent with copies of the books and records evidencing the ABL Priority Collateral that were contained on the Term Loan Priority Collateral. If any stay or other order prohibiting the exercise of remedies with respect to the ABL Priority Collateral has been imposed by applicable law (including in connection with any Insolvency Proceeding affecting any Borrower or other Grantor) or entered by a court of competent jurisdiction, such 60-day period shall be tolled during the pendency of any such stay or other order. In connection with the use of Intellectual Property constituting Term Loan Priority Collateral pursuant to clause (ii)(y) above in the first sentence of this clause (a), the Term Loan Agent, to the extent it has the ability to so grant and to the extent such granting does not violate (i) any contract or other agreement to which a Term Loan Secured Party and/or any Grantor is a party or (ii) any applicable law, rule, regulation or order of a governmental authority or court of competent jurisdiction, (1) consents (without any representation, warranty or obligation whatsoever) to the grant by any Grantor to the ABL Agent of a non-exclusive license to use any Patent, Trademark or proprietary information of such Grantor that is subject to a Lien held by such Term Loan Agent (or any Patent, Trademark or proprietary information acquired by such purchaser, assignee or transferee from any Grantor, as the case may be) and (2) grants, in its capacity as a

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secured party, to the ABL Agent a non-exclusive license to use any Patent, Trademark or proprietary information that is subject to a Lien held by such Term Loan Agent (or subject to such purchase, assignment or transfer, as the case may be), in each case for the purposes set forth in clauses (A) and (B) of this paragraph. Notwithstanding anything to the contrary in this Section 5.6, in no event will the ABL Agent have the right to, and the ABL Agent may not, use, be licensed or sub-licensed to, transfer or otherwise dispose of any Patents (as defined in the Term Security Agreement as in effect on the date hereof) owned by any of the Grantors.

(b)

During the period of actual use or control by the ABL Agent or its agents or representatives of any Term Loan Priority Collateral, the ABL Agent and the ABL Secured Parties shall (i) be responsible for all third party expenses related thereto, and (ii) be obligated to repair at their expense any physical damage to such Term Loan Priority Collateral resulting, directly or indirectly, from such use or control, and to leave such Term Loan Priority Collateral in substantially the same condition as it was at the commencement of such use or control, ordinary wear and tear excepted. Notwithstanding anything to the contrary contained herein, the ABL Agent and the ABL Secured Parties hereby jointly and severally agree to pay, indemnify and hold the Term Loan Agent and their respective officers, directors, employees and agents harmless from and against any liability, cost, expense, loss or damages, including legal fees and expenses, resulting, directly or indirectly, from the use or operation of such Term Loan Priority Collateral by the ABL Agent or any ABL Secured Party or any of their respective agents, representatives or invitees (ordinary wear and tear excepted), or otherwise, directly or indirectly, from the exercise by the ABL Agent and/or any ABL Secured Party of their rights set forth in this Section 5.6. Without limiting the rights granted in this paragraph, the ABL Agent and the ABL Secured Parties shall cooperate with the Term Loan Agent and the Term Loan Secured Parties in connection with any efforts made by the Term Loan Agent and the Term Loan Secured Parties to sell the Term Loan Priority Collateral.

(c)

If a Term Loan Agent takes any enforcement action with respect to the Term Loan Priority Collateral, the ABL Agent and the ABL Secured Parties (i) shall reasonably cooperate with such Term Loan Agent (at the sole cost and expense of such Term Loan Agent and the applicable Term Loan Secured Parties and subject to the condition that the ABL Agent and the ABL Secured Parties shall have no obligation or duty to take any action or refrain from taking any action that could reasonably be expected to result in the incurrence of any liability or damage to the ABL Agent or the ABL Secured Parties) in its efforts to enforce its security interest in the Term Loan Priority Collateral and assemble the Term Loan Priority Collateral and (ii) shall not take any action that could reasonably be expected to hinder or restrict in any respect such Term Loan Agent from enforcing its security interest in the Term Loan Priority Collateral or from assembling the Term Loan Priority Collateral.

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(d)

The Term Loan Agent agrees that if the ABL Agent shall require rights available under any permit or license controlled by such Term Loan Agent in order to realize on any ABL Priority Collateral, such Term Loan Agent shall use commercially reasonable efforts to take all such actions as shall be available to it (all at the sole expense of the ABL Agent), consistent with applicable law and with each contract or other agreement to which a Term Loan Secured Party and/or any Grantor is a party and reasonably requested by the ABL Agent to make such rights available to the ABL Agent, subject to the Liens of the Term Loan Agent and the Term Loan Secured Parties. The ABL Agent agrees that if a Term Loan Agent shall require rights available under any permit or license controlled by the ABL Agent in order to realize on any Term Loan Priority Collateral, the ABL Agent shall use commercially reasonable efforts to take all such actions as shall be available to it (all at the sole expense of the Term Loan Agent), consistent with applicable law and with each contract or other agreement to which an ABL Secured Party and/or any Grantor is a party and reasonably requested by the Term Loan Agent to make such rights available to such Term Loan Agent, subject to the Liens of the ABL Agent and the ABL Secured Parties.

(e)

In the event that the ABL Agent shall, in the exercise of its rights under the ABL Collateral Documents or otherwise, receive possession or control of any books and records of any Term Loan Party which contain information identifying or pertaining to the Term Loan Priority Collateral, the ABL Agent shall, upon request from the Term Loan Agent and as promptly as practicable thereafter, either make available to the Term Loan Agent such books and records for inspection and duplication during normal business hours or provide to the Term Loan Agent copies thereof. In the event that the Term Loan Agent shall, in the exercise of its rights under the Term Loan Collateral Documents or otherwise, receive possession or control of any books and records of any ABL Loan Party which contain information identifying or pertaining to any of the ABL Priority Collateral, such Term Loan Agent shall, upon request from the ABL Agent and as promptly as practicable thereafter, either make available to the ABL Agent such books and records for inspection and duplication during normal business hours or provide the ABL Agent copies thereof.

(f)

Notwithstanding the foregoing, in no event shall (i) the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent or the Notes Secured Parties have any liability to the ABL Agent or the ABL Secured Parties pursuant to this Section 5.6 as a result of the exercise by the ABL Agent or the ABL Secured Parties of any rights granted to the ABL Agent or the ABL Secured Parties under this Section 5.6 or (ii) the ABL Agent, the ABL Secured Parties, the Notes Agent or the Notes Secured Parties have any liability to the Term Loan Agent or the Term Loan Secured Parties pursuant

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to this Section 5.6 as a result of the exercise by the Term Loan Agent or the Term Loan Secured Parties of any rights granted to the Term Loan Agent or the Term Loan Secured Parties under this Section 5.6.

5.7 Required Provisions. Each party hereto agrees that each Credit Agreement, each Specified Collateral Document, and the Note Purchase Agreement shall contain the applicable provisions set forth on Schedule I hereto, or similar provisions approved by the ABL Agent and the Term Loan Agent, which approval shall not be unreasonably withheld or delayed.

SECTION 6 INSOLVENCY PROCEEDINGS.

6.1 DIP Financing.

(a)

If the Borrower or any other Grantor shall be subject to any Insolvency Proceeding at any time prior to the Discharge of ABL Obligations, and the ABL Agent or any ABL Secured Parties shall seek to provide the Borrower or any other Grantor with, or consent to a third party providing, any financing under Section 364 of the Bankruptcy Code or similar provision of any other Debtor Relief Laws (such financing, an “ABL DIP Financing”) or consent to any order for the use of ABL Priority Collateral constituting “cash collateral” (as defined under Section 363 of the Bankruptcy Code or any similar provision of any other Debtor Relief Law) (herein “ABL Cash Collateral”), with such ABL DIP Financing to be secured by all or any portion of the ABL Priority Collateral (including assets that, but for the application of Section 552 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) would be ABL Priority Collateral), then the Term Loan Agent, on behalf of itself and the Term Loan Secured Parties, agrees that it will raise no objection and will not support any objection to such ABL DIP Financing or use of ABL Cash Collateral or to the Liens securing the same on the grounds of a failure to provide “adequate protection” for the Liens of the Term Loan Agent securing the Term Loan Obligations or on any other grounds (and will not, except as permitted by Section 6.3 hereof, request any adequate protection solely as a result of such ABL DIP Financing or use of ABL Cash Collateral); provided, that:

(i)

the relevant Term Loan Agent retains its Lien on the Collateral to secure the Term Loan Obligations (in each case, including proceeds thereof arising after the commencement of the case under any Debtor Relief Laws) and, as to the Term Loan Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the case under the subject Debtor Relief Laws and any Lien on the Term Loan Priority Collateral securing such ABL DIP Financing or granted as adequate protection to any ABL Secured Party is junior and subordinate to the Lien of the Term Loan Agent and the other Term Loan Secured Parties on the Term Loan Priority Collateral,

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(ii)

all Liens on ABL Priority Collateral securing any such ABL DIP Financing shall be senior to or on a parity with the Liens of the ABL Agent and the ABL Secured Parties securing the ABL Obligations on ABL Priority Collateral,

(iii)

any proceeds of the Term Loan Priority Collateral are applied to the Term Loan Obligations or as otherwise agreed by the Term Loan Agent,

(iv)

the ABL DIP Financing does not compel any Grantor to seek confirmation of a specific Plan, provided, however, the ABL DIP Financing may contain a provision that requires payment in full of the ABL DIP Financing in connection with any Plan, and

(v)

the ABL DIP Financing does not expressly require the liquidation of a material portion of the Common Collateral prior to a default under the ABL DIP Financing;

provided further that in the event such ABL DIP Financing does not satisfy the conditions set forth in the foregoing clauses (iv) and (v), then the Term Loan Agent and the other Term Loan Secured Parties may only oppose or object to such ABL DIP Financing on the basis of such clauses (iv) or (v) to the extent such opposition or objection is not otherwise inconsistent with any other term or provision of this Agreement.

The Term Loan Agent agrees that it shall not, and nor shall any of the Term Loan Secured Parties, directly or indirectly, provide, offer to provide, or support any debtor in possession financing or use of “cash collateral” (as defined under section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Law))secured by a Lien on the ABL Priority Collateral senior to or pari passu with the Liens securing the ABL Obligations. If, in connection with any ABL DIP Financing, any Liens on the ABL Priority Collateral held by the ABL Secured Parties to secure the ABL Obligations are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve- out,” or fees owed to the United States Trustee, then the Liens on the ABL Priority Collateral of the Term Loan Secured Parties securing the Term Loan Obligations shall also be subordinated to such interest or claim and shall remain subordinated to the Liens on the ABL Priority Collateral of the ABL Secured Parties consistent with this Agreement.

(b)

If the Borrower or any other Grantor shall be subject to any Insolvency Proceeding at any time prior to the Discharge of Term Loan Obligations, and the Term Loan Agent or any Term Loan Secured Parties shall seek to provide the Borrower or any other Grantor with, or consent to a third party providing, any financing under Section 364 of the Bankruptcy Code or similar provision of any other Debtor Relief Laws (such financing, a “Term Loan DIP Financing”) or consent to any order for the use of Term Loan Priority Collateral constituting “cash collateral” (as defined under Section 363 of the Bankruptcy Code or any similar provision of any other Debtor Relief Law) (herein “Term Loan Cash Collateral”), with such Term Loan DIP Financing to be secured by all or any portion of the Term Loan Priority

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Collateral (including assets that, but for the application of Section 552 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Laws) would be Term Loan Priority Collateral), then the ABL Agent, on behalf of itself and the ABL Secured Parties, agrees that it will raise no objection and will not support any objection to such Term Loan DIP Financing or use of Term Loan Cash Collateral or to the Liens securing the same on the grounds of a failure to provide “adequate protection” for the Liens of the ABL Agent securing the ABL Obligations or on any other grounds (and will not, except as permitted by Section 6.3 hereof, request any adequate protection solely as a result of such Term DIP Financing or use of Term Loan Cash Collateral); provided, that:

(i)

the ABL Agent retains its Lien on the Collateral to secure the ABL Obligations (in each case, including proceeds thereof arising after the commencement of the case under any Debtor Relief Law) and, as to the ABL Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the case under the subject Debtor Relief Laws and any Lien on ABL Priority Collateral securing such Term Loan DIP Financing or granted as adequate protection to any Term Loan Secured Party is junior and subordinate to the Lien of the ABL Agent and the other ABL Secured Parties on the ABL Priority Collateral,

(ii)

all Liens on Term Loan Priority Collateral securing any such Term DIP Financing shall be senior to or on a parity with the Liens of the Term Loan Agent and the Term Loan Secured Parties securing the Term Loan Obligations on Term Loan Priority Collateral,

(iii)

any proceeds of the ABL Priority Collateral are applied to the ABL Obligations or as otherwise agreed by the ABL Agent,

(iv)

the Term Loan DIP Financing does not compel any Grantor to seek confirmation of a specific Plan, provided, however, the Term Loan DIP Financing may contain a provision that requires payment in full of the Term Loan DIP Financing in connection with any plan of reorganization, and

(v)

the Term Loan DIP Financing does not expressly require the liquidation of a material portion of the Common Collateral prior to a default under the Term Loan DIP Financing;

provided further that in the event such Term Loan DIP Financing does not satisfy the conditions set forth in the foregoing clauses (iv) and (v), then the ABL Agent and the other ABL Secured Parties may only oppose or object to such Term Loan DIP Financing on the basis of such clauses (iv) or (v) to the extent such opposition or objection is not otherwise inconsistent with any other term or provision of this Agreement.

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The ABL Agent agrees that it shall not, and nor shall any of the ABL Secured Parties, directly or indirectly, provide, offer to provide, or support any debtor in possession financing or use of “cash collateral” (as defined under section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Law)) secured by a Lien on the Term Loan Priority Collateral senior to or pari passu with the Liens securing the Term Loan Obligations. If, in connection with any Term DIP Financing, any Liens on the Term Loan Priority Collateral held by the Term Loan Secured Parties to secure the Term Loan Obligations are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens on the Term Loan Priority Collateral of the ABL Secured Parties securing the ABL Obligations, shall also be subordinated to such interest or claim and shall remain subordinated to the Liens on the Term Loan Priority Collateral of the Term Loan Secured Parties consistent with this Agreement.

(c) If the Borrower or any other Grantor shall be subject to any Insolvency Proceeding at any time prior to the Discharge of ABL Obligations and the Discharge of Term Loan Obligations, and (1) the ABL Agent or any ABL Secured Parties and/or the (2) Term Loan Agent or the Term Loan Secured Parties, respectively, shall seek to provide the Borrower or any other Grantor with, or consent to a third party providing, any financing under Section 364 of the Bankruptcy Code or similar provision of any other Debtor Relief Laws, including, without limitation, any ABL DIP Financing or Term Loan DIP Financing (any “DIP Financing”), or consent to any order for the use of any constituting “cash collateral” (as defined under Section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Law)) including ABL Cash Collateral and Term Loan Cash Collateral (herein, collectively, “ABL/Term Loan Cash Collateral”), then the Notes Agent, on behalf of itself and the Notes Secured Parties, agrees that it will raise no objection and will not support any objection to such DIP Financing or use of ABL/Term Loan Cash Collateral or to the Liens securing the same, and will be deemed to consent to such DIP Financing and/or use of ABL/Term Loan Cash Collateral on the grounds of a failure to provide “adequate protection” for the Liens of the Notes Agent securing the Notes Obligations or on any other grounds (and will not, except as permitted by Section 6.3 hereof, request any adequate protection solely as a result of such DIP Financing or use of ABL/Term Loan Cash Collateral), and to the extent that the Liens securing any such DIP Financing are senior to or on parity with the Liens of the Term Loan Agent and the Term Loan Secured Parties and/or the Liens of the ABL Agent and the ABL Secured Parties, as applicable, then the Notes Agent, on behalf of itself and the Notes Secured Parties, will subordinate its Liens on such Collateral to the Liens securing such DIP Financing (and all obligations relating thereto) and shall remain subordinated to the Liens on the Collateral of the Term Loan Agent and/or Term Loan Secured Parties and the Liens on the Collateral of the ABL Agent and/or the ABL Secured Parties consistent with this Agreement, provided, that:

(i) the Notes Agent retains its Lien on the Collateral to secure the Notes Obligations (in each case, including proceeds thereof arising after the commencement of the case under any Debtor Relief Laws),

(ii)

the DIP Financing does not compel any Grantor to seek confirmation of a specific Plan, provided, however, the DIP Financing may contain a provision that requires payment in full of the DIP Financing in connection with any plan of reorganization, and

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(iii)

the DIP Financing does not expressly require the liquidation of a material portion of the Common Collateral prior to a default under the Term Loan DIP Financing;

provided further that in the event such DIP Financing does not satisfy the conditions set forth in the foregoing clauses (ii) and (iii), then the Notes Agent and the Notes Secured Parties, may only oppose or object to DIP Financing on the basis of such clauses (ii) or (iii) to the extent such opposition or objection is not otherwise inconsistent with any other term or provision of this Agreement.

The Notes Agent agrees that it shall not, and nor shall any of the Notes Secured Parties, directly or indirectly, provide, offer to provide, or support any debtor in possession financing or use of “cash collateral” (as defined under section 363 of the Bankruptcy Code (or any similar provision of any other Debtor Relief Law)) secured by a Lien on the Collateral senior to or pari passu with the Liens securing the Term Loan Obligations or the ABL Obligations. If, in connection with any DIP Financing or use of ABL/Term Loan Cash Collateral, any Liens on the Collateral are subject to a surcharge or are subordinated to an administrative priority claim, a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens on the Collateral of the Notes Agent and/or the Notes Secured Parties securing the Notes Obligations shall also be subordinated to such interest or claim and shall remain subordinated to the Liens on the Collateral of the Term Loan Agent and/or Term Loan Secured Parties and the Liens on the Collateral of the ABL Agent and/or the ABL Secured Parties consistent with this Agreement.

(d) All Liens granted to the ABL Agent, the Term Loan Agent or the Notes Agent in any Insolvency Proceeding, whether as adequate protection or otherwise, are intended by the Secured Parties to be and shall be deemed to be subject to the Lien priority and the other terms and conditions of this Agreement; provided that the foregoing shall not alter the super-priority of any Liens securing any DIP Financing (including any ABL DIP Financing or Term Loan DIP Financing in accordance with this Section 6.1).

6.2 Relief from the Automatic Stay.

(a)

Until the Discharge of ABL Obligations has occurred, the Term Loan Agent, on behalf of itself and each applicable Term Loan Secured Party, agrees that none of them shall (i) seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of the ABL Priority Collateral, without the prior written consent of the ABL Agent and the Required Lenders under (and as defined in, as in effect on the date hereof) the ABL Credit Agreement; provided, that the Term Loan Agent may seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of such ABL Priority Collateral if and to the extent the ABL Agent has obtained relief from or modification of such stay in respect of the ABL Priority Collateral, or (ii) oppose any request by the ABL Agent to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any ABL Priority Collateral.

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(b)

Until the Discharge of Term Loan Obligations has occurred, the ABL Agent, on behalf of itself and each ABL Secured Party, agrees that none of them shall (i) seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of the Term Loan Priority Collateral, without the prior written consent of the Term Loan Agent and the Required Lenders under (and as defined in, as in effect on the date hereof) each of the Term Loan Credit Agreement; provided, that the ABL Agent may seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of such Term Loan Priority Collateral if and to the extent the Term Loan Agent has obtained relief from or modification of such stay in respect of the Term Loan Priority Collateral, or (ii) oppose any request by the Term Loan Agent to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any Term Loan Priority Collateral.

(c)

In addition, none of the Term Loan Agent or the ABL Agent shall seek any relief from the automatic stay with respect to any Common Collateral without providing three (3) days’ prior written notice to the others, unless such period is agreed by the ABL Agent and the Term Loan Agent to be modified or unless the ABL Agent or Term Loan Agent, as applicable, make a good faith determination that either (i) the ABL Priority Collateral or the Term Loan Priority Collateral, as applicable, will decline speedily in value or (ii) the failure to take any action will have a reasonable likelihood of endangering the ABL Agent’s or the Term Loan Agent’s ability to realize upon its Collateral.

(d)

Until the Discharge of ABL Obligations has occurred and the Discharge of Term Loan Obligations has occurred, the Notes Agent, on behalf of itself and each Notes Secured Party, agrees that none of them shall (i) seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of the ABL Collateral or the Term Loan Collateral, or (ii) oppose any request by the ABL Agent or the Term Loan Agent to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any ABL Collateral or Term Loan Collateral.

6.3 Adequate Protection.

(a)

The Term Loan Agent on behalf of itself and the applicable Term Loan Secured Parties agrees that none of them shall be entitled to contest and none of them shall contest (or support any other Person contesting) (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right to contest):

(i)

any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to the ABL Priority Collateral (except to the extent any such adequate protection is a payment from Term Loan Priority Collateral); or

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(ii)

any objection by the ABL Agent or any ABL Secured Party to any motion, relief, action or proceeding based on the ABL Agent or such ABL Secured Party claiming a lack of adequate protection with respect to the ABL Priority Collateral.

(b)

The ABL Agent on behalf of itself and the ABL Secured Parties, agrees that none of them shall be entitled to contest and none of them shall contest (or support any other Person contesting) (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right to contest):

(i)

any request by the Term Loan Agent or the other Term Loan Secured Parties for adequate protection with respect to the Term Loan Priority Collateral (except to the extent any such adequate protection is a payment from ABL Priority Collateral); or

(ii)

any objection by the Term Loan Agent or any Term Loan Secured Party to any motion, relief, action or proceeding based on such Term Loan Agent or such Term Loan Secured Party claiming a lack of adequate protection with respect to the Term Loan Priority Collateral.

(c) The Notes Agent, on behalf of itself and the Notes Secured Parties, agrees that none of them shall be entitled to contest and none of them shall contest (or support any other Person contesting) (but instead shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right to contest):

(i)

any request by the ABL Agent or the ABL Secured Parties for adequate protection with respect to the ABL Collateral;

(ii)

(iii)

any request by the Term Loan Agent or the Term Loan Secured Parties for adequate protection with respect to the Term Loan Collateral; or

(iv)

any objection by the Term Loan Agent or any Term Loan Secured Party to any motion, relief, action or proceeding based on the Term Loan Agent or such Term Loan Secured Party claiming a lack of adequate protection with respect to the Term Loan Collateral.

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(d)

Consistent with the foregoing provisions in this Section 6.3, and except as provided in Sections 6.1 and 6.7, in any Insolvency Proceeding:

(i)

none of the Term Loan Agent or any Term Loan Secured Party shall be entitled (and the Term Loan Agent, and Term Loan Secured Parties shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right):

(A) to seek or otherwise be granted any type of adequate protection with respect to its interests in the ABL Priority Collateral except as may be consented to in writing by the ABL Agent in its sole and absolute discretion; provided, however, that subject to Section 6.1, the Term Loan Agent and the Term Loan Secured Parties may seek and obtain adequate protection in the form of an additional or replacement Lien on collateral so long as (1) the ABL Agent and the ABL Secured Parties have been granted adequate protection in the form of an additional or replacement Lien on such collateral, and (2) any such Lien on collateral of the same type as ABL Priority Collateral (and on any collateral granted as adequate protection for the ABL Agent and the ABL Secured Parties in respect of their interest in such ABL Priority Collateral) is subordinated to the Liens of the ABL Agent in such collateral on the same basis as the other Liens of the Term Loan Agent on ABL Priority Collateral; and

(B) to seek or otherwise be granted any adequate protection payments with respect to its interests in the Common Collateral from proceeds of ABL Priority Collateral (except as may be consented to in writing by the ABL Agent in its sole and absolute discretion);

(ii)

none of the ABL Agent or any ABL Secured Party shall be entitled (and the ABL Agent and each ABL Secured Party shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right):

(A) to seek or otherwise be granted any type of adequate protection in respect of Term Loan Priority Collateral except as may be consented to in writing by the Term Loan Agent in its sole and absolute discretion; provided, however, that subject to Section 6.1, the ABL Agent and ABL Secured Parties may seek and obtain adequate protection in the form of an additional or replacement Lien on collateral so long as (1) the Term Loan Agent and Term Loan Secured Parties have been granted adequate protection in the form of an additional or replacement Lien on such collateral, and (2) any such Lien on collateral of the same type as Term Loan Priority Collateral (and on any collateral granted as adequate protection for the Term Loan Agent and Term Loan Secured Parties in respect of their interest in such Term Loan Priority Collateral) is subordinated to the Liens of the Term Loan Agent in such collateral on the same basis as the other Liens of the ABL Agent on Term Loan Priority Collateral; and

(B) to seek or otherwise be granted any adequate protection payments with respect to its interests in the Common Collateral from proceeds of Term Loan Priority Collateral (except as may be consented to in writing by the Term Loan Agent in its sole and absolute discretion);

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(iii)

none of the Notes Agent or any Notes Secured Party shall be entitled (and the Notes Agent and the Notes Secured Parties shall be deemed to have hereby irrevocably, absolutely and unconditionally waived any right) to seek or otherwise be granted any type of adequate protection with respect to its interests in the Common Collateral except as may be consented to in writing by the ABL Agent and the Term Loan Agent, respectively, in each case in their sole and absolute discretion; provided, however, that subject to Section 6.1, the Notes Agent and the Notes Secured Parties may seek and obtain adequate protection in the form of an additional or replacement Lien on collateral so long as (1) the ABL Agent and the ABL Secured Parties and the Term Loan Agent and Term Loan Secured Parties, respectively, have each been granted adequate protection in the form of an additional or replacement Lien on such collateral, and (2) any such Lien is subordinated to the Liens of the ABL Agent and the ABL Secured Parties and to the Liens of the Term Loan Agent and the Term Loan Secured Parties in such collateral on the same basis as the other Liens of the Notes Agent and the Notes Secured Parties are subordinated to the Liens of the ABL Agent and ABL Secured Parties on the ABL Collateral and the Liens of the Term Loan Agent and the Term Loan Secured Parties on the Term Loan Collateral.

(e)

With respect to (i) the ABL Priority Collateral, nothing herein shall limit the rights of the Term Loan Agent and the Term Loan Secured Parties from seeking adequate protection with respect to their rights in the Term Loan Priority Collateral in any Insolvency Proceeding (including adequate protection in the form of a cash payment, periodic cash payments or otherwise, other than from proceeds of ABL Priority Collateral) so long as such request is not otherwise inconsistent with this Agreement and (ii) the Term Loan Priority Collateral, nothing herein shall limit the rights of the ABL Agent or the ABL Secured Parties from seeking adequate protection with respect to their rights in the ABL Priority Collateral in any Insolvency Proceeding (including adequate protection in the form of a cash payment, periodic cash payments or otherwise, other than from proceeds of Term Loan Priority Collateral) so long as such request is not otherwise inconsistent with this Agreement.

6.4 Post-Petition Interest.

(a)

None of the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party shall oppose or seek to challenge any claim by the ABL Agent or any ABL Secured Party for allowance in any Insolvency Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the ABL Agent’s Lien on the ABL Priority Collateral, without regard to the existence of the Liens of the Term Loan Agent on behalf of the applicable Term Loan Secured Parties or of the Notes Agent on behalf of the applicable Notes Secured

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Parties on the ABL Priority Collateral. None or the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Party shall oppose or seek to challenge any claim by the Term Loan Agent or any Term Loan Secured Party for allowance in any Insolvency Proceeding of Term Loan Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Liens of the Term Loan Agent on behalf of the applicable Term Loan Secured Party on the ABL Priority Collateral (after taking into account the Lien of the ABL Secured Parties on the ABL Priority Collateral, but not taking into account the Lien of the Notes Agent or the Notes Secured Parties).

(b)

None of the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Party shall oppose or seek to challenge any claim by the Term Loan Agent or any Term Loan Secured Party for allowance in any Insolvency Proceeding of Term Loan Obligations consisting of post-petition interest, fees or expenses to the extent of the value of such Term Loan Agent’s Lien on the Term Loan Priority Collateral, without regard to the existence of the Lien of the ABL Agent on behalf of the ABL Secured Parties or of the Notes Agent on behalf of the Notes Secured Parties on the Term Loan Priority Collateral. None of the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party shall oppose or seek to challenge any claim by the ABL Agent or any ABL Secured Party for allowance in any Insolvency Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the value of the Lien of the ABL Agent on behalf of the ABL Secured Parties on the Term Loan Priority Collateral (after taking into account the Lien of the Term Loan Secured Parties on the Term Loan Priority Collateral, but not taking into account the Lien of the Notes Agent or the Notes Secured Parties).

(c)

None of the Notes Agent or any Notes Secured Party shall oppose or seek to challenge (1) any claim by the Term Loan Agent or any Term Loan Secured Party for allowance in any Insolvency Proceeding of Term Loan Obligations consisting of post-petition interest, fees or expenses to the extent of the value of such Term Loan Agent’s Lien on the Term Loan Collateral, without regard to the existence of the Lien of the Notes Agent on behalf of the Notes Secured Parties on the Term Loan Collateral or (2) any claim by the ABL Agent or any ABL Secured Party for allowance in any Insolvency Proceeding of ABL Obligations consisting of post-petition interest, fees or expenses to the extent of the value of such ABL Agent’s Lien on the ABL Collateral, without regard to the existence of the Lien of the Notes Agent on behalf of the Notes Secured Parties on the ABL Collateral.

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6.5 Avoidance Issues.

(a)

If any ABL Secured Party is required in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the estate of any Borrower or any other Grantor (or any trustee, receiver, interim receiver, monitor or similar Person therefor), because the payment of such amount was declared to be fraudulent, preferential or transaction at undervalue in any respect or for any other reason, any amount (an “ABL Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then as among the parties hereto the ABL Obligations shall be deemed to be reinstated to the extent of such ABL Recovery and to be outstanding as if such payment had not occurred, and the ABL Secured Parties shall be entitled, to the extent they are entitled hereunder, to a Discharge of ABL Obligations with respect to all such recovered amounts and shall have all rights hereunder until such time. If this Agreement shall have been terminated prior to such ABL Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any amounts received by the Term Loan Agent or any Term Loan Secured Party or by the Notes Agent or any Notes Secured Party, as applicable, on account of the ABL Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section 6.5(a), be held in trust for and paid over to the ABL Agent for the benefit of the ABL Secured Parties, for application to the reinstated ABL Obligations.

(b)

If any Term Loan Secured Party is required in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the estate of the Borrower or any other Grantor (or any trustee, receiver, interim receiver, monitor or similar Person therefor), because the payment of such amount was declared to be fraudulent, preferential or a transaction at undervalue in any respect or for any other reason, any amount (a “Term Loan Recovery”), whether received as proceeds of security, enforcement of any right of setoff or otherwise, then as among the parties hereto the Term Loan Obligations shall be deemed to be reinstated to the extent of such Term Loan Recovery and to be outstanding as if such payment had not occurred, and the Term Loan Secured Parties shall be entitled, to the extent they are entitled hereunder, to a Discharge of Term Loan Obligations with respect to all such recovered amounts and shall have all rights hereunder until such time. If this Agreement shall have been terminated prior to such Term Loan Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. Any amounts received by the ABL Agent or any ABL Secured Party or by the Notes Agent or any Notes Secured Party, as applicable, on account of the Term Loan Obligations after the termination of this Agreement shall, in the event of a reinstatement of this Agreement pursuant to this Section 6.5(b), be held in trust for and paid over to the Term Loan Agent for the benefit of the Term Loan Secured Parties, for application to the reinstated Term Loan Obligations.

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This Section 6.5 shall survive the termination of this Agreement.

6.6 Application. This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under Section 510(a) of the Bankruptcy Code or similar provision of other Debtor Relief Laws, shall be applicable prior to and after the commencement of any Insolvency Proceeding. All references herein to any Grantor shall apply to any trustee, receiver, interim receiver, monitor or similar Person for such Person and such Person as debtor in possession. The relative rights as to the Common Collateral and proceeds thereof shall continue after the filing thereof on the same basis as prior to the date of the commencement thereof, subject to the provisions of Section 6.1 hereof with respect to any DIP Financing.

6.7 Waivers.

(a)

Until the Discharge of ABL Obligations has occurred, the Term Loan Agent, on behalf of itself and each applicable Term Loan Secured Party, (1) will not assert or support the assertion of any claim under Section 506(c) or the “equities of the case” exception to Section 552(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws against or with respect to any ABL Priority Collateral, and (2) waives any claim it may now or hereafter have arising out of the election by any ABL Secured Party of the application of Section 1111(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws with respect to any ABL Priority Collateral.

(b)

Until the Discharge of Term Loan Obligations has occurred, the ABL Agent, on behalf of itself and each ABL Secured Party, (1) will not assert or support the assertion of any claim under Section 506(c) or the “equities of the case” exception to Section 552(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws against or with respect to any Term Loan Priority Collateral, and (2) waives any claim it may now or hereafter have arising out of the election by any Term Loan Secured Party of the application of Section 1111(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws with respect to any Term Loan Priority Collateral.

(c)

Until the Discharge of ABL Obligations has occurred and the Discharge of Term Loan Obligations has occurred, the Notes Agent, on behalf of itself and each Notes Secured Party, (1) will not assert or support the assertion of any claim under Section 506(c) or the “equities of the case” exception to Section 552(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws against or with respect to any ABL Collateral or Term Loan Collateral, and (2) waives any claim it may now or hereafter have arising out of the election by any Notes Secured Party of the application of Section 1111(b) of the Bankruptcy Code or similar provision of other Debtor Relief Laws with respect to any ABL Collateral or Term Loan Collateral.

6.8 Separate Grants of Liens. Each Term Loan Secured Party, each ABL Secured Party, the Notes Agent, and each Notes Secured Party acknowledges and agrees that (i) the grants of Liens pursuant to the ABL Collateral Documents, the Term Loan Collateral Documents, and the

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Notes Collateral Documents constitute separate and distinct grants of Liens and (ii) because of, among other things, their differing rights in the Common Collateral, (A) the Term Loan Obligations are fundamentally different from the ABL Obligations and the Notes Obligations, (B) the ABL Obligations are fundamentally different from the Term Loan Obligations and the Notes Obligations, and (C) the Notes Obligations are fundamentally different from the Term Loan Obligations and the ABL Obligations, and each must be separately classified in any Plan. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the ABL Secured Parties, the Term Loan Secured Parties and/or the Notes Agents and the Notes Secured Parties in respect of the Common Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the ABL Secured Parties, the Term Loan Secured Parties, and the Notes Agents and the Notes Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of ABL Obligations, Term Loan Obligations, and Notes Obligations, against the Grantors, with the effect being that (1) to the extent that the aggregate value of the ABL Priority Collateral or Term Loan Priority Collateral (as applicable) is sufficient, the ABL Secured Parties or the Term Loan Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees and expense (regardless of whether any claim therefor is allowed or allowable in any such Insolvency Proceeding) that is available from that portion of the Common Collateral in which each of the ABL Secured Parties and the Term Loan Secured Parties, respectively, have a First Priority Claim, before any distribution is made in respect of the claims held by the other Secured Parties from such Collateral, with the other Secured Parties hereby acknowledging and agreeing to turn over to the respective other Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries and (2) subject to the foregoing clause (1) (solely as between the ABL Secured Parties and the Term Loan Secured Parties) the ABL Secured Parties and the Term Loan Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest, fees and expense (regardless of whether any claim therefor is allowed or allowable in any such Insolvency Proceeding) before any distribution is made in respect of the claims held by the Notes Agent and the Notes Secured Parties from such Collateral, with the Notes Agent and the Notes Secured Parties hereby acknowledging and agreeing to turn over to the respective other Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries.

6.9 Asset Sales.

(a)

The Term Loan Agent agrees, on behalf of itself and the Term Loan Secured Parties, that it will not oppose any sale consented to by the ABL Agent of any ABL Priority Collateral under Section 363 or 1129 of the Bankruptcy Code (or similar provision of any other Debtor Relief Laws) so long as (i) the Term Loan Agent, for the benefit of the Term Loan Secured Parties, shall retain a Lien on the proceeds of such sale (to the extent such proceeds are not applied to the ABL Obligations in accordance with Section 4 hereof), and (ii) the applicable motion to approve such sale or other disposition does not impair, subject to the priorities set forth in this Agreement, the rights of

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the Term Loan Secured Parties to credit bid their Liens on the ABL Priority Collateral under Section 363(k) of the Bankruptcy Code (or similar provision of any other Debtor Relief Laws so long as the Discharge of ABL Obligations would occur in connection therewith).

(b)

The ABL Agent agrees, on behalf of itself and the ABL Secured Parties, that it will not oppose any sale consented to by the Term Loan Agent of any Term Loan Priority Collateral pursuant to Section 363 or 1129 of the Bankruptcy Code (or similar provision of any other Debtor Relief Laws) so long as (i) the ABL Agent, for the benefit of the ABL Secured Parties, shall retain a Lien on the proceeds of such sale (to the extent such proceeds are not applied to the Term Loan Obligations in accordance with Section 4 hereof), and (ii) the applicable motion to approve such sale or other disposition does not impair, subject to the priorities set forth in this Agreement, the rights of the ABL Secured Parties to credit bid their Liens on the Term Loan Priority Collateral under Section 363(k) of the Bankruptcy Code (or similar provision of any other Debtor Relief Laws) so long as the Discharge of Term Loan Obligations would occur in connection therewith).

(c)

If any such sale or other disposition of Collateral includes both ABL Priority Collateral and Term Loan Priority Collateral and the ABL Secured Parties and the Term Loan Secured Parties are unable after negotiating in good faith to agree on the allocation of the purchase price between the ABL Priority Collateral and Term Loan Priority Collateral, either of such Secured Party (but not the Notes Secured Parties) may apply to the court in such Insolvency Proceeding to make a determination of such allocation, and the court’s determination shall be binding upon the Secured Parties (including, but not limited to, the Notes Agent and the Notes Secured Parties).

(d)

Subject to the foregoing provisions of this Section 6.9 (solely as between the ABL Secured Parties and the Term Loan Secured Parties), the Notes Agent agrees, on behalf of itself and the Notes Secured Parties, that it will not oppose any sale consented to by the Term Loan Agent and/or the ABL Agent of any Collateral pursuant to Section 363 or 1129 of the Bankruptcy Code (or similar provision of any other Debtor Relief Laws) or otherwise, so long as the Notes Agent, for the benefit of the Notes Secured Parties, shall retain a Lien on the proceeds of such sale (to the extent such proceeds are not applied to the Term Loan Obligations and/or the ABL Obligations in accordance with Section 4 hereof).

6.10 Plan of Reorganization.

(a)

If, in any Insolvency Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed (in whole or in part) pursuant to a Plan or similar dispositive restructuring plan, on account of the ABL Obligations, the Term Loan Obligations and

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the Notes Obligations, then, to the extent the debt obligations distributed on account of the ABL Obligations, the Term Loan Obligations and the Notes Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.

(b)

Notwithstanding the provisions of Section 1129(b)(1) of the Bankruptcy Code (or similar Debtor Relief Laws), the Term Loan Agent, for itself and on behalf of each of the Term Loan Secured Parties, the ABL Agent, for itself and on behalf of each of the ABL Secured Parties, and the Notes Agent, for itself and on behalf of each Notes Secured Party, each agree that no ABL Secured Party, no Term Loan Secured Party and no Notes Secured Party shall propose, vote for, or otherwise support, directly or indirectly, any Plan or similar dispositive restructuring plan that is inconsistent with or in contravention of the priorities or other provisions of this Agreement, including any Plan or similar dispositive restructuring plan that purports to re-order (whether by subordination, invalidation, or otherwise) or otherwise disregard, in whole or part, the provisions of Section 2 (including the Lien priorities of Section 2.1), Section 4 or Section 6 hereof.

(c)

If, in connection with an Insolvency Proceeding involving a Grantor, the Term Loan Secured Parties receive any distribution, including cash, debt, or equity securities on account of the Term Loan Obligations in respect of their interest in or Lien on the ABL Priority Collateral or the proceeds thereof, the Term Loan Agent or the other Term Loan Secured Parties, as applicable, shall turn over such cash, debt, or equity securities to the ABL Agent for application in accordance with Section 4 hereof, unless the distribution of such cash, debt, or securities is otherwise permitted under Section 4 hereof or made pursuant to a confirmed Plan of such Grantor that is accepted by the requisite affirmative vote of all classes composed of the secured claims of the ABL Secured Parties.

(d)

If, in connection with an Insolvency Proceeding involving a Grantor, the ABL Secured Parties receive any distribution, including cash, debt, or equity securities on account of the ABL Obligations in respect of their interest in or Lien on the Term Loan Priority Collateral or the proceeds thereof, the ABL Agent or the other ABL Secured Parties, as applicable, shall turn over such cash, debt, or equity securities to the Term Loan Agent for application in accordance with Section 4 hereof, unless the distribution of such cash, debt, or securities is otherwise permitted under Section 4 hereof or made pursuant to a confirmed Plan of such Grantor that is accepted by the requisite affirmative vote of all classes composed of the secured claims of the Term Loan Secured Parties.

(e)

Subject to the foregoing provisions of this Section 6.10 (solely as between the ABL Secured Parties and the Term Loan Secured Parties), if, in

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connection with an Insolvency Proceeding involving a Grantor, Notes Agent or any Notes Secured Parties receive any distribution, including cash, debt, or equity securities on account of the Notes Obligations in respect of their interest in or Lien on the Common Collateral or the proceeds thereof, the Notes Agent or the other Notes Secured Parties, as applicable, shall turn over such cash, debt, or equity securities to the Term Loan Agent or the ABL Agent, as applicable, for application in accordance with Section 4 hereof, unless the distribution of such cash, debt, or securities is otherwise expressly permitted under Section 4 hereof provides for the payment in full, in cash, of all ABL Obligations and Term Loan Obligations (including all post-petition interest, fees and expenses as provided in Section 6.4 hereof) on the effective date of such Plan or similar dispositive restructuring plan.

SECTION 7 PURCHASE OPTIONS

7.1 Notice of Exercise.

(a)

Upon the earliest of (i) the occurrence and during the continuance of an “Event of Default” under the ABL Credit Agreement, if such event of default remains uncured or unwaived for at least 60 consecutive days and the requisite ABL Lenders have not agreed to forbear from the exercise of remedies, (ii) the date of the termination of the commitments and the acceleration of the final maturity of any loans under the ABL Credit Agreement and (iii) the failure to pay all outstanding loans and obligations in full in cash on the final maturity date of the ABL Credit Agreement, all or a portion of the Term Loan Secured Parties, acting as a single group, shall have the option at any time upon the prior delivery of an irrevocable written notice to the ABL Agent to purchase all, but not less than all, of the ABL Obligations (including with respect to any ABL DIP Financing) from the ABL Secured Parties; provided that such option shall expire if no Term Loan Secured Party delivers such written notice to the ABL Agent within thirty (30) Business Days following the first date the Term Loan Secured Parties obtain knowledge of the occurrence of the earlier of the events in preceding clauses (i), (ii) and (iii) above. Such notice from such Term Loan Secured Parties to the ABL Agent shall be irrevocable.

(b)

Upon the earliest of (i) the occurrence and during the continuance of an “Event of Default” under the applicable Term Loan Credit Agreement, if such event of default remains uncured or unwaived for at least 60 consecutive days and the requisite applicable Term Loan Lenders have not agreed to forbear from the exercise of remedies, (ii) the date of the acceleration of the final maturity of the loans under the applicable Term Loan Credit Agreement, and (iii) the failure to pay all outstanding loans and obligations in full in cash on the final maturity date of the applicable Term Loan Credit Agreement, all or a portion of the ABL Secured Parties, acting as a single group, shall have the option at any time upon prior delivery of an irrevocable written notice to the Term Loan Agent to purchase all, but

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not less than all, of the Term Loan Obligations (including with respect to any Term Loan DIP Financing) from the applicable Term Loan Secured Parties; provided that such option shall expire if no ABL Secured Party delivers such written notice to the Term Loan Agent within thirty (30) Business Days following the first date the ABL Secured Parties obtain knowledge of the occurrence of the earlier of the events in preceding clauses (i), (ii) and (iii) above. Such notice from such ABL Secured Parties to the Term Loan Agent shall be irrevocable.

7.2 Purchase and Sale.

(a)

On the date specified by the relevant Term Loan Secured Parties in the notice contemplated by Section 7.1(a) above (which shall not be less than five Business Days, nor more than 20 calendar days, after the receipt by the ABL Agent of the notice of the relevant Term Loan Secured Parties’ election to exercise such option), the ABL Secured Parties shall sell to the relevant Term Loan Secured Parties, and the relevant Term Loan Secured Parties shall purchase from the ABL Secured Parties, the ABL Obligations; provided that the ABL Agent and the ABL Secured Parties shall retain all rights to be indemnified or held harmless by the ABL Loan Parties in accordance with the terms of the ABL Loan Documents for all claims and other amounts relating to periods prior to such sale of the ABL Obligations but shall not retain any rights to the security therefor.

(b)

On the date specified by the relevant ABL Secured Parties in the notice contemplated by Section 7.1(b) above (which shall not be less than five Business Days, nor more than 20 calendar days, after the receipt by the Term Loan Agent of the notice of the relevant ABL Secured Parties’ election to exercise such option), the applicable Term Loan Secured Parties shall sell to the relevant ABL Secured Parties, and the relevant ABL Secured Parties shall purchase from the applicable Term Loan Secured Parties, all but not less than all of the Term Loan Obligations, provided that the Term Loan Agent and the applicable Term Loan Secured Parties shall retain all rights to be indemnified or held harmless by the applicable Term Loan Secured Parties in accordance with the terms of the applicable Term Loan Documents for all claims and other amounts relating to periods prior to such sale of the applicable Term Loan Obligations but shall not retain any rights to the security therefor.

7.3 Payment of Purchase Price. Upon the date of such purchase and sale, the relevant Term Loan Secured Parties or the relevant ABL Secured Parties, as applicable, shall (a) pay to the ABL Agent for the benefit of the ABL Secured Parties (with respect to a purchase of the ABL Obligations) or to the Term Loan Agent for the benefit of the applicable Term Loan Secured Parties (with respect to a purchase of the Term Loan Obligations) as the purchase price the full amount of all the ABL Obligations or Term Loan Obligations, as applicable, then outstanding and unpaid (including 100% of the principal amount thereof or, in the case of Obligations owed with respect to Hedging Agreements, the termination value of the agreement or arrangement giving rise to such

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obligations that would be payable by such Person at such time, and all accrued and unpaid interest and fees (including Call Premium, Yield Maintenance Fees and Exit Fees) thereon, as well as all expenses, including reasonable attorneys’ fees and legal expenses), (b) furnish cash collateral to the applicable Agent in a manner and in such amounts as such Agent determines is reasonably necessary (but not to exceed 105% of the amount then reasonably estimated by the applicable Agent to be the aggregate outstanding amount of such letters of credit at such time, including all fronting and other fees estimated to become due and payable prior to termination of such letters of credit) to secure the letter of credit issuing banks in connection with any issued and outstanding letters of credit, (c) with respect to a purchase of the ABL Obligations, furnish cash collateral to the ABL Agent in a manner and in such amounts as the ABL Agent determines is reasonably necessary to secure the ABL Lender Hedging Obligations and ABL Lender Cash Management Obligations, (d) with respect to a purchase of the Term Loan Obligations, furnish cash collateral to the Term Loan Agent in a manner and in such amounts as the Term Loan Agent determines is reasonably necessary to secure the Term Loan Lender Hedging Obligations and Term Loan Lender Cash Management Obligations, (e) agree to reimburse the applicable Agent, Secured Parties and letter of credit issuing banks for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit as described above, (f) with respect to a purchase of the ABL Obligations, agree to reimburse the ABL Agent and ABL Secured Parties for any checks or other payments provisionally credited to the ABL Obligations, and/or as to which the ABL Agent has not yet received final payment, (g) agree to reimburse the ABL Secured Parties and Term Loan Secured Parties in respect of indemnification obligations of the ABL Loan Parties or the Term Loan Parties, as applicable, as to matters or circumstances known to the ABL Agent, or the Term Loan Agent, as applicable, at the time of the purchase and sale which would reasonably be expected to result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the ABL Secured Parties or the Term Loan Secured Parties, as applicable, and (h) agree to indemnify and hold harmless the ABL Secured Parties or the Term Loan Secured Parties, as applicable, from and against any loss, liability, claim, damage or expense (including reasonable fees and expenses of legal counsel) arising out of any claim asserted by a third party in respect of the ABL Obligations or the applicable Term Loan Obligations, as applicable, as a result, directly or indirectly, of any acts by any ABL Secured Parties or any Term Loan Secured Party, as applicable, occurring after the date of such purchase and related to the purchased Obligations. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account as the ABL Agent or the Term Loan Agent, as applicable, may designate in writing for such purpose; it being understood and agreed that (x) if at any time those amounts (if any) then on deposit with the applicable Agent as described in clause (b) above exceed 105% of the sum of the aggregate undrawn amount of all then outstanding letters of credit, and all fronting and other fees estimated to become due and payable prior to termination of such letters of credit, such excess shall be returned to the respective Term Loan Secured Parties or ABL Secured Parties, as applicable (y) at such time as all letters of credit have been cancelled, expired or been fully drawn, as the case may be, any excess cash collateral deposited as described above in clause (b) (and not previously applied or released as provided above) shall be returned to the respective Term Loan Secured Parties or ABL Secured Parties, as applicable and (z) at such time as all ABL Lender Cash Management Obligations and ABL Lender Hedging Obligations have been terminated, any excess cash collateral deposited as described above in clause (c) (and not previously applied or released as provided above) shall be returned to the Term Loan Secured Parties. It is understood and agreed

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that (x) at the time any facing or similar fees are owing to an issuer with respect to any letter of credit, the ABL Agent may apply amounts deposited with it as described above to pay same and (y) upon any drawing under any letter of credit, the ABL Agent shall apply amounts deposited with it as described above to repay the respective unpaid drawing.

7.4 Limitation on Representations and Warranties. Any purchase under this Section 7 shall be expressly made without representation or warranty of any kind by any selling party (or the ABL Agent or the Term Loan Agent) and without recourse of any kind, except that the selling party shall represent and warrant: (a) the amount of the ABL Obligations or Term Loan Obligations, as applicable, being purchased from it, (b) that such ABL Secured Party or Term Loan Secured Party, as applicable, owns the ABL Obligations or Term Loan Obligations, as applicable, free and clear of any Liens or encumbrances and (c) that such ABL Secured Party or Term Loan Secured Party, as applicable, has the right to assign such ABL Obligations or Term Loan Obligations, as applicable, and the assignment is duly authorized.

SECTION 8 RELIANCE; WAIVERS; ETC.

8.1 Reliance. All ABL Obligations at any time made or incurred by the Borrower or any other ABL Loan Party shall be deemed to have been made or incurred in reliance upon this Agreement, and the Term Loan Agent, on behalf of itself and the Term Loan Secured Parties represented by it, and the Notes Agent, on behalf of itself and the Notes Secured Parties represented by it, each hereby waives notice of acceptance, or proof of reliance by the ABL Agent or any ABL Secured Party of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the ABL Obligations. All Term Loan Obligations at any time made or incurred by the Borrower or any other Term Loan Party shall be deemed to have been made or incurred in reliance upon this Agreement, and the ABL Agent, on behalf of itself and the ABL Secured Parties, and the Notes Agent, on behalf of itself and the Notes Secured Parties, each hereby waives notice of acceptance, or proof of reliance, by the Term Loan Agent or any Term Loan Secured Party of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the Term Loan Obligations.

8.2 No Warranties or Liability.

(a)

None of the ABL Agent, any ABL Secured Party, or any of their respective affiliates, directors, officers, employees, or agents shall be liable for failure to demand, collect, or realize upon any of the Common Collateral or any proceeds, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Common Collateral or proceeds thereof or to take any other action whatsoever with regard to the Collateral or any part or proceeds thereof, except as specifically provided in this Agreement. If the ABL Agent or any ABL Secured Party honors (or fails to honor) a request by the Borrower for an extension of credit pursuant to the ABL Credit Agreement or any of the other ABL Documents, whether the ABL Agent or any ABL Secured Party has knowledge that the honoring of (or failure to honor) any such request would constitute a default under the terms of the Term Loan Credit Agreement or any other Term Loan Document or an act, condition, or event that, with the giving of notice or the passage of

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time, or both, would constitute such a default, or if the ABL Agent or any ABL Secured Party otherwise should exercise any of its contractual rights or remedies under any ABL Documents (subject to the express terms and conditions hereof), neither the ABL Agent nor any ABL Secured Party shall have any liability whatsoever to the Term Loan Agent or any Term Loan Secured Party as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement). The ABL Agent and the ABL Secured Parties shall be entitled to manage and supervise their loans and extensions of credit under the ABL Credit Agreement and any of the other ABL Documents as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests that the Term Loan Agent, any of the Term Loan Secured Parties, the Notes Agent or any Notes Secured Parties have in the Collateral, except as otherwise expressly set forth in this Agreement. The Term Loan Agent, on behalf of itself and the Term Loan Secured Parties represented by it, and the Notes Agent, on behalf of itself and the Notes Secured Parties represented by it, agree that neither the ABL Agent nor any ABL Secured Party shall incur any liability as a result of a sale, lease, license, application, or other disposition of all or any portion of the Common Collateral or proceeds thereof, pursuant to the ABL Documents, so long as such disposition is conducted in accordance with mandatory provisions of applicable law and does not breach the provisions of this Agreement.

(b)

None of the Term Loan Agent, any Term Loan Secured Party or any of their respective affiliates, directors, officers, employees, or agents shall be liable for failure to demand, collect, or realize upon any of the Collateral or any proceeds, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Common Collateral or proceeds thereof or to take any other action whatsoever with regard to the Common Collateral or any part or proceeds thereof, except as specifically provided in this Agreement. If the Term Loan Agent or any Term Loan Secured Party honors (or fails to honor) a request by the Borrower for an extension of credit pursuant to the Term Loan Credit Agreement or any of the other Term Loan Documents, whether the Term Loan Agent or any Term Loan Secured Party has knowledge that the honoring of (or failure to honor) any such request would constitute a default under the terms of the ABL Credit Agreement or any other ABL Document or an act, condition, or event that, with the giving of notice or the passage of time, or both, would constitute such a default, or if the Term Loan Agent or any Term Loan Secured Party otherwise should exercise any of its contractual rights or remedies under the Term Loan Documents (subject to the express terms and conditions hereof), neither the Term Loan Agent nor any Term Loan Secured Party shall have any liability whatsoever to the ABL Agent or any ABL Secured Party as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement). The Term Loan Agent and the Term Loan Secured Parties shall be entitled to manage and supervise

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their loans and extensions of credit under the Term Loan Documents as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests that the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Party has in the Common Collateral, except as otherwise expressly set forth in this Agreement. The ABL Agent, on behalf of itself and the ABL Secured Parties, and the Notes Agent on behalf of itself and the Notes Secured Parties, agree that none of the Term Loan Agent or the Term Loan Secured Parties shall incur any liability as a result of a sale, lease, license, application, or other disposition of the Common Collateral or any part or proceeds thereof, pursuant to the Term Loan Documents, so long as such disposition is conducted in accordance with mandatory provisions of applicable law and does not breach the provisions of this Agreement.

8.3 ABL Obligations Unconditional. All rights of the ABL Agent hereunder, and all agreements and obligations of the Term Loan Agent and the ABL Loan Parties (to the extent applicable) hereunder, shall remain in full force and effect irrespective of:

(a)

any lack of validity or enforceability of any ABL Document;

(b)

any change in the time, place or manner of payment of, or in any other term of, all or any portion of the ABL Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any ABL Document;

(c)

any exchange, release, voiding, avoidance or non-perfection of any security interest in any Common Collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding, restatement or increase of all or any portion of the ABL Obligations or any guarantee or guaranty thereof; or

(d)

any other circumstances that otherwise might constitute a defense available to, or a discharge of, any ABL Loan Party in respect of the ABL Obligations, of any of the Term Loan Agent or any Term Loan Party, or of any Notes Agent or any Notes Secured Party to the extent applicable, in respect of this Agreement.

8.4 Term Loan Obligations Unconditional. All rights of the Term Loan Agent hereunder, and all agreements and obligations of the ABL Agent and the Term Loan Parties (to the extent applicable) hereunder, shall remain in full force and effect irrespective of:

(a)

any lack of validity or enforceability of any Term Loan Document;

(b)

any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Term Loan Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any Term Loan Document;

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(c)

any exchange, release, voiding, avoidance or non-perfection of any security interest in any Common Collateral, or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding, restatement or increase of all or any portion of the Term Loan Obligations or any guarantee or guaranty thereof; or

(d)

any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Term Loan Party in respect of the Term Loan Obligations, or of any of the ABL Agent or any ABL Loan Party, or of any Notes Agent or any Notes Secured Party to the extent applicable, in respect of this Agreement.

8.5 Notes Obligations Unconditional. All rights of the Notes Agent hereunder, and all agreements and obligations of the ABL Agent, Term Loan Agent, ABL Loan Parties and the Term Loan Parties (to the extent applicable) hereunder, shall remain in full force and effect irrespective of:

(a)

any lack of validity or enforceability of any Notes Document;

(b)

any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Notes Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any Notes Document;

(c)

any exchange, release, voiding, avoidance or non-perfection of any security interest in any Collateral, or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding, restatement or increase of all or any portion of the Notes Obligations or any guarantee or guaranty thereof; or

(d)

any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Notes Party in respect of the Notes Obligations, of any of the ABL Agent or any ABL Loan Party, or of the Term Loan Agent or of any Term Loan Party to the extent applicable, in respect of this Agreement

SECTION 9 MISCELLANEOUS.

9.1 Conflicts. Subject to Section 9.19 and 9.21, in the event of any conflict between the provisions of this Agreement and the provisions of any ABL Loan Document, any Term Loan Document, or any Notes Document, the provisions of this Agreement shall govern and control.

9.2 Term of this Agreement; Severability.

(a)

This is a continuing agreement of Lien subordination and the First Priority Secured Parties may continue, at any time and without notice to the Second

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Priority Agent, any Second Priority Secured Party, the Third Priority Agent or any Third Priority Secured Party, to extend credit and other financial accommodations and lend monies to or for the benefit of the Borrower or any other Grantor constituting First Priority Claims in reliance hereon. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency Proceeding. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(b)

This Agreement shall terminate and be of no further force and effect:

(i)

with respect to the ABL Agent, the ABL Secured Parties and the ABL Obligations, upon the Discharge of ABL Obligations, subject to the rights of the ABL Secured Parties under Section 6.5;

(ii)

with respect to the Term Loan Agent, the Term Loan Secured Parties and the Term Loan Obligations, upon the Discharge of Term Loan Obligations, subject to the rights of the Term Loan Secured Parties under Section 6.5; and

(iii)

with respect to the Notes Agent, the Notes Secured Parties and the Notes Obligations, upon the Discharge of Notes Obligations, subject to the rights of the Secured Parties under Section 6.5.

9.3 Amendments; Waivers.

(a)

No amendment, modification or waiver of any of the provisions of this Agreement by the ABL Agent, the Term Loan Agent or the Notes Agent shall be deemed to be made unless the same shall be in writing signed on behalf of the party making the same or its authorized agent (on instructions of the applicable Required Lenders or requisite Notes Secured Parties), if any, and any such waiver shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. The Borrower and the other Grantors shall not have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except in the case of any amendment or waiver that could reasonably be expected to be adverse to the interests, rights, liabilities or privileges of any Grantor or imposes additional duties or obligations on any Grantor, which shall require the written consent of the Parent and Borrower. The ABL Agent, the Term Loan Agent, and the Notes Agent shall give written notice of any amendment, modification or waiver of any provision of this Agreement to the ABL Secured Parties, the Term Loan Secured Parties, the Notes Secured Parties and the Grantors; provided that the failure to give such notice shall not affect the effectiveness of such amendment, modification or waiver.

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(b)

Subject to compliance with Section 9.3(d) below, upon any Refinancing in full of the ABL Credit Agreement or the Term Loan Credit Agreement, in each case as then in effect, the Grantors will be permitted to designate the agreement which Refinances the ABL Credit Agreement or the Term Loan Credit Agreement as a replacement ABL Credit Agreement or Term Loan Credit Agreement, in which case such designated agreement shall thereafter constitute the ABL Credit Agreement or the Term Loan Credit Agreement, as the case may be, for purposes hereof; provided that each predecessor ABL Credit Agreement or Term Loan Credit Agreement shall continue to be bound by (and entitled to the benefits of) the provisions hereof (including, without limitation, Section 6.5 hereof) as applied to such agreements, the related agreements and all obligations thereunder prior to the Refinancing thereof.

(c)

Upon the execution and delivery of the ABL Credit Agreement or the Term Loan Credit Agreement (as contemplated by preceding clause (b)):

(i)

The Borrower shall deliver to the ABL Agent and the Term Loan Agent an officer’s certificate stating that the applicable Grantors in the case of preceding clause (b), intend to enter or have entered into a Refinancing, in whole or in part, of the ABL Credit Agreement or the Term Loan Credit Agreement, as the case may be, that such agreement shall thereafter (upon any such Refinancing in full) constitute the ABL Credit Agreement or the Term Loan Credit Agreement, as the case may be, and certifying that the issuance or incurrence of such Refinancing is permitted by the ABL Credit Agreement and the Term Loan Credit Agreement (exclusive of any such agreement which is then being Refinanced in full). The ABL Agent and the Term Loan Agent shall be entitled to rely conclusively on the determination of the Borrower that such issuance and/or incurrence does not violate the provisions of the ABL Loan Documents or the Term Loan Documents; provided, however, that such determination will not affect whether or not each applicable Grantor has complied with its undertakings in the ABL Loan Documents or the Term Loan Documents; and (ii) in the case of the preceding clause (b), the Borrower shall provide written notice to each then existing ABL Agent and Term Loan Agent of the new ABL Credit Agreement or the new Term Loan Credit Agreement, as the case may be, together with copies thereof, and identifying the new ABL Agent or Term Loan Agent (as applicable) thereunder (such new agent, the “New ABL Agent” or “New Term Loan Agent”, as the case may be), and providing its notice information for purposes hereof, and the New ABL Agent or New Term Loan Agent as the case may be, shall execute and deliver to the ABL Agent or the Term

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Loan Agent (as applicable) (1) an Intercreditor Agreement Joinder acknowledging that its holders shall be bound by the terms hereof and (2) such intercreditor agreements as are required under the terms of the Term Loan Documents or ABL Documents (as applicable) or as may be required by the Term Loan Agent or ABL Agent (as applicable).

(d)

In each case above, the Term Loan Agent, the New Term Loan Agent, the ABL Agent and the New ABL Agent shall promptly enter into such documents and agreements (including amendments, restatements, amendments and restatements, supplements or other modifications to this Agreement) as any of the foregoing (as applicable) (but no other Secured Party) may reasonably request in order to provide to it the rights, remedies and powers and authorities contemplated hereby, in each case consistent in all respects with the terms of this Agreement.

(e)

It is understood that the ABL Agent and the Term Loan Agent, without the consent of any other ABL Secured Party or Term Loan Secured Party, may in their discretion determine that a supplemental agreement (which may take the form of an amendment and restatement of this Agreement) is necessary or appropriate to facilitate having additional Indebtedness or other obligations of any of the Grantors become Term Loan Obligations or ABL Obligations, as the case may be, under this Agreement (such Indebtedness or other obligations, “Additional Debt”), which supplemental agreement shall, if applicable, specify whether such Additional Debt constitutes Term Loan Obligations or ABL Obligations; provided that such Additional Debt is permitted to be incurred under the ABL Credit Agreement and the Term Loan Credit Agreement then existing in accordance with the terms thereof. Each such supplemental agreement (x) shall be in form and substance reasonably satisfactory to the ABL Agent and the Term Loan Agent, (y) shall be executed by the agent with respect to the applicable series of Additional Debt (and, upon the effectiveness of such supplemental agreement, such agent shall become an “ABL Agent” or a “Term Loan Agent”, as the case may be, hereunder) and (z) shall provide, in a manner satisfactory to the ABL Agent and the Term Loan Agent, that the agent with respect to any applicable series of Additional Debt and each holder of such series of Additional Debt shall be subject to and bound by the provisions of this Agreement, as so supplemented, in its capacity as a holder of such series of Additional Debt.

9.4 Information Concerning Financial Condition of the Borrower and the Subsidiaries. No ABL Agent nor any ABL Secured Party shall have any obligation to the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party to keep them informed of, and the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent and the Notes Secured Parties shall not be entitled to rely on, the ABL Agent or the ABL Secured Parties with respect to, (a) the financial condition of the Borrower and the Grantors and all endorsers and/or guarantors of the ABL Obligations or the Term Loan Obligations and (b) all other circumstances

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bearing upon the risk of nonpayment of the ABL Obligations or the Term Loan Obligations. No Term Loan Agent or any Term Loan Secured Party shall have any obligation to the ABL Agent, any ABL Secured Party, the Notes Agent or any Notes Secured Party to keep any of them informed of, and the ABL Agent, the ABL Secured Parties, the Notes Agent and the Notes Secured Parties shall not be entitled to rely on, the Term Loan Agent or the Term Loan Secured Parties with respect to, (a) the financial condition of the Borrower, the Borrower and the Grantors and all endorsers and/or guarantors of the ABL Obligations or the Term Loan Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the ABL Obligations or the Term Loan Obligations. The ABL Agent, the ABL Secured Parties, the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent and the Notes Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that the ABL Agent, any ABL Secured Party, the Term Loan Agent, any Term Loan Secured Party, the Notes Agent or any Notes Secured Party in its or their sole discretion, undertakes at any time or from time to time to provide any such information to any other party (and Parent, Holdings and the Borrower acknowledge that any such party may do so), it or they shall be under no obligation (w) to make, and the ABL Agent, the ABL Secured Parties, the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent and the Notes Secured Parties shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to provide any additional information or to provide any such information on any subsequent occasion, (y) to undertake any investigation or (z) to disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential. The Grantors agree that any information provided to the ABL Agent, the Term Loan Agent, any other ABL Secured Party, any other Term Loan Secured Party, the Notes Agent or any Notes Secured Party may be shared by such person with any of the other Secured Parties notwithstanding a request or demand by such Grantor that such information be kept confidential; provided that such information shall otherwise be subject to the respective confidentiality provisions in the ABL Credit Agreement, the Term Loan Credit Agreements, and the Notes Purchase Agreement as applicable.

9.5 Subrogation. The Term Loan Agent, for and on behalf of itself and the applicable Term Loan Secured Parties, agrees that no payment to the ABL Agent or any ABL Secured Party pursuant to the provisions of this Agreement shall entitle such Term Loan Agent or any Term Loan Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of ABL Obligations shall have occurred. Following the Discharge of ABL Obligations, the ABL Agent agrees to execute such documents, agreements and instruments as the Term Loan Agent or any Term Loan Secured Party may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the ABL Obligations resulting from payments to the ABL Agent by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by the ABL Agent are paid by such Person upon request for payment thereof. The ABL Agent, for and on behalf of itself and the ABL Secured Parties, agrees that no payment to the Term Loan Agent or any Term Loan Secured Party pursuant to the provisions of this Agreement shall entitle the ABL Agent or any ABL Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of Term Loan Obligations shall have occurred. Following the Discharge of Term Loan Obligations, the Term Loan Agent agrees to execute such documents, agreements and instruments as the ABL Agent or any ABL Secured Party may reasonably request to evidence the transfer by subrogation to any such Person

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of an interest in the Term Loan Obligations resulting from payments to the Term Loan Agent by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by such Term Loan Agent are paid by such Person upon request for payment thereof. The Notes Agent, for and on behalf of itself and the applicable Notes Secured Parties, agrees that no payment to the ABL Agent, any ABL Secured Party, the Term Loan Agent, or any Term Loan Secured Party pursuant to the provisions of this Agreement shall entitle such Notes Agent or any Notes Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of ABL Obligations and a Discharge of Term Loan Obligations shall have occurred.

9.6 Application of Payments.

(a)

Except as otherwise provided herein, all payments received by the ABL Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the ABL Obligations as the ABL Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the ABL Loan Documents. Except as otherwise provided herein, the Term Loan Agent, on behalf of itself and each applicable Term Loan Secured Party, assents to any such extension or postponement of the time of payment of the ABL Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange, release or discharge of any security that may at any time secure any part of the ABL Obligations and to the addition or release of any other Person primarily or secondarily liable therefor. Except as otherwise provided herein, the Notes Agent, on behalf of itself and each applicable Notes Secured Party, assents to any such extension or postponement of the time of payment of the ABL Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange, release or discharge of any security that may at any time secure any part of the ABL Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.

(b)

Except as otherwise provided herein, all payments received by the Term Loan Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Term Loan Obligations as the Term Loan Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the Term Loan Documents. Except as otherwise provided herein, the ABL Agent, on behalf of itself and each ABL Secured Party, assents to any such extension or postponement of the time of payment of the Term Loan Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange, release or discharge of any security that may at any time secure any part of the Term Loan Obligations and to the addition or release of any other Person primarily or secondarily liable therefor. Except as otherwise provided herein, the Notes Agent, on behalf of itself and each Notes Secured Party, assents to any such extension or postponement of the time of payment of the Term Loan Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange, release or discharge of any security that may at any time secure any part of the Term Loan Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.

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9.7 Consent to Jurisdiction; Waivers. The parties hereto consent to the exclusive jurisdiction of any state or federal court located in New York, New York (the “New York Courts”), and consent that all service of process may be made by registered mail directed to such party as provided in Section 9.9 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non-conveniens, and any objection to the venue of any action instituted hereunder in any such court.

EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

9.8 Notices. All notices to the ABL Secured Parties, the Term Loan Secured Parties or the Notes Secured Parties permitted or required under this Agreement may be sent to the ABL Agent, the Term Loan Agent, or the Notes Agent as provided in the ABL Credit Agreement, the Term Loan Credit Agreement, or the Note Purchase Agreement, as applicable. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, electronically mailed or sent by courier service or mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of electronic mail or upon receipt via mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties and as otherwise provided in the ABL Loan Documents and the Term Loan Documents. The ABL Agent, the Term Loan Agent, and the Notes Agent hereby agree to promptly notify each other Agent upon payment in full in cash of all Indebtedness under the ABL Loan Documents (and, in the case of the ABL Loan Documents and any applicable Term Loan Documents, a corresponding termination of all commitments to lend thereunder), in the case of the ABL Agent, the applicable Term Loan Documents, in the case of the Term Loan Agent (except for contingent indemnities and cost and reimbursement obligations to the extent no claim therefor has been made), or the applicable Notes Documents, in the case of the Notes Agent (except for contingent indemnities and cost and reimbursement obligations to the extent no claim therefor has been made).

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9.9 Further Assurances. The ABL Agent, on behalf of itself and each ABL Secured Party, and the Term Loan Agent, on behalf of itself and each Term Loan Secured Party, agrees that each of them shall take such further action and shall execute and deliver to the ABL Agent, the ABL Secured Parties, the Term Loan Agent and the Term Loan Secured Parties (as applicable) such additional documents and instruments (in recordable form, if requested) as the ABL Agent, the ABL Secured Parties, the Term Loan Agent or the Term Loan Secured Parties may reasonably request, at the expense of the Borrower, to effectuate the terms of and the Lien priorities contemplated by this Agreement. The Notes Agent, on behalf of itself and each Notes Secured Party, agrees that each of them shall take such further action and shall execute and deliver to the ABL Agent, the ABL Secured Parties, the Term Loan Agent and the Term Loan Secured Parties (as applicable) such additional documents and instruments (in recordable form, if requested) as the ABL Agent, the ABL Secured Parties, the Term Loan Agent or the Term Loan Secured Parties may reasonably request, at the expense of the Borrower, to effectuate the terms of and the Lien priorities contemplated by this Agreement.

9.10 Governing Law. This Agreement has been delivered and accepted in and shall be deemed to have been made in New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York.

9.11 Specific Performance. Each First Priority Agent may demand specific performance of this Agreement. Each Second Priority Agent, on behalf of itself and each applicable Second Priority Secured Party, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Priority Agent. Each Third Priority Agent, on behalf of itself and each applicable Third Priority Secured Party, hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Priority Agent or the Second Priority Agent.

9.12 Section Titles. The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.

9.13 Counterparts. This Agreement may be executed in one or more counterparts, including by means of electronic transmission, each of which shall be an original and all of which shall together constitute one and the same document. Delivery of an executed counterpart of a signature page of this Agreement by e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

9.14 Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. The ABL Agent represents and warrants that this Agreement is binding upon the ABL Secured Parties. The Term Loan Agent represents and warrants that this Agreement is binding upon the applicable Term Loan Secured Parties. The Notes Agent represents and warrants that this Agreement is binding upon the applicable Notes Secured Parties. In furtherance of and without limiting the foregoing representations, by accepting the benefits of this Agreement and the

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other ABL Loan Documents, each ABL Secured Party authorizes the ABL Agent to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith. By accepting the benefits of this Agreement and the other applicable Term Loan Documents, each Term Loan Secured Party authorizes the Term Loan Agent under such Term Loan Documents to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith. By accepting the benefits of this Agreement and the other applicable Notes Documents, each Notes Secured Party authorizes the Notes Agent under such Notes Documents to enter into this Agreement and to act on its behalf as collateral agent hereunder and in connection herewith.

9.15 No Third Party Beneficiaries; Successors and Assigns. This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the holders of ABL Obligations, Term Loan Obligations, and Notes Obligations. No other Person shall have or be entitled to assert rights or benefits hereunder. Without limiting the generality of the foregoing, any person to whom a Secured Party assigns or otherwise transfers all or any portion of the ABL Obligations, the Term Loan Obligations, or Notes Obligations as applicable, in accordance with the ABL Loan Documents, Term Loan Documents, or Notes Documents, as the case may be, shall become vested with all the rights and obligations in respect thereof granted to such Secured Parties, without any further consent or action of the other Secured Parties.

9.16 Effectiveness. This Agreement shall become effective when executed and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency Proceeding. All references to the Borrower or any other Grantor shall include the Borrower or any other Grantor as debtor and debtor-in-possession and any agent, trustee, receiver, interim receiver or similar Person for the Borrower, the Borrower or any other Grantor (as the case may be) in any Insolvency Proceeding.

9.17 ABL Agent, Term Loan Agent and Notes Agent. It is understood and agreed that (i) Bank of America is entering into this Agreement in its capacity as the ABL Agent and the provisions of the ABL Credit Agreement applicable to Bank of America as Administrative Agent shall also apply to Bank of America as the ABL Agent hereunder, (ii) CLMG is entering into this Agreement in its capacities as administrative agent and collateral agent under the Term Loan Credit Agreement and the provisions of Section 8 of the Term Loan Credit Agreement applicable to CLMG as administrative agent or collateral agent thereunder shall also apply to CLMG as a Term Loan Agent, and (iii) WSFS is entering into this Agreement in its capacity as collateral agent under the Note Purchase Agreement in taking (or forbearing from taking) any action under or pursuant to this Agreement, WSFS shall be have and be protected by all of the rights, immunities, indemnities and other protections granted to it under Article X of the Note Purchase Agreement and the other Notes Documents. It is further understood that any determination, request, direction, consent or election, deeming any action or document reasonable, appropriate or satisfactory, exercising discretion, or exercising any right or duty under this Agreement to be made by the Notes Agent shall be pursuant to direction from the Requisite Holders (as defined in the Note Purchase Agreement) or such other higher percentage of Notes Secured Parties under the Notes Document as shall be required to consent pursuant to the terms thereof.

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9.18 Limitation on Term Loan Agent’s, ABL Agent’s and Notes Agent’s Responsibilities.

(a)

The Term Loan Agent, the ABL Agent and the Notes Agent may execute any of the powers granted under this Agreement and perform any duty hereunder either directly or by or through agents or attorneys-in-fact, and shall not be responsible for the gross negligence or willful misconduct of any agents or attorneys-in-fact selected by it with reasonable care and without gross negligence or willful misconduct.

(b)

Neither the Term Loan Agent nor the ABL Agent shall be deemed to have actual, constructive, direct or indirect notice or knowledge of the occurrence of any Event of Default (under, and as defined in, any Credit Agreement as in effect on the date hereof) unless and until the Term Loan Agent or the ABL Agent (as applicable) shall have received a written notice of such Event of Default or a written notice from any Grantor or any Secured Party to such Person in such capacity indicating that such an Event of Default has occurred. Neither the Term Loan Agent nor the ABL Agent shall have any obligation either prior to or after receiving such notice to inquire whether such an Event of Default has, in fact, occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice so furnished to it.

9.19 Relationship with Other Intercreditor Agreements. The purpose of this Agreement is to define the relative rights and priorities between the ABL Secured Parties as one class, the Term Loan Secured Parties as one class, and the Notes Secured Parties as one class. This Agreement is the “Intercreditor Agreement” referred to in each of the ABL Credit Agreement, the Term Loan Credit Agreement, and the Note Purchase Agreement.

9.20 Relative Rights. Notwithstanding anything in this Agreement to the contrary (except to the extent contemplated by Section 5.3(d) or (e)), nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the provisions of the ABL Credit Agreement, the Term Loan Credit Agreement, any other ABL Loan Document, any other Term Loan Document, the Note Purchase Agreement, or any other Notes Document, or permit Holdings, the Borrower or any Subsidiary to take any action, or fail to take any action, to the extent such action or failure would otherwise constitute a breach of, or default under, the ABL Credit Agreement, any other ABL Loan Documents, the Term Loan Credit Agreement, any other Term Loan Document, the Note Purchase Agreement or any other Notes Document, (b) change the relative priorities of the ABL Obligations or the Liens granted under the ABL Loan Documents on the ABL Collateral (or any other assets) as among the ABL Secured Parties, change the relative priorities of the Term Loan Obligations or the Liens granted under the Term Loan Documents on the Term Loan Collateral (or any other assets) as among the Term Loan Secured Parties, or change the relative priorities of the Notes Obligations or the Liens granted under the Notes Documents on the Notes Collateral (or any other assets) as among the Notes Secured Parties, (c) otherwise change the relative rights of the ABL Secured Parties in respect of the Collateral as among such ABL Secured Parties, the relative rights of the Term Loan Secured Parties in respect of the Term Loan Collateral as among such Term Loan Secured Parties, or the relative rights of the Notes Secured Parties in

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respect of the Notes Collateral as among such Notes Secured Party or (d) obligate Parent, Holdings, the Borrower, the Borrower or any Subsidiary to take any action, or fail to take any action, that would otherwise constitute a breach of, or default under, the ABL Credit Agreement, any other ABL Loan Document, the Term Loan Credit Agreement, any other Term Loan Document, the Note Purchase Agreement, or any other Notes Document. None of Parent, Holdings, Borrower or any Subsidiary shall have any rights hereunder except as expressly set forth herein (including as set forth in Section 9.4).

9.21 Additional Grantors. Holdings will promptly cause each Person that becomes a Grantor to execute and deliver to the ABL Agent, the Term Loan Agent and Notes Agent party hereto an acknowledgment to this Agreement substantially in the form of Exhibit A, whereupon such Person will be bound by the terms hereof to the same extent as if it had executed and delivered this Agreement as of the date hereof. The parties hereto further agree that, notwithstanding any failure to take the actions required by the immediately preceding sentence, each Person that becomes a Grantor at any time (and any security granted by any such Person) shall be subject to the provisions hereof as fully as if the same constituted a Grantor party hereto and had complied with the requirements of the immediately preceding sentence.

9.22 Amendment and Restatement. This Agreement constitutes an amendment and restatement of the Original Intercreditor Agreement effective from and after the date hereof. Nothing herein contained shall be construed as an intent to effect any novation of the rights and remedies of the ABL Agent, ABL Secured Parties, Term Loan Agent and Term Loan Secured Parties contained in the Original Intercreditor Agreement.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


BANK OF AMERICA, N.A.,
as ABL Agent

By:	/s/ Tanner J. Pump
	Name:	Tanner J. Pump
	Title:	Senior Vice President


Address:

Bank of America, N.A.
901 Main Street, 11^thFloor
MailCode: TX1-492-11-23
Dallas, Texas 75202

Attention:		Tanner J. Pump
Telephone:		(214) 209-4755
Email:		tanner.pump@baml.com

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CLMG CORP.,
as Term Loan Agent

By:	/s/ James Erwin
	Name:	James Erwin
	Title:	President


Address:		7195 Dallas Parkway, Plano, TX 75024
Attention:		James Erwin
Email:		Jerwin@clmgcorp.com

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WILMINGTON SAVINGS FUND SOCIETY, FSB
as Notes Agent

By:	/s/ Geoffrey J. Lewis
	Name:	Geoffrey J. Lewis
	Title:	Vice President

500 Delaware Avenue, 11th Floor

Wilmington, DE 19801

Attention: Patrick J. Healy

Facsimile: (302) 421-9137

Telephone: (302) 888-7420

Email: Phealy@wsfsbank.com

With a copy to:

Wilmington Savings Fund Society, FSB

500 Delaware Avenue, 11th Floor

Wilmington DE 19801

Attention: Geoffrey J. Lewis

Telephone: (302) 573-3218

Email: GLewis@wsfsbank.com

With a copy to (which shall not constitute

notice):

Brown Rudnick LLP

One Financial Center

Boston, MA 02111

Attention: Tia C. Wallach

Telephone: (617) 856-8181

Email: twallach@brownrudnick.com

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U.S. WELL SERVICES, LLC,
for purposes of Sections 5.5(g), 5.5(h) and 9.3(c)

By:	/s/ Kyle O’Neill
	Name:	Kyle ONeill
	Title:	Chief Financial Officer

Address:	1360 Post Oak Blvd., 18 Floor
Attention:	Kyle ONeill
Email:	koneill@uswellservices.com

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ACKNOWLEDGMENT

The Parent, Holdings, the Borrower, the Borrower and each other Grantor hereby acknowledge that they have received a copy of the foregoing Amended and Restated Intercreditor Agreement as in effect on the date hereof and consent thereto, agree to recognize all rights granted thereby to the ABL Agent, the ABL Secured Parties, the Term Loan Agent, the Term Loan Secured Parties, the Notes Agent and the Notes 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 Amended and Restated 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 this Agreement as in effect on the date hereof. The Borrower and each other Grantor further acknowledge and agree that they are not intended beneficiaries or third party beneficiaries under this Agreement and (i) as between the ABL Secured Parties, the Borrower, the Borrower and other Grantors, the ABL Loan Documents remain in full force and effect as written and are in no way modified hereby, (ii) as between the Term Loan Secured Parties, the Borrower and other Grantors, the Term Loan Documents remain in full force and effect as written and are in no way modified hereby, and (iii) as between the Notes Secured Parties, the Borrower and other Grantors, the Notes Documents remain in full force and effect as written and are in no way modified hereby.

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U.S. WELL SERVICES, LLC, as Borrower

By:		/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

U.S. WELL SERVICES, INC., as Parent

By:		/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

USWS HOLDINGS LLC, as Holdings

By:		/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

USWS FLEET 10, LLC, as Guarantor

By:		/s/ Kyle O’Neill
	Name:	Kyle O’Neill
	Title:	Chief Financial Officer

USWS FLEET 11, LLC, as Guarantor

By:		/s/ Kyle O’Neill
	Name:	Kyle ONeill
	Title:	Chief Financial Officer

Exhibit 99.1

LOGO

U.S. Well Services Issues $125.5 Million Convertible Senior Secured PIK Notes, Executes License Agreement with ProFrac Manufacturing, LLC and Finalizes Amendment to Senior Secured Term Loan

HOUSTON – June 28, 2021 – U.S. Well Services, Inc. (the “Company”, “U.S. Well Services” or “we”) (NASDAQ: USWS) today announced it has entered into a series of strategic transactions that position the Company to execute on its previously announced strategic plan to grow and become a fully-electric hydraulic fracturing services provider. U.S. Well Services issued $125.5 million of 16.0% Convertible Senior Secured (Third Lien) PIK Notes due June 2026 (the “Notes”) in a private placement to institutional investors (the “Private Placement”). In connection with the Private Placement, the Company sold $64.0 million of Notes convertible into U.S. Well Services Class A Common Stock (the “Cash Notes”) and $22.5 million of Notes convertible into licenses to ProFrac Manufacturing, LLC (“ProFrac”) to build three hydraulic fracturing fleets using the Company’s Clean Fleet^® technology (the “License Notes”). U.S. Well Services has also taken substantial steps towards simplifying the Company’s capital structure. The Company exchanged $39.0 million of its Series A Redeemable Convertible Preferred Stock for $39.0 million of newly issued Notes convertible into U.S. Well Services Class A Common Stock (the “Exchange Notes”). Additionally, the Company expects to amend the Certificate of Designations for its Series B Redeemable Convertible Preferred Stock (the “Series B”), which would allow U.S. Well Services to convert all outstanding shares of the Series B. Following entry of the final judgment by the Superior Court of Delaware in the Smart Sand v. U.S. Well Services LLC litigation awarding Smart Sand approximately $52 million, the Company agreed to settle the case for $35.0 million in cash and the entry into an agreement to provide Smart Sand certain rights of first refusal related to the supply of frac sand (the “Settlement”). Proceeds from the Private Placement will be used to fund the cash portion of the Settlement and to fund capital expenditures related to four Nyx Clean Fleets^® and place deposits on critical items for two additional Nyx Clean Fleets^®, as well as for general corporate purposes. These capital expenditures are expected to enable the Company to grow its asset portfolio up to 11 all-electric fleets representing approximately 593,500 hydraulic horsepower.

Key Transaction Highlights:

•

Entered into a series of transactions that simplify the Company’s capital structure, improve liquidity, resolve litigation overhang and provide funds to grow the Clean Fleet^® asset base

•

Issued an aggregate of $103.0 million of Cash Notes and Exchange Notes convertible into U.S. Well Services Class A Common Stock at a weighted average conversion price of $1.42 per share

•

Received a commitment from an investor to purchase an additional $5.0 million of Cash Notes in a subsequent transaction, subject to certain conditions

•

Cash Notes and Exchange Notes accrue PIK interest at 16% and are convertible for U.S. Well Services Class A Common Stock

•

After 12 months and (a) so long as no shares of Series A Redeemable Convertible Preferred Stock or Series B Redeemable Convertible Preferred Stock are outstanding and (b) the 20-day volume-weighted average trading price for U.S. Well Services Class A Common Stock is in excess of $2.00 per share for 10 of 20 trading days, the Company may elect to convert the Cash Notes and Exchange Notes into Class A Common Stock at their respective conversion prices

•

$22.5 million of License Notes purchased by ProFrac are convertible into three licenses to build and operate three fleets using U.S. Well Services’ Clean Fleet^® technology for $7.5 million per license

•

Concurrent with the closing of this transaction, ProFrac converted all three licenses underlying the License Notes

•

ProFrac will also have the option to purchase seven additional licenses for $7.5 million each, and thereafter, ten additional licenses for $9.0 million each

•

In total, the sale of Cash Notes and License Linked Notes is expected to generate approximately $91.5 million of gross proceeds, of which $35.0 million will be used to fund the cash portion of the Settlement, and the remainder will be used for growth capital expenditures related to Nyx Clean Fleets^® and general corporate purposes

•

The Company expects to amend the Certificate of Designations for the Series B, which would allow the Company to convert all outstanding shares of the Series B at the conversion price of $0.308 per share (the “Series B Conversion Price”) if U.S. Well Services’ Class A Common Stock is above the Series B Conversion Price for 20 trading days during any 30 consecutive trading day period from June 24, 2021 to December 31, 2021

•

If the Company elects to convert the Series B, holders of the Series B will receive an additional number of shares equal to the aggregate amount of Series B Dividends that such holder’s converted shares would have accrued if such shares were converted as of April 1, 2022

•

Under the Amended Senior Secured Term Loan Facility the Company is able to build up to four new Clean Fleet^® hydraulic fracturing fleets as well as purchase critical components for two additional fleets

•

Pursuant to the April 2020 amendment to the Senior Secured Term Loan Facility, the interest rate was set to 0.0% per annum during the period from April 1, 2020 through March 31, 2022, after which the Senior Secured Term Loan Facility was set to resume accruing interest at the applicable benchmark rate, subject to a 2.0% floor, plus an applicable margin of 8.25% per annum

•

Under the terms of the June 2021 Amended Senior Secured Term Loan Facility, on January 1, 2022, the principal amount will resume incurring interest at the applicable benchmark rate, subject to a 2.0% floor, plus an applicable margin of 8.25% per annum, subject to the exceptions set forth below designed to incentivize the reduction of indebtedness

•

If the outstanding principal amount on the Senior Secured Term Loan Facility is equal to or less than $132.0 million but greater than $110.0 million on December 31, 2021, the interest rate shall be 0.0% per annum from January 1, 2022 through March 31, 2022

•

If the outstanding principal amount of the Senior Secured Term Loan Facility is equal to or less than $110.0 million on December 31, 2021, the interest rate shall be 0.0% per annum from January 1, 2022 through March 31, 2022 and 2.0% per annum from April 1, 2022 through December 31, 2022

•

If on April 1, 2022 the outstanding principal amount of the Senior Secured Term Loan Facility is equal to or less than $103.0 million, the interest rate shall be 1.0% per annum from April 1, 2022 through December 31, 2022

“Although we were disappointed by the Superior Court of Delaware’s decision in our litigation with Smart Sand, U.S. Well Services is pleased to have resolved this matter and looks forward to strengthening our balance sheet and resuming the execution of our strategic plan,” commented Joel Broussard, U.S. Well Services’ President and CEO. “With this Private Placement, U.S. Well Services has not only simplified our capital structure and secured funds to begin the development of our new Nyx Clean Fleet^® pumps, but also confirmed the value of our intellectual property through the licensing agreement with ProFrac.”

Simmons Energy, A Division of Piper Sandler, acted as exclusive financial advisor to the Special Committee of the Board of Directors for U.S Well Services, Inc.

This press release is neither an offer to sell nor a solicitation of an offer to purchase the securities described herein.

About U.S. Well Services, Inc.

U.S. Well Services, Inc. is a leading provider of hydraulic fracturing services and a market leader in electric fracture stimulation. The Company’s patented electric frac technology provides one of the first fully electric, mobile well stimulation systems powered by locally supplied natural gas including field gas sourced directly from the wellhead. The Company’s electric frac technology dramatically decreases emissions and sound pollution while generating exceptional operational efficiencies including significant customer fuel cost savings versus conventional diesel fleets. For more information visit: www.uswellservices.com. The information on our website is not part of this release.

Forward-Looking Statements

The information above includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of historical facts, included herein concerning, among other things, the private placement and the use of proceeds and the expected impact of the transactions on the Company’s financial position and prospects, if at all, are forward-looking statements. These forward-looking statements may be identified by their use of terms and phrases such as “may,” “expect,” “believe,” “intend,” “estimate,” “project,” “plan,” “may,” “anticipate,” “will,” “should,” “could,” and similar terms and phrases. Although the Company believes that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties. These forward-looking statements represent the Company’s current expectations or beliefs concerning future events, and it is possible that the results described in this release will not be achieved. These forward-looking statements are subject to certain risks, including the ability and willingness of the Organization of Petroleum Exporting Countries (“OPEC”) and non–OPEC countries, such as Russia, to set and maintain production levels and prices for oil, and the impact of epidemics, pandemics or other major public health issues, such as the COVID–19 coronavirus, as well as the other risks, uncertainties and assumptions identified in this release or as disclosed from time to time in the Company’s filings with the Securities and Exchange Commission (the “SEC”). Factors that could cause actual results to differ from the Company’s expectations include changes in market conditions and other factors described in the Company’s public disclosures and filings with the SEC, including those described under “Risk Factors” in its annual report on Form 10-K filed on March 11, 2021 and in our quarterly reports on Form 10-Q. As a result of these factors, actual results may differ materially from those indicated or implied by forward-looking statements.

Any forward-looking statement speaks only as of the date on which it is made, and, except as required by law, the Company does not undertake any obligation to update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. New factors emerge from time to time, and it is not possible for us to predict all such factors.

Contacts:

U.S. Well Services

Josh Shapiro

Vice President, Finance and Investor Relations

IR@uswellservices.com

Dennard Lascar Investor Relations

Lisa Elliott

(713) 529.6600

USWS@dennardlascar.com