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): November 1, 2022
ProFrac Holding Corp.
(Exact name of registrant as specified in its charter)
Delaware | 001-41388 | 87-2424964 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
333 Shops Boulevard, Suite 301 Willow Park, Texas |
76087 | |
(Address of principal executive offices) | (Zip Code) |
(254) 776-3722
(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 |
Trading |
Name of exchange on which registered | ||
Class A common stock, par value $0.01 per share | PFHC | The Nasdaq Global Select 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. ☐
Introductory Note
As previously disclosed in the Current Report on Form 8-K filed by ProFrac Holding Corp., a Delaware corporation (“ProFrac” or the “Company”), with the Securities and Exchange Commission (the “SEC”) on June 24, 2022, ProFrac entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of June 21, 2022, by and among ProFrac, U.S. Well Services, Inc., a Delaware corporation (“USWS”), and Thunderclap Merger Sub I, Inc., a Delaware corporation and an indirect subsidiary of ProFrac (“Merger Sub”). On November 1, 2022, pursuant to the terms and conditions of the Merger Agreement, Merger Sub merged with and into USWS, with USWS surviving the merger as the surviving corporation and an indirect subsidiary of ProFrac (the “Merger”). The events described in this Current Report on Form 8-K occurred in connection with the consummation of the Merger.
Item 1.01 | Entry into a Material Definitive Agreement. |
The information set forth in the Introductory Note is incorporated herein by reference.
Second Amendment to the Term Loan Credit Facility
As previously disclosed, ProFrac entered into that certain Term Loan Credit Agreement, dated as of March 4, 2022 (as amended by the First Amendment to Term Loan Credit Agreement, dated as of July 25, 2022, the “Term Loan Agreement”), by and among ProFrac Holdings LLC (the predecessor of the Company, or “ProFrac Holdings”), ProFrac Holdings II LLC, as borrower (“ProFrac II LLC” or, in such capacity, the “Term Loan Borrower”), the guarantors party thereto and each of the lenders party thereto, and Piper Sandler Finance LLC, as the agent and collateral agent for the lenders. On November 1, 2022, ProFrac entered into the Second Amendment, Consent and Limited Waiver to Term Loan Credit Agreement (the Term Loan Agreement as amended by the Second Amendment, Consent and Limited Waiver to Term Loan Credit Agreement, the “Amended Term Loan Agreement”).
Pursuant to the Amended Term Loan Agreement, the Agent and the Required Lenders have agreed to: (A) consent to (i) the Amended Credit Facility (as defined below); (ii) certain existing debt of U.S. Well Services Holdings, LLC (successor by conversion to U.S. Well Services, Inc.), a Delaware limited liability company (“U.S. Well LLC”), and each of its subsidiaries (collectively, the “U.S. Well Entities”), remaining outstanding (the “U.S. Well Debt”) following the Merger; (iii) the corresponding liens on the assets of the U.S. Well Entities securing such U.S. Well Debt (the “U.S. Well Liens”) remaining outstanding following the Merger and (iv) any restrictions existing under the agreements evidencing the U.S. Well Debt, which would otherwise be prohibited under the Amended Term Loan Agreement and (B) waive any defaults and/or events of default arising as a result of the defaults and/or events of default existing under the agreements evidencing the U.S. Wells Debt, including without limitation, as a result of the consummation of the First Amendment Acquisition (as defined in the Amended Term Loan Agreement) with respect to the U.S. Well Entities, subject to the terms and conditions set forth in the Amended Term Loan Agreement. Immediately following consummation of the Merger, the U.S. Well Debt was repaid in full and the U.S. Well Liens were all released.
The foregoing description of the Amended Term Loan Agreement and related matters does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended Term Loan Agreement, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K.
Second Amendment to the ABL Credit Facility
As previously disclosed, ProFrac entered into that certain asset-based revolving Credit Agreement, dated as of March 4, 2022 (as amended by the First Amendment to the ABL Credit Facility, dated as of July 25, 2022, the “ABL Credit Facility”), by and among ProFrac Holdings, ProFrac II LLC, as borrower (the “ABL Borrower”), the guarantors party thereto, the lenders and letter of credit issuers party thereto, and JPMorgan Chase Bank, N.A., as the agent, the collateral agent and the swingline lender. On November 1, 2022, ProFrac entered into the Second Amendment to the ABL Credit Facility (the ABL Credit Facility as amended by the Second Amendment to the ABL Credit Facility, the “Amended Credit Facility”).
Pursuant to the Amended Credit Facility, the Agent and the Lenders have agreed to: (A) consent to U.S. Well LLC and its subsidiaries becoming Restricted Subsidiaries (as defined in the Amended Term Loan Agreement) of ProFrac Holdings immediately prior the payment in full of certain U.S. Well Debt and the termination and release of certain U.S. Well Liens and agree that the existence of such debt or liens any restrictions in the applicable documents will not trigger a default or event of default under the Amended Credit Facility and (B) waive any defaults and/or events of default under the ABL Credit Facility and the other applicable loan documents solely relating to or arising
from (i) U.S. Well and its subsidiaries becoming Restricted Subsidiaries of ProFrac Holdings immediately prior the payment in full of the certain of the U.S. Well Debt and the termination and release of certain U.S. Well Liens and (ii) any defaults and/or events of default existing under the applicable documents which govern the U.S. Well Debt, including without limitation, as a result of the consummation of the Merger, subject to the terms and conditions set forth in the Amended Credit Facility.
Under the Amended Credit Facility, (i) the aggregate Maximum Revolver Amount (as defined in the Amended Credit Facility) was increased from $200,000,000 to $280,000,000, as of the Second Amendment Effective Date (as defined in the Amended Credit Facility) and (ii) the Borrower is entitled to request up to $120,000,000 of additional Revolving Credit Commitment Increases (as defined in the Amended Credit Facility) after the Second Amendment Effective Date subject to certain terms and conditions provided that, as of the Second Amendment Effective Date, such additional Revolving Credit Commitment Increases are uncommitted.
In connection with the Merger, the ABL Borrower borrowed approximately $164 million under the Amended Credit Facility. Immediately prior to this draw down, there were no amounts outstanding under the Amended Credit Facility.
The foregoing description of the Amended Term Loan Agreement and related matters does not purport to be complete and is qualified in its entirety by reference to the full text of the Amended Credit Facility, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K.
Amended and Restated Warrant Agreements
Prior to the Effective Time, ProFrac executed an amendment to each warrant agreement that governed each SPAC Warrant, Series A Warrant, Placement Agent Warrant and RDO Warrant (as such terms are defined in the Merger Agreement) (collectively, the “Rollover Warrants”) to assume each Rollover Warrant as of the Effective Time in accordance with the terms thereof and the Merger Agreement. The Rollover Warrants remain outstanding following the Merger through their prescribed terms but now represent the right to receive upon valid exercise thereof shares of PFHC Common Stock (as defined below) equal to the product of (A) the number of shares of USWS Common Stock subject to such Rollover Warrant immediately prior to the Effective Time and (B) the Exchange Ratio (as defined below). Additionally, each Rollover Warrant was amended such that the exercise price of such Rollover Warrant equals the current exercise price of such Rollover Warrant divided by the Exchange Ratio.
The foregoing description of the Rollover Warrants does not purport to be complete and is qualified in its entirety by reference to the full text of each amended and restated warrant agreement, copies of which are attached as Exhibit 10.3, Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6 to this Current Report on Form 8-K.
Amendment No. 1 to Amended and Restated Series A and SPAC Warrant Agreements
At the Effective Time, ProFrac, Continental Stock Transfer & Trust Company (“CST”) and American Stock Transfer & Trust Company, LLC (“AST”) entered into the Amendment No. 1 to the Amended and Restated Series A Warrant Agreement and the Amendment No. 1 to the Amended and Restated SPAC Warrant Agreement pursuant to which agreements CST resigned as the warrant agent and AST agreed to serve as the successor warrant agent under each amended and restated warrant agreement.
Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information set forth in the Introductory Note is incorporated herein by reference.
Conversion of USWS’ Securities
• | At the effective time of the Merger (the “Effective Time”), each share of Class A Common Stock of USWS, par value $0.0001 per share (the “USWS Common Stock”) was converted automatically into the right to receive 0.3366 (the “Exchange Ratio”) shares of Class A common stock of ProFrac, par value $0.01 per share (the “PFHC Common Stock”) (the “Merger Consideration”), as adjusted from the agreed upon Merger Agreement ratio of 0.0561 to account for the 1-for-6 reverse stock split implemented by USWS on August 4, 2022. |
• | Immediately prior to the Effective Time: |
• | each holder of Series A Redeemable Convertible Preferred Stock of USWS, par value $0.0001 per share, (the “USWS Series A Preferred Stock”) had the option of converting such stock into shares of USWS Common Stock at the Merger Conversion Ratio (as defined in the Merger Agreement), and any shares of USWS Series A Preferred Stock not so converted at the Merger Conversion Ratio were automatically converted into shares of USWS Common Stock at the then-effective conversion rate as calculated pursuant to USWS’ Certificate of Designations (as defined in the Merger Agreement); and |
• | each Equity Linked Convertible Note (as defined in the Merger Agreement) issued and outstanding at such time was automatically converted into a number of shares of USWS Common Stock equal to the quotient obtained by dividing (i) the amount of outstanding aggregate principal amount, plus accrued and unpaid interest, owing under such Equity Linked Convertible Note through July 9, 2022, by (ii) $7.32. |
• | At the Effective Time, each February Term C Loan Warrant and March Term C Loan Warrant (as such terms are defined in the Merger Agreement) that was issued and outstanding immediately prior to the Effective Time (which was held by ProFrac pursuant to the Warrant Sale, as such term is defined and described below) was automatically canceled and ceased to exist and no consideration was delivered in exchange therefor. |
• | The obligations of USWS under the Rollover Warrants were assumed by ProFrac and the Rollover Warrants now represent the right to receive upon valid exercise thereof shares of PFHC Common Stock equal to the product of (A) the number of shares of USWS Common Stock subject to such Rollover Warrant immediately prior to the Effective Time and (B) the Exchange Ratio, as further described under Item 1.01, above. |
Conversion of USWS Stock-Based Awards
• | At the Effective Time, each share of USWS Common Stock that was subject to vesting, repurchase, or other lapse of restrictions that was outstanding and unvested under USWS’ Amended and Restated 2018 Stock Incentive Plan (the “Company LTIP”) immediately prior to the Effective Time was, by virtue of the Merger and without any action on the part of the holder thereof, canceled in exchange for the right to receive the Merger Consideration and, in lieu of any fractional shares, cash. |
• | Immediately prior to the Effective Time, each then-outstanding deferred stock unit or restricted stock unit, in each case representing a right to receive one share of USWS Common Stock granted under the Company LTIP (each, a “DSU”), was, by virtue of the Merger and without any action on the part of the holder thereof, canceled and converted into the right to receive the Merger Consideration and, in lieu of any fractional shares, cash. |
• | Immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, (i) each then-outstanding Pool A Performance Award (as defined in the Merger Agreement) was canceled and converted into the right to receive (A) for recipients of Pool A Performance Awards who consented to the terms of that certain Amendment to Performance Awards included as an exhibit to the Merger Agreement (the “Award Amendment”), the Merger Consideration in an amount equal to the accumulated award value as of July 19, 2022 divided by $7.32, and (B) with respect to each Pool A Performance Award not amended by an Award Amendment, the Merger Consideration in an amount equal to the accumulated award value as of the Effective Time divided by $7.32; and (ii) each then-outstanding Pool B Performance Award (as defined in the Merger Agreement) was canceled and converted into the right to receive (A) with respect to each Pool B Performance Award amended by an Award Amendment, the Merger Consideration in an amount equal to the accumulated award value as of July 19, 2022 divided by $6.468, and (B) with respect to each Pool B Performance Award not amended by an Award Amendment, the Merger Consideration in an amount equal to the accumulated award value as of the Effective Time divided by $6.468. |
Merger Consideration; Material Relationship
The value of the aggregate equity issued in connection with the Merger, based on the PFHC Common Stock 10-day VWAP as of October 31, 2022, is approximately $270 million. In addition, ProFrac is using cash to retire approximately $170 million of USWS debt, leaving approximately $35 million of various forms of equipment related financing outstanding, and is paying approximately $22 million in pre-payment penalties in connection with the consummation of the Merger.
Dan Wilks and Farris Wilks, together with certain of their affiliates, (collectively, the “Wilks Parties”) collectively hold a controlling interest in ProFrac. Certain Wilks Parties also owned certain securities of USWS. Upon the consummation of the Merger, the Wilks Parties received an aggregate of 4,138,596 shares of PFHC Common Stock as Merger Consideration, which, based on the PFHC Common Stock 10-day VWAP as of October 31, 2022, is approximately $86 million.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 24, 2022, which is incorporated herein by reference.
Warrant Sale
In connection with the Merger, the holders of the February Term C Loan Warrants and the March Term C Loan Warrants (as such terms are defined in the Merger Agreement) sold all of their respective February Term C Loan Warrants and March Term C Loan Warrants to ProFrac in exchange for an aggregate purchase price of $2,639,999.82 (the “Warrant Sale”).
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information provided in Item 1.01 is incorporated herein by reference.
Item 7.01 | Regulation FD Disclosure. |
On November 1, 2022, ProFrac issued a press release announcing the closing of the Merger. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Limitation on Incorporation by Reference. The information furnished in this Item 7.01, including the press release attached hereto as Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Cautionary Note Regarding Forward-Looking Statements. Except for historical information contained in the press release attached as an exhibit hereto, the press release contains forward-looking statements that involve certain risks and uncertainties that could cause actual results to differ materially from those expressed or implied by these statements. Please refer to the cautionary notes in the press release regarding these forward-looking statements.
Item 9.01 | Financial Statements and Exhibits. |
Financial Statement of Businesses Acquired and Pro Forma Financial Information
The financial statements required by Item 9.01(a) of Form 8-K, and the unaudited pro forma condensed combined financial statements and notes related thereto required by Item 9.01(b) of Form 8-K, are not included in this Current Report on Form 8-K. The financial statements and pro forma condensed combined financial statements will be filed by an amendment to this Current Report on Form 8-K within the time period specified in the instructions to Item 9.01 of Form 8-K.
(d) Exhibits.
* | Filed herewith. |
** | Furnished herewith. |
† | The schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of such schedules, or any section thereof, to the SEC upon request. |
^ | Certain portions of this exhibit have been redacted pursuant to Item 601(b)(10)(iv) of Regulation S-K. The registrant agrees to furnish supplementally an unredacted copy of the exhibit to the Securities and Exchange Commission upon its request. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
PROFRAC HOLDING CORP. | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer |
Date: November 1, 2022
EXHIBIT 10.1
CERTAIN INFORMATION, IDENTIFIED BY, AND REPLACED WITH, A MARK OF [**] HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE AND CONFIDENTIAL.
SECOND AMENDMENT, CONSENT AND LIMITED WAIVER
TO TERM LOAN CREDIT AGREEMENT
THIS SECOND AMENDMENT, CONSENT AND LIMITED WAIVER TO TERM LOAN CREDIT AGREEMENT (this Amendment), dated as of November 1, 2022, relating to the Credit Agreement referred to below, is made by and among PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the Borrower), PROFRAC HOLDINGS, LLC, a Texas limited liability company (Holdings), the Guarantors party hereto, each of the Lenders party hereto, as required, as the case may be, by the terms of this Amendment and the Existing Credit Agreement, and PIPER SANDLER FINANCE LLC, as the Agent and the Collateral Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, Holdings the other Obligors from time to time party thereto, the Lenders from time to time party thereto, the Agent and the Collateral Agent have entered into the Term Loan Credit Agreement, dated as of March 4, 2022, as amended by the First Amendment to Term Loan Credit Agreement, dated as of July 25, 2022, and as further as amended, restated, amended and restated, extended, supplemented, waived or otherwise modified from time to time immediately prior to the effectiveness of this Amendment (the Existing Credit Agreement, and, as amended by this Amendment, and as further amended, restated, supplemented or otherwise modified from time to time after the effectiveness of this Amendment, the Credit Agreement; capitalized terms used and not otherwise defined herein having the meanings ascribed to them in the Credit Agreement);
WHEREAS, the Borrower, Holdings, the other obligors from time to time party thereto, the lenders from time to time party thereto (the ABL Lenders) and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent for the ABL Lenders (in such capacity, the ABL Agent), and as a Letter of Credit Issuer and the Swingline Lender, have entered into that Credit Agreement, dated as of March 4, 2022 (as amended, restated, amended and restated, extended, supplemented, waived or otherwise modified from time to time immediately prior to the date hereof, the Existing ABL Credit Agreement);
WHEREAS, the Borrower has notified the Agent and the Lenders that it is seeking, on or substantially concurrently with the Second Amendment Effective Date (as defined below), to amend the Existing ABL Credit Agreement pursuant to a Second Amendment to Credit Agreement, to be dated as of the date hereof, by and among the Borrower, Holdings, the ABL Agent, the ABL Lenders party thereto and the other parties party thereto (the Second Amendment to ABL Credit Agreement);
WHEREAS, [**];
WHEREAS, the Borrower has informed the Agent and the Lenders that upon the consummation of the First Amendment Acquisition with respect to U.S. Well Services Holdings, LLC (successor by conversion to U.S. Well Services, Inc.), a Delaware limited liability company, and each of its Subsidiaries (collectively, the U.S. Well Entities), certain existing Debt of the U.S. Well Entities, as listed on Schedule 1 hereto (the U.S. Well Debt), along with corresponding liens on the assets of the U.S. Well Entities securing such U.S. Well Debt (the U.S. Well Liens), shall remain outstanding upon the consummation of the acquisition of the U.S. Well Entities;
WHEREAS, pursuant to (i) Section 8.12 of the Credit Agreement, Holdings and the Borrower shall not, and shall not permit any of their Restricted Subsidiaries to, incur or maintain any Debt, except Permitted Debt, and (ii) Section 8.16 of the Credit Agreement, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, create, incur, assume, or permit to exist any Lien on any property owned or acquired by any of them, except Permitted Liens;
WHEREAS, in connection therewith, the Borrower and the other Obligors have requested that the Lenders consent to (i) [**], (ii) the incurrence by the U.S. Well Entities of the U.S. Well Debt under Section 8.12 of the Credit Agreement, (iii) the incurrence by the U.S. Well Entities of the U.S. Well Liens under Section 8.16 of the Credit Agreement, in each case, subject to the terms and conditions contained herein and (iv) the amendments to the Existing Credit Agreement provided for herein; and
WHEREAS, the Required Lenders under the Existing Credit Agreement that are parties hereto hereby consent to (i) [**], (ii) the incurrence by the U.S. Well Entities of the U.S. Well Debt under Section 8.12 of the Credit Agreement, (iii) the incurrence by the U.S. Well Entities of the U.S. Well Liens under Section 8.16 of the Credit Agreement, in each case, subject to the terms and conditions contained herein and (iv) the amendments to the Existing Credit Agreement provided for herein;
NOW THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto hereby covenant and agree as follows:
SECTION 1. Amendments to the Existing Credit Agreement.
(a) Effective as of the Second Amendment Effective Date, the Existing Credit Agreement is hereby amended to (i) delete the stricken text
(indicated textually in the same manner as the following example: stricken text or stricken text) and (ii) add the double-underlined text (indicated textually in the same manner as the
following example: double-underlined text or double-underlined text) as set forth in the pages of the Credit
Agreement attached as Exhibit A hereto. The foregoing as-amended provisions of the Existing Credit Agreement are incorporated herein by this reference as if fully set forth herein.
(b) The schedules to the Existing Credit Agreement are hereby amended by replacing Schedule 8.11 in its entirety with the attached as Exhibit B hereto.
(c) The schedules to the Existing Credit Agreement are hereby amended by replacing Schedule 8.29 in its entirety with the attached as Exhibit C hereto.
SECTION 2. Conditions to Effectiveness. This Amendment shall become effective on the first date when, and only when, each of the conditions set forth below shall have been satisfied or waived in accordance with the terms herein (such date, the Second Amendment Effective Date):
(a) the Agent shall have received duly executed counterparts of this Amendment by the Borrower, Holdings, the Guarantors (including the New Obligors, provided that the New Obligors signature pages shall not become effective until the U.S. Well Merger has been consummated), and the Lenders constituting Required Lenders under the Existing Credit Agreement as required hereby and pursuant to the Credit Agreement;
(b) the Agent shall have received duly executed copies of any documents required to join the each of the U.S. Well Entities (collectively, the New Obligors) to the Credit Agreement and the Loan Documents as Guarantors, as may be reasonably requested by and in form and substance reasonably satisfactory to the Agent pursuant to Section 8.23 of the Credit Agreement and the Collateral and Guarantee Requirements, including but not limited to the following (in each case, provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated):
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(i) a Guaranty Agreement Supplement referred to in the Guarantee Agreement guaranteeing the Obligations under the Loan Documents;
(ii) a Security Agreement Supplement referred to in the Security Agreement;
(iii) a Perfection Certificate;
(iv) a legal opinion from Brown Rudnick LLP, counsel to the New Obligors, addressed to the Agent and the Lenders as of the Second Amendment Effective Date;
(v) a certificate executed by a Responsible Officer of each New Obligor, substantially in the form of Exhibit G to the Existing Credit Agreement, which attaches (i) resolutions or other equivalent action documentation authorizing the Amendment and the other Loan Documents to which such New Obligor is a party, (ii) incumbency certificates, (iii) Organization Documents and (iv) good standing certificates;
(vi) instruments evidencing the intercompany Debt held by each New Obligor and required to be pledged pursuant to the Collateral and Guarantee Requirement (including the execution of the Subordinated Intercompany Note), indorsed in blank to the Collateral Agent;
(vii) any original stock certificates representing the pledged Stock constituting Collateral (to the extent such Stock is certificated) of the New Obligors, together with customary blank stock or unit transfer powers and irrevocable powers duly executed in blank (provided that such stock certificates shall not become effective until the U.S. Well Merger is consummated); and
(viii) any required Intellectual Property security agreements and other security agreements and joinders or supplements thereto, certificates and other documents as reasonably requested by and in form and substance reasonably satisfactory to the Agent (it being understood and agreed that any certificates and other documents that are consistent with those delivered by the Obligors on the Closing Date shall be deemed to be in form and substance reasonably satisfactory to the Agent).
(c) the Agent shall have received all fees and amounts due and payable on or prior to the Second Amendment Effective Date to the extent invoiced at least two (2) Business Days prior to the Second Amendment Effective Date, including reimbursement or payment of all reasonable and documented or invoiced out-of-pocket costs and expenses associated with this Amendment, with such costs and expenses to be limited to the Attorney Costs;
(d) the representations and warranties set forth in this Amendment or any other Loan Document shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date;
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(e) no Default or Event of Default shall have occurred and be continuing or shall result, in each case, after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement;
(f) the Agent and the Lenders party hereto shall have received a certificate signed by a Responsible Officer of the Borrower certifying as to the satisfaction of the conditions set forth in Section 2(d) and Section 2(e) of this Amendment;
(g) [**];
(h) the Agent shall have received a copy of an executed Second Amendment of the ABL Credit Agreement in form and substance reasonably satisfactory to the Agent and the Required Lenders ; and
(i) the Agent shall have received a copy of an executed amendment to the ABL Intercreditor Agreement, dated as of the Second Amendment Effective Date (the Second Amendment to Intercreditor Agreement), by and among the Agent, the ABL Collateral Agent, and the Obligors, in form and substance reasonably satisfactory to the Agent and the Required Lenders (provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated).
By executing and delivering its signature page to this Amendment, each Lender acknowledges and agrees that the conditions precedent set forth in this Section 2 have been satisfied.
SECTION 3. Consent and Waiver.
(a) Effective as of the Second Amendment Effective Date, upon satisfaction (or waiver) of the conditions set forth in Section 2 hereof, the Agent and the Required Lenders hereby consent to the Second Amendment to ABL Credit Agreement.
(b) Effective as of the Second Amendment Effective Date, upon satisfaction (or waiver) of the conditions set forth in Section 2 hereof, the Agent and the Required Lenders hereby (x) consent to (i) the incurrence by the U.S. Well Entities of the U.S. Well Debt under Section 8.12 of the Credit Agreement, (ii) the incurrence by the U.S. Well Entities of the U.S. Well Liens under Section 8.16 of the Credit Agreement and (iii) any restrictions existing under the agreements evidencing the U.S. Well Debt, which would otherwise be prohibited under Section 8.17 of the Credit Agreement and (y) waive any Defaults and/or Events of Default arising as a result of the defaults and/or events of default existing under the agreements evidencing the U.S. Wells Debt, including without limitation, as a result of the consummation of the First Amendment Acquisition with respect to the U.S. Well Entities, provided, that on the date of the First Amendment Acquisition with respect to the U.S. Well Entities, the Borrower shall (A) cause to be discharged, paid and satisfied in full all of the U.S. Well Debt (other than the U.S. Well Direct Loans), including, without limitation, all principal, accrued interest, costs, expenses and fees outstanding, (B) terminate all U.S. Well Liens securing such U.S. Well Debt (other than the liens with respect to the U.S. Well Direct Loans) and (C) deliver to the Collateral Agent all instruments, terminations, lien releases, discharges of security interests, pledges and guarantees and other similar discharge or release documents or other writings to effect or evidence the satisfaction of the U.S. Well Debt (other than the U.S. Well Direct Loans) and the termination of the U.S. Well Liens (other than the liens with respect to the U.S. Well Direct Loans), in each case, in form and substance satisfactory to the Collateral Agent.
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(c) This is a limited consent and shall not be deemed to constitute a consent to any other item under the Credit Agreement or any other Loan Document or any other requirements of any provision of the Credit Agreement or any other Loan Document.
(d) Except as expressly set forth in this Amendment, the foregoing consent shall not constitute (i) a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document, (ii) a waiver or release of any breach of, or any other Default or Event of Default under, the Credit Agreement or any other Loan Document or (iii) a waiver, release or limitation upon the exercise by the Agent or any Lender of their respective rights, legal or equitable, under any Loan Document.
SECTION 4. Representations and Warranties of the Obligors. To induce the Agent and the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Agent and each Lender that as of the Second Amendment Effective Date:
(a) Holdings and each Obligor party to this Amendment has the power and authority to execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its shareholders, if necessary) to authorize the execution, delivery and performance of this Amendment. This Amendment has been duly executed and delivered by Holdings and each Obligor party hereto and constitutes the legal, valid and binding obligations of Holdings and each such Obligor, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors rights generally and general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing. Holdings and each Obligors execution, delivery and performance of this Amendment does not (i) conflict with, or constitute a violation or breach of, the terms of (A) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date.
5
SECTION 5. Expenses. The Borrower hereby reconfirms the obligations of the Borrower to pay all reasonable and documented or invoiced out- of-pocket costs and expenses incurred by the Agent in connection with this Amendment, in each case, pursuant to Section 14.7 of the Credit Agreement.
SECTION 6. No Other Amendments or Waivers; Reaffirmation of the Obligors.
(a) Except as expressly provided herein and the Second Amendment to Intercreditor Agreement (i) the Credit Agreement and the other Loan Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms, (ii) the consents and agreements of the Agent and the Lenders set forth herein shall be limited strictly as written and shall not constitute a consent or agreement to any transaction not specifically described in connection with any such consent and/or agreement, and (iii) this Amendment shall not be deemed a waiver of any term or condition of any Loan Document and shall not be deemed to prejudice any right or rights which the Agent or any Lender may now have or may have in the future under or in connection with any Loan Document or any of the instruments or agreements referred to therein, as the same may be amended from time to time.
(b) This Amendment shall constitute a Loan Document.
(c) Each of the Borrower, Holdings and the Guarantors hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which such Obligor is a party is, and the obligations of such Obligor contained in the Credit Agreement (as amended by this Amendment) or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as modified by this Amendment. For greater certainty and without limiting the foregoing, each of the Borrower, Holdings and the Guarantors hereby confirms that the existing security interests granted by such Obligor in favor of the Secured Parties pursuant to the Loan Documents in the Collateral described therein shall continue to secure the Obligations as and to the extent provided in the Loan Documents.
SECTION 7. Authorization and Consent to Intercreditor Agreement Amendment. By executing (or joining, as applicable) this Amendment, each Lender hereby authorizes and directs the Agent to execute and deliver [**] and the Second Amendment to Intercreditor Agreement.
SECTION 8. No Reliance, Etc. For the avoidance of doubt, and without limitation of any other provisions of the Credit Agreement or the other Loan Documents, Piper Sandler Finance LLC, in its capacity as Agent, shall be entitled to the benefits of Sections 13.3, 13.4 and 14.18 of the Credit Agreement as if such provisions were set forth in full herein mutatis mutandis.
SECTION 9. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except in accordance with Section 12.1 of the Credit Agreement.
SECTION 10. Integration; Effect of Modifications. This Amendment represents the entire agreement of the Borrower, the other Obligors, the Agent and the Lenders party hereto with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. It is understood and agreed that each reference in each Loan Document to the Credit Agreement, whether direct or indirect, shall hereafter be deemed to be a reference to the Credit Agreement as modified hereby and that this Amendment is a Loan Document.
6
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; PROCESS AGENTS. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 14.3 OF THE CREDIT AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT AS IF SUCH PROVISION WERE SET FORTH IN FULL HEREIN MUTATIS MUTANDIS AND SHALL APPLY HERETO.
SECTION 12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AMENDMENT.
SECTION 13. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment, the Credit Agreement, or any instrument or agreement required hereunder.
SECTION 14. Interpretative Provisions. Section 1.3 of the Credit Agreement shall apply to this Amendment as if such provisions were set forth in full herein mutatis mutandis.
SECTION 15. Counterparts. This Amendment may be executed in any number of counterparts, and by each party hereto in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic transmission (e.g., a pdf, tif or similar format by electronic mail) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. The Agent may require that any such documents and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile or other electronic signature.
7
[Remainder of Page Intentionally Blank; Signature Pages Follow]
8
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first written above.
PROFRAC HOLDINGS II, LLC, | ||
as the Borrower | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
PROFRAC HOLDINGS, LLC, as Holdings | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
PROFRAC SERVICES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
PROFRAC MANUFACTURING, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
BEST PUMP AND FLOW, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
ALPINE SILICA, LLC, | ||
as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
FTS INTERNATIONAL SERVICES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
FTS INTERNATIONAL MANUFACTURING, LLC,as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
SP SILICA OF MONAHANS, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary | ||
SP SILICA SALES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
AG PSC FUNDING LLC, | ||
as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: Robert Willette | ||
Title: Secretary |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
With respect to the New Obligors, effective immediately upon consummation of the U.S. Well Merger: |
U.S. WELL SERVICES HOLDINGS, LLC., | ||
as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
U.S. WELL SERVICES, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
USWS HOLDINGS LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
USWS FLEET 10, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer | ||
USWS FLEET 11, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: Lance Turner | ||
Title: Chief Financial Officer |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
PIPER SANDLER FINANCE LLC, | ||
as the Agent | ||
By: | /s/ Amrit Agrawal | |
Name: | Amrit Agrawal | |
Title: | Chief Investment Officer |
BTC HOLDINGS FUND II LLC, as a Lender | ||
By: | Blue Torch Credit Opportunities Fund II LP, its sole member | |
By: | Blue Torch Credit Opportunities GP II LLC, its general partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member | |
BTC OFFSHORE HOLDINGS FUND II-B LLC, as a Lender | ||
By: | Blue Torch Offshore Credit Opportunities Master Fund II LP, its Sole Member | |
By: | Blue Torch Offshore Credit Opportunities GP II LLC, its General Partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
BTC OFFSHORE HOLDINGS FUND II-C LLC, as a Lender | ||
By: | Blue Torch Offshore Credit Opportunities Master Fund II LP, its Sole Member | |
By: | Blue Torch Offshore Credit Opportunities GP II LLC, its General Partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member | |
BTC HOLDINGS SC FUND LLC, as a Lender | ||
By: | Blue Torch Credit Opportunities SC Master Fund LP, its sole member | |
By: | Blue Torch Credit Opportunities SC GP LLC, its general partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
BTC HOLDINGS SBAF FUND LLC, as a Lender | ||
By: | Blue Torch Credit Opportunities SBAF Fund LP, its sole member | |
By: | Blue Torch Credit Opportunities SBAF GP LLC, its general partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member |
BTC HOLDINGS KRS FUND LLC, as a Lender | ||
By: | Blue Torch Credit Opportunities KRS Fund LP, its sole member | |
By: | Blue Torch Credit Opportunities KRS GP LLC, its general partner | |
By: | KPG BTC Management LLC, its sole member | |
By: | /s/ Kevin Genda | |
Name: | Kevin Genda | |
Title: | Managing Member |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
U.S. SPECIALTY INSURANCE COMPANY, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director |
SAFETY NATIONAL CASUALTY CORPORATION, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director |
PHILADELPHIA INDEMNITY INSURANCE COMPANY, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Manager and Attorney-in-Fact | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
TCW DIRECT LENDING STRUCTURED SOLUTIONS 2019 LLC, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Manager | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director | |
TCW WV FINANCING LLC, as a Lender | ||
By: TCW Asset Management Company LLC, its Collateral Manager | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director | |
TCW SKYLINE LENDING LP, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Advisor | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director | |
TCW BRAZOS FUND LLC, as a Lender | ||
By: TCW Asset Management Company LLC, its Investment Advisor | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
TCW DL VII FINANCING LLC, as a Lender | ||
By: TCW Asset Management Company LLC, as Collateral Manager | ||
By: | /s/ Suzanne Grosso | |
Name: | Suzanne Grosso | |
Title: | Managing Director |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
PDILS I LLC, as a Lender | ||
By: | PIMCO Dynamic Income Fund, its member manager | |
By: | Pacific Investment Management Company LLC, its investment adviser | |
By: | /s/ Alfred T. Murata | |
Name: | Alfred T. Murata | |
Title: | Managing Director | |
PAXSLS I LLC, as a Lender | ||
By: | Pacific Investment Management Company LLC, its investment adviser | |
By: | /s/ Alfred T. Murata | |
Name: | Alfred T. Murata | |
Title: | Managing Director | |
PFLEXLS I LLC, as a Lender | ||
By: | Pacific Investment Management Company LLC, its investment adviser | |
By: | /s/ Alfred T. Murata | |
Name: | Alfred T. Murata | |
Title: | Managing Director |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
SILVER POINT SCF CLO I, LTD., as a Lender | ||
By: | /s/ Stacey Hatch | |
Name: | Stacey Hatch | |
Title: | Authorized Signatory | |
SPECIALTY CREDIT FACILITY II ON MM, LLC, as a Lender | ||
By: | /s/ Stacey Hatch | |
Name: | Stacey Hatch | |
Title: | Authorized Signatory | |
SOFA FACILITY HOLDINGS, LLC, as a Lender | ||
By: | /s/ Stacey Hatch | |
Name: | Stacey Hatch | |
Title: | Authorized Signatory | |
SILVER POINT LOAN FUNDING, LLC, as a Lender | ||
By: | /s/ Stacey Hatch | |
Name: | Stacey Hatch | |
Title: | Authorized Signatory |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
PIONEER FLOATING RATE FUND, INC., FLORIDA POWER & LIGHT COMPANY, PIONEER GLOBAL HIGH YIELD FUND, PIONEER HIGH INCOME FUND, INC., PIONEER HIGH YIELD FUND, INSTITUTIONAL MULTI-SECTOR FIXED INCOME PORTFOLIO, STICHTING PENSIOENFONDS MEDISCH SPECIALISTEN, PIONEER STRATEGIC INCOME FUND, PIONEER STRATEGIC INCOME VCT PORTFOLIO, AMUNDI NVIT MULTI SECTOR BOND FUND, NATIONWIDE AMUNDI STRATEGIC INCOME FUND, NATIONWIDE AMUNDI GLOBAL HIGH YIELD FUND, PIONEER DIVERSIFIED HIGH INCOME FUND, INC., PIONEER FLOATING RATE FUND, | ||
By: | Amundi Asset Management US, Inc., as investment adviser to each Lender above | |
By: | /s/ Kenneth J. Monaghan | |
Name: | Kenneth J. Monaghan | |
Title: | Managing Director |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
CHAMBERS ENERGY CAPITAL IV, LP, as a Lender | ||
By: CEC Fund IV GP, LLC, its general partner | ||
By: | /s/ Robert Hendricks | |
Name: | Robert Hendricks | |
Title: | Partner |
[Signature Page to Second Amendment to Term Loan Credit Agreement]
Schedule 1
U.S. Well Debt
1. | Debt evidenced by certain ABL Credit Agreement dated as of May 7, 2019, by and among USWS LLC, as borrower, U.S. Well and the other guarantors from time to time party thereto, the lenders from time to time party thereto, and Bank of America, N.A., as administrative agent, as amended, restated, supplemented or otherwise modified prior to the date hereof. |
2. | Debt evidenced by that certain Senior Secured Term Loan Credit Agreement, by and among USWS LLC, as borrower, U.S. Well and the other guarantors from time to time party thereto, the lenders from time to time party thereto, and CLMG Corp., as administrative agent and collateral agent, as amended, restated, supplemented or otherwise modified prior to the date hereof. |
3. | Debt evidenced by Business Loan Agreement, dated November 12, 2020, among U.S. Well Services Holdings, LLC (successor by conversion to U.S. Well Services, Inc.), U.S. Well Services, LLC, and USWS Holdings LLC as borrower, and Greater Nevada Credit Union as lender, as amended, restated, supplemented and/or otherwise modified prior to the date hereof. |
4. | Debt evidenced by that certain Direct Loan Security Agreement dated March 30, 2020 between U.S. Well Services , LLC, as borrower in the amount of $4,074,309.73 and Paccar Financial Corp. |
5. | Debt evidenced by that certain Direct Loan Security Agreement dated March 30, 2020 between U.S. Well Services, LLC, as borrower in the amount of $3,684,119.85 and Paccar Financial Corp. |
6. | Debt evidenced by that certain Direct Loan Security Agreement dated March 30, 2020 between U.S. Well Services, LLC, as borrower in the amount of $4,040,700.70 and Paccar Financial Corp. |
7. | Debt evidenced by that certain Direct Loan Security Agreement dated March 30, 2020 between U.S. Well Services, LLC, as borrower in the amount of $2,930,111.78 and Paccar Financial Corp. (each of the foregoing Direct Loan Security Agreements, collectively, the U.S. Well Direct Loans) |
EXHIBIT A
Credit Agreement
(see attached)
TERM LOAN CREDIT AGREEMENT
Dated as of March 4, 2022
among
PROFRAC HOLDINGS, LLC,
as Holdings,
PROFRAC HOLDINGS II, LLC,
as the Borrower,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
and
PIPER SANDLER FINANCE LLC,
as the Agent and the Collateral Agent
PIPER SANDLER & CO.
as the Lead Arranger and Bookrunner
TABLE OF CONTENTS
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4.6 4.7 4.8 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 6.1 6.2 6.3 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 7.19 7.20 7.21 7.22 -ii-
7.23 7.24 7.25 7.26 7.27 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 8.14 8.15 8.16 8.17 8.18 8.19 8.20 8.21 8.22 8.23 8.24 8.25 8.26 8.27 8.28 8.29 ARTICLE IX CONDITIONS OF LENDING 9.1 ARTICLE X DEFAULT; REMEDIES -iii-
-iv-
14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11 14.12 14.13 14.14 14.15 14.16 14.17 14.18 14.19 14.20 14.21 14.22 -v-
-vi-
TERM LOAN CREDIT AGREEMENT TERM LOAN CREDIT AGREEMENT, dated as of March 4, 2022, among PROFRAC HOLDINGS, LLC, a Texas limited liability company
(Holdings, as hereinafter further defined), PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the Borrower, as hereinafter further defined), the guarantors party hereto, and the Lenders (as
hereinafter further defined), and PIPER SANDLER FINANCE LLC, as the Agent and the Collateral Agent (each as hereinafter further defined) for the Lenders. RECITALS: WHEREAS,
capitalized terms used and not defined herein shall have the respective meanings set forth for such terms in Section 1.1 hereof; WHEREAS, the Borrower has requested that, immediately upon the satisfaction in full (or waiver) of the applicable conditions precedent set
forth in Section 9.1 below, the Lenders extend credit to the Borrower in the form of a term loan facility in an aggregate principal amount of $450,000,000 on the Closing Date (such term loan facility from the Closing Date until
immediately prior to the First Amendment Effective Date, the Closing Date Term Loan Facility, and such term loan facility immediately on and after the First Amendment Effective Date, including without limitation, after giving
effect to all voluntary and mandatory prepayments made hereunder immediately prior to and the making of the Additional Term Loans on the First Amendment Effective Date, the Term Loan Facility); WHEREAS, the Lenders have indicated their willingness to extend the Closing Date Term Loan Facility on the terms and subject to the conditions
set forth below; WHEREAS, in connection with the foregoing and as an inducement for the Lenders to extend the credit contemplated
hereunder, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority lien (such priority subject to certain Liens permitted hereunder and the ABL
Intercreditor Agreement and [**]) on substantially all of its
assets with certain limited exceptions specifically set forth in the Loan Documents; and WHEREAS, in connection with the foregoing
and as an inducement for the Lenders to extend the credit contemplated hereunder, each Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent, for the benefit of the Secured Parties,
a first priority lien (such priority subject to certain Liens permitted hereunder and the ABL Intercreditor Agreement
and [**]) on substantially all of its assets with certain limited exceptions specifically set forth in the Loan Documents. AGREEMENT: NOW,
THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows: ARTICLE I DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below unless the
context otherwise requires:
ABL Administrative Agent means JPMorgan, in its capacity as
administrative agent under the ABL Facility Documentation or any successor administrative agent thereunder. ABL Collateral
Agent means JPMorgan, in its capacity as collateral agent under the ABL Facility Documentation or any successor collateral agent appointed in accordance with the provision of the ABL Credit Agreement. ABL Credit Agreement means the Credit Agreement, dated as of March 4, 2022, among, inter alios, Holdings, the
Borrower, the ABL Administrative Agent, the ABL Collateral Agent and the lenders from time to time party thereto (except as otherwise stated herein, as in effect on the Closing Date and as the same may be subsequently amended, restated, amended and
restated, refinanced, replaced, extended, renewed or restructured in accordance with the provisions of the ABL Credit Agreement and the terms of the ABL Intercreditor Agreement, including, in each case, by means of any Replacement ABL Credit
Agreement (as defined in the ABL Intercreditor Agreement)). ABL Facility means the asset-based credit facility made
available to the Borrower and certain of its Subsidiaries pursuant to the ABL Credit Agreement. ABL Facility
Documentation means the ABL Credit Agreement and all security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith, as the same may be amended, amended and restated, supplemented,
waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time in each case in accordance with the provisions of such ABL Facility Documentation and the terms
of the ABL Intercreditor Agreement. ABL Facility Indebtedness means the Obligations (as defined in the ABL
Credit Agreement) or any equivalent term under any Replacement ABL Credit Agreement (as defined in the ABL Intercreditor Agreement). ABL Financial Covenant means the financial covenant specified in Section 8.20 of the ABL Credit Agreement. ABL Intercreditor Agreement means the Intercreditor Agreement substantially in the form of Exhibit K hereto, dated
as of the date hereof, by and among the Collateral Agent, the ABL Collateral Agent, the other agents party thereto (if any) and the Obligors, as may be amended, restated, amended and restated, supplemented, waived or otherwise modified from time to
time in accordance with the terms hereof, the ABL Credit Agreement, and the provisions of such ABL Intercreditor Agreement. Account Debtor means each Person obligated in any way on or in connection with an Account. Accounts means, with respect to each Obligor, all of such Obligors now owned or hereafter acquired or arising
accounts, as defined in the UCC, including any rights to payment of a monetary obligation for the sale or lease of goods or rendition of services, whether or not they have been earned by performance. Acquired EBITDA means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any
period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or any Converted Restricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of the term
Consolidated EBITDA were references to such Acquired Entity or Business or any Converted Restricted Subsidiary and its subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Acquired
Entity or Business or any Converted Restricted Subsidiary in accordance with GAAP. -2-
Acquired Entity or Business has the meaning specified in the definition
of the term Consolidated EBITDA. Additional Term Loan Commitment means, with respect to each Lender, the
commitment of such Lender to make an Additional Term Loan to the Borrower on the First Amendment Effective Date pursuant to Section 2.4(a) in the amount set forth on Schedule I of the First Amendment. Additional Term Loan Lender means the Lenders that fund the Additional Term Loans on the First Amendment Effective Date, up
to their respective Additional Term Loan Commitments. Additional Term Loans has the meaning as set forth in
Section 2.4(a). Adjusted Term SOFR means, for purposes of any calculation, the rate per annum equal to
(a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor. Adjustment Date means the first day of each April, July, October and January, as applicable. Affected Financial Institution means (a) any EEA Financial Institution or (b) any UK Financial Institution. Affiliate means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract, or otherwise. The terms controlling and controlled shall have meanings correlative thereto. Affiliated Insurance Entity means an Affiliate of the Borrower that (a) is domiciled in the State of Texas,
(b) is a captive insurance company, (c) is registered and licensed by all applicable federal, state and local insurance agencies or regulators, including the Texas Department of Insurance and (d) provides insurance policies to
Holdings, the Borrower and its Restricted Subsidiaries at or below market rates. Affiliated Lender has the meaning
specified in Section 12.2(a). Agent means Piper, in its capacity as the administrative agent for the
Lenders under this Agreement, or any successor agent appointed in accordance with this Agreement and the other Loan Documents. Agent-Related Persons means the Agent and the Collateral Agent, together with their respective Affiliates, and the
respective officers, directors, employees, agents, controlling persons, advisors and other representatives, successors and permitted assigns of the Agent and the Collateral Agent and their respective Affiliates. Agreement means this Credit Agreement. -3-
Agreement Date means the date of this Agreement. Alpine means Alpine Silica, LLC, a Texas limited liability company. Alpine Acquisition means the acquisition by Holdings and/or its Affiliate(s) of 100% of the Stock of Alpine. Anti-Terrorism Laws means the USA PATRIOT Act and any Executive Order administered by the U.S. Treasury Department Office
of Foreign Assets Control (OFAC), and other laws and regulations relating to anti-money laundering or economic sanctions, including without limitation all published economic sanctions imposed, administered or enforced from time to time by the U.S.
Department of State and OFAC. Applicable ECF Percentage means, with respect to each Excess Cash Flow Period,
(a) 50% of Excess Cash Flow if the Total Net Leverage Ratio (as certified by a Responsible Officer of the Borrower) as of the last day of the applicable Excess Cash Flow Period is greater than 1.00:1.00, and (b) 25% of Excess Cash Flow if
the Total Net Leverage Ratio (as certified by a Responsible Officer of the Borrower) as of the last day of the applicable Excess Cash Flow Period is less than or equal to 1.00:1.00. Applicable Entities has the meaning specified in Section 14.18. Applicable Margin means a percentage per annum equal to (a) until October 1, 2022, (i) for SOFR Rate Loans,
8.50%, and (ii) for Base Rate Loans, 7.50% and (b) thereafter, the following percentages per annum, based upon Total Net Leverage Ratio as of the most recent Adjustment Date: Level Total Net Leverage Ratio Applicable Margin for Adjusted SOFR Rate Loans Applicable Margin for Base Rate Loans The Applicable Margin shall be adjusted quarterly in accordance with the table above on each Adjustment Date
for the period beginning on such Adjustment Date based upon the Total Net Leverage Ratio as the Agent shall determine in good faith within ten (10) Business Days after such Adjustment Date (with any such change, for the avoidance of doubt,
being given retroactive effect to the Adjustment Date) and the Agent shall notify the Borrower promptly after such determination. Any increase or decrease in the Applicable Margin resulting from a change in the Total Net Leverage Ratio shall become
effective on the Adjustment Date. Notwithstanding the foregoing: (a) The Applicable Margin shall be set at Level I in the table above (i) upon the occurrence and during the continuation of an Event of
Default, or (ii) if for any period, the Agent does not receive the Financial Statements required to be delivered pursuant to Section 6.2(b) for such period, for the period commencing on the Adjustment Date for such period through
the date on which such Financial Statements are delivered. -4-
(b) In the event that any Financial Statement or certificate delivered pursuant to
Section 6.2(b) is inaccurate (at a time when this Agreement is in effect and unpaid Obligations under this Agreement are outstanding (other than indemnities and other contingent obligations not yet due and payable)), and such inaccuracy,
if corrected, would have led to the application of a different Applicable Margin for any fiscal period, then the Applicable Margin for such fiscal period shall be determined by reference to the applicable Level in the above table for such fiscal
period which would have applied if a correct financial statement or certificate had been delivered, and the Borrower shall promptly pay to the Agent any additional accrued interest owing as a result of such increased Applicable Margin for such
fiscal period or the Agent shall promptly issue the Borrower a credit against the next succeeding interest payment due in the amount of the additional interest paid in excess of the interest which would have been due if the lower Applicable Margin
had been in effect for such Test Period. Appointed Agents has the meaning specified in Section 13.1. Approved Fund means any Person (other than a natural person) that is engaged in making, holding or investing in extensions
of credit in its ordinary course of business and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either. Arrangers means (a) Piper Sandler & Co. in its capacity as lead arranger of the Closing Date Term Loan
Facility and (b) Piper Sandler & Co. in its capacity as bookrunner of the Closing Date Term Loan Facility. Assignee has the meaning specified in Section 12.2(a). Assignment and Acceptance means an assignment and acceptance agreement entered into by one or more Lenders and Eligible
Assignees (with the consent of any party whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit D or any other form approved by the Agent. Attorney Costs means and includes all reasonable and documented or invoiced fees, expenses and other charges of
(a) Proskauer Rose LLP, as counsel to the Agent and the Lenders, (b) after the Closing Date, one additional counsel selected by, and as counsel for, the Required Lenders, (c) if necessary, a single firm of local counsel in each
relevant jurisdiction, or any other counsel (in lieu of, or in addition to, Proskauer Rose LLP and counsel for the Required Lenders) otherwise retained with the Borrowers consent (such consent not to be unreasonably withheld, conditioned or
delayed) and (d) solely in the case of an actual or potential conflict of interest, one additional primary counsel and one additional counsel in each relevant jurisdiction to the affected Lenders similarly situated. Attributable Indebtedness when used with respect to any Sale Leaseback Transaction, as at the date of determination, the
present value (discounted at a rate equivalent to the Borrowers then-current weighted average cost of funds for borrowed money as at such date of determination, compounded on a semi-annual basis) of the total obligations of Holdings and each
of its Restricted Subsidiaries that is the lessee under the applicable lease for payments of base or fixed rent under such lease for the then remaining term thereof (excluding any renewal terms, except to the extent Holdings and each of its
Restricted Subsidiaries has exercised its right to renew such lease term for any such renewal term). Available Amount
means, at and as of any time (the Available Amount Reference Time), an amount equal to (but not less than zero in the aggregate) the sum of the following (but only to the extent Not Otherwise Applied), without duplication of any
amounts otherwise included in the calculation of Consolidated Net Income or Cumulative Retained Excess Cash Flow Amount: (a) the
Cumulative Retained Excess Cash Flow Amount (for the avoidance of doubt, taking into effect any applicable ECF True-up Amount); plus -5-
(b) the proceeds from the issuance of any Qualified Stock after the Closing Date (including
upon conversion of Debt of the Borrower incurred after the Closing Date) (other than (i) the proceeds from equity investments received as cash applied as a Cure Amount hereunder or a Cure Amount (as defined under the ABL Credit Agreement or
(ii) the proceeds from the IPO)); plus (c) the aggregate amount of cash and Cash Equivalents contributed to the Borrower
(other than from a Restricted Subsidiary and other than in the form of Disqualified Stock); plus (d) Investments of the Borrower
or any Restricted Subsidiaries in any Unrestricted Subsidiary to the extent made using the Available Amount (up to the amount of the original cash investment in such Unrestricted Subsidiary) that has been re-designated as a Restricted Subsidiary
(which cannot thereafter be re-designated as an Unrestricted Subsidiary if used to build the Available Amount, unless such re-designation also reduces the Available Amount) or that has been merged or consolidated into the Borrower or any of its
Restricted Subsidiaries; plus (e) Declined Proceeds from any Disposition following an offer pursuant to Section 4.3 hereof; plus
(f) [reserved]; plus (g)
(i) the aggregate amount received by Borrower after the Closing Date from cash dividends and distributions made by any Unrestricted Subsidiary (up to the original amount of the cash Investments to such Unrestricted Subsidiary made out of the
Available Amount) and (ii) the Net Cash Proceeds in connection with the sale, transfer or other dispositions of assets or the Stock of any Unrestricted Subsidiary that was previously a Restricted Subsidiary and designated as an Unrestricted
Subsidiary at any time prior to such sale, transfer or other dispositions of assets or the Stock (up to the original cash amount of such Investment to such Unrestricted Subsidiary made out of the Available Amount); plus (h) returns, profits, distributions and similar amounts received in cash or Permitted Investments made using the Available Amount and not in
excess of the original amount invested using the Available Amount. Available Amount Reference Time has the meaning
specified in the definition of Available Amount. Available Tenor means, as of any date of determination
and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this
Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such
Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of Interest Period pursuant to Section 5.5(e).
Back-Stop Note means that certain unsecured subordinated promissory note, dated as of the date hereof, issued by
Holdings to THRC Holdings, LP and/or its Affiliates in the aggregate principal amount of $27,070,000. Bail-In Action
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. -6-
Bail-In Legislation means (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). Bankruptcy Code means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief of
debtors. Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate (which, if negative, shall be deemed to be 0.00%) plus 1⁄2 of 1%, (b) the rate of interest quoted in the print edition of The Wall Street Journal,
Money Rates Section, as the prime rate in effect from time to time, (c) Adjusted Term SOFR for a one month interest period as determined on such day, plus 1.0% and (d) 2.00%. The prime rate means the rate of interest last
quoted by The Wall Street Journal as the Prime Rate in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release
H.15 (519) (Selected Interest Rates) as the bank prime loan rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Agent) or any similar release by the Federal Reserve
Board (as determined by the Agent in its reasonable discretion). Base Rate Loan means any Term Loan during any period
for which it bears interest based on the Base Rate. Basel III means, collectively, those certain agreements on capital
requirements, leverage ratios and liquidity standards contained in Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems, Basel III: International Framework for Liquidity Risk Measurement, Standards
and Monitoring, and Guidance for National Authorities Operating the Countercyclical Capital Buffer, each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented
by a Lenders primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory authority, as applicable. Basin Purchase and Sale Agreement mean a Purchase and Sale Agreement dated as of February 9, 2022 by and among CSP IV
Connect Acquisition, LLC, a Delaware limited liability company, Basin Special Situations LLC, a Delaware limited liability company, Basin Holdings LLC, a Delaware limited liability company, Basin Production and Completion LLC, a Delaware limited
liability company, and Holdings, as amended, restated, supplemented and/or modified from time to time. Basin Units
Acquisition means the acquisition by Holdings of the Purchased BPC Units pursuant to the Basin Purchase and Sale Agreement. Benchmark means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred
with respect to the Term SOFR Reference Rate or the then-current Benchmark, then Benchmark means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to
Section 5.5(b). Benchmark Replacement means, with respect to any Benchmark Transition Event, the first
alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date: -7-
(a) the sum of (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis points); or
(b) the sum of: (i) the alternate benchmark rate that has been selected by the Agent and the Borrower giving due consideration to
(A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as
a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark
Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. Benchmark
Replacement Adjustment means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a
positive or negative value or zero) that has been selected by the Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time. Benchmark Replacement Date means a date and time determined by the Agent, which date shall be no later than the earliest to
occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the
definition of Benchmark Transition Event, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published
component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of Benchmark Transition Event, the first date on which such Benchmark (or the
published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such
non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such
date. For the avoidance of doubt, the Benchmark Replacement Date will be deemed to have occurred in the case of clause
(a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation
thereof). Benchmark Transition Event means the occurrence of one or more of the following events with respect to the
then-current Benchmark: -8-
(a) a public statement or publication of information by or on behalf of the administrator of
such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely;
provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published
component used in the calculation thereof), the Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the
administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or
such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement
or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are
not, or as of a specified future date will not be, representative. For the avoidance of doubt, a Benchmark Transition Event
will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in
the calculation thereof). Benchmark Unavailability Period means, the period (if any) (a) beginning at the time
that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.5 and (b) ending at the
time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.5. Beneficial Ownership Certification means a certification regarding beneficial ownership as required by the Beneficial
Ownership Regulation. Beneficial Ownership Regulation means 31 C.F.R. § 1010.230. Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA) that is subject to Title I of
ERISA, (b) a plan as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the
assets of any such employee benefit plan or plan. Best Pump means Best Pump & Flow,
LLC, a Texas limited liability company. Best Pump Acquisition means the acquisition by Holdings and/or its
Affiliate(s) of 100% of the Stock of Best Pump. -9-
Board of Directors means, with respect to any Person, (a) in the
case of any corporation, the board of directors of such Person, (b) in the case of any limited liability company, the sole manager or the board of managers or managing member, of such Person, (c) in the case of any partnership, the board
of directors of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing. Borrower has the meaning as set forth in the preamble of this Agreement. Borrowing means a borrowing hereunder consisting of Term Loans of one Type and Class made on the same day by Lenders to the
Borrower. BPC means Basin Production and Completion LLC, a Delaware limited liability company. Business Day means (a) any day that is not a Saturday, Sunday, or a day on which banks in New York, New York are
required or permitted to be closed, and (b) with respect to all notices, determinations, fundings and payments in connection with the SOFR Rate or SOFR Rate Loans, any U.S. Government Securities Business Day. Capital Adequacy Regulation means any guideline, request or directive of any central bank or other Governmental Authority,
or any other Law, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank. Capital Expenditures means, with respect to Holdings and its Restricted Subsidiaries for any period, the aggregate of all
expenditures incurred by Holdings and its Restricted Subsidiaries during such period for purchases of property, plant and equipment or similar items which, in accordance with GAAP (other than repairs in the ordinary course), are or should be
included in the statement of cash flows of Holdings and its Restricted Subsidiaries during such period; provided that the term Capital Expenditures shall not include: (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed from insurance
proceeds or awards of compensation arising from the taking by eminent domain or condemnation of the assets paid on account of a Casualty Event, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross
amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of property, plant or equipment to the extent financed with the proceeds of Disposition of assets outside the ordinary
course of business, (iv) expenditures that constitute any part of consolidated lease expense to the extent relating to operating leases,
(v) any expenditures made as payments of the consideration for a Permitted Acquisition (or any other acquisition constituting a Permitted
Investment) and expenditures made in connection with the Transactions, (vi) expenditures to the extent Holdings or any of its Restricted
Subsidiaries has received reimbursement in cash from a Person that is not an Affiliate of any of the Obligors and for which neither Holdings nor any of its Restricted Subsidiaries has provided or is required to provide or incur, directly or
indirectly, any consideration or obligation (other than rent) to such Person or any other Person (whether before, during or after such period); and -10-
(vii) the book value of any asset owned by Holdings or any Restricted Subsidiary prior to or
during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having
been made in such period, provided that (x) any expenditure necessary in order to permit such asset to be reused shall be included as a capital expenditure during the period in which such expenditure actually is made and (y) such book
value shall have been included in capital expenditures when such asset was originally acquired. Capital Lease means,
as applied to any Person, all leases of property that have been or should be, in accordance with GAAP, recorded as capitalized leases on the balance sheet of such Person. Capital Lease Obligation means, with respect to any Capital Lease of any Person, the amount of the obligation of the lessee
thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease. Cash
Equivalents means: (1) United States dollars or Canadian dollars; (2) (a) euro, pounds sterling or any national currency of any participating member state of the EMU or (b) other currencies held by
Holdings and its Restricted Subsidiaries from time to time in the ordinary course of business; (3) securities issued or directly and
fully and unconditionally guaranteed or insured by the U.S. federal government or any country that is a member state of the EMU or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and
credit obligation of such government with maturities of 12 months or less from the date of acquisition; (4) certificates of deposit, time
deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital and surplus of not less than $100.0 million in the case of U.S. banks or other U.S. financial institutions and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S.
financial institutions; (5) repurchase obligations for underlying securities of the types described in clauses (3) and
(4) entered into with any financial institution meeting the qualifications specified in clause (4) above; (6) commercial paper
rated at least P-2 by Moodys or at least A-2 by S&P and in each case maturing within 12 months after the date of creation thereof; (7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moodys or S&P,
respectively and in each case maturing within 12 months after the date of creation thereof; (8) investment funds (including, without
limitation, mutual funds) investing 90% of their assets in securities of the types described in clauses (1) through (7) above and (9) through (12) below; -11-
(9) securities issued or directly and fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof or any political subdivision or taxing authority of any such state,
commonwealth or territory or any public instrumentality thereof having maturities of not more than 12 months from the date of acquisition thereof and, at the time of acquisition; (10) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed by any foreign government or any
political subdivision or public instrumentality thereof, in each case (other than in the case of such securities issued or guaranteed by any participating member state of the EMU) having a rating equal to or higher than Baa3 (or the equivalent) by
Moodys and BBB- (or the equivalent) by S&P with maturities of 12 months or less from the date of acquisition; (11) Debt or
Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moodys with maturities of 12 months or less from the date of acquisition; and (12) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent
thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moodys. Notwithstanding the foregoing, Cash
Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and
(2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts. Cash
Management Bank means any Person that was a Lender, the Agent, any Arranger or any Affiliate of the foregoing at the time it provided or incurred any Cash Management Obligations or any Person that shall have become a Lender, the Agent or
an Affiliate of a Lender, the Agent at any time after it has provided or incurred any Cash Management Obligations. Cash
Management Document means any certificate, agreement or other document executed by any Obligor or any of its Restricted Subsidiaries in respect of the Cash Management Obligations of any such Person. Cash Management Obligation means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of
such Person in respect of cash management or related services (including treasury, depository, return item, overdraft, controlled disbursement, credit, merchant store value or debit card, purchase card, e-payables services, electronic funds
transfer, interstate depository network, automatic clearing house transfer (including the ACH processing of electronic funds transfers through the Federal Reserve Fedline system) and other cash management arrangements) provided by any Cash
Management Bank, including obligations for the payment of fees, interest, charges, expenses, attorneys fees and disbursements in connection therewith. Cashless Roll Letter means that certain letter agreement dated as of the date hereof by and among the Borrower, Services,
Barclays Bank PLC, as agent under the Existing Term Loan Facility, the Agent and the Rollover Lenders signatory thereto. Casualty Event means any event that gives rise to the receipt by Holdings, the Borrower or any Restricted Subsidiary of any
insurance proceeds or any condemnation awards in respect of any Property (other than Stock). -12-
CFC means a controlled foreign corporation within the meaning
of Section 957 of the Code. Change in Law means the occurrence, after the Closing Date, of any of the following:
(a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof by any Governmental Authority or (c) the making or issuance of any request,
rule, 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 (but solely to the extent the relevant increased costs would have been included if they had been imposed under applicable increased cost provisions) and
(ii) Basel III and all requests, rules, guidelines or directives thereunder or issued in connection therewith (but solely to the extent the relevant increased costs would have been included if they had been imposed under applicable increased
cost provisions), shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted or issued. Change of Control means and will be deemed to have occurred if: (a) any time prior to the consummation of the IPO Transactions, the Permitted Holders, taken as a whole, shall cease to beneficially own (or
of record own) and Control, directly or indirectly, at least 51% on a fully diluted basis of the Stock of Holdings; and/or (b) at any
time after the consummation of the IPO Transactions, any Person, entity or group (within the meaning of Section 13(d) or 14(d) of the Exchange Act), other than the Permitted Holders, shall at any time have acquired beneficially or
of record, direct or indirect ownership (as defined in SEC Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of Stock representing 35% or more of the Stock of Holdings; and/or (c) the failure of Holdings to directly own, beneficially and of record, all of the Stock of the Borrower; and/or (d) the failure of the Borrower to directly or indirectly, through Wholly-Owned Subsidiaries, own, beneficially and of record (other than in
connection with any Disposition of all of the Stock thereof permitted under Section 8.8 or Section 8.9), all of the Stock of each other Obligor (other than Holdings); and/or (e) Continuing Directors shall not constitute at least a majority of the Board of Directors of Holdings; and/or (f) a change of control or any comparable term under the ABL Credit Agreement or any other document governing any Material
Indebtedness consisting of Debt for Borrowed Money. Charter Documents means, with respect to any Person, the
certificate or articles of incorporation or organization, memoranda of association, by-laws or operating agreement, and other organizational or governing documents of such Person. Chattel Paper means all of the Obligors now owned or hereafter acquired chattel paper, as defined in the UCC,
including electronic chattel paper. -13-
Class when used in reference to any Term Loan or Borrowing, refers to
whether such Term Loan, or the Term Loans comprising such Borrowing, are in the same class, and, when used in reference to any Term Loan Commitment, refers to whether such Term Loan Commitment is in the same class, and when used in reference to any
Lender, refers to whether such Lender has a Term Loan or Term Loan Commitment of such Class. For the avoidance of doubt, (i) the Term Loans shall be deemed of the same Class of Term Loans for all purposes of this Agreement and the other Loan
Documents and (ii) the Term Loan Commitments shall be deemed of the same Class of Term Loan Commitments for all purposes of this Agreement and the other Loan Documents. Closing Date means the later of the Agreement Date and the first date on which all of the applicable conditions set forth
in Section 9.1 have been fulfilled (or waived in writing by the Agent). Closing Date Lenders shall mean
the Lenders that fund the Term Loans on the Closing Date, up to their respective Term Loan Commitments as of the Closing Date. Closing Date Note means that certain unsecured subordinated promissory note, dated as of the date hereof, issued by
Holdings to THRC Holdings, LP and/or its Affiliates in the aggregate principal amount of $23,441,859.92. Closing Date Term
Loans means the Term Loans made on the Closing Date. Closing Date Term Loan Facility has the meaning
specified in the recitals to this Agreement. Code means the Internal Revenue Code of 1986, as amended. Collateral means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Obligor or
its Subsidiaries in or upon which a Lien is granted by such Person in favor of Collateral Agent under any of the Loan Documents; provided, however, that at no time shall the term Collateral include any Excluded Assets or
any Excluded Real Property; provided, further, that for avoidance of doubt, Collateral shall include the Purchased BPC Units. Collateral Agent means Piper, in its capacity as the collateral agent for the Secured Parties, or any successor collateral
agent appointed in accordance with this Agreement and the other Loan Documents. Collateral Agents Liens means
the Liens on the Collateral granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Security Documents and securing the Obligations. Collateral and Guarantee Requirement means, at any time, the requirement that (in each case, as applicable, subject to the ABL Intercreditor Agreement, [**] and any other Intercreditor
Agreement): (a) the Collateral Agent shall have received each Security
Document required to be delivered on the Closing Date pursuant to Section 9.1(a)(ii) or, after the Closing Date, pursuant to Sections 8.23, 8.25 and 8.29 at such time required by such Security Documents or such
section to be delivered in each case, duly executed by each Obligor thereto; (b) all Obligations shall have been unconditionally
guaranteed by Holdings and each Restricted Subsidiary (other than any Excluded Subsidiary) including as of the Closing Date those that are listed on Schedule 1.2; -14-
(c) the Obligations and the Guarantees shall have been secured pursuant to the Security
Agreement by a security interest in (i) all the Stock issued by the Borrower and (ii) all Stock (other than Excluded Stock) held directly by the Borrower or any Guarantor in any Subsidiary (and, in each case, the Collateral Agent shall
have received all such certificates or other instruments representing all such Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank, if applicable); (d) except to the extent otherwise provided hereunder or under any Security Document, the Obligations and the Guarantees shall have been
secured by a perfected security interest (to the extent such security interest may be perfected by (1) delivering certificated securities or instruments, (2) filing personal property financing statements (including, without limitation, UCC
financing statements), (3) making any necessary filings with the United States Patent and Trademark Office or United States Copyright Office and (4) control or other perfection) in substantially all tangible and intangible personal
property of the Borrower and each Guarantor (including, without limitation, all Current Asset Collateral, accounts receivable, inventory, equipment, investment property, Intellectual Property, intercompany notes, contracts, instruments, chattel
paper and documents, letter of credit rights, Commercial Tort Claims, cash, deposit accounts, securities and commodity accounts, other General Intangibles, books and records related to the foregoing and, in each case, proceeds of the foregoing), in
each case with the priority, required by the Security Documents (e) none of the
Collateral shall be subject to any Liens other than Permitted Liens; (f) subject to the last paragraph of this definition, the Collateral
Agent shall have received, with respect to any Real Estate (other than the Excluded Real Property) that is required to be subject to a Mortgage pursuant to Section 8.23 (each a Mortgaged Property),
(i) counterparts of such Mortgage duly executed and delivered by such Obligor (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be
limited to 120% of the Fair Market Value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such Fair Market Value), (ii) a title insurance policy for such
property or the equivalent or other form (if applicable) available in each applicable jurisdiction insuring the Lien of each such Mortgage as a valid first priority Lien on the property described therein, free of any other Liens except Permitted
Liens, together with such endorsements available in the applicable jurisdiction, coinsurance and reinsurance as the Collateral Agents may reasonably request, and in an amount reasonably acceptable to the Agent (not to exceed 120% of the Fair Market
Value of the real properties covered thereby), (iii) either an existing survey together with a survey affidavit sufficient for the title insurance company to remove the standard survey exception and issue the survey related endorsements
available in the applicable jurisdiction or a new ALTA survey in form and substance reasonably acceptable to the Collateral Agent, (iv) existing appraisals, (v) opinions addressed to the Collateral Agent and the Secured Parties from
(A) local counsel in each jurisdiction where the Mortgaged Property is located with respect to the enforceability and perfection of the Mortgages and other matters customarily included in such opinions in the applicable jurisdiction and
(B) counsel for the Borrower regarding due authorization, execution and delivery of the Mortgages, in each case, in form and substance reasonably satisfactory to the Collateral Agent, (vi) a Life-of Loan Federal Emergency
Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Obligor) and,
if the area in which any improvements located on any Mortgaged Property is designated a flood hazard area in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), copies of
(A) the insurance policies required by Section 8.5, (B) declaration pages relating thereto, (C) flood insurance in an amount and form that would be considered sufficient under the Flood Insurance Laws and otherwise, in
form and substance reasonably satisfactory to the Collateral Agent and (D) such other documents as the Collateral Agent may reasonably request with respect to execution and delivery of such Mortgages; -15-
(g) the Borrower and each Guarantor shall have (i) caused all Titled Goods with a Fair
Market Value in excess of $120,000 individually to be properly titled in the name of such Person with the Collateral Agents Lien noted thereon and shall have delivered to the Collateral Agent (or its custodian) originals of all Certificates of
Title (as defined in the UCC) or certificates of ownership for such Titled Goods with the Collateral Agents Lien noted thereon and (ii) upon the acquisition or manufacture by any such Person of any Titled Goods (other than Equipment that
is subject to a purchase money security interest that constitutes a Permitted Lien) with a Fair Market Value in excess of $120,000 individually, promptly notified the Collateral Agent of such acquisition, setting forth a description of such Titled
Goods acquired or manufactured and a good faith estimate of the current value of such Titled Goods and promptly delivered to the Collateral Agent (or its custodian) originals of the Certificates of Title (as defined in the UCC) or certificates of
ownership for such Titled Goods, together with the manufacturers statement of origin, and an application duly executed by the appropriate Person to evidence the Collateral Agents Lien thereon. The Borrower and each Guarantor hereby
appoints the Collateral Agent as its attorney-in-fact, effective the date hereof and terminating upon the termination of this Agreement, for the purpose of (A) executing on behalf of such Person title or ownership applications for filing with
the appropriate Governmental Authority to enable Titled Goods now owned or hereafter acquired by such Person to be amended to reflect the Collateral Agent listed as lienholder thereof, (B) filing such applications with such Governmental
Authority, and (C) executing such other documents and instruments on behalf of, and taking such other action in the name of, such Person as the Collateral Agent may reasonably deem necessary to accomplish the purposes of this clause
(g) (including, without limitation, for the purpose of creating in favor of the Collateral Agent a perfected Lien on such Titled Goods and exercising the rights and remedies of the Collateral Agent hereunder). This appointment as
attorney-in-fact is coupled with an interest and is irrevocable until the Termination Date; (h) the Borrower and each Guarantor shall
have (i) delivered to the Collateral Agent with respect to each deposit account, securities account, and commodity account (other than any Excluded Account), in each case, a Control Agreement with respect to such deposit account, securities
account, and commodity account and (ii) not maintained, and not permitted any of its Restricted Subsidiaries to have maintained, cash, Cash Equivalents or other amounts in any deposit account, securities account, or commodity account, unless
the Collateral Agent shall have received a Control Agreement in respect of such deposit account, securities account, and commodity account (in each case, other than any Excluded Account); (i) (i) with respect to intercompany Debt, if any, and Debt for Borrowed Money that is owing to any Obligor and that is evidenced by a
promissory note, the Collateral Agent shall have received such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (ii) with respect to intercompany Debt, all Debt of Holdings, the Borrower
and each of its Restricted Subsidiaries that is owing to any Obligor (or Person required to become an Obligor) shall be evidenced by the Subordinated Intercompany Note, and the Collateral Agent shall have received such Subordinated Intercompany Note
duly executed by Holdings, the Borrower, each such Restricted Subsidiary and each such other Obligor, together with undated instruments of transfer with respect thereto endorsed in blank, (j) in the case of any of the foregoing with respect to any Person joining as an Obligor
after the Closing Date, (i) the Agent shall have received documents, Organization Documents, certificates, resolutions and opinions of the type referred to in Section 9.1(a)(iii) with respect to each such Person and its Guarantee
and/or provision and perfection of Collateral and (ii) each Lender shall have received all information and documents requested by such Lender to complete KYC and background diligence on such proposed new Obligor and no such new Obligor shall
join any Loan Document unless and until each all Lenders have confirmed to Agent that they have completed their diligence on such proposed Obligor satisfactorily; -16-
(k) in connection with any of the foregoing with respect to any Person joining as an Obligor
after the Closing Date, the Collateral Agent shall have been provided (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Obligor and each jurisdiction where a filing (including a fixture
filing) would need to be made in order to perfect the Collateral Agents security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens,
(ii) tax lien, judgment and bankruptcy searches or other evidence reasonably satisfactory to it that all taxes, filing fees, recording fees related to the perfection of the Liens on the Collateral have been paid and (iii) searches of
ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the Collateral Agent in order to perfect the Collateral Agents security interest in the Intellectual
Property; and (l) the Agent shall have received copies of insurance policies, declaration pages, certificates, and endorsements of
insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The foregoing definition shall not require the creation or perfection of pledges of, or security interests in, or the obtaining of title
insurance, opinions or surveys with respect to, particular assets if and for so long as the Required Lenders and the Borrower agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining
such legal opinions or other deliverables in respect of such assets, or providing such guarantees, or obtaining title insurance or surveys in respect of such assets (in each case, taking into account any material adverse tax consequences to Holdings
and its Subsidiaries) shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom. The Required Lenders
may grant extensions of time for the provision or perfection of security interests in, or the obtaining of title insurance and surveys with respect to, particular assets (including extensions beyond the Closing Date for the perfection of security
interests in the assets of the Obligors on such date) where they reasonably determine, in consultation with the Borrower, that provision or perfection cannot be accomplished without undue effort or expense by the time or times at which it would
otherwise be required by this Agreement or the Security Documents. Notwithstanding the foregoing provisions of this definition or
anything in this Agreement or any other Loan Document to the contrary, (a) with respect to leases of Real Estate entered into by any Obligor, such Obligor shall not be required to take any action with respect to creation or perfection of
security interests with respect to such leases (including requirements to deliver landlord lien waivers, estoppel and collateral access letters), (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee
Requirement shall be subject to exceptions and limitations set forth in the Security Documents, (c) the Collateral and Guarantee Requirement shall not apply to any of the following assets (and the following assets shall not constitute
Collateral for any purpose hereunder and the other Loan Documents): (i) any fee-owned Real Estate with a Fair Market Value less than $5,000,000 in the aggregate, the Excluded Real Property, and any leasehold interests in Real Estate;
provided that no Equipment attached or affixed to or located on such Real Estate or the Excluded Real Property to the extent such Equipment constitutes a fixture shall be excluded from Collateral, unless such Equipment otherwise constitutes
an Excluded Asset under any other subclause of this clause (c), (ii) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such licenses, franchise, charter or
authorization would be prohibited or restricted thereby (including any legally effective -17-
prohibition or restriction) after giving effect to the applicable anti-assignment clauses of the UCC and
applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the UCC or any similar applicable laws notwithstanding such prohibition, (iii) assets and personal property for which a
pledge thereof or a security interest therein is prohibited by applicable Laws (including any legally effective requirement to obtain the consent of any Governmental Authority), rule, regulation or contractual obligation with an unaffiliated third
party (in each case, (y) only so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and (z) except to the extent such prohibition is unenforceable or ineffective after giving effect to the
applicable provisions of the Uniform Commercial Code or other applicable law), (iv) Excluded Stock (other than Stock that is Excluded Stock solely as a result of having been issued by Immaterial Subsidiaries), (v) to the extent that the
obligations of Holdings, the Borrower and certain Subsidiaries of Holdings under the First Financial Loan Documents remain outstanding, certain tractors and any replacement tractors therefor and accessions thereto, having an aggregate Fair Market
Value of not more than $30,000,000, pledged to First Financial Bank, N.A. pursuant to the First Financial Loan Documents, provided that any inflationary increases in value shall not cause the violation of this cap, (vi) any intent-to-use
trademark application prior to the filing and acceptance of a Statement of Use or Amendment to Allege Use with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a
security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law, it being agreed that for purposes of this Agreement and the Loan Documents, no Lien granted to Collateral
Agent on any intent-to-use United States trademark applications is intended to be a present assignment thereof, (vii) any lease, license, contract or other agreements or any property (including personal property) subject to a
purchase money security interest, Capital Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that a pledge thereof or a security interest therein would violate or invalidate such
lease, license, contract or agreement, purchase money, Capital Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than the Borrower or a Guarantor) after giving effect to the applicable
anti-assignment clauses of the UCC and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the UCC or any similar applicable Laws notwithstanding such prohibition,
(viii) any assets as to which the Required Lenders and the Borrower reasonably agree in writing that the cost or other consequence of obtaining a security interest or perfection thereof is excessive in relation to the benefit to the Lenders of
the security to be afforded thereby, -18-
respect to Stock, no actions in any jurisdiction other than the United States and Canada or required by the
Laws of any jurisdiction other than the United States and Canada shall be required to be taken to create any security interests in assets located or titled outside of the United States and Canada or to perfect or make enforceable any security
interests in any such assets (it being understood that there shall be no Security Document (or other security agreements) governed under the laws of any jurisdiction other than the United States and Canada); provided that no such actions under or in
accordance with the Laws of Canada (and no Security Document (or other security agreements) shall be required to be governed by the laws of the Canada, other than pledge agreements in respect of Stock of any Restricted Subsidiary of Holdings
organized under the laws of Canada (other than Excluded Stock)) shall be required to be taken, in each case, unless the Fair Market Value of the property and assets of the Obligors located in Canada exceeds $50,000,000 at such time or the
contribution to the Consolidated EBITDA of Holdings and its Subsidiaries by such property and assets exceeds $17,500,000 for any Test Period (calculated on a Pro Forma Basis). Commercial Tort Claims has the meaning specified in the Security 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. Compliance Certificate means a certificate substantially in the form of Exhibit C or
in such other form as may be reasonably satisfactory to the Agent and the Borrower. Conforming Changes means, with
respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of 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 U.S. Government Securities Business Day, the definition of Interest Period or any similar or analogous definition (or the addition of a concept 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 Section 5.4 and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by
the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the
administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). 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 Depreciation and Amortization Expense means, with
respect to Holdings and its Restricted Subsidiaries for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt issuance costs, commissions, fees and expenses,
capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, of Holdings and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance
with GAAP. Consolidated EBITDA means, with respect to Holdings and its Restricted Subsidiaries for any period, the
Consolidated Net Income of Holdings and its Restricted Subsidiaries for such period; plus -19-
(a) the following in each case to the extent deducted (and not added back) in computing
Consolidated Net Income (other than clause (a)(10) and (a)(13) below), but without duplication: (1) Distributions made by
Holdings and its Restricted Subsidiaries pursuant to Section 8.10(f)(i) during such period and provision for taxes based on income or profits or capital gains, including, without limitation, foreign, federal, state, provincial,
franchise, excise, value added and similar taxes and foreign withholding taxes of Holdings and its Restricted Subsidiaries paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax
examinations and any payments to any Parent Entity in respect of such taxes; plus (2) total interest expense and other financing
expense (including breakage costs, premiums or consent fees and including the amortization of original issue discount); plus (3)
Consolidated Depreciation and Amortization Expense of Holdings and its Restricted Subsidiaries for such period; plus (4) any fees,
expenses or charges incurred in connection with any issuance of debt or equity securities, any refinancing transaction or any amendment or other modification of any debt instrument to the extent consummated in accordance with the terms of the Loan
Documents including (i) such fees, expenses or charges related to the IPO Transactions and related to the other Transactions (other than the FTS Acquisition Transactions), to the extent consummated, and not to exceed (x) $5,000,000 with
respect to any transaction or series of related transactions (other than the IPO Transactions) and (y) $25,000,000 in the aggregate for all such transactions during the term of the Agreement, in each case, to the extent not consummated, and
(ii) any amendment, modification or waiver in connection with this Agreement or any instrument governing any other Debt; plus (5) any fees (including legal and investment banking fees), transfer or mortgage recording Taxes and other out-of-pocket costs and expenses of
Holdings and its Restricted Subsidiaries (including expenses of third parties paid or reimbursed Holdings and its Restricted Subsidiaries) incurred as a result of the transactions contemplated by the Loan Documents or any Disposition of Property
permitted hereunder; plus (6) any fees and expenses incurred by Holdings and any of its Restricted Subsidiaries solely in
connection with any Permitted Acquisition or any other acquisition constituting a Permitted Investment (in each case, whether or not consummated), but, with respect to Permitted Acquisitions or such other Permitted Investments not consummated, in an
aggregate amount not to exceed (x) $10,000,000 for any Test Period to the extent related to the FTS Acquisition and (y) $2,000,000 for any Test Period related to any other Permitted Acquisition or any other acquisition constituting a
Permitted Investment; plus (7) any impairment charge or asset write-off pursuant to GAAP and the amortization of intangibles
arising pursuant to GAAP; plus (8) [reserved]; plus (9) any losses from the early extinguishment of Debt (including Hedge Agreements or other derivative instruments); plus -20-
(10) the amount of run rate cost savings, operating expense reductions and other
synergies achieved in connection with a Permitted Acquisition or any other acquisition constituting a Permitted Investment projected by the Borrower in good faith to be realized as a result of specified actions taken, actions with respect to which
substantial steps have been taken or actions that are expected to be taken (which cost savings, operating expense reductions or synergies shall be calculated on a Pro Forma Basis as though such cost savings, operating expense reductions or synergies
had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions or synergies are
reasonably identifiable and factually supportable, (B) such cost savings, operating expense reductions or synergies do not exceed, when combined with the amount of any adjustments made pursuant to clause (14) below and any Pro Forma
Adjustment made pursuant to clause (d) below, (i) with respect to any Test Period ending on or before December 31, 2022, 12.5% of Consolidated EBITDA for such Test Period and (ii) with respect to any Test Period ending
thereafter, 7.5% of Consolidated EBITDA for such Test Period (in the case of each of clauses (i) and (ii), prior to giving effect to any increase in Consolidated EBITDA pursuant to this clause (10), clause (14) below or
clause (d) below), and (C) such actions have been taken, such actions with respect to which substantial steps have been taken or such actions are expected to be taken within twelve (12) months after the date of determination to take
such action; provided, further, that the adjustments pursuant to this clause (10) and clause (14) below may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause
(d) below; plus (11) any non-cash compensation expense recorded from grants of stock appreciation or similar rights,
stock options, restricted stock or other rights to officers, directors or employees; plus (12) any non-cash losses or charges,
including any write offs, write downs, expenses, losses or items for such period decreasing Consolidated Net Income for such period; plus (13) proceeds from property or business interruption insurance received or reasonably expected to be received (to the extent not reflected as
revenue or income in Consolidated Net Income and to the extent that the related loss was deducted in the determination of Consolidated Net Income); plus (14) all Restructuring Costs and any other extraordinary, unusual or non-recurring expenses, losses or charges incurred; provided that such
adjustments do not exceed, when combined with the amount of any adjustments made pursuant to clause (10) above and any Pro Forma Adjustments made pursuant to clause (d) below, (i) with respect to any Test Period ending
on or before December 31, 2022, 12.5% of Consolidated EBITDA for such Test Period and (ii) with respect to any Test Period ending thereafter, 7.5% of Consolidated EBITDA for such Test Period (in the case of each of clauses (i) and
(ii), prior to giving effect to any increase in Consolidated EBITDA pursuant to this clause (14), clause (10) above or clause (d) below); provided, further, that the adjustments pursuant to this clause
(14) and clause above may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause
below; plus (15) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedge Agreements (to the extent the cash impact
resulting from such loss has not been realized) or other derivative instruments pursuant to GAAP; minus (b) the sum of the amounts for such period, solely to the extent included in Consolidated Net Income, without duplication, (1) any non-cash gain increasing Consolidated Net Income of such Person for such period, other than the accrual of revenues in the ordinary
course of business; -21-
(2) any non-cash gain attributable to the mark-to-market movement in the valuation of Hedge
Agreements (to the extent the cash impact resulting from such gain has not been realized) or other derivate instruments pursuant to GAAP; (3) any gains from the early extinguishment of Debt (including Hedge Agreements or other derivative instruments); and (4) any extraordinary, unusual or non-recurring gains increasing Consolidated Net Income for such period; provided that, to the extent non-cash gains are deducted pursuant to this clause (b) for any previous period and not otherwise
added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in subsequent periods to the
extent not already included therein; plus or minus, as applicable, without duplication (c) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Debt,
intercompany balances and other balance sheet items, plus or minus, as the case may be; and plus (d) in accordance with the definition of Pro Forma Basis, an adjustment equal to the amount, without duplication of any amount
otherwise included in any other clause of the definition of Consolidated EBITDA, of the Pro Forma Adjustment shall be added to (or subtracted from) Consolidated EBITDA (including the portion thereof occurring prior to the relevant
Specified Transaction and/or Specified Restructuring) as specified in a certificate from a Responsible Officer of the Borrower delivered to the Agent (for further delivery to the Lenders), in each case, as determined on a consolidated basis for
Holdings and its Restricted Subsidiaries in accordance with GAAP; provided that, (i) there shall be included in determining
Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person, property, business or asset acquired by Holdings or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) to the extent not
subsequently sold, transferred or otherwise Disposed of during such period (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset
acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to the Closing Date, and not subsequently so Disposed of, an Acquired Entity or Business), and the Acquired EBITDA of any Unrestricted
Subsidiary that is converted into a Restricted Subsidiary during such period (each, a Converted Restricted Subsidiary), in each case based on the Acquired EBITDA of such Acquired Entity or Business or any Converted Restricted
Subsidiary for such period (including the portion thereof occurring prior to such acquisition or conversion) determined on a historical Pro Forma Basis; and (ii) there shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset
sold, transferred or otherwise Disposed of, closed or classified as discontinued operations by Holdings, the Borrower or any Restricted Subsidiary to the extent not subsequently reacquired, reclassified or continued, in each case, during such period
(each such Person (other than an Unrestricted Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a Sold Entity or Business), and the Disposed EBITDA of any
-22-
Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a
Converted Unrestricted Subsidiary), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale,
transfer, disposition, closure, classification or conversion) determined on a historical Pro Forma Basis. Notwithstanding anything to the
contrary herein, for purposes of calculating Consolidated EBITDA, the Non-Wholly Owned Subs shall not be included in such calculation; provided that without duplication, any cash Distributions by any Non-Wholly Owned Sub to a Restricted
Subsidiary during a Test Period shall constitute Consolidated Net Income of such Restricted Subsidiary (receiving such cash Distribution) during such Test Period for purposes of measuring Consolidated EBITDA hereunder. Consolidated Net Income means, with respect to any Person for any period, without duplication, the aggregate of
(a) the Net Income, attributable to such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP (adjusted to exclude the equity interests in any Unrestricted Subsidiary
owned by such Person or any of its Restricted Subsidiaries); plus (b) the amount of distributions received in cash by such Person or any of its Restricted Subsidiaries from any Subsidiary (including any Unrestricted Subsidiary) for such
period, to the extent not already included in clause (a) above minus (c) (i) the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies
during such period, (ii) the income (or loss) of any Person (other than a Restricted Subsidiary of such Person) in which any other Person (other than such Person or any of its Restricted Subsidiaries) has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to such Person or any of its Restricted Subsidiaries by such Person during such period, (iii) the income (or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary of such Person or is merged into or consolidated with such Person or any of its Restricted Subsidiaries or that Persons assets are acquired by such Person or any of its Restricted Subsidiaries (except as may be required in
connection with the calculation of a covenant or test on a pro forma basis), (iv) the income of any Restricted Subsidiary of such Person to the extent that the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary,
(v) any after-Tax gains or losses attributable to Dispositions of Property permitted under this Agreement, in each case other than in the ordinary course of business (as determined in good faith by the Borrower) or returned surplus assets of
any Pension Plan, (vi) any net after-Tax gains or losses from disposed, abandoned, transferred, closed or discontinued operations and any net after-Tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued
operations, (vii) any losses and expenses with respect to liability or casualty events to the extent covered by insurance or indemnification and actually reimbursed or so long as the Borrower has made a determination that there exists
reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and
(b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days) and (viii) (to the extent not included in sub-clauses
(i) through (vii) above) any net extraordinary gains or net extraordinary losses. In addition, to the extent not already
accounted for in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (without duplication) (i) the amount of proceeds
received during such period from business interruption insurance in respect of insured claims for such period, (ii) the amount of proceeds as to which the Borrower has determined there is reasonable evidence it will be reimbursed by the insurer
in respect of such period from business interruption insurance (with a deduction for any amounts so added back to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within 365 days) and
(iii) reimbursements received of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder. -23-
Consolidated Parties means Holdings and each of its Subsidiaries whose
financial statements are consolidated with Holdings financial statements in accordance with GAAP. Consolidated Total
Assets means, as of any date of determination, the book value of all assets of Holdings, the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP as of such date. Consolidated Total Debt means, as of any date of determination, (a) the aggregate principal amount of indebtedness of
Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of indebtedness resulting from the application of purchase accounting in
connection with the Transactions, any Permitted Acquisition or Investments similar to those made for Permitted Acquisitions), consisting of Debt for Borrowed Money, Unpaid Drawings (as defined in the ABL Credit Agreement), Capital Lease Obligations
and third party debt obligations evidenced by promissory notes or similar instruments ([**]), minus (b) the lesser of (i) the amount of Unrestricted Cash on the balance sheets of Holdings, the Borrower and its Restricted Subsidiaries as of such date minus the Term Loans then outstanding
under the ABL Credit Agreement as of such date and (ii) $30,000,000. It is understood that to the extent Holdings or any Restricted Subsidiary incurs any Debt and receives the proceeds of such Debt, for purposes of determining any incurrence test
under this Agreement and whether the Borrower is in compliance on a Pro Forma Basis with any such test, the proceeds of such incurrence shall not be considered cash or Cash Equivalents for purposes of any netting pursuant to clause
(b) of this definition. Consolidated Working Capital means, as of any date of determination, the excess of
(a) the sum of all amounts (other than cash and Cash Equivalents and Long-Term Accounts Receivable) that would, in conformity with GAAP, be set forth opposite the caption total current assets (or any like caption) on a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries at such date, other than amounts related to current or deferred income taxes, over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption
total current liabilities (or any like caption) on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries on such date, including deferred revenue but excluding, without duplication, (i) the current portion of
any Consolidated Total Debt that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or any of its Restricted Subsidiaries, as applicable,
to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Debt in respect of the Term
Loans, (ii) all Debt consisting of Term Loans, in each case to the extent otherwise included therein, (iii) the current portion of accrued interest and (iv) the current portion of current and deferred income taxes. Contaminant means any (i) chemical, material, compound, waste, pollutant, substance, toxic or hazardous substance,
hazardous waste, special waste, or any other substance, waste or material regulated or subject to rules of liability under Environmental Law including any material, substance, compound, chemical or waste that is listed, classified, defined or
regulated in relevant form, quantity or concentration as hazardous or toxic (or words of similar import) pursuant to any Environmental Law, and (ii) any petroleum or petroleum products or their refined or derived products, polychlorinated biphenyls,
radioactive materials, per-and polyfluoroalkyl substances, aqueous film forming foam, or other emerging contaminants, urea formaldehyde or asbestos or asbestos containing materials. -24-
Continuation/Conversion Date means the date on which a Term Loan is
converted into or continued as a SOFR Rate Loan. Continuing Director means, at any date, (x) ProFrac PubCo, or
(y) an individual (a) who is a member of the Board of Directors of Holdings (or any Parent Entity) on the Closing Date, (b) who, as at such date, has been a member of such Board of Directors for at least the 12 preceding months,
(c) who has been nominated or designated to be a member of such Board of Directors, directly or indirectly, by the Permitted Holders or Persons nominated or designated by the Permitted Holders or (d) who has been nominated or designated to
be, or designated as, a member of such Board of Directors by a majority of the other Continuing Directors then in office. Control shall mean 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 ownership of voting securities, by contract or otherwise, and the terms Controlling and Controlled shall have meanings correlative thereto. Control Agreement means, with respect to any deposit account, any securities account, commodities account, securities
entitlement or commodity contract, an agreement, in form and substance satisfactory to the Collateral Agent, among the Collateral Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or
contract is carried and the Borrower or Guarantor maintaining such account, effective to grant control (as defined under the applicable UCC) over such account to the Collateral Agent. Converted Restricted Subsidiary has the meaning specified in the definition of Consolidated EBITDA. Converted Unrestricted Subsidiary has the meaning specified in the definition of Consolidated EBITDA. Cumulative Retained Excess Cash Flow Amount means, as of any date, an amount, not less than zero in the aggregate,
determined on a cumulative basis, equal to the Retained Excess Cash Flow Amount for all Excess Cash Flow Periods beginning with the Excess Cash Flow Period that is the Fiscal Quarter ending December 31, 2022, and prior to such date. Cure Amount has the meaning specified in Section 10.4(a). Cure Deadline has the meaning specified in Section 10.4(a). Cure Right has the meaning specified in Section 10.4(a). Current Asset Collateral means the ABL Priority Collateral (as defined in the ABL Intercreditor Agreement).
Daily Simple SOFR means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being
established by the Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining Daily Simple SOFR for syndicated business loans; provided that if the Agent
decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion. Debt means, without duplication, all -25-
(a) indebtedness for borrowed money (excluding any obligations arising from warranties as to
inventory in the ordinary course of business) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the deferred purchase price of property or services (other than trade accounts payable, liabilities or accrued expenses in the ordinary
course of business) to the extent the same would be required to be shown as a long-term liability on a balance sheet prepared in accordance with GAAP; (c) all obligations and liabilities of any Person secured by any Lien on an Obligors or any of its Restricted Subsidiaries
property, even if such Obligor or Restricted Subsidiary shall not have assumed or become liable for the payment thereof; provided, however, that all such obligations and liabilities which are limited in recourse to such property shall
be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the Consolidated Parties prepared in accordance with GAAP or, if higher, the Fair Market Value of such property; (d) all obligations or liabilities created or arising under any Capital Lease or conditional sale or other title retention agreement with
respect to property used or acquired by Holdings or any of its Restricted Subsidiaries, even if the rights and remedies of the lessor, seller or lender thereunder are limited to repossession of such property; provided, however, that
all such obligations and liabilities which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the Consolidated Parties prepared in
accordance with GAAP or, if higher, the Fair Market Value of such property; (e) the present value (discounted at the Base Rate) of lease
payments due under synthetic leases; (f) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters of credit (including standby and commercial), bankers acceptances, bank guaranties, surety
bonds, performance bonds and similar instruments issued or created by or for the account of such Person; (g) all net obligations of any
Person in respect of Hedge Agreements; (h) all obligations of such Person in respect of Disqualified Stock; (i) earn out obligations in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment); and (j) all obligations and liabilities under Guaranties in respect of obligations of the type described in any of clauses (a) through
(i) above; provided that Debt shall not include (i) prepaid or deferred revenue arising in the ordinary course of
business or in the ordinary course of business for similarly situated businesses in the Borrowers industry, (ii) purchase price holdbacks in respect of Permitted Acquisitions (or any other acquisitions constituting Permitted Investments)
arising in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry in respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the
seller of such asset, (iii) earn out obligations in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment) unless such obligations become a liability on the balance sheet of such Person in
accordance with GAAP and are not paid after becoming due and payable and (iv) Guaranties incurred (other than with respect to Debt) in the ordinary course of business or in the ordinary course of business for similarly situated businesses in
the Borrowers industry. -26-
For all purposes hereof, the Debt of any Person shall include the Debt 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, except to the extent such Persons liability for such Debt is otherwise limited
and only to the extent such Debt would be included in the calculation of Consolidated Total Debt. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination Value thereof as of such date. Debt for Borrowed Money of any Person at any time means, on a consolidated basis, the sum of all debt for borrowed money of
such Person at such time. Declined Proceeds has the meaning specified in Section 4.3(e). Default means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured,
waived, or otherwise remedied during such time) constitute an Event of Default. Default Rate means two percent
(2.00%) per annum. Defaulting Lender means any Lender whose acts or failure to act, whether directly or
indirectly, cause it to meet any part of the definition of Lender Default. Delayed Draw Funding Date has
the meaning as set forth in Section 2.5(a). Delayed Draw Term Loan Amount means, an aggregate principal
amount not to exceed $100,000,000. Delayed Draw Term Loan Availability Period means the period commencing on the First
Amendment Effective Date and ending on the earlier to occur of (i) the consummation of the First Amendment Acquisition with respect to
U.S. Well Services Holdings, LLC (formerly known as U.S. Well
Services, Inc.). and (ii) March 31, 2023. Delayed Draw Term Loan Commitment means, with respect to
each Delayed Draw Term Lender, the commitment of such Lender to make a Delayed Draw Term Loan to the Borrower on each Delayed Draw Funding Date pursuant to Section 2.5(a) in an aggregate principal amount not to exceed the amount set
forth next to the name of such Delayed Draw Term Lender in a Schedule of Commitments to be agreed by the Borrower and such Delayed Draw Term Lender. The Delayed Draw Term Loan Commitments of all Delayed Draw Term Lenders shall not exceed the Delayed
Draw Term Loan Amount. Delayed Draw Term Loan Lender means the Lenders that fund the Delayed Draw Term Loans on each
Delayed Draw Funding Date, up to their respective Delayed Draw Term Loan Commitments. Delayed Draw Term Loans has the
meaning as set forth in Section 2.5(a). Deposit Accounts means all deposit accounts as such
term is defined in the UCC and all accounts with a deposit function maintained at a financial institution, now or hereafter held in the name of the Borrower or any Guarantor. -27-
Designated Account has the meaning specified in
Section 2.3(b). Designated Non-Cash Consideration means the Fair Market Value of non-cash consideration
received by Holdings or its Restricted Subsidiaries in connection with a Disposition pursuant to clause (t) of the definition of Permitted Dispositions that is designated as Designated Non-Cash Consideration
pursuant to a certificate of a Responsible Officer of the Borrower delivered to the Agent, setting forth the basis of such valuation (which amount will be reduced by (i) the Fair Market Value of the portion of the non-cash consideration
converted to cash within 180 days following the consummation of the applicable Disposition and (ii) the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration). Disposed EBITDA means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any period,
the amount for such period of Consolidated EBITDA of such Sold Entity or Business or such Converted Unrestricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of the term Consolidated
EBITDA (and in the component financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted Subsidiary and its Subsidiaries), all as determined on a consolidated basis
for such Sold Entity or Business or such Converted Unrestricted Subsidiary. Disposition or Dispose
means the sale, lease, Sale Leaseback Transaction, assignment, transfer or other disposition (including any sale of Stock) of any property by any Person; provided that Disposition and Dispose shall not be deemed to
include any Casualty Event or any issuance by Holdings or any of its Restricted Subsidiaries of any of its Stock to another Person. Disqualified Lenders means (a) such Persons that have been specified in writing to the Agent prior to the Closing
Date, (b) those Persons who are competitors of Holdings, the Borrower and their respective Subsidiaries that are separately identified in writing by the Borrower from time to time to the Agent and (c) in the case of each of clauses
(a) and (b), any of their Affiliates (which, for the avoidance of doubt, shall not include any bona fide debt investment funds that are affiliates of the Persons referenced in clause (b) above to the extent that such fund
is not controlled by any Person referenced in clause (b) above) that are either (i) identified in writing to the Agent by the Borrower from time to time or (ii) readily identifiable solely on the basis of such Affiliates
name; provided that no such updates to the list shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation interest in respect of Term Loans from continuing to hold or vote such previously
acquired assignments and participations on the terms set forth herein for Lenders that are not Disqualified Lenders. Notwithstanding anything to the contrary contained in this Agreement, (a) the Agent 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 Lenders and (b) the Borrower (on behalf of itself Holdings and each of the Restricted Subsidiaries of
Holdings) and the Lenders acknowledge and agree that the Agent shall have no responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and that the Agent shall have no liability with respect to any
assignment or participation made to a Disqualified Lender. Disqualified Stock means that portion of any Stock which,
by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control or as
a result of a Disposition of assets or Casualty Event), matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change of Control or as a result of a Disposition of assets or Casualty Event) on or prior to the six-month anniversary of the Stated Termination Date;
provided that, (a) if such Stock is issued -28-
pursuant to any plan for the benefit of employees of Holdings (or any Parent Entity thereof) or any of its Subsidiaries or by any such plan to such employees, such Stock shall not constitute
Disqualified Stock solely because it may be required to be repurchased by Holdings (or any Parent Entity thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations and (b) no Stock of Holdings shall
constitute Disqualified Stock solely because of the Redemption Right or the Call Right (each as described in the Section of the Registration Statement for the IPO Transactions entitled Corporate reorganization) to
be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions. Distressed Person has the
meaning specified in the definition of Lender-Related Distress Event. Distribution means (a) the
payment or making of any dividend or other distribution of property in respect of Stock or other Stock (or any options or warrants for, or other rights with respect to, such stock or other Stock) of any Person, other than distributions in Stock or
other Stock (or any options or warrants for such stock or other Stock) of any class other than Disqualified Stock, or (b) the direct or indirect redemption or other acquisition by any Person of any Stock or other Stock (or any options or
warrants for such stock or other Stock) of such Person or any direct or indirect shareholder or other equity holder of such Person. Documents means all documents as such term is defined in the UCC, including bills of lading, warehouse receipts
or other documents of title, now owned or hereafter acquired by any Obligor. DOL means the United States Department of
Labor or any successor department or agency. Dollar and $ mean dollars in the lawful currency of
the United States. Unless otherwise specified, all payments under this Agreement shall be made in Dollars. Domestic
Subsidiary means any Subsidiary of Holdings that is organized under the laws of the United States, any State of the United States or the District of Columbia. ECF True-up Amount has the meaning specified in Section 4.3(a). 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 member state 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 degree) having responsibility for the resolution of any EEA Financial Institution. EKU Debt means that certain Debt (i) owed by EKU Power Drives GmbH to Volksbank in der Ortenau eG, in an aggregate
principal amount not to exceed $500,000, and (ii) owed by EKU Power Drives Inc. to Bank of America, N.A. in an aggregate principal amount not to exceed $50,000. -29-
Eligible Assignee means (a) a commercial bank, commercial finance
company or other lender having total assets in excess of $2,000,000,000 and that extends credit or buys commercial loans in the ordinary course of business; (b) any Lender; (c) any Affiliate of any Lender and (d) any Approved Fund;
provided, that, in any event, Eligible Assignee shall not include (i) any natural Person, (ii) any Permitted Holder, Holdings, any Guarantor, or the Borrower or any Affiliate of any of the foregoing, (iii) so long as (A)
no Event of Default has occurred and is continuing under any of Sections 10.1(a), (e), (f) or (g) and (B) the list of Disqualified Lenders (including any updates thereto) has been made available by the Borrower to
all Lenders, any Disqualified Lender (other than any Disqualified Lender otherwise agreed to by the Borrower in a writing delivered to the Agent) or (iv) Equify Financial LLC or any of its Affiliates. EMU means economic and monetary union as contemplated in the Treaty on European Union. Enterprise
Master Lease Agreement means that certain Master Equity Lease Agreement dated October 30, 2020, between U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.), as lessee, and Enterprise FM Trust, a Delaware
statutory trust, as lessor. Environment shall mean ambient
air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and subsurface strata and natural resources such as wetlands, flora and fauna. Environmental Laws means all applicable Laws in connection with pollution, protection of the Environment (including
Releases, threats of Releases) or to health and safety (to the extent which health and safety laws relate to exposure to Contaminants). Equify Bridge Note means that certain unsecured subordinated promissory note, dated as of the date hereof, issued by the
Borrower to Equify Financial LLC in an aggregate principal amount of $45,799,986.48. ERISA means the Employee
Retirement Income Security Act of 1974, as the same may be amended from time to time and any regulations promulgated and the rulings issued thereunder. ERISA Affiliate means any trade or business (whether or not incorporated) which is a member of a group of trades or
businesses under common control with Holdings or the Borrower within the meaning of Section 414(c) of the Code (or any member of an affiliated service group within the meaning of Sections 414(m) and (o) of the Code of which the Borrower is
a member). ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) any failure by a
Pension Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case whether or not waived; (c) the filing pursuant to
Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to a Pension Plan; (d) a determination that a Pension Plan is in at-risk status (as
defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) a withdrawal by Holdings, the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete withdrawal, within the meaning of Section 4203 of
ERISA, or a partial withdrawal, within the meaning of Section 4205 of ERISA, by Holdings, the Borrower or any ERISA Affiliate from a Multi-employer Plan or notification that a Multi-employer Plan is insolvent (within the meaning of
Section 4245 of ERISA) or in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (g) the filing with the PGBC of a notice of intent to terminate under
-30-
Section 4041(c) or ERISA, the receipt by Holdings, Borrower, or ERISA Affiliate, as applicable, of any notice from any Multi-Employer Plan that it intends to terminate or has terminated
under Section 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multi-employer Plan but only if the PBGC has notified Holdings, Borrower, or ERISA Affiliate, as applicable, the same; (h) the
receipt by Holdings, Borrower, or ERISA Affiliate, as applicable, from the PBGC or a plan administer of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042
of ERISA; (i) Holdings, the Borrower or any of its Subsidiaries engages in a non-exempt prohibited transaction (i.e., a prohibited transaction for which a statutory, regulatory, or administrative exemption does not exist)
with respect to which the Borrower or any of its Subsidiaries is a disqualified person (within the meaning of Section 4975 of the Code), or with respect to which the Borrower or any such Subsidiary could otherwise be liable; or
(j) the imposition of any Lien under Section 430(k) of the Code or pursuant to Section 303(k) or Section 4068 of ERISA with respect to any Pension Plan, or any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon Holdings, the Borrower or any ERISA Affiliate. EU Bail-In
Legislation Schedule means the document described as such and 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 10.1. Excess Cash Flow means, with respect to any Excess Cash Flow Period, an amount equal to the excess of: (a) the sum, without duplication, of: (i) Consolidated Net Income for such Excess Cash Flow Period; plus (ii) all non-cash charges (including depreciation and amortization expenses) for such period to the extent such non-cash charges were deducted
in computing Consolidated Net Income for such period; plus (iii) decreases in Consolidated Working Capital and Long-Term Accounts
Receivable for such period (other than any such decreases arising from acquisitions by the Borrower or any of its Restricted Subsidiaries completed during such period), plus (iv) an amount equal to the aggregate net non-cash loss on Dispositions by the Borrower and the Restricted Subsidiaries during such period
(other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; minus (b) the sum, without duplication, of: (i) an amount equal to the amount of all non-cash credits and cash charges in each case included in arriving at Consolidated Net Income for
such Excess Cash Flow Period; plus (ii) without duplication of amounts deducted in arriving at such Consolidated Net Income, an
amount equal to the lesser of (A) the aggregate amount of Capital Expenditures actually made in cash during such period and (B) the aggregate amount of Capital Expenditures projected to be made in cash during such period as set forth in
the model dated as of December 6, 2021, delivered to the Agent prior to the Closing Date, in each case of the foregoing clauses (A) and (B), solely to the extent that such Capital Expenditures were financed (or projected to
be financed) with Internally Generated Funds; plus -31-
(iii) the aggregate amount of all principal payments of Debt of the Borrower and any of its
Restricted Subsidiaries (including (A) the principal component of scheduled payments in respect of Capital Lease Obligations and (B) the amount of any repayment of Term Loans pursuant to Section 4.1(a) but excluding
(x) all voluntary prepayments of the Term Loans made pursuant to Section 4.1(c) and (y) all mandatory prepayments of the Term Loans (other than those made pursuant to Section 4.3(b), to the extent such mandatory
prepayments were made with the proceeds of a Disposition that resulted in an increase to Consolidated Net Income (with no amount in excess of the amount of such increase being included))) made during such period, except to the extent financed with
the proceeds of other long-term Debt of the Borrower or any of its Restricted Subsidiaries (other than under any revolving credit facility); plus (iv) increases in Consolidated Working Capital and Long-Term Accounts Receivable for such period (other than any such increases arising from
acquisitions of a Person or business unit by the Borrower or any of its Restricted Subsidiaries during such period); plus (v) [reserved];
plus (vi) the amount of cash taxes paid in such period to the extent not deducted in determining Consolidated Net Income for such
period; plus (vii) [reserved]; plus (viii) to the extent any non-cash charges were added back to Consolidated Net Income pursuant to the foregoing clause (a)(ii) for
purposes of the Excess Cash Flow calculation for such period or a prior period and such non-cash charges were later paid in cash in such period (including expenditures for the payment of financing fees), the amount of such cash payments; plus (ix) [reserved]; plus (x) an amount equal to the aggregate net non-cash gain on Dispositions by the Borrower and the Restricted Subsidiaries during such period
(other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income. Notwithstanding anything to the contrary herein, for purposes of calculating Excess Cash Flow and the Retained Excess Cash Flow Amount for any
Excess Cash Flow Period, (x) the Subsidiaries of Holdings that are not Wholly-Owned Subsidiaries of Holdings (Non-Wholly Owned Subs) shall not be included in such calculation and (y) with respect to entities that are
acquired by Holdings and/or any of its Restricted Subsidiaries (whether by acquisition, merger, contribution or otherwise) that become wholly owned Subsidiaries of Holdings, such Subsidiaries shall not be in included in the Excess Cash Flow
calculation for any period prior to such acquisition or merger being consummated or contribution to or through Holdings; provided that with respect to clause (x) set forth in this sentence, without duplication, any cash Distributions by
any Non-Wholly Owned Sub to a Restricted Subsidiary during an Excess Cash Flow Period shall constitute Consolidated Net Income of such Restricted Subsidiary (receiving such cash Distribution) for such Excess Cash Flow Period solely for purposes of
measuring Excess Cash Flow and the Retained Excess Cash Flow Amount hereunder. Excess Cash Flow Application Date has
the meaning specified in Section 4.3(a). Excess Cash Flow Period means each Fiscal Quarter of the Borrower,
commencing with the Fiscal Quarter ending December 31, 2022. -32-
Exchange Act means the Securities Exchange Act of 1934, as amended, and
regulations promulgated thereunder. Excluded Account means (a) deposit accounts specifically and exclusively used
for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Persons employees and (b) deposit accounts with deposits at any time in an aggregate amount not in excess of $2,000,000 for all such
accounts. Excluded Assets has the meaning specified in the definition of Collateral and Guarantee
Requirement. Excluded Real Property means the (i) all Real Estate acquired in connection with the West
Munger Acquisition, (ii) the Real Estate located at 10589 N FM 1218 Kermit, TX 79745 and (iii) Specified FTS Real Property; provided, that if (A) a Permitted Sale Leaseback Transaction shall not have been consummated with respect to
the Specified FTS Real Property, or a purchase money Debt financing described in Section 8.12(v) shall not have been consummated with respect to the Specified FTS Real Property, in each case, within 12 months of the FTS Acquisition, or
(B) a purchase money Debt financing described in Section 8.12(v) shall have been so consummated but is later satisfied (and not Refinanced with Refinancing Debt), then the Specified FTS Real Property shall no longer constitute Excluded
Real Property. Excluded Stock means: (a) any Stock with respect to which the Required Lenders and the Borrower agree, in writing (each acting reasonably), that the cost of
pledging such Stock shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom, (b) solely in the case of
any pledge of Stock of any CFC or FSHCO to secure the Obligations of a U.S. Person, any Stock that is Voting Stock of such CFC or FSHCO in excess of 65% of the outstanding Stock that is Voting Stock of such CFC or FSHCO, (c) any Stock to the extent, and for so long as, the pledge thereof would be prohibited by any applicable Law (including any legally effective
requirement to obtain the consent of any Governmental Authority unless such consent has been obtained), (d) any Margin Stock and Stock of
any Person (other than any Restricted Subsidiary) to the extent, and for so long as, the pledge of such Stock would be prohibited by, or create an enforceable right of termination in favor of any other party thereto (other than Holdings, the
Borrower or any Subsidiary of the Borrower) under, the terms of any Organization Document, joint venture agreement or shareholders agreement applicable to such Person after giving effect to the applicable anti-assignment clauses of the UCC and
applicable law, (e) the Stock issued by any Immaterial Subsidiary or Unrestricted Subsidiary (other than any Specified Unrestricted
Subsidiary), and (f) any Stock of a Foreign Subsidiary that is a Subsidiary of a Foreign Subsidiary; and (g) any Stock of a Person acquired by Holdings or any of its Restricted Subsidiaries in accordance with the provisions set forth herein so
long as (i) substantially simultaneously with such acquisition, all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) are contributed
to the Borrower or a -33-
Guarantor (other than Holdings) and such Obligor complies with the requirements set forth in this definition
with respect to such property and assets (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity), (ii) such Person, after giving effect to subclause (i) above, individually has assets with a Fair
Market Value of less than $2,000,000, and in the aggregate for all such transactions during the term of the Agreement, such Persons, in each case after giving effect to subclause (i) above, collectively have assets with a Fair Market Value of
less than $5,000,000 (it being understood and agreed that such caps shall not include any assets held by any such Person after the Stock of such Person has been distributed pursuant to subclause (iii) below) and (iii) as soon as possible,
and in any event within fifteen (15) days after such acquisition, the Stock of such Person (all or substantially all of the property and assets of which (including any Stock owned by such Person) have been contributed to one or more Obligors
(other than Holdings other than to the extent that Holdings substantially simultaneously contributes such Stock to one or more other Obligors) in accordance with subclause (i) of this clause (g)) shall have been distributed by Holdings to a
Parent Entity pursuant to Section 8.10(k) or such Person is liquidated or merged out of existence provided that, in each case, substantially simultaneous with such acquisition, all or substantially all of the property and assets of such Person
shall be contributed to one or more Obligors (other than Holdings other than to the extent that Holdings substantially simultaneously contributes such property and assets to one or more other Obligors) in accordance with subclause (i) of this
clause (g). Excluded Subsidiary means: (a) upon Flotek becoming a Subsidiary and until such time as Holdings owns, directly or indirectly, more than 66 2⁄3% of the Stock of Flotek, Flotek and its Subsidiaries (unless at such time that Holdings owns, directly or indirectly, such amount of the Stock of Flotek, Holdings
and/or the Borrower have continued the designation of Flotek as an Unrestricted Subsidiary (but not a Specified Unrestricted Subsidiary) and satisfied all of the requirements of Section 8.26(d)(iv) with respect to the continuance of such
designation (as if Flotek were initially being designated as an Unrestricted Subsidiary on such date)), (b) any Subsidiary that is
restricted or prohibited by (x) subject to clause (g) below, applicable Law or (y) contractual obligation from guaranteeing the Obligations (and for so long as such restriction or prohibition is in effect); provided that
in the case of clause (y), such contractual obligation existed on the Closing Date or, with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the Closing Date (and so long as such contractual obligation was
not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired, (c) (i) any Foreign Subsidiary or
(ii) any Domestic Subsidiary that is (A) a FSHCO or (B) a direct or indirect Subsidiary of a Foreign Subsidiary that is a CFC, (d) any Immaterial Subsidiary (provided that the Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing
the Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries excluded by this clause (d) exceeds 5% of the consolidated gross revenues of Holdings and its Restricted Subsidiaries that
are not otherwise Excluded Subsidiaries by virtue of any other clauses of this definition except for this clause (d) as of the last day of the Test Period most recently ended on or prior to the date of determination or (ii) the
aggregate amount of total assets for all Immaterial Subsidiaries excluded by this clause (d) exceeds 5% of the aggregate amount of Consolidated Total Assets of Holdings and its Restricted Subsidiaries that are not otherwise Excluded
Subsidiaries by virtue of any other clauses of this definition except for this clause (d) as of the last day of the Test Period most recently ended on or prior to the date of determination), (e) any other Subsidiary with respect to which, in the reasonable judgment of the Required Lenders and the Borrower, the cost of providing a
Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom, -34-
(f) each Unrestricted Subsidiary (but, in the case of any Specified Unrestricted Subsidiary,
only until such time as Holdings owns, directly or indirectly, more than 66 2⁄3% of the Stock of such Specified Unrestricted Subsidiary), and (g) any Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to provide a Guaranty
unless such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts (including if requested by the Agent to do so) by the Borrower and/or such Subsidiary to obtain the same. As of the Closing Date, IOT-eq, LLC, EKU Power Drives GmbH and EKU Power Drives Inc. are the only Excluded Subsidiaries of Holdings. Excluded Swap Obligation means, with respect to any Obligor or Holdings, (a) any obligation (a Swap
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 the
guarantee of such Obligor of, or the grant by such Obligor or Holdings 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) (i) by virtue of such Obligors or Holdings failure to constitute an eligible contract participant, as defined in the
Commodity Exchange Act and the regulations thereunder (determined after giving effect to any applicable keep well, support, or other agreement for the benefit of such Obligor or Holdings and any and all applicable guarantees of such Obligors
Swap Obligations by other Obligors), at the time the guarantee of (or grant of such security interest by, as applicable) such Obligor or Holdings becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a
Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Obligor or Holdings is a financial entity, as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at
the time the guarantee of (or grant of such security interest by, as applicable) such Obligor or Holdings becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an Excluded
Swap Obligation of such Obligor or Holdings as specified in any agreement between the relevant Obligors and Hedge Bank applicable to such Swap Obligations. 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 the swap for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition. Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or
deducted from a payment to a Recipient under any Loan Document, (a) Taxes imposed on (or measured by) the Recipients net income (however denominated), franchise Taxes imposed in lieu of net income 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, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which
(i) such Lender acquired its interest in the applicable Term Loan Commitment or, in the case of an applicable interest in a Term Loan not funded pursuant to a prior Term Loan Commitment, such Lender acquires such interest in such Term Loan
(provided that this clause (b)(i) shall not apply to an assignee pursuant to an assignment request by the Borrower under Section 5.8) or (ii) such Lender changes its lending office, except in each case to the extent that,
pursuant to Section 5.1, amounts with respect to such Taxes were payable either to such Lenders assignor immediately before such Lender acquired its interest in the applicable Term Loan or Term Loan Commitment or to such Lender
immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to comply with Section 5.1(d), and (d) any Taxes imposed under FATCA. -35-
Existing Term Loan Facility means that certain Term Loan Credit
Agreement, dated as of September 7, 2018, by and among the ProFrac Services LLC, as the borrower thereunder, Holdings, the guarantors party thereto, the lenders party thereto and Barclays Bank PLC, as the administrative agent and collateral
agent (as amended, amended and restated, supplemented and otherwise modified from time to time, and together with the guarantee and security documentation executed in connection therewith). Fair Market Value means, with respect to any asset or group of assets on any date of determination, the value of the
consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arms length and arranged in an orderly manner over a reasonable period of time having regard
to the nature and characteristics of such asset, as determined in good faith by the Borrower. Family Member means,
with respect to any individual, any other individual that is recognized as a family member (to the second degree of consanguinity) by the laws of the residence of such individual. Family Trust mean, with respect to Dan Wilks, trusts, family limited partnerships or other estate planning vehicles
established for the benefit of Dan Wilks or his Family Members and in respect of which Dan Wilks or one or more of his Family Members serves as trustee or in a similar capacity. Farris Family Trust mean, with respect to Farris Wilks, trusts, family limited partnerships or other estate planning
vehicles established for the benefit of Farris Wilks or his Family Members and in respect of which Farris Wilks or one or more of his Family Members serves as trustee or in a similar capacity. 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 current Section 1471(b)(1) of the Code and any
fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. FCA has the meaning assigned to such term in Section 5.5(c). Federal Funds Rate means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such days
federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal
Reserve Bank of New York as the federal funds effective rate; provided, that if the Federal Funds Rate for any day is less than zero, the Federal Funds Rate for such day will be deemed to be zero. Federal Reserve Board means the Board of Governors of the Federal Reserve System or any successor thereto. Fee Letter means the Fee Letter, dated as of the Closing Date, between the Agent and the Borrower. Financial Covenant means the covenant set forth in Section 8.20(a). -36-
Financial Statements means, according to the context in which it is used,
the financial statements referred to in Sections 6.2 and Section 7.5. First Amendment means that
certain First Amendment to Term Loan Credit Agreement, dated as of the First Amendment Effective Date, by and among Holdings, the Borrowers, the Guarantors, the Lenders party thereto and the Agent. First Amendment Acquisition Prepayment has the meaning specified in Section 4.3(c). First Amendment Acquisitions means the acquisition of certain property, assets and/or Stock pursuant to the First Amendment
Purchase Documents. First Amendment Effective Date means July 25, 2022. First Amendment Fee Letters means (i) that certain First Amendment Consent Fee Letter, dated as of the First Amendment
Effective Date, by and between the Borrower and the Agent, (ii) that certain Additional Term Loan Fee Letter, dated as of First Amendment Effective Date, by and between the Borrower and the Agent and (iii) any fee letter, dated as of the
each applicable Delayed Draw Funding Date, by and between the Borrower and the Agent, with respect to the Delayed Draw Term Loan Commitments and the Delayed Draw Term Loans (if any). First Amendment Purchase Documents means each of the purchase agreements delivered by the Borrower to the Agent in
connection with the First Amendment, in the most recent form delivered to the Agent prior to the First Amendment Effective Date, and the other agreements, instruments and other documents related thereto or executed in connection therewith (as such
forms or drafts are finalized after the First Amendment Effective Date and/or as amended, restated, supplemented or otherwise modified from time to time but without giving effect to any finalizations, amendments, restatements, supplements or other
modifications thereto, or any waivers or consents thereunder, after the First Amendment Effective Date that are materially adverse to the Lenders without the consent of the Required Lenders). First Financial Loan Documents means, collectively, the Loan Agreement, dated as of December 22, 2021, by and among
First Financial Bank, N.A., as lender, and ProFrac Holdings II, LLC, as borrower, and ProFrac Manufacturing, LLC and ProFrac Services, LLC, as guarantors, together with all security agreements, guarantees, pledge agreements and other agreements,
certificates or instruments executed in connection therewith, in each case, as amended, restated, modified and/or supplemented to the extent not materially adverse to the Lenders. Fiscal Quarter means the period commencing on January 1 in any Fiscal Year and ending on the next succeeding
March 31, the period commencing on April 1 in any Fiscal Year and ending on the next succeeding June 30, the period commencing on July 1 in any Fiscal Year and ending on the next succeeding September 30, or the period
commencing on October 1 in any Fiscal Year and ending on the next succeeding December 31, as the context may require. Fiscal Year means Holdings, the Borrowers, the Guarantors and/or their Subsidiaries fiscal year for
financial accounting purposes. As of the Agreement Date, the current Fiscal Year of the Consolidated Parties will end on December 31, 2022. Fixed Asset Collateral means the Fixed Asset Priority Collateral (as defined in the ABL Intercreditor
Agreement). -37-
Fixed Assets Priority Proceeds Account means the Fixed Asset
Priority Proceeds Account (as defined in the ABL Intercreditor Agreement). Flood Insurance Laws means,
collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto,
(iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and
(v) Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto. Floor means a rate of interest equal to 1.00% per annum. Flotek means Flotek Industries, Inc., a Delaware corporation. Flotek Note Purchase Agreement means that certain Note Purchase Agreement dated as of February 2, 2022 among Flotek
and each of the purchasers party thereto from time to time, as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments, express waivers or express consents
thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders. Flotek
Notes means (i) the 10% Convertible PIK Notes dated February 2, 2022 in the aggregate principal amount of $10,000,000 (plus paid in kind interest) issued and sold to Holdings by Flotek and later contributed by Holdings to the
Borrower on or before the date hereof, (ii) the 10% Convertible PIK Notes dated February 2, 2022 in the aggregate principal amount of $10,000,000 (plus paid in kind interest) issued to Holdings by Flotek and later contributed by Holdings
to the Borrower on or before the date hereof, and (iii) the Convertible Notes issued to the Borrower or another Obligor by Flotek, from time to time, in connection with that certain Chemical Products Supply Agreement dated February 2,
2022, as amended, restated, modified, supplement, extended or replaced from time to time, (the Flotek Supply Agreement) by and between Flotek Chemistry, LLC, and ProFrac Services, LLC, and the Flotek Securities Purchase Agreement
provided that such Convertible Notes in this clause (iii) are issued for no separate cash consideration. For the avoidance of doubt, payments made by or on behalf of ProFrac Services, LLC for the product sold in accordance with the Flotek
Supply Agreement shall not be deemed to be separate cash consideration for purposes of the Flotek Notes. Flotek
Pre-Funded Warrants means the Pre-Funded Warrants issued to ProFrac Holdings II, LLC or its permitted assigns, as the holder, pursuant to that certain Securities Purchase Agreement, by and among Flotek and ProFrac Holdings II, LLC or its
permitted assigns, as the holder, entitling such holder to purchase up to a total of 13,104,839 shares of common stock of Flotek at any time and at an exercise price equal to $0.0001 par value per share. Flotek Securities Purchase Agreement means that certain Securities Purchase Agreement dated as of February 16, 2022,
by and between Flotek and Holdings, as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments, express waivers or express consents thereunder after the date hereof
that are materially adverse to the Lenders without the consent of the Required Lenders. Flotek Stock means the Stock
issued to the Borrower or another Obligor by Flotek, from time to time, in connection with (i) the Flotek Supply Agreement and the Flotek Securities Purchase Agreement, provided that such Stock is issued for no separate cash consideration. For
the avoidance of doubt, payments made by or on behalf of ProFrac Services, LLC for the product sold in accordance with the Flotek Supply Agreement shall not be deemed to be separate cash consideration for purposes of the Flotek Stock
and/or (ii) the conversion of the Flotek Notes into Stock issued by Flotek. -38-
Foreign Subsidiary means any Subsidiary of Holdings (other than Borrower)
that is formed under the laws of a jurisdiction other than the United States, a state of the United States or the District of Columbia. Fracturing Equipment Parts has the meaning specified therefor in the ABL Intercreditor Agreement on the Closing Date. FSHCO means any direct or indirect Subsidiary that has no material assets other than Stock of one or more direct or
indirect Foreign Subsidiaries that are CFCs. FTS means FTS International, Inc., a Delaware corporation. FTS Acquisition means the transactions contemplated pursuant to that certain FTS Acquisition Agreement, together with all
related documents. FTS Acquisition Agreement means that certain Agreement and Plan of Merger, dated as of
October 21, 2021, by and among Holdings, FTS International, Inc., and ProFrac Acquisition, Inc., (as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments,
express waivers or express consents thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders). FTS Acquisition Documents means the FTS Acquisition Agreement and all other agreements, instruments and other documents
related thereto or executed in connection therewith (as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments, express waivers or express consents thereunder
after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders). FTS Acquisition
Transactions means, collectively, (i) the transactions contemplated by the FTS Acquisition Documents, (ii) the Permitted Sale Leaseback Transaction and (iii) the FTS Distribution and Contribution Transaction. FTS Control Agreements means (i) that certain Uncertificated Stock Control Agreement, dated as of the date hereof,
among Farris Wilks, and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, and (ii) that certain Uncertificated Stock Control
Agreement, dated as of the date hereof, among THRC Holdings, LP, and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time. FTS Distribution and Contribution Transaction means the distribution by Holdings of the Stock of FTS to ProFrac PubCo or
other members of Holdings (and the redemption by Holdings of its Stock from such Persons in exchange therefor) followed (substantially simultaneously) by the contribution (automatically and through no further action of any Person) of all or
substantially all of the property and assets of FTS and its subsidiaries (including any Stock owned by FTS or any of its subsidiaries but, for the avoidance of doubt, not including the Stock issued by FTS or any Stock issued by Holdings to FTS in
connection therewith) to Holdings, followed (substantially simultaneously) by the contribution (automatically and through no further action of any Person) of such property and assets of FTS and its subsidiaries (including any Stock owned by FTS or
any of its subsidiaries but excluding any cash contributed and/or transferred to Holdings by FTS and/or the FTS Subsidiaries in connection therewith in an aggregate amount not to exceed the then outstanding principal amount (and any interest accrued
thereon) of the Closing Date Note) by Holdings to the Borrower which may be further contributed by the Borrower to a Guarantor (other than Holdings). FTS Services will then distribute the Stock of FTS Manufacturing held by it to the Borrower. -39-
FTS Pledge Agreements means the pledge agreements, each dated as of the
date hereof, by each of the investors holding interests in the Stock of FTS immediately after the consummation of the FTS Acquisition in favor of the Agent. FTS Pledgor means any grantor under any FTS Pledge Agreement or FTS Control Agreement. FTS Subsidiaries means FTS International Services, LLC and FTS International Manufacturing, LLC. Full Payment or Full Payment of the Obligations means, with respect to any Obligations (other than
contingent indemnification obligations or other contingent obligation for which no claim has been made or asserted, Hedge Obligations not then due and payable, if any, and Cash Management Obligations not then due and payable, if any), (a) the
full cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding) and (b) the termination or expiration of all Term Loan Commitments. Funding Date means the date on which a Borrowing occurs. GAAP means generally accepted accounting principles and practices 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 U.S. accounting profession), which are applicable to the circumstances from time to time. General
Intangibles means all of each Obligors now owned or hereafter acquired general intangibles as defined in the UCC, choses in action and causes of action and all other intangible personal property of each Obligor of
every kind and nature (other than Accounts), including, without limitation, all contract rights, payment intangibles, Intellectual Property, corporate or other business records, blueprints, plans, specifications, registrations, licenses, franchises,
Tax refund claims, any funds which may become due to any Obligor in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to any Obligor from any Plan or other employee benefit
plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the
lives of key employees on which any Obligor is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged Stock or Investment Property and any letter of credit, guarantee,
claim, security interest or other security held by or granted to any Obligor. Governmental Authority means any nation
or government, any state, territorial or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof and any governmental entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government. Guarantee Agreement means the Guarantee Agreement, dated as
of the Agreement Date, among the Guarantors for the benefit of the Secured Parties. -40-
Guarantors means (a) the Borrower, other than with respect to its
own Obligations, (b) each Restricted Subsidiary, whether now existing or hereafter created or acquired (other than any Excluded Subsidiary) that is a party to the Guarantee Agreement, (c) Holdings, Guaranty or Guarantees means, with respect to any Person, all obligations of such Person which in any
manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any indebtedness, dividend or other monetary obligations of any other Person (the guaranteed monetary obligations),
or assure or in effect assure the holder of the guaranteed monetary obligations against loss in respect thereof, including any such obligations incurred through an agreement, contingent or otherwise: (a) to purchase the guaranteed monetary
obligations or any property constituting security therefor; (b) to advance or supply funds for the purchase or payment of the guaranteed monetary obligations or to maintain a working capital or other balance sheet condition; or (c) to
lease property or to purchase any debt or equity securities or other property or services; provided that the term Guaranty shall not include endorsements for collection or deposit, in either case in the ordinary course of
business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Debt).
The amount of any Guaranty 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 Guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person acting reasonably and in good faith. Hedge Agreement 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. Hedge Bank means any Person that that is a counterparty to a Secured Hedge Agreement with an Obligor or one of its
Restricted Subsidiaries, in its capacity as such, and that either (i) is a Lender, the Agent, an Arranger or an Affiliate of the foregoing at the time it enters into such a Secured Hedge Agreement, or on the Closing Date is party to a Hedge
Agreement with an Obligor or any Restricted Subsidiary permitted under Section 8.12 on the Closing Date, in its capacity as a party thereto or (ii) becomes a Lender, the Agent or an Affiliate of a Lender or the Agent after it has
entered into a Hedge Agreement permitted by Section 8.12 with any Obligor or any Restricted Subsidiary. Hedge
Obligations means, with respect to any Person, the obligations of such Person under Hedge Agreements. -41-
Historical Financial Statements means (i) audited consolidated
balance sheets of Holdings and its consolidated subsidiaries as at the end of, and related statements of income and cash flows of Holdings and its consolidated subsidiaries for, the three most recently completed Fiscal Years ended December 31,
2020, and (ii) unaudited consolidated balance sheets of Holdings and its consolidated subsidiaries as at the end of, and related statements of income and cash flows of Holdings and its consolidated subsidiaries, (a) for the fiscal quarter
ended September 30, 2021 and (b) thereafter for each fiscal month ended at least 30 days prior to the Closing Date. Holdings means Holdings (as defined in the preamble to this Agreement) or any Successor Holdings, to the extent the
requirements set forth in Section 8.27 are satisfied. Holdings LLC Agreement means that certain Second
Amended and Restated Limited Liability Company Agreement of ProFrac Holdings, LLC, dated as of March 14, 2018, as amended and/or amended and restated in the form of that certain Third Amended and Restated Limited Liability Company Agreement
attached hereto at Exhibit N, as further amended, restated and/or modified prior to being executed to the extent that such amendments, restatements and/or modifications are not materially adverse to the Lenders. IBA has the meaning assigned to such term in Section 5.5(c). Illegality Notice has the meaning specified therefor in Section 5.2(a). Immaterial Subsidiary means, at any date of determination, any Restricted Subsidiary of the Borrower (a) that does not
own any Intellectual Property related to the electrification of the Borrowers fleets of hydraulic fracturing equipment and (b)(i) whose total assets (when combined with the assets of such Restricted Subsidiarys Subsidiaries, after
eliminating intercompany obligations) at the last day of the Test Period most recently ended on or prior to such determination date were an amount equal to or less than 2.5% of Consolidated Total Assets at such date and (ii) whose gross
revenues (when combined with the revenues of such Restricted Subsidiarys Subsidiaries, after eliminating intercompany obligations) for such Test Period were an amount equal to or less than 2.5% of the consolidated gross revenues of Holdings
and its Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP. As of the Closing Date, the Immaterial Subsidiaries are set for on Schedule 1.3. Indemnified Person has the meaning specified in Section 14.10(a). Indemnified Taxes means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or
on account of any Obligor under any Loan Document and (b) to the extent not otherwise described in clause (a) above, all Other Taxes. Insolvency Proceeding means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or
under any other state, federal or foreign bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with all or substantially all creditors, or proceedings seeking
reorganization, arrangement, or other similar relief. Instruments means all instruments as such term is defined in
Article 9 of the UCC, now owned or hereafter acquired by any Obligor. Intellectual Property has the meaning specified
in the Security Agreement. -42-
Interest Period means, as to any SOFR Rate Loan, the period commencing on
the Funding Date of the Term Loan or on the Continuation/Conversion Date on which the Term Loan is converted into or continued as a SOFR Rate Loan, and ending on the date one, three or six months thereafter or, with the consent of all applicable
Lenders, twelve months, as selected by the Borrower in its Notice of Borrowing or Notice of Continuation/Conversion, provided that: (a) if any Interest Period would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day; (b) any Interest Period pertaining to a SOFR Rate Loan 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 (c) no Interest Period shall extend beyond the Stated Termination Date. Interest Rate means each or any of the interest rates, including the Default Rate, set forth in Section 3.1.
Internally Generated Funds means any amount generated by the Borrower and its Restricted Subsidiaries and not
representing (a) the issuance by such Persons of Stock or capital contributions made in respect of the Stock of such Persons, (b) a reinvestment by the Borrower or any of its Restricted Subsidiaries of any proceeds of a Permitted
Disposition or Casualty Event, (c) the proceeds of any issuance of Debt of the Borrower or any Restricted Subsidiary (other than Debt under any revolving credit facility) and (d) any credit received by the Borrower or any Restricted
Subsidiary with respect to any trade in of property for substantially similar property or any like kind exchange of assets. Inventory means all of each Obligors now owned or hereafter acquired Inventory as defined in the UCC, and
shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under
a contract of service, (iv) consist of raw materials, work in process, or materials used or consumed in a business, or (v) constitute Fracturing Equipment Parts; (b) goods of said description in transit; (c) goods of said
description which are returned, repossessed or rejected; and (d) packaging, advertising and shipping materials related to any of the foregoing. Investment in any Person means (a) the acquisition (whether for cash, property, services, assumption of Debt,
securities or otherwise, but exclusive of the acquisition of inventory, supplies, equipment and other assets used or consumed in the ordinary course of business of Holdings or its applicable Subsidiary and Capital Expenditures) of assets, shares of
Stock, bonds, notes, debentures, partnerships, joint ventures or other ownership interests or other securities of such Person, (b) any advance, loan or other extension of credit (other than in connection with leases of Equipment or leases or
sales of Inventory on credit in the ordinary course of business and excluding, in the case of Holdings and its Restricted Subsidiaries, intercompany accounts receivable and loans, advances, or Debt having a term not exceeding 364 days (inclusive of
any roll-over or extensions of terms) and made in the ordinary course of business) to such Person, or (c) any other capital contribution to, or investment in, such Person, including, without limitation, any obligation incurred for the benefit
of such Person, but excluding (i) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (ii) bona fide Accounts arising in the ordinary course of business. It is
further understood and agreed that for purposes of determining the value of any Investment outstanding for purposes hereof, such -43-
amount shall be deemed to be the amount of such Investment when made, purchased or acquired less all
dividends, returns, interests, profits, distributions, income and similar amounts received in respect of such Investment (not to exceed the original amount invested). For purposes of this definition, capitalized terms used in this definition but not
defined elsewhere in this Agreement shall have the meanings set forth in Articles 8 or 9 of the UCC. Investment
Property means all of each Obligors now owned or hereafter acquired investment property as defined in the UCC, and includes all right, title and interest of each Obligor in and to any and all: (a) securities
whether certificated or uncertificated; (b) securities entitlements; (c) securities accounts; (d) commodity contracts; or (e) commodity accounts. IO-TEQ Debt means that certain Debt evidenced pursuant to that certain (x) promissory note dated February 3, 2021
issued by IOT-eq, LLC to Third Coast Bank, SSB in the original principal amount of $168,865.00 and (y) promissory note dated 2020 issued by IOT-eq, LLC to Spirit of Texas Bank, SSB in the original principal amount of $601,676.00. IPO means the initial public offering and sale of common stock of ProFrac PubCo pursuant to an effective registration
statement (Registration No. 333-261255) filed by ProFrac PubCo with the SEC (the Registration Statement) under the Securities Act. IPO Prepayment has the meaning specified in Section 4.3(c). IPO Prepayment Amount means an amount equal to the sum of (a) 100% of the first $100,000,000 of Net Cash Proceeds
received by any Parent Entity, Holdings or the Borrower in connection with the IPO Transactions plus (b) 50% of the Net Cash Proceeds received by any Parent Entity, Holdings or the Borrower in connection with the IPO Transactions in excess of
$200,000,000. IPO Transactions means the IPO and the transactions described in the Registration Statement, including
(i) the conversion of all of the membership interests in Holdings held by the owners of Holdings into a single class of common units in Holdings, the transfer by certain of such owners of their common units in Holdings to ProFrac PubCo in
exchange for shares of Class A common stock of ProFrac PubCo, the Pubco Distribution, the issuance by ProFrac PubCo of shares of Class B common stock of ProFrac PubCo to certain of such owners and the contribution of the net proceeds of the IPO
Transactions by ProFrac PubCo to Holdings and by Holdings to the Borrower, (ii) the use of the net proceeds from the IPO Transactions by the Borrower to invest in Cash Equivalents pending their application or use in accordance with the
provisions hereof, and (iii) the execution, delivery and performance by Holdings of its obligations under the amended and restated Holdings LLC Agreement, the Tax Receivable Agreement and the Shared Services Agreement, in each case, subject to
the terms of this Agreement. IRS means the Internal Revenue Service and any Governmental Authority succeeding to any
of its principal functions under the Code. JPMorgan means JPMorgan Chase Bank, N.A. and its successors. Junior Debt means any Debt for Borrowed Money secured by a junior Lien (other than, for the avoidance of doubt,
(a) the ABL Facility Indebtedness and (b) any Subordinated Debt), which Junior Debt (i) is not owed to any Affiliate of Holdings or any of its Subsidiaries, (ii) does not provide for any amortization of the principal thereof
unless the Total Net Leverage Ratio at the time of payment thereof is less than 1.00:1.00 and (iii) does not provide for cash interest payments in excess of $2,000,000 in any calendar year. For the avoidance of doubt, the EKU Debt, the IO-TEQ
Debt, [**], the Well Services Debt, the U.S. Well Direct Loans and Debt evidenced by the First Financial
Loan Documents shall not constitute Junior Debt. -44-
Junior Debt Payment has the meaning specified in
Section 8.13. Laws means, collectively, all international, foreign, federal, state, territorial and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the common law, and the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of laws. LCA Election has the meaning specified in Section 1.5. LCA Test Date has the meaning specified in Section 1.5. Lender means (a) each of the Closing Date Lenders, the Additional Term Loan Lenders and the Delayed Draw Term Loan
Lenders (if any) and (b) any other Person that shall become a party hereto as a lender pursuant to Section 12.2, in each case other than a Person who ceases to hold any outstanding Term Loans or any Term Loan Commitment.
Lender Default means (a) the refusal (in writing) or failure of any Lender to make available its portion of any
incurrence of Term Loans, which refusal or failure is not cured within one Business Day after the date of such refusal or failure, (b) the failure of any Lender to pay over to the Agent or any other Lender any other amount required to be paid
by it hereunder within one Business Day of the date when due, (c) a Lender has notified the Borrower or the Agent that it does not intend or expect to comply with one or more of its funding obligations or has made a public statement to that
effect with respect to its funding obligations under this Agreement, (d) the failure by a Lender to confirm in a manner reasonably satisfactory to the Agent that it will comply with its obligations under this Agreement, (e) any Lender or a
direct or indirect parent company of each Lender becoming subject to a Bail-In Action or (f) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender-Related Distress Event. Lender-Related Distress Event means, with respect to any Lender, that such Lender or any Person that directly or indirectly
controls such Lender (each, a Distressed Person), as the case may be, is or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver
or similar official is appointed for such Distressed Person or any substantial part of such Distressed Persons assets, or such Distressed Person or any person that directly or indirectly controls such Distressed Person is subject to a forced
liquidation or winding up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having regulatory authority over such Distressed Person or its
assets to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Stock in any Lender or any Person that directly or indirectly
controls such Lender by a governmental authority or an instrumentality thereof; provided, further, that such ownership interest does not result in or provide such person 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 person (or such governmental authority or instrumentality) to reject, repudiate, disavow or disaffirm any contract or agreements made by such person or
its parent entity. -45-
Lien means: (a) 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 including a security interest, charge, claim, priority or lien arising from a mortgage, deed of trust,
encumbrance, pledge, hypothecation, deemed trust, assignment, deposit arrangement, security agreement, conditional sale or trust receipt or the interest of a vendor or lessor under a capital lease, consignment or title retention agreement; and
(b) to the extent not included under clause (a), any reservation, exception, encroachment, easement, servitude right-of-way, restriction, lease or other title exception or encumbrance affecting property (and for clarity, including
exclusive licenses (but not non-exclusive licenses) granted in Intellectual Property). Limited Condition Acquisition
means any Permitted Acquisition (and any other acquisition constituting a Permitted Investment) whose consummation is not conditioned on the availability of, or on obtaining, third party financing. Liquidity means, as of any date of determination, the sum of (i) the aggregate amount of Unrestricted Cash of the
Obligors at such time plus (ii) Availability (as defined in the ABL Credit Agreement as of the Agreement Date) at such time. Loan Documents means this Agreement, the First Amendment, the Second Amendment, the Guarantee Agreement, the Security Documents,
the Notes, the Fee Letter, the First Amendment Fee Letters, the Transactions with Affiliates Letter Agreement, the
ABL Intercreditor Agreement, [**] and any other agreements,
instruments, and documents heretofore, now or hereafter evidencing, securing or guaranteeing any of the Obligations or any of the Collateral, in each case to which one or more Obligors is a party. Long-Term Accounts Receivable means any Accounts that have been outstanding for more than 90 days. Losses has the meaning specified in Section 14.10(a). Manufacturing means ProFrac Manufacturing, LLC, a Texas limited liability company. Margin Stock means margin stock as such term is defined in Regulation T, U or X of the Federal Reserve Board.
Master Agreement has the meaning specified in the definition of Hedge Agreement. Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the operations,
business or financial condition of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability of the Borrower and the other Obligors (taken as a whole) to perform their payment obligations
under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Obligor of any Loan Document to which it is a party. Material Indebtedness means Debt (other than the Obligations) of any one or more of Holdings, the Borrower and the
Restricted Subsidiaries in an aggregate principal amount exceeding $22,500,000. For purposes of determining Material Indebtedness, the principal amount of the obligations in respect of any Hedge Agreement at any time shall be the Swap
Termination Value thereof. Maximum Rate has the meaning specified in Section 3.3. Monthly Liquidity means the Liquidity of the Obligors, as calculated on the last Business Day of each fiscal month of the
Obligors. -46-
[**].
[**].
[**].
[**].
-47-
[**].
[**].
[**].
[**].
Moodys means Moodys Investors Service, Inc., or any
successor thereto. Mortgage means, collectively, the deeds of trust, trust deeds, debentures, deeds of hypothec and
mortgages creating and evidencing a Lien on a Mortgaged Property made by any Obligor in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in the form and substance reasonably acceptable to the Collateral Agent and the
Borrower that are executed and delivered pursuant to the Collateral and Guarantee Requirement definition set forth herein or Section 9.1(a)(ii) (if applicable) or Sections 8.23, 8.25 or 8.29. Mortgaged Properties has the meaning specified in paragraph (f) of the definition of Collateral and
Guarantee Requirement. -48-
Multi-employer Plan means a multi-employer plan as defined in
Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by Holdings, the Borrower or any ERISA Affiliate or with respect to which Holdings, the Borrower or
any ERISA Affiliate has any ongoing obligation with respect to withdrawal liability (within the meaning of Title IV of ERISA). Net Cash Proceeds means: (a) with respect to any Permitted Disposition or Casualty Event, (A) the gross amount of all proceeds thereof in the form of cash and
Cash Equivalents (including, without limitation, any cash proceeds received as proceeds of any disposition of non-cash proceeds as and when received and any proceeds received by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and when received) actually paid to or received by the Borrower or any of its Restricted Subsidiaries, less (B) the sum of (1) the amount, if any, of all
customary fees, legal fees, accounting fees, brokerage fees, commissions, costs and other expenses that are required to be paid by the Borrower or any of its Restricted Subsidiaries in connection with such Permitted Disposition or Casualty Event and
are actually paid by the Borrower or any of its Restricted Subsidiaries, but only to the extent not already deducted in arriving at the amount referred to in clause (A) above; (2) Taxes paid or reasonably estimated to be payable in
connection therewith (including Taxes imposed on the distribution or repatriation of any such Net Cash Proceeds) (after taking into effect any available tax credits or deductions and tax sharing arrangements); (3) in the case of any Permitted
Disposition by or Casualty Event affecting, a non-Wholly-Owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (3)) attributable to minority interests and not
available for distribution to or for the account of the Borrower or any Restricted Subsidiary as a result thereof; (4) appropriate amounts that must be set aside as a reserve in accordance with GAAP against any indemnities, liabilities
(contingent or otherwise) associated with such Permitted Disposition or Casualty Event (other than any Taxes deduced pursuant to clause (2) above) (I) associated with the assets that are the subject of such event and (II) retained
by any Obligor, provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Cash Proceeds of such event occurring on the date of
such reduction; (5) if applicable, the principal amount of any Debt secured by a Permitted Lien that has been repaid or refinanced in accordance with its terms with the proceeds of such Permitted Disposition or Casualty Event; (6) any payments
to be made by the Borrower or any of its Restricted Subsidiaries as agreed between the Borrower or such Restricted Subsidiary and the purchaser of any assets subject to a Permitted Disposition or Casualty Event in connection therewith; and
(7) any portion of such proceeds deposited in an escrow account or other appropriate amounts that must be set aside as a reserve in accordance with GAAP against any indemnities, liabilities (contingent or otherwise) associated with such
Permitted Disposition or Casualty Event; and (b) with respect to any incurrence, issuance or assumption by the Borrower or any of its
Restricted Subsidiaries of any Debt, or any issuance by any Parent Entity (including ProFrac PubCo.), Holdings, the Borrower or any of its Restricted Subsidiaries of any Stock, the gross amount of cash proceeds paid to or received by such Person in
respect thereof, less the sum of underwriting discounts and commissions or placement fees, investment banking fees, legal fees, consulting fees, accounting fees and other customary fees and expenses incurred, and actually paid by such Person
in connection therewith. Net Income means the net income (loss) attributable to Holdings and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends. Non-Consenting Lender has the meaning specified in Section 12.1(b). -49-
Non-Wholly Owned Subs has the meaning specified in the definition of
Excess Cash Flow set forth herein. Not Otherwise Applied means, with reference to any amount otherwise
eligible for inclusion in the Available Amount and/or clause (hh) of the definition of Permitted Investments set forth herein, that such amount (a) was not previously applied to prepay the Obligations, (b) was not previously
utilized (meaning such funds remain available for application as Available Amount and/or Investments under clause (hh) of the definition of Permitted Investments set forth herein) for some other purpose, and (c) that such amount was not
committed to be applied, provided that such commitment remains outstanding or has not otherwise terminated or expired, for some other purpose. Note means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form
of Exhibit J hereto, evidencing the aggregate Debt of the Borrower to such Lender resulting from the Term Loans made by such Lender. Notice of Borrowing has the meaning specified in Section 2.3(a). Notice of Continuation/Conversion has the meaning specified in Section 3.2(b). Obligations means all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by
the Obligors or Restricted Subsidiaries, or any of them, to the Agent, the Collateral Agent, any Lender, any Secured Party and/or any Indemnified Person, arising under or pursuant to this Agreement, any of the other Loan Documents, Secured Cash
Management Agreements and Secured Hedge Agreements, whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of credit, acceptance, loan, guaranty, indemnification or
otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses, fees, attorneys fees, Attorney Costs, filing fees
and any other sums chargeable to any of the Borrower or any other Obligor hereunder or under any of the other Loan Documents. Obligations include, without limitation, (a) all Secured Hedge Obligations (other than with respect to any
Obligors Hedge Obligations that constitute Excluded Swap Obligations) and Cash Management Obligations and (b) all interest, fees and other amounts that accrue or would accrue after commencement of any Insolvency Proceeding against any
Obligor, whether or not allowed in such proceeding. Obligors means, collectively, the Borrower, each Guarantor, and
each other Person that now or hereafter is primarily or secondarily liable for any of the Obligations and/or grants the Collateral Agent a Lien in any Collateral as security for any of the Obligations; provided that (i) the FTS Pledgors
and FTS shall not constitute Obligors hereunder or under the other Loan Documents for any purpose unless and until, in the case of FTS, FTS becomes a Subsidiary of an Obligor after giving effect to the FTS Distribution and Contribution Transaction
on the Closing Date, in which case FTS shall constitute an Obligor for all purposes hereunder, (ii) the FTS Subsidiaries shall not become Obligors hereunder or under the other Loan Documents until the FTS Subsidiaries are contributed to
Holdings on the Closing Date pursuant to the FTS Distribution and Contribution Transaction (at which time, the FTS Subsidiaries shall automatically become Obligors hereunder and under the Loan Documents for all purposes), and (iii) Flotek
Industries, Inc. and its Subsidiaries shall not be required to become Obligors hereunder or under the other Loan Documents unless and until Holdings owns, directly or indirectly, more than 66 2⁄3% of the Stock of Flotek (unless at the time that Holdings owns, directly or indirectly, such amount of the Stock of Flotek, Holdings and/or the Borrower have continued the designation of Flotek as an
Unrestricted Subsidiary (but not a Specified Unrestricted Subsidiary and satisfied all of the requirements of Section 8.26(d)(iv) with respect to the continuance of such designation (as if Flotek were initially being designated as an
Unrestricted Subsidiary on such date)) and (iii) the U.S. Well Entities shall not become Obligors hereunder or
under any Loan Documents until after the U.S. Well Merger with respect to the U.S. Well Entities has been consummated. -50-
OFAC has the meaning specified in Section 7.24(a). 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. Original Currency has the meaning specified in Section 14.19. Originating Lender has the meaning specified in Section 12.2(g). 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 Term Loan or Loan Document). Other Taxes means all present or future stamp, court, documentary, intangible, recording, filing, charges or similar levies
or Taxes that arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other
Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.8(c)). Parent Entity means any Person that is or becomes a direct or indirect parent company (which may be organized as, among
other things, a partnership) of Holdings. For the avoidance of doubt, ProFrac PubCo shall be deemed to constitute a Parent Entity of Holdings. Participant has the meaning specified in Section 12.2(g). Participant Register has the meaning specified in Section 13.18(b). Payment has the meaning assigned to such term in Section 13.22(a). Payment Notice has the meaning assigned to such term in Section 13.22(b). PBGC means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to the functions thereof.
Pension Plan means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA or
Section 412 of the Code, other than a Multi-employer Plan, which Holdings, the Borrower or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, or has made contributions at any time
during the immediately preceding six (6) plan years. -51-
Perfection Certificate means the Perfection Certificate substantially in
the form of Exhibit E. Periodic Term SOFR Determination Day has the meaning specified therefor in the definition of
Term SOFR. Permitted Acquisition means (x) the FTS Acquisition, (y) the West Munger Acquisition
and (z) any other acquisition, by merger, consolidation, amalgamation or otherwise, by Holdings (or indirectly by a Parent Entity) or any of its Restricted Subsidiaries of (a) all or substantially all of the property and assets or business
of any Person or of assets constituting a business unit, a line of business or division of such Person, or (b) all or a majority of the Stock in a Person, in the case of each of clauses (a) and (b), (i) that, upon the consummation
thereof, will be a Subsidiary that is owned directly by the Borrower or one or more of its Wholly-Owned Restricted Subsidiaries (including, without limitation, as a result of a merger, amalgamation or consolidation) or (ii) all or substantially
all of the property and assets of which (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) are substantially contemporaneously therewith contributed to the Borrower or one or more Guarantors (other than
Holdings) (and all of which Stock shall thereafter constitute Excluded Stock pursuant to clause (g) of the definition thereof), in each case, so long as (A) such acquisition and all transactions related thereto shall be consummated in all
material respects in accordance with all applicable Laws, (B) if such acquisition involves the acquisition of Stock of a Person that upon such acquisition would become a Subsidiary of the Borrower, such acquisition shall result in the issuer of
such Stock becoming a Restricted Subsidiary (unless otherwise designated as an Unrestricted Subsidiary pursuant to Section 8.26) and, to the extent required by the Collateral and Guarantee Requirement, a Guarantor, (C) to the extent
required by the Collateral and Guarantee Requirement, such acquisition shall result in the Collateral Agent, for the benefit of the Secured Parties, being granted a security interest in any Stock or any assets so acquired, (D) both immediately
prior to and after giving effect to such acquisition, no Event of Default under Sections 10.1(a), (e), (f) or (g) shall have occurred and be continuing, unless such acquisition is a Limited Condition Acquisition
with respect to which a LCA Election has been made, in which case such Event of Default condition shall be tested as specified in Section 1.5), and (E) immediately after giving effect to such acquisition, Holdings and its Restricted
Subsidiaries shall be in compliance with Section 8.15. Permitted Acquisition Consideration means, in
connection with any Permitted Acquisition, the aggregate amount (as valued at the Fair Market Value of such Permitted Acquisition at the time such Permitted Acquisition is made) of, without duplication: (a) the purchase consideration for such
Permitted Acquisition, whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and including
any and all payments representing the purchase price and any assumptions of Debt and/or Guaranties, earn-outs and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject
to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and (b) the aggregate amount of Debt assumed in connection with such Permitted Acquisition; provided in each case, that any such
future payment that is subject to a contingency shall be considered Permitted Acquisition Consideration only to the extent of the reserve, if any, required under GAAP (as determined at the time of the consummation of such Permitted Acquisition) to
be established in respect thereof by Holdings or its Restricted Subsidiaries. Permitted Debt has the meaning specified
in Section 8.12. Permitted Disposition means: -52-
(a) [reserved]; (b) Dispositions of obsolete, surplus, damaged or worn-out property or property that is no longer necessary, used or useful in the business of
Holdings and its Restricted Subsidiaries; (c) Dispositions of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually
promptly purchased); (d) the use, transfer or Disposition of cash and Cash Equivalents pursuant to any transaction permitted by the terms
of the Loan Documents; (e) sales (other than sales of Eligible Accounts (as defined in the ABL Credit Agreement)), discounting or
forgiveness of Accounts in connection with the collection, settlement or compromise thereof; (f) any Disposition, license, sublicense,
abandonment or lapse of Intellectual Property which does not materially interfere with the business of Holdings or any of its Restricted Subsidiaries, taken as a whole; (g) Dispositions constituting Permitted Distributions, Permitted Investments (other than pursuant to clause (p) of the definition
of Permitted Investments), transactions permitted by Section 8.9 or Permitted Liens; (h) any sale or issuance of Stock
by (i) a direct Restricted Subsidiary of Holdings to Holdings, (ii) the Borrower to Holdings, or (iii) any Restricted Subsidiary of Borrower to Borrower, Holdings or another Restricted Subsidiary of Borrower or Holdings; (i) Dispositions of property for aggregate consideration of less than $1,000,000 with respect to any individual transaction; provided
that the aggregate amount of such Dispositions permitted by this clause (i) shall not exceed $5,000,000 during any Fiscal Year; (j) the leasing or subleasing of assets of Holdings or any of its Restricted Subsidiaries not materially interfering with the business of
Holdings and its Restricted Subsidiaries, taken as a whole; (k) Dispositions constituting the Permitted Sale Leaseback Transaction for
cash consideration that does not in the aggregate exceed $50,000,000; (l) Dispositions of non-core assets acquired in connection with
Permitted Acquisitions, any other acquisitions permitted hereunder or similar Investments that are not used or useful in the business of Holdings and its Restricted Subsidiaries; (m) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or in the ordinary course of business for
similarly situated businesses in the Borrowers industry and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries, taken as a whole; (n) transfers of property subject to Casualty Events upon receipt of the net proceeds of such Casualty Event; -53-
(o) Dispositions of Investments in joint ventures to the extent required by, or made
pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (p) the unwinding of any Hedge Agreement pursuant to its terms; (q) the Disposition of the Stock in, Debt of, other securities issued by, and/or assets of an Unrestricted Subsidiary (other than the
Disposition of the Stock of any Specified Unrestricted Subsidiary); (r) Dispositions of property or assets to Holdings, the Borrower or
to any other Restricted Subsidiary; provided that, if the transferor of such property is an Obligor (i) the transferee thereof must either be an Obligor or (ii) such transaction must constitute a Permitted Investment; (s) the settlement, release or surrender of litigation claims in the ordinary course of business or to the extent that the Borrower
determines, in the good faith business judgment, that such settlement, release or surrender of litigation claims is beneficial to Holdings and its Restricted Subsidiaries, taken as a whole; (t) any Disposition for Fair Market Value; provided that with respect to any Disposition (or series of related Dispositions) pursuant
to this clause (t) for a purchase price in excess of $5,000,000, Holdings, the Borrower or any other Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided,
further, that, with respect to Dispositions of Fixed Asset Collateral, for purposes of determining what constitutes cash and Cash Equivalents under this clause (t), any Designated Non-Cash Consideration received by Holdings, the
Borrower or such other Restricted Subsidiary in respect of the applicable Disposition of such Fixed Asset Collateral having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this
clause (t) that is outstanding at the time such Designated Non-Cash Consideration is received, not in excess of the greater of (x) $15,000,000 and (y) 1.5% of Consolidated Total Assets (measured as of the date such Disposition
is made based upon the Section 6.2 Financials most recently delivered on or prior to such date) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration
being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash; and (u)
Dispositions to any Restricted Subsidiary that is not an Obligor; provided that the aggregate amount of Dispositions pursuant to this clause (u) shall not exceed $7,500,000; For purposes of this definition, capitalized terms used in this definition but not defined elsewhere in this Agreement shall have the meanings
set forth in Articles 8 or 9 of the UCC, as the case may be. Permitted Distributions has the meaning specified in
Section 8.10. Permitted Holders means each of Farris Wilks, his Family Members, Farris Family Trusts, FARJO
Holdings, LP, Dan Wilks, his Family Members, Family Trusts, THRC Management, LLC and THRC Holdings, LP (provided that THRC Holdings, LP shall only constitute a Permitted Holder so long as THRC Management, LLC, Dan Wilks, his Family Members,
and/or Family Trusts Control THRC Holdings, LP and own and control, directly or indirectly, at least 51% on a fully diluted basis of the economic and voting interest in the Stock of THRC Holdings, LP). -54-
Permitted Investments means: (a) Investments by Holdings, the Borrower or any other Restricted Subsidiary in assets constituting cash or Cash Equivalents at the time such
Investment was made; (b) (i) (A) Investments by Holdings and its Restricted Subsidiaries in Holdings and its Restricted Subsidiaries
existing on the Agreement Date and (B) Investments existing on the
(c) Investments by any Obligor in any other Obligor; (d) Investments by any Restricted Subsidiary which is not an Obligor in the Borrower or any other Restricted Subsidiary; (e) Investments by any Obligor in any Restricted Subsidiary which is not an Obligor; provided that the aggregate amount of Investments
made and then-outstanding pursuant to this clause (e), shall not exceed, at the time of the making of such Investment and after giving Pro Forma Effect thereto, the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total
Assets as of the last day of the Test Period most recently ended on or prior to the date such Investments was made; (f) Investments in
the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business; (g)
Deposit Accounts maintained in the ordinary course of business; (h) Investments constituting Hedge Agreements entered into in the
ordinary course of business and for non-speculative purposes; (i) Investments (including debt obligations and Stock) received in
connection with the bankruptcy or reorganization of Account Debtors, suppliers and customers or in settlement of delinquent obligations of, or other disputes with, Account Debtors, customers and suppliers or upon the foreclosure with respect to any
secured Investment or other transfer of title with respect to any secured Investment; (j) loans or advances to officers, directors,
partners, members and employees of Holdings (or any Parent Entity) or its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in
connection with such Persons purchase of Stock of Holdings (or Stock of any Parent Entity or the Borrower) (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity (or any other
form of Qualified Stock) or used to satisfy Tax obligations relating to proceeds received by such Person in connection with the Transactions, which proceeds are used for the purchase of such Stock)), (iii) relating to indemnification of any
officers, directors or employees in respect of liabilities relating to their serving in any such capacity, and any reimbursement of any such officer, director or employee of expenses relating to the claims giving rise to such indemnification and
(iv) for purposes not described in the foregoing clauses (i), (ii) and (iii), in an aggregate principal amount, when taken together with the aggregate amount of (A) Investments made under clause
(t) below and (B) Distributions made under Section 8.10(e) below, not to exceed (x) $10,000,000 in any Fiscal Year and (y) $20,000,000 during the term of the Agreement; -55-
(k) Permitted Acquisitions or any other acquisitions constituting Permitted Investments made
using the Available Amount at such time, so long as (x) no Default or Event of Default shall have occurred prior to and be continuing or would result therefrom and (y) the Total Net Leverage Ratio as of the last day of the most recently
completed Test Period, after giving Pro Forma Effect to such Investment, does not exceed 1.00:1.00; provided that, the aggregate amount of Permitted Acquisition Consideration relating to all such Permitted Acquisitions or any other
acquisitions constituting Permitted Investments made by the Borrower or any Guarantor to acquire any Restricted Subsidiary that does not become a Guarantor or merge, consolidate or amalgamate into the Borrower or a Guarantor or any assets that shall
not, immediately after giving effect to such Permitted Acquisition or such other acquisition constituting a Permitted Investment, be owned by the Borrower or a Guarantor, shall not exceed, after giving Pro Forma Effect thereto, the greater of
(x) $10,000,000 and (y) 1.5% of Consolidated Total Assets as of the last day of the Test Period most recently ended on or prior to the date such Investment was made; (l) any Investment to the extent that the consideration therefor is Stock (other than Disqualified Stock) of Holdings (or any Parent Entity);
(m) Guaranties of Holdings, the Borrower or any other Restricted Subsidiary in respect of leases (other than Capital Leases) or of other
obligations that do not constitute Debt, in each case entered into in the ordinary course of business; (n) Investments in the ordinary
course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry consisting of endorsements for collection or deposit; (o) Investments 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, and Investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors and other credits to suppliers in the ordinary course of business or in the ordinary course
of business for similarly situated businesses in the Borrowers industry; (p) Investments consisting of Liens, Debt, fundamental
changes, Dispositions (other than pursuant to clause (g) of the definition of Permitted Dispositions) and Distributions, in each case, permitted under this Agreement; (q) Investments in cash, and in negotiable instruments deposited or to be deposited for collection in the ordinary course of business; (r) promissory notes and other non-cash consideration received in connection with Permitted Dispositions; (s) advances of payroll payments to employees, directors, consultants, independent contractors or other service providers or other advances of
salaries or compensation to employees, directors, partners, members, consultants, independent contractors or other service providers, in each case in the ordinary course of business; (t) Investments made to acquire, purchase, repurchase or retire Stock of Holdings (or Stock of any Parent Entity) or the Borrower owned by any
employee stock ownership plan or similar plan of Holdings (or any Parent Entity), the Borrower, or any Subsidiary, in an aggregate amount, when taken together with the aggregate amount of (i) loans and advances made under clause
(j) above and (ii) Distributions made under Section 8.10(e) below, not to exceed (A) $10,000,000 in any Fiscal Year and (B) $20,000,000 during the term of the Agreement; -56-
(u) contributions to a rabbi trust for the benefit of employees, directors,
partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of Holdings (or any Parent Entity thereof); (v) Investments held by any Person acquired by Holdings, the Borrower or a Restricted Subsidiary after the Closing Date or of any Person
merged into the Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with Section 8.9 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection
with such acquisition, merger, amalgamate or consolidation and were in existence on the date of such acquisition, amalgamation, merger or consolidation; (w) Restricted Subsidiaries of Holdings may be established or created if Holdings, the Borrower and such Restricted Subsidiary comply with the
requirements of Section 8.23, if applicable; provided that in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted by this
Agreement, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary shall not be
required to take the actions set forth in Section 8.23 until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the provisions
thereof); (x) to the extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment
or purchases, acquisitions, licenses or leases of other assets, Intellectual Property, or other rights, in each case in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers
industry; (y) Investments by Restricted Subsidiaries that are not Obligors in Restricted Subsidiaries that are not Obligors; (z) intercompany Investments, reorganizations and related activities in connection with tax planning and reorganization activities, so long as
after giving effect to any such activities, the Collateral Agents Lien on any material portion of the Collateral is not impaired; (aa) asset purchases (including purchases of Inventory, supplies, materials and other assets), in each case in the ordinary course of business
or in the ordinary course of business for similarly situated businesses in the Borrowers industry; (bb) any Investment in a
non-Obligor to the extent such Investment is substantially contemporaneously repaid in full with a dividend or other distribution in like kind as such Investment from such Person that is not an Obligor; (cc) any Investments (including Investments in minority investments, Investments in Unrestricted Subsidiaries and Investments in joint
ventures or similar entities that do not constitute Restricted Subsidiaries); provided that the aggregate amount of such Investments made and then-outstanding pursuant to this clause (cc) measured at the time of the making of such
Investment and after giving Pro Forma Effect thereto shall not exceed the greater of (x) $30,000,000 and (y) 2.5% of Consolidated Total Assets as of the last day of the Test Period most recently ended on or prior to the date such
Investment was made, provided, further that the aggregate amount of such Investments made and then-outstanding pursuant to this clause (cc) measured at the time of the making of such Investment shall not exceed $100,000,000 at
any time; -57-
(dd) the (i) FTS Acquisition, and (ii) West Munger Acquisition; (ee) Investments made with the Available Amount so long as (x) no Default or Event of Default shall have occurred prior to and be
continuing or would result therefrom and (y) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Investment, does not exceed 1.00:1.00; (ff) the Basin Units Acquisition; (gg) Investments made in connection with the issuance of the Flotek Notes or Flotek Stock to Holdings, the Borrower or any other Obligor
and/or contributed to the Borrower or another Obligor by Holdings (including the acquisition and ownership of Flotek Stock received in connection with a conversion of all or a portion of the outstanding principal and accrued and unpaid interest
under the Flotek Notes into Flotek Stock) provided that the conversion of Flotek Notes into Flotek Stock shall not constitute an additional Investment (and such conversion shall not be restricted in any way hereunder); (hh) Investments made from the Net Cash Proceeds of the IPO in an aggregate amount not to exceed the result of (i) the lesser of
(x) the aggregate amount of Net Cash Proceeds of the IPO and (y) $200,000,000 less (ii) the sum of (x) the aggregate amount of Net Cash Proceeds of the IPO required to be applied to the Term Loans (after giving effect to any
Declined Amounts) pursuant to Section 4.3(c)) plus (y) the aggregate amount of Net Cash Proceeds of the IPO applied to the prepayment of the Back-Stop Note and the Equify Bridge Note pursuant to Section 8.13, plus
(z) the Pubco Distribution made from IPO Proceeds pursuant to Section 8.10(n), and, in any case, which are Not Otherwise Applied; (ii) each First Amendment Acquisition, so long as each new direct or indirect Domestic
Subsidiary acquired in connection with such First Amendment Acquisition becomes a Wholly-Owned Restricted Subsidiary and a Guarantor under this Agreement pursuant to Section 8.23 (and remains a Wholly-Owned Restricted Subsidiary and a
Guarantor at all times during the term of this Agreement (except as otherwise permitted under Section 8.9(d)(i))) and satisfies the Collateral and Guarantee Requirement in connection with such First Amendment Acquisition (it being
understood and agreed that no Person acquired in connection with any First Amendment Acquisition shall be at any time designated as a Non-Wholly Owned Sub, an Excluded Subsidiary or an Unrestricted Subsidiary), provided, that Thunderclap
Merger Sub I, Inc., a Delaware corporation, shall not be required to become a Guarantor under this Agreement pursuant to Section 8.23 (and, for the avoidance of doubt, shall not be required to grant or perfect liens (or take any action
in furtherance thereof) in any of its assets to secure the Obligations or Guaranteed Obligations), so long as it remains an Immaterial Subsidiary and is merged into another Obligor (or a Person that becomes an Obligor in accordance with
Section 8.23) upon the consummation of the First Amendment Acquisition with respect to U.S. Well Services
Holdings, LLC (formerly known as U.S. Well Services, Inc.);
and (jj)
[**]. For purposes of determining compliance with this definition, in the
event that any Investment meets the criteria of more than one of the types of Permitted Investments described in the above clauses, the Borrower, in its sole discretion, may classify (but not reclassify other than the Flotek Pre-Funded Warrants)
such Investment and only be required to include the amount and type of such Investment in one of such clauses provided that Investments may be allocated among more than one clause to the extent that such Investment meets the criteria of such
clauses. -58-
Permitted Liens means, with respect to Holdings, the Borrower and the
Restricted Subsidiaries, the Liens listed below: (a) Liens for Taxes that (i) are not delinquent or the nonpayment of which in the
aggregate would not reasonably be expected to have a Material Adverse Effect, or (ii) are being contested in good faith and by the appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (or other
applicable accounting principles); (b) the Collateral Agents Liens; (c) (i) Liens consisting of deposits or pledges of cash (or letters of credit issued) made in the ordinary course of business in connection
with, or to secure payment of, obligations under workers compensation, unemployment insurance, social security and other similar laws, (ii) Liens consisting of pledges and deposits of cash in the ordinary course of business securing
liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower,
Holdings or any Restricted Subsidiary, (iii) Liens consisting of deposits of cash made to secure the performance of bids, tenders, trade contracts, governmental contracts, leases or purchase, supply or other contracts (other than for the
repayment of Debt for Borrowed Money) or to secure indemnity, performance or other similar bonds for the performance of bids, tenders or contracts (other than for the repayment of Debt for Borrowed Money) or to secure statutory or regulatory
obligations (other than Liens arising under ERISA or Code Section 430), surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business; (d) statutory or common law Liens securing the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days overdue, are unfiled and no other
action has been taken to enforce such Lien or which are being Properly Contested, in each case, if adequate reserves in accordance with GAAP (or other applicable accounting principles) with respect thereto are maintained on the books of the
applicable Person, provided that if any such Lien arises from the nonpayment of any such claims or demands when due, such claims or demands are being Properly Contested or such nonpayment would not reasonably be expected to cause a Material
Adverse Effect; (e) Liens securing Capital Leases and purchase money Debt to the extent such Capital Leases or purchase money Debt are
permitted in Section 8.12; provided that (i) such Liens attach concurrently with or within two hundred and seventy (270) days after the acquisition, construction, repair, replacement, lease or improvement (as applicable)
of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Debt, replacements thereof -59-
and additions and accessions to such property and the proceeds and the products thereof and customary
security deposits, and (iii) with respect to Capital Leases, such Liens do not at any time extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits)
other than the assets subject to such Capital Leases; provided that individual financings of equipment provided by one creditor may be cross-collateralized to other financings of equipment provided by such creditor; provided, further, that this clause (e) shall include Liens securing Debt evidenced by the Enterprise Master Lease
Agreement to the extent such Debt is permitted under Section 8.12(c); (f) (i)
Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, zoning, rights of way, covenants running with the land, affidavits of heirship and other similar title ordinary course exceptions or encumbrances
affecting any Real Estate; provided that they do not, in the aggregate, materially interfere with its use in the ordinary conduct of the Borrowers and its Restricted Subsidiaries business taken as a whole, (ii) mortgages,
Liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on Real Estate over which the Borrower or any Restricted Subsidiary has easement rights (but
does not own) or on any leased Real Estate and subordination or similar agreements relating thereto, and (iii) any condemnation or eminent domain proceedings affecting any Real Estate; (g) Liens arising from any judgment, decree or order of any court or other Governmental Authority or any attachments in connection with court
proceedings; provided that the attachment or enforcement of such Liens do not constitute an Event of Default hereunder; (h)
licenses, sublicenses, leases or subleases on the property covered thereby (including Intellectual Property) granted to other Persons and not materially interfering with the ordinary conduct of the business of the Borrower and its Restricted
Subsidiaries taken as a whole; (i) any interest or title of a lessor, sublessor, licensee or licensor under any lease, sublease,
sublicense or license agreement permitted by this Agreement; (j) Liens (i) that are contractual rights of set-off,
(ii) relating to purchase orders and other agreements entered into with customers or suppliers of the Borrower or any Restricted Subsidiary in the ordinary course of business, or (iii) in favor of customs and revenue authorities arising as
a matter of law to secure the payment of customs duties in connection with the importation of goods in the ordinary course of business; (k) Liens (i) of a collection bank (including those arising under Section 4-210 of the UCC) on the items in the course of
collection, (ii) in favor of a banking or other financial institution arising as a matter of law encumbering deposits or other funds maintained with a financial institution (including the right of set-off) and which are within the general
parameters customary in the banking industry and (iii) in favor of the commodities broker or intermediary attaching to commodity trading accounts, or other commodity brokerage accounts, incurred in the ordinary course of business and not for
speculative purposes; (l) Liens attaching solely to cash earnest money deposits in connection with any letter of intent or purchase
agreement in connection with a Permitted Acquisition or other Permitted Investment; (m) Liens arising from precautionary UCC filings;
(n) Liens on insurance proceeds or unearned premiums incurred in the ordinary course of business in connection with the financing of
insurance premiums; -60-
(o) Liens identified on Schedule 8.16; provided that (i) such Lien does
not extend to any other property or asset of the Borrower or any Restricted Subsidiary other than (A) after acquired property that is affixed or incorporated into the property covered by such Lien or financed by Permitted Debt and (B) the
proceeds and products thereof and (ii) such Lien shall secure only those obligations or Permitted Debt that it secures on the Agreement Date and any Refinancing Debt incurred to Refinance such Permitted Debt; (p) Liens securing Refinancing Debt to the extent such Liens are permitted in the definition of Refinancing Debt; (q) Liens existing on property at the time of its acquisition or existing on the property of any Person at the time such Person becomes a
Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 8.26), in each case after the Closing Date; provided that (i) such Lien was not created in contemplation of such acquisition or
such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired property subjected to a Lien securing Debt and
other obligations incurred prior to such time and which Debt and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it being understood that such requirement shall not
be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the Debt is Permitted Debt and is not incurred in contemplation of such acquisition or in connection with such Person
becoming a Restricted Subsidiary; provided, further, that if such Liens are consensual and are on the Collateral, the
holders ([**]) of the Debt or other obligations secured thereby
(or a representative or trustee on their behalf) shall have entered into the ABL Intercreditor Agreement or another customary intercreditor agreement or arrangements reasonably satisfactory to the Agent, the Required Lenders and the Borrower
providing, among other things, that the Liens on the Collateral securing such Debt or other obligations shall rank junior to the Liens on the assets of the Obligors in favor of the Secured Parties; (r) Liens securing Debt permitted under Section 8.12(q) so long as the holder of any such Debt (or an agent or representative in
respect thereof) shall have entered into the ABL Intercreditor Agreement providing, among other things, that the Liens on the Fixed Asset Collateral securing such Debt or other obligations shall rank junior to the Collateral Agents Liens on
the Fixed Asset Collateral, the liens on the Current Assets Collateral securing such Debt may rank senior to the Collateral Agents Liens on the Current Assets Collateral and shall otherwise be in compliance with the parameters of
Section 8.12(q); (s) Liens on property of a Subsidiary of Holdings that is not an Obligor securing Debt of such Subsidiary
that is not an Obligor pursuant to Section 8.12(p); (t) deposits in the ordinary course of business to secure liabilities to
insurance carriers, lessors, utilities and other service providers or any seller of goods; (u) restrictions on transfers under applicable
securities laws; (v) any encumbrance or restriction (including pursuant to put and call agreements or buy/sell arrangements) with respect
to the Stock of any joint venture or similar arrangements pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement; (w) Liens (i) on cash advances in favor of the seller of any property to be acquired in a Permitted Investment to be applied against the
purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Permitted Disposition, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on
the date of the creation of such Lien; -61-
(x) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods, entered into by the Borrower or any of the other Restricted Subsidiaries in the ordinary course of business; (y) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or other financial
institutions not given in connection with the incurrence of Debt, or (ii) related to pooled deposit or sweep accounts of Holdings or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course
of business, or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any other Restricted Subsidiary in the ordinary course of business; (z) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property
that does not materially interfere with the ordinary conduct of the business of the Borrower or any other Restricted Subsidiary; (aa)
Liens on specific items of inventory or other goods and the proceeds thereof securing such Persons obligations in respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of
such inventory or goods; (bb) ground leases in respect of real property on which facilities owned or leased by any of Holdings
Subsidiaries are located; (cc) (i) Liens securing Debt or other obligations of the Borrower or a Restricted Subsidiary in favor of
the Borrower or any Guarantor provided that (x) such Liens are on the Collateral and junior to the Collateral Agents Lien and (y) such Debt is subject to a subordination agreement in form and substance reasonably satisfactory to the
Agent and (ii) Liens securing Debt or other obligations of any Restricted Subsidiary that is not an Obligor in favor of any Restricted Subsidiary that is not an Obligor; (dd) Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents that are permitted as Permitted
Investments; (ee) Liens on Stock in joint ventures (other than Restricted Subsidiaries); provided that any such Lien is in favor of
a creditor or partner of such joint venture; (ff) Liens on cash and Cash Equivalents used to satisfy or discharge Debt; provided
such satisfaction or discharge is permitted hereunder; (gg) Liens given to a public utility or any municipality or governmental or other
public authority when required by such utility or other authority; provided that such Liens do not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted Subsidiary, taken as whole; (hh) servicing agreements, development agreements, site plan agreements, subdivision agreements and other agreements with Governmental
Authorities pertaining to the use or development of any of the real property of the Borrower or any Restricted Subsidiary; provided same do not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted
Subsidiary, taken as whole, including, without limitation, any obligations to deliver letters of credit and other security as required; -62-
(ii) the right reserved to or vested in any Governmental Authority by any statutory
provision or by the terms of any lease, license, franchise, grant or permit of Holdings, Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition
to the continuance thereof; (jj) Liens securing Hedge Agreements entered into to hedge interest rate risk associated with Debt permitted
by Section 8.12(q); so long as such Liens are subject to the ABL Intercreditor Agreement providing, among other things, that the Liens on the Fixed Asset Collateral securing such Debt or other obligations shall rank junior to the
Collateral Agents Liens on the Fixed Asset Collateral and the liens on the Current Assets Collateral securing such Debt may rank senior to the Collateral Agents Liens on the Current Assets Collateral; (kk) Liens on the Excluded Assets described in clause (v) of the definition of Collateral and Guarantee Requirements securing
Debt incurred pursuant to Section 8.12(o); (ll) Liens on the Specified FTS Real Property securing Debt incurred pursuant to
Section 8.12(v); (mm) (i) Customary Liens set forth in Organizational Documents of Persons other than the Obligors and
(ii) Liens set forth in the Basin Purchase and Sale Agreement, the Flotek Notes, the Flotek Note Purchase Agreement and the Flotek Securities Purchase Agreement to the extent such Liens do not secure Debt for borrowed money; (nn) Liens securing the IO-TEQ Debt incurred pursuant to Section 8.12(t); (oo) Liens on the assets of
U.S. Well Services Holdings, LLC (formerly known as U.S. Well
Services, Inc.) and/or its Subsidiaries (but not any other Subsidiaries of Holdings) securing the Well Services Debt incurred pursuant to Section 8.12(b);
(pp) other Liens; provided that at the time of the incurrence thereof and after giving Pro Forma Effect thereto and the use of proceeds
thereof, the aggregate outstanding amount of Debt and other obligations secured by Liens incurred under this clause (pp) and then-outstanding shall not, when taken together with the aggregate principal amount of Debt incurred under
Section 8.12(c) and secured by Liens exceed $20,000,000; provided, further, that if such Liens are consensual and are on the Collateral, the holders of the Debt or other obligations secured thereby (or a representative or trustee
on their behalf) shall have entered into the ABL Intercreditor Agreement or another customary intercreditor agreement or arrangements reasonably satisfactory to the Agent, the Required Lenders and the Borrower, providing, among other things, the
Liens on the Collateral securing such Debt or other obligations shall rank junior to the Liens on the Collateral of the Obligors in favor of the Secured Parties. ; (qq) [**];
and -63-
(rr) Liens on
the assets of U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.) and/or its Subsidiaries (but not any other Subsidiaries of Holdings) securing the U.S. Well Direct Loans incurred pursuant to Section 8.12(y), provided
that individual financings of equipment provided by Paccar Finance Corp. may be cross-collateralized to other financings of equipment provided by Paccar Finance Corp. pursuant to each of the direct loan security agreements in connection with the
U.S. Well Direct Loans. For purposes of determining compliance with this
definition, in the event that any Lien meets the criteria of more than one of the types of Permitted Liens described in the above clauses, the Borrower, in its sole discretion, may classify (but not reclassify) such Lien and only be required to
include the amount and type of such Lien in one of such clauses provided that the Permitted Lien(s) may be allocated among more than one clause to the extent that such Permitted Lien(s) meets the criteria of such clauses. Permitted Sale Leaseback Transaction means any Sale Leaseback Transaction consummated after or contemporaneously with the
consummation of the FTS Acquisition with respect to the Specified FTS Real Property; provided that (a) no Event of Default shall have occurred or be continuing or would result therefrom, (b) the lease with respect to such Sale Leaseback
Transaction shall be on arms length commercially reasonable terms (as determined by the Borrower in good faith), (c) the lease with respect to such Sale Leaseback Transaction shall not have a capitalization rate in excess of
10.00% per annum, (d) the applicable purchaser and lessor with respect to such Sale Leaseback Transaction shall be an Affiliate of Wilks Brothers, LLC and (e) Holdings or any of its Restricted Subsidiaries consummating such Sale
Leaseback Transaction shall receive in connection with the sale or transfer of the property subject thereto, cash consideration in amount that (i) is at least equal to the Fair Market Value (as evidenced by an appraisal delivered to the Agent
on or within 30 days following the closing date of such Sale Leaseback Transaction) of such property and (ii) does not in the aggregate exceed $50,000,000 (not including any reasonable and documented out-of-pocket fees, costs and expenses
incurred and/or assessed in connection with such Sale Leaseback Transaction). Permitted Tax Distributions means
(a) with respect to any taxable period (or portion thereof) for which Holdings and any of its Subsidiaries (including Borrower) are members of a consolidated, combined, affiliated, unitary or similar income tax group for U.S. federal and/or
applicable foreign, state or local income tax purposes (each, a Tax Group) of which a direct or indirect parent of Holdings is the common parent, or for which Holdings is a partnership or disregarded entity for U.S. federal or
applicable foreign, state or local income tax purposes that is Wholly-Owned (directly or indirectly) by an entity that is taxable as a corporation for such income tax purposes, distributions by Holdings or an applicable Subsidiary (including
Borrower), as may be relevant, to any direct or indirect parent of Holdings in an amount not to exceed the sum of (i) the lesser of (x) the amount of any U.S. federal, foreign, state and/or local income taxes that Holdings and/or its
Subsidiaries that are members of the relevant Tax Group, as applicable, would have paid for such taxable period had Holdings and/or such Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group, and
(y) the actual income tax liability of the common parent of the Tax Group and (ii) such amounts as are needed to pay any amounts owed by a direct or indirect parent of Holdings under any Tax Receivable Agreement; or (b) with respect
to any taxable period or portion thereof during which Holdings is a pass-through entity (including a partnership or disregarded entity) and is not Wholly-Owned (directly or indirectly) by an entity that is taxable as a corporation for U.S. federal
income tax purposes, distributions by Holdings to any member or partner of Holdings, on or prior to each estimated tax payment date as well as each other applicable due date, on a pro rata basis, such that each such member or partner (or its direct
or indirect members or partners, if applicable) receives, in the aggregate for such period, payments or distributions sufficient to equal the sum of (i) such member or partners U.S. federal, state and/or local income taxes (as applicable)
attributable to its direct or indirect ownership of Holdings and its pass-through Subsidiaries with respect to -64-
such taxable period (assuming that such member or partner is subject to tax at the highest combined marginal U.S. federal, state, and/or local income tax rates applicable during the relevant
taxable period to a corporation that is resident in the state in which Holdings has its headquarters (for avoidance of doubt, regardless of the actual rate applicable to such member or partner)), determined by taking into account (A) any U.S.
federal, state and/or local (as applicable) loss carryforwards available to such member or partner during the relevant taxable period from losses allocated to such member or partner by Holdings in prior taxable periods to the extent not taken into
account in prior taxable periods and taking into account any applicable limitations on the use of such losses, (B) the deductibility of state and local income taxes for U.S. federal income tax purposes (disregarding any deduction that is
subject to a dollar limitation), (C) the corporate alternative minimum tax, (D) any basis adjustment pursuant to Sections 734 and 743 of the Code that gives rise to a payment under any Tax Receivable Agreement or otherwise, (E) any
allocations of reverse Section 704(c) income, and (F) any adjustment to such member or partners taxable income attributable to its direct or indirect ownership of Holdings and its Subsidiaries as a result of any tax
examination, audit or adjustment with respect to any period or portion thereof, but not taking into account any allocations of regular Section 704(c) income, (provided that for purposes of this clause (b)(i), (I) any Parent
Entity and any of the subsidiaries of such Parent Entity that are part of any affiliated group within the meaning of Section 1504 of the Code electing to file consolidated U.S. federal income tax returns of which such Parent Entity is the
common parent shall be accounted for as a single direct member of Holdings (such aggregated deemed member, the Public Member) and (II) the amount of U.S. federal, state and/or local income taxes of the Public Member with respect
to the relevant taxable period used in the calculation in clause (b)(i) shall in no event be less than the aggregate amount of U.S. federal, state and local tax liabilities of the Public Member for such taxable period), and (ii) in the case of
such member or partner that is a direct or indirect parent of Holdings with an obligation under any Tax Receivable Agreement, such amounts as are needed by it during the relevant period to pay amounts owed by it under such Tax Receivable Agreement;
provided that (1) it is understood and agreed, for the avoidance of doubt, that Permitted Tax Distributions shall not include distributions by any domestic Subsidiary that is treated as a corporation for U.S. federal income tax purposes);
(2) any Permitted Tax Distributions made with respect to estimated income taxes pursuant to clauses (a)(i) or (b)(i) shall be made no earlier than ten (10) days prior to the due date of such estimated income taxes; (3) to the extent
that Permitted Tax Distributions for estimated income taxes made with respect to any taxable year in accordance with the preceding clause (2) exceed the income tax liability of Holdings direct or indirect equity holders for such taxable
year in respect of Holdings net taxable income determined in accordance with the terms hereof (including as a result of the estimates of Holdings net taxable income during such year exceeding Holdings actual net taxable income for
such taxable year), any such excess shall be carried forward for purposes of determining distributions payable pursuant to clauses (a)(i) or (b)(i), as applicable, and reduce Permitted Tax Distributions for income taxes made for later years; and
(4) Permitted Tax Distributions shall not exceed the amount of distributions for taxes and Tax Receivable Agreement payments permitted under the Holdings LLC Agreement. Person means any individual, sole proprietorship, partnership, limited liability company, unlimited liability company,
joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity. Piper means Piper Sandler & Co. and its successors. Plan means any employee benefit plan (as defined in Section 3(3) of ERISA) which Holdings, the Borrower sponsors or
maintains or to which Holdings, the Borrower or a Subsidiary of the Borrower makes, is making, or is obligated to make contributions. Post-Transaction Period means, with respect to any Specified Transaction, the period beginning on the date on which such
Specified Transaction is consummated and ending on the last day of the twelfth month immediately following the date on which such Specified Transaction is consummated. -65-
Preferred Stock means, as applied to the Stock of any Person, the Stock
of any class or classes (however designated) that is preferred with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Stock of any
other class of such Person. Pro Forma Adjustment means, for any Test Period that includes all or any part of a Fiscal
Quarter included in any Post-Transaction Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of Holdings and its Subsidiaries, (a) the pro forma
increase or decrease (for the avoidance of doubt net of any such increase or decrease actually realized) in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the Borrower in good faith as a result of (a) actions
taken, actions with respect to which substantial steps have been taken or actions that are expected to be taken prior to or during such Post-Transaction Period, for the purposes of realizing reasonably identifiable cost savings, operating expense
reductions or costs or other synergies or (b) any additional costs, expenses or charges, accruals or reserves incurred prior to or during such Post-Transaction Period with the combination of the operations of such Acquired Entity or Business or
Converted Restricted Subsidiary with the operations of Holdings and its Restricted Subsidiaries or otherwise in connection with, as a result of or related to such Specified Transaction or Specified Restructuring; provided that (i) so
long as such actions are taken or expected to be taken prior to or during such Post-Transaction Period or such costs are incurred prior to or during such Post-Transaction Period, as applicable, for purposes of projecting such pro forma increase or
decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings, operating expense reductions or costs or other synergies will be realizable during the entirety of such Test Period, or such
additional costs, as applicable, will be incurred during the entirety of such Test Period and (ii) such Pro Forma Adjustments, when aggregated with any addbacks made pursuant to clause (a)(10) and clause (a)(14) of the definition
of Consolidated EBITDA, shall not be in excess of (A) with respect to any Test Period ending on or before December 31, 2022, 12.5% of Consolidated EBITDA for such Test Period and (B) with respect to any Test Period ending
thereafter, 7.5% of Consolidated EBITDA for such Test Period (in the case of each of clauses (A) and (B), prior to giving effect to any increase in Consolidated EBITDA pursuant to this definition or clause (a)(10) or clause
(a)(14) of the definition of Consolidated EBITDA). Pro Forma Basis and Pro Forma
Effect mean, with respect to compliance with any test, financial ratio or covenant hereunder for an applicable period of measurement, for any Specified Transactions or Specified Restructurings that have been made during any applicable Test
Period or, if applicable, subsequent to such Test Period and prior to or simultaneously with the events for which any such calculation is made, shall be calculated on a pro forma basis assuming that (A) to the extent applicable, the Pro Forma
Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement (as of the last date in the
case of a balance sheet item) in such test or covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a Disposition of all or
substantially all Stock in any Subsidiary of Holdings or any division, product line, or facility used for operations of Holdings or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment
described in the definition of Specified Transaction, shall be included, (b) Refinancing of Debt, and (c) any Debt incurred by Holdings or any of its Restricted Subsidiaries in connection therewith and if such Debt has a
floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of
determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test, ratio or covenant solely to the extent that such adjustments
are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as reasonably determined by the Borrower in good faith) (i) (x) directly attributable to
such transaction, (y) expected to have a continuing impact on Holdings and its Restricted Subsidiaries and (z) reasonably identifiable or (ii) otherwise consistent with the definition of Pro Forma Adjustment. -66-
Pro Rata Share means, with respect to a Lender, a fraction (expressed as
a percentage), the numerator of which is the aggregate amount of such Lenders Term Loan Commitments and the denominator of which is the sum of the amounts of all of the Lenders Term Loan Commitments, or if no Term Loan Commitments are
outstanding, a fraction (expressed as a percentage), (x) the numerator of which is the sum (without duplication) of the aggregate amount of the Term Loans owed to such Lender and (y) the denominator of which is the sum (without duplication) of
the aggregate amount of the Term Loans owed to the Lenders. ProFrac PubCo means ProFrac Holding Corp., a Delaware
corporation. Properly Contested means, in the case of any Debt or other obligation of Holdings, the Borrower, or any
Restricted Subsidiary that is not paid as and when due or payable by reason of such Persons bona fide dispute concerning its liability to pay the same or concerning the amount thereof, (a) such Debt or other obligation is being properly
contested in good faith by appropriate proceedings promptly instituted and diligently conducted; (b) such Person has established appropriate reserves for the contested Debt or other obligation in conformity with GAAP; and (c) will not
result in any impairment of the enforceability, validity or priority of the Collateral Agents Liens. Property
shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, equipment, Stock and Real Estate. Proposed Change has the meaning specified in Section 12.1(b). 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. PubCo Distribution means that certain Distribution by Holdings to ProFrac PubCo (directly
or indirectly) from the IPO Proceeds in an amount not to exceed $72,930,000 to be used by ProFrac PubCo to purchase (i) common units issued by Holdings and/or (ii) shares of FTS Stock. Purchased BPC Units means the following Stock acquired by Holdings in accordance with the Basin Units Acquisition:
(i) 120,000 Series A-1 Preferred Units in BPC, (ii) 11,000 Series B-1 Preferred Units in BPC and (iii) the Additional Purchased Units (as defined in the Basin Purchase and Sale Agreement). Qualified Stock means any Stock that is not Disqualified Stock. Real Estate means all of each Obligors and each of its Restricted Subsidiaries now or hereafter owned or leased
estates in real property, including, without limitation, all fees, leaseholds and future interests, together with all of each Obligors and each of its Restricted Subsidiaries now or hereafter owned or leased interests in the improvements
thereon, the fixtures attached thereto and the easements appurtenant thereto. Recipient has the meaning assigned to
such term in Section 13.22(a). -67-
Reference Rate Term SOFR Determination Day has the meaning specified in
the definition of Term SOFR. Refinance, Refinanced and Refinancing
each has the meaning specified in the definition of the term Refinancing Debt. Refinanced Debt has the
meaning specified in the definition of term Refinancing Debt. Refinancing Debt means with respect to any
Debt (the Refinanced Debt), any Debt incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in respect of such exchange or replacement (in whole or in part), by adding or
replacing lenders, creditors, agents, the Borrower and/or guarantors, or, after the original instrument giving rise to such Debt has been terminated, by entering into any credit agreement, loan agreement, note purchase agreement, indenture or other
agreement), or the net proceeds of which are to be used for the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, amending, supplementing, restructuring, repaying or refunding (collectively to
Refinance or a Refinancing or Refinanced), such Refinanced Debt (or previous refinancing thereof constituting Refinancing Debt); provided that (a) the principal amount (or accreted
value, if applicable) of such Refinancing Debt does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt except by an amount equal to unpaid accrued interest and premium (including applicable prepayment
penalties) thereof plus fees and expenses reasonably incurred in connection therewith plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (b) any Liens securing such Refinancing
Debt shall have the same collateral priority as the Liens securing the Refinanced Debt, (c) no Obligor that was not previously liable for the repayment of such Refinanced Debt is or is required to become liable for the Refinancing Debt (except
that any Obligor may be added as an additional direct or contingent obligor in respect of such Refinancing Debt), (d) such extension, refinancing, refunding, replacement or renewal does not result in the Refinancing Debt having a shorter
Weighted Average Life to Maturity than the Refinanced Debt, (e) if the Refinanced Debt was subordinated in right of payment to any of the Obligations, then the terms and conditions of the Refinancing Debt shall include subordination terms and
conditions that are no less favorable to the Lenders in all material respects as those that were applicable to the Refinanced Debt and (f) if the Refinanced Debt was subject to an intercreditor agreement, then the Refinancing Debt shall be
subject to an intercreditor agreement. Register has the meaning specified in Section 13.18(a). Registration Statement has the meaning specified in the definition of IPO. Release means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of a Contaminant on, in, under, from, to, into or through the Environment or within, from or into any building, structure, facility or fixture. Relevant Governmental Body means the Board or the Federal Reserve Bank of New York, or a committee officially endorsed or
convened by the Board or the Federal Reserve Bank of New York, or any successor thereto. Reportable Event means any of
the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other than any such event for which the 30-day notice requirement under ERISA has been waived in accordance with regulations issued by the PBGC or by the Lender.
-68-
Required Lenders means, at any time, Lenders having Term Loan Commitments
representing at least 50.1% of the aggregate Term Loan Commitments at such time; provided, however, that if any Lender shall remain a Defaulting Lender, the term Required Lenders means Lenders having Term Loan
Commitments representing at least 50.1% of the aggregate Term Loan Commitments at such time (excluding the Term Loan Commitment of any such Lender that is a Defaulting Lender); provided further, however, that if the Term Loan
Commitments have been terminated, the term Required Lenders means Lenders holding Term Loans representing at least 50.1% of the aggregate principal amount of Term Loans outstanding at such time (excluding Term Loans of any such
Lender that is a Defaulting Lender). Requirement of Law means, as to any Person, any law (statutory or common law),
treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject. Resolution Authority means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution
Authority. Responsible Officer means the President, any Vice President, Chief Executive Officer, Chief Financial
Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, legal counsel, or, with respect to compliance with financial covenants and the preparation of the Compliance Certificate, the president, chief financial officer or the
treasurer or assistant treasurer of the Borrower. Restricted Subsidiary means (a) as to Holdings, the Borrower
and each Subsidiary of the Borrower, and (b) as to the Borrower, each Subsidiary of the Borrower other than, in the case of each of clauses (a) and (b), an Unrestricted Subsidiary. Restructuring Costs means any non-recurring, unusual and other one-time costs (including but not limited to legal and
consulting fees) incurred by Holdings or any of its Restricted Subsidiaries in connection with its business, operations and structure in respect of plant closures, facility shutdowns, plant moth-balling or consolidation of assets located
at any leased or fee-owned facilities, relocation or elimination of facilities, offices or operations, information technology integration, headcount reductions, salary continuation, termination, relocation and training of employees, severance costs,
retention payments, bonuses, benefits and payroll taxes and other costs incurred in connection with the foregoing. Retained
Excess Cash Flow Amount means, with respect to any Excess Cash Flow Period, an amount equal to (a) 100% of Excess Cash Flow minus (b) the Applicable ECF Percentage with respect to such Excess Cash Flow Period commencing
with the Excess Cash Flow Period ending on December 31, 2022. S&P means Standard & Poors
Ratings Service, a Standard & Poors Financial Services LLC business, or any successor thereto. Sale Leaseback
Transaction means any transaction or series of transactions pursuant to which (a) Holdings or any of its Restricted Subsidiaries shall sell or otherwise transfer any Real Estate (together with any personal property related to or used
in connection with such Real Estate so long as such personal property is immaterial and incidental to such Real Estate) to any Person and (b) Holdings or any of its Restricted Subsidiaries shall lease back from such Person all or any portion of
such property. SEC means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of
its principal functions. -69-
Second
Amendment means that certain Second Amendment to Term Loan Credit Agreement, dated as of the Second Amendment Effective Date, by and among Holdings, the Borrowers, the Guarantors, the Lenders party thereto and the Agent. Second
Amendment Effective Date means November 1, 2022. Second
Currency has the meaning specified in Section 14.19. Section 6.2 Financials means the Financial
Statements delivered, or required to be delivered, pursuant to Section 6.2(a), 6.2(b) or 6.2(c). Secured Cash Management Agreement means any Cash Management Document that is entered into by and between Holdings, the
Borrower or any Restricted Subsidiary and a Cash Management Bank and designated in writing by the Cash Management Bank and such Person to the Agent as a Secured Cash Management Agreement; provided that Obligations under such
Secured Cash Management Agreement shall not exceed the amount permitted under the ABL Intercreditor Agreement. Secured Hedge
Agreement means any Hedge Agreement permitted under Section 8.12 that is entered into by and between any Obligor or any Restricted Subsidiary and any Hedge Bank and designated in writing by the Hedge Bank and such Obligor to
the Agent as a Secured Hedge Agreement. Secured Hedge Obligations means as to any Person, all obligations,
whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), of an Obligor arising under any Secured Hedge Agreement;
provided, that to the extent the Hedge Bank is not a Lender, such Hedge Bank (a) shall be deemed to have appointed the Agent and the Collateral Agent as its Agent and Collateral Agent, respectively, under the Loan Documents, (b) shall
agree to be bound to Article XIII, Section 14.7 and Section 14.10 hereof and (c) shall be subject to the ABL Intercreditor Agreement; provided, further that Secured Hedge Obligations shall not exceed the
amount permitted under the ABL Intercreditor Agreement. Secured Parties means, collectively, the Agent, the Collateral
Agent, the Lenders, the Indemnified Persons, the Cash Management Banks and the Hedge Banks. Securities Accounts means
all securities accounts as such term is defined in the UCC. Securities Act means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder. Security Agreement means the Security
Agreement, dated as of the Agreement Date, among Holdings, the Borrower, each of the Guarantors from time to time party thereto, and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, amended and restated or modified
from time to time. Security Documents means the Security Agreement, the FTS Pledge Agreements, the FTS Control
Agreements, any Mortgage and any other agreements, instruments, and documents heretofore, now or hereafter securing any of the Obligations. Services means ProFrac Services, LLC, a Texas limited liability company. -70-
Shared Services Agreement means that certain shared services agreement to
be entered into by and between Wilks Brothers, LLC and Holdings pursuant to the IPO Transactions in substantially the form attached hereto as Exhibit M (as such form may be amended, modified or changed prior to the execution and delivery
thereof by the parties thereto to the extent that such amendment, modification or change is not in any manner materially adverse to the interests of the Obligors or the Lenders). Significant Subsidiary means, at any date of determination, (a) any Restricted Subsidiary whose total assets (when
combined with the assets of such Restricted Subsidiarys Subsidiaries after eliminating intercompany obligations) at the last day of the Test Period most recently ended on or prior to such date of determination were equal to or greater than ten
percent (10%) of the Consolidated Total Assets at such date or (b) any Restricted Subsidiary whose gross revenues (when combined with the gross revenues of such Restricted Subsidiarys Subsidiaries after eliminating intercompany
obligations) for such Test Period were equal to or greater than ten percent (10%) of the consolidated gross revenues of Holdings and its Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP or
(c) each other Restricted Subsidiary that, when such Restricted subsidiarys total assets or gross revenues (when combined with the total assets or gross revenues of such Restricted Subsidiarys Subsidiaries after eliminating
intercompany obligations) are aggregated with each other Restricted Subsidiary (when combined with the total assets or gross revenues of such Restricted Subsidiarys Subsidiaries after eliminating intercompany obligations) that would constitute
a Significant Subsidiary under clause (a) or (b) above. SOFR Administrator means the Federal Reserve
Bank of New York (or a successor administrator of the secured overnight financing rate). SOFR Borrowing means, as to
any borrowing, the SOFR Rate Loans comprising such borrowing. SOFR Interest Payment Date means, with respect to a SOFR
Rate Loan, the Termination Date and the last day of each Interest Period applicable to such Term Loan and, with respect to each Interest Period of more than three months, each three month anniversary of the commencement of such Interest Period for
such SOFR Rate Loan. SOFR Rate means a rate equal to the secured overnight financing rate as administered by the SOFR
Administrator. SOFR Rate Loan means each portion of a Term Loan that bears interest at a rate based on Adjusted Term
SOFR, other than pursuant to clause (c) of the definition of Base Rate. Sold Entity or Business has
the meaning specified in the definition of the term Consolidated EBITDA. Solvent or
Solvency means, at the time of determination: (a) each of the Fair Market Value and the Present Fair Saleable Value of
the assets of a Person and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; and Capital; and (b) such Person and its Subsidiaries taken as whole do not have Unreasonably Small (c) such Person and its Subsidiaries taken as whole can pay their Stated Liabilities and Identified Contingent Liabilities as they mature. -71-
Defined terms used in the foregoing definition shall have the meanings set forth in the
solvency certificate delivered on the Closing Date pursuant to Section 9.1(a)(v). Specified FTS Real
Property means the Real Estate acquired in connection with the FTS Acquisition and located at the below locations, together with (x) all rights, privileges, interests, tenements, hereditaments, easements and appurtenances in any way
now or hereafter pertaining to such Specified FTS Real Property; (y) all buildings and other improvements of every kind and description now or hereafter placed on such Specified FTS Real Property, together with all fixtures, machinery and other
articles of personal property now or hereafter attached to or regularly used in connection with the Specified FTS Real Property, and all replacements thereof, and (z) all extensions, improvements, betterments, substitutes, replacements,
renewals, additions and appurtenances of or to the easements or improvements: (1) 906 S. Eastern, Elk City, OK 73644; (2) 1432 Route 519, Eighty Four, PA 15330; (3) Lot 1, Aledo, TX 76008; (4)
117 Nu Energy Rd., Aledo, TX 76008; (5) 119 Nu Energy Rd., Aledo, TX 76008; (6) 2459 FM 190, Asherton, TX, 78827; (7) 4608 Fairlane, Fort Worth, TX 76119; (8) 4651 S. Edgewood Terrace, Fort Worth, TX 76119; (9) 4700 S. Edgewood Terrace, Fort Worth, TX 76119; (10) 1704 E. Whaley St., Longview TX 75601; (11) 3201 W. Murphy, Odessa, TX 79763; (12) 986 S. Maurice Rd., Odessa, TX, 79763; (13) 602 S. Hwy 163, Ozona, TX 76943; and (14) 3195 Coughran Rd., Pleasanton, TX 78064. Specified Representations means the representations and warranties relating to the Obligors set forth in Sections
7.1, 7.2, 7.3(a), 7.6, 7.16, 7.18, 7.22, 7.23 and 7.24. Specified
Restructuring means any restructuring or other strategic initiative (including cost saving initiative) of Holdings or any of its Restricted Subsidiaries after the Closing Date and not in the ordinary course and described in reasonable
detail in a certificate of a Responsible Officer delivered by Holdings or the Borrower to the Agent. Specified
Transaction means, with respect to any period, any Investment, Disposition (including the Permitted Sale Leaseback Transaction), incurrence of Debt, Refinancing of Debt, Distribution, Subsidiary designation or other event that by the terms
of the Loan Documents requires compliance on a Pro Forma Basis with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis or after giving Pro Forma Effect thereto.
Specified Unrestricted Subsidiary has the meaning specified in Section 8.26(b). Stated Termination Date means March 4, 2025, or if such date is not a Business Day, the immediately preceding Business
Day. Stock means all shares, options, warrants, general or limited partnership interests, membership interests or
other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company, unlimited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other
equity security (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act). -72-
Subordinated Debt means any Debt subordinated in right of payment to, or
required under the Loan Documents to be subordinated in right of payment to, any Debt under the Loan Documents, except any Debt that is subject to Lien subordination but not payment subordination. For the avoidance of doubt, (i) the Back-Stop
Note, the Closing Date Note and the Equify Bridge Note shall be deemed to constitute Subordinated Debt, and (ii) the EKU Debt, the IO-TEQ
Debt, [**], the Well Services Debt,
the U.S. Well Direct Loans and the Debt evidenced by
the First Financial Loan Documents shall not be deemed to constitute Subordinated Debt. Subordinated Intercompany
Note means the Intercompany Subordinated Note, dated as of the Agreement Date, by and among Holdings, the Borrower and each Restricted Subsidiary of Holdings from time to time party thereto. Subsidiary of a Person means any corporation, association, partnership, limited liability company, unlimited liability
company, joint venture or other business entity of which more than fifty percent (50%) of the voting stock or other Stock (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or
more of the Subsidiaries of the Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a Subsidiary refer to a Subsidiary of Holdings. Notwithstanding the foregoing, the FTS Subsidiaries
shall become Subsidiaries hereunder and under the other Loan Documents automatically and without any further action by any Person upon the contribution of the Stock issued by the FTS Subsidiaries to Holdings on the Closing Date pursuant to the FTS
Distribution and Contribution Transaction. Swap Termination Value means, in respect of any one or more Hedge
Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements 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 Hedge Agreements, as determined based upon
one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender). Tax Receivable Agreement means that certain Tax Receivable Agreement to be entered into in connection with the IPO
Transactions, as further described in the Registration Statement. Taxes means all present or future taxes, levies,
imposts, duties, deductions, assessments, fees, charges or withholdings (including backup withholdings) imposed by any Governmental Authority, including interest, penalties and additions to tax with respect thereto. Term Loan Commitment means, (a) in the case of each Lender that is a Closing Date Lender on the Closing Date, the
obligation of such Lender to make the Closing Date Term Loans pursuant to the terms and conditions of this Agreement which shall not exceed the amount set forth opposite such Closing Date Lenders name on Schedule 1.1 as such Lenders Term
Loan Commitment, (b) in the case of each Additional Term Loan Lender, the Additional Term Loan Commitment(s) of such Additional Term Loan Lender, and (c) in the case of each Delayed Draw Term Loan Lender, if any, the Delayed Draw Term Loan
Commitment(s) of such Delayed Draw Term Loan Lender. Term Loan Facility has the meaning specified in the recitals to
this Agreement. Term Loans means the loans made to Borrower pursuant to Sections 2.1, 2.4 and
2.5. Term SOFR means, -73-
(a) for any calculation with respect to a SOFR Rate Loan, the Term SOFR Reference Rate for a
tenor comparable to the applicable Interest Period on the day (such day, the Periodic Term SOFR Determination Day) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as
such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been
published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator
on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more
than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any
calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the Reference Rate Term SOFR Determination Day) that is two (2) U.S. Government Securities
Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Reference Rate Term SOFR Determination Day, the Term SOFR Reference Rate
for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as
published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S.
Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Reference Rate Term SOFR Determination Day. Term SOFR Adjustment means, for any calculation with respect to a Base Rate Loan or a SOFR Rate Loan, a percentage per
annum as set forth below for the applicable Type of such Term Loan and (if applicable) Interest Period therefor: Base Rate Loans:
0.11448% SOFR Rate Loans: Interest Period One month Three months Six months Twelve months Term SOFR Administrator means CME Group Benchmark Administration Limited (CBA) (or a
successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion). Term SOFR Reference
Rate means the forward-looking term rate based on SOFR. Termination Date means the earliest to occur of
(a) the Stated Termination Date, (b) Full Payment of the Obligations, and (c) the date this Agreement is otherwise terminated for any reason whatsoever pursuant to the terms of this Agreement. -74-
Test Period means, at any date of determination, the most recently
completed four consecutive Fiscal Quarters of Holdings ending on or prior to such date for which financial statements have been (or were required to have been) delivered pursuant to Section 6.2(a) or 6.2(b); provided that,
prior to the first date financial statements have been delivered pursuant to Section 6.2(a) or 6.2(b), the Test Period in effect shall be the period of four consecutive Fiscal Quarters of Holdings ended September 30, 2021.
Titled Goods means vehicles and similar items that are (a) subject to certificate-of-title statutes or
regulations under which a security interest in such items are perfected by an indication on the certificates of title of such items (in lieu of filing of financing statements under the UCC) or (b) evidenced by certificates of ownership or other
registration certificates issued or required to be issued under the laws of any jurisdiction. Total Net Leverage Ratio
means, as of any date of determination, the ratio of (a) Consolidated Total Debt as of the last day of the Test Period most recently ended on or prior to the date of determination to (b) Consolidated EBITDA of Holdings and its Restricted
Subsidiaries for such Test Period. Notwithstanding anything to the contrary herein, solely for purposes of calculating the Total Net Leverage Ratio, the Debt of any Non-Wholly Owned Sub shall not be included in such calculation unless and until
(x) such Non-Wholly Owned Sub becomes a Wholly Owned Restricted Subsidiary of Holdings or (y) such Debt of such Non-Wholly Owned Sub is guaranteed by Holdings or any of its Wholly Owned Restricted Subsidiaries or the creditors with respect to
such Debt have recourse to Holdings or any of its Wholly Owned Subsidiaries with respect to such Debt (including, without limitation, by means of pledging any collateral with respect thereof). Transactions means, collectively, (a) the entering into of the Loan Documents and funding of the Term Loans on the
Closing Date and the consummation of the other transactions contemplated by this Agreement and the other Loan Documents (including without limitation, upon the consummation thereof, the IPO Transactions and FTS Acquisition Transactions),
(b) the entering into of the ABL Credit Agreement governing the ABL Facility and (c) the payment of fees and expenses in connection with the foregoing. Transactions with Affiliates Letter Agreement has the meaning set forth in Section 8.14(p). Type means any type of a Term Loan determined with respect to the interest option applicable thereto, which shall be a SOFR
Rate Loan or a Base Rate Loan. 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 5.1(d)(ii)(C). UCC means the Uniform Commercial Code, as in effect from time to time, of the State of New
York or of any other state the laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests. 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. -75-
UK Resolution Authority means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution. Unadjusted Benchmark
Replacement means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. United
States and U.S. mean the United States of America. Unrestricted Cash shall mean, at any
time, the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and the other Obligors that is both (a) is free and clear of all Liens other than (i) any nonconsensual Lien that is permitted under the Loan Documents,
(ii) Liens of the Collateral Agent and (iii) the Liens permitted under clauses (k), (r), (y)(i) and (y)(ii) of the definition of Permitted Liens herein and (b) held in a Deposit Account in the United States
that is not subject to the Control (as defined in the UCC) of any secured creditor (to secure borrowed money) other than the Collateral Agent (to the extent Collateral Agent is permitted to have Control over such Deposit Account pursuant to the
provisions of this Agreement and the Security Documents) unless, in the case of the secured creditors who have Control of certain Deposit Accounts of Holdings and its Restricted Subsidiaries pursuant to clause (r) of the definition of
Permitted Liens, the Collateral Agent also has Control (as defined in the UCC) of such Deposit Account. For the avoidance of doubt, this definition of Unrestricted Cash shall not include any cash or Cash Equivalents used to cash
collateralize undrawn face amounts of outstanding Letters of Credit (as defined in the ABL Credit Agreement) and any Unpaid Drawings (as defined in the ABL Credit Agreement) in respect of Letters of Credit (as defined in the ABL Credit Agreement).
Unrestricted Subsidiary means (i) each Subsidiary of the Borrower listed on Schedule 1.4, (ii) any
Subsidiary of the Borrower designated by the Board of Directors of Holdings or the Borrower as an Unrestricted Subsidiary pursuant to Section 8.26 subsequent to the Closing Date and (iii) any Subsidiary of an Unrestricted
Subsidiary. U.S. Government Securities Business Day means any day except for (a) a Saturday, (b) a Sunday or
(c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. U.S.
Well Direct Loans has the meaning ascribed to such term in the Second Amendment. U.S.
Well Entities means U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.), a Delaware limited liability company, USWS Holdings LLC, a Delaware limited liability company, U.S. Well Services, LLC, a Delaware limited
liability company, USWS Fleet 10, LLC, a Delaware limited liability company, and USWS Fleet 11, LLC, a Delaware limited liability company. U.S.
Well Merger means the merger of U.S. Well Services, Inc. and Thunderclap Merger Sub I, Inc. with U.S. Well Services, Inc., as the surviving corporation pursuant to that certain Agreement and Plan of Merger, dated as of June 21, 2022, by
and among U.S. Well Services, Inc., ProFrac Holding Corp. and Thunderclap Merger Sub I, Inc. USA PATRIOT Act means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time. -76-
VCOC Lender Rights Letter means, with respect to any Lender, a VCOC
Lender Rights Letter, in form and substance reasonably satisfactory to the Borrower and such Lender, by and between the Borrower and such Lender (or an Affiliate of such Lender). Voting Stock means, with respect to any Person, shares of such Persons Stock having the right to vote for the
election of members of the Board of Directors of such Person under ordinary circumstances. Weighted Average Life to
Maturity means, when applied to any Debt at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by
(ii) the then-outstanding principal amount of such Debt. Well Services Debt mean that certain Debt owed by U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services,
Inc.) and/or its Subsidiaries to Equify Financial LLC in an
aggregate principal amount not to exceed $30,000,000, and any Refinancing Debt incurred to Refinance such Debt. West
Munger Acquisition means the acquisition by Holdings, as buyer, of certain real property interests, including the sand reserves beneath such real estate, from certain Persons (collectively, as sellers), for an aggregate purchase price of
$30,000,000. Wholly-Owned means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the
outstanding Stock of which (other than (x) directors qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of
such Person. Withholding Agent means any Obligor, the Agent, the Collateral Agent and, in the case of any U.S. federal
withholding tax, any other withholding agent. 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. 1.2 Accounting Terms. (a) 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 in a manner consistent with that used in preparing the Historical Financial Statements, except
as otherwise specifically prescribed herein; provided, however, that if the Borrower notifies the Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
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change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. (b) Notwithstanding anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this
Agreement with respect to any period during which any Specified Transaction or Specified Restructuring occurs, the Total Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction or Specified Restructuring on
a Pro Forma Basis. (c) Where reference is made to Holdings and its Restricted Subsidiaries, on a consolidated basis or similar
language, such consolidation shall not include any Subsidiaries of Holdings other than Restricted Subsidiaries. (d) Notwithstanding any
other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under the
Financial Accounting Standards Boards Accounting Standards Codification No. 825Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt of Holdings, the
Borrower or any Subsidiary at fair value as defined therein and (ii) all leases and obligations under any leases of any Person that are or would be characterized as operating leases and/or operating lease obligations in accordance
with GAAP as of December 31, 2017 (whether or not such operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for as operating leases and/or operating lease obligations (and not as
Capital Leases and/or Capital Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following the date that would otherwise require such obligations to be characterized as Capital Leases and/or Capital Lease Obligations.
(e) For the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a definitive
agreement for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be excluded from the calculation of Consolidated Net Income until such Disposition shall have been
consummated. (f) Notwithstanding any other provisions set forth herein and for the avoidance of doubt, for purposes of the measurement of
the Total Net Leverage Ratio and Excess Cash Flow, unrealized gains shall be excluded from Consolidated Net Income and Consolidated EBITDA, but only to the extent that such unrealized gains have not already been deducted from Consolidated Net Income
or Consolidated EBITDA. 1.3 Interpretive Provisions. (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) The words hereof, herein, hereunder and similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and Subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. -78-
(c) The term documents includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however evidenced. (i) The term including is not
limiting and means including without limitation. (ii) 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. (iii) The word or is not exclusive. (iv) Any reference to any Person shall be constructed to include such Persons successors or assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof. (v) Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. (vi) The word will shall be construed to have the same meaning as the word shall. (vii) 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. (viii) The word permitted will be construed to have the same meaning as the phrase not prohibited. (d) Unless otherwise expressly provided herein, (a) references to Organization Documents, Charter Documents, agreements (including the
Loan Documents) and other contractual obligations shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments,
restatements, amendment and restatements, extensions, supplements and other modifications are permitted by this Agreement; and (b) references to any applicable Law shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such applicable Law. (e) The captions and headings of this Agreement and other Loan Documents are
for convenience of reference only and shall not affect the interpretation of this Agreement. (f) This Agreement and other Loan Documents
may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms. 1.4 Classification of Term Loans and Borrowings. For purposes of this Agreement, Term Loans may be classified and referred to by
Class (e.g., a Term Loan) or by Type (e.g., a SOFR Rate Loan) or by Class and Type (e.g., a Term SOFR Rate Loan). Borrowings also may be classified and referred to by Class (e.g., a
Term Borrowing) or by Type (e.g., a SOFR Borrowing) or by Class and Type (e.g., a Term SOFR Borrowing). For avoidance of any doubt, all Term Loans shall be deemed of the same Type of and the same
Class of Term Loans for all purposes of this Agreement and the other Loan Documents. -79-
1.5 Limited Condition Acquisition. For purposes of (i) determining
compliance with any ratio or test (including, without limitation, the Total Net Leverage Ratio and the amount available under the Available Amount), (ii) determining compliance with representations, warranties, defaults or events of default or
(iii) testing availability under the baskets (including, without limitation, baskets measured as a percentage of total assets), in each case, in connection with a Limited Condition Acquisition permitted under this Agreement, at the option of
the Borrower (the Borrowers election to exercise such option in connection with any Limited Condition Acquisition, a LCA Election), the date of determination of whether any such action is permitted hereunder shall be deemed
to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the LCA Test Date), and, compliance with such ratio, test or basket shall be determined after giving Pro Forma Effect to such
Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Debt and the use of proceeds thereof) as if they occurred at the beginning of the most recent Test Period ending prior
to the LCA Test Date. If the Borrower has made a LCA Election, then in connection with any subsequent calculation of any ratio, test or basket on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such
Limited Condition Acquisition is consummated or (ii) the date that the definitive agreement for such Limited Condition Acquisition expires or is terminated without the consummation of such Limited Condition Acquisition, any such ratio, test or
basket shall be required to be calculated on a Pro Forma Basis both (1) assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Debt and the use of proceeds thereof) have been
consummated until such time as the applicable Limited Condition Acquisition has actually closed or the definitive agreement with respect thereto has expired or been terminated and (2) assuming such Limited Condition Acquisition and other
transactions in connection therewith (including any incurrence of Debt and the use of proceeds thereof) have not been consummated. 1.6 Rounding. Any financial ratios required to be maintained or complied with by the Borrower pursuant to this Agreement (or
required to be satisfied in order for a specific action to be permitted under 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). 1.7 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City
(daylight or standard, as applicable). 1.8 Timing of Payment or Performance. When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance
shall extend to the immediately succeeding Business Day. 1.9 Currency Equivalents Generally. (a) For purposes of any determination under any provision of this Agreement requiring the use of a current exchange rate, all amounts incurred
or proposed to be incurred in currencies other than Dollars shall be translated into Dollars at currency exchange rates then in effect on the date of such determination; provided, however, that (x) for purposes of determining
compliance with respect to the amount of any Debt, Investment, Disposition, Distribution or payment of Junior Debt in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes
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in rates of exchange occurring after the time such Debt or Investment is incurred or Disposition, Distribution of payment of Junior Debt is made, (y) for purposes of determining compliance
with any Dollar-denominated restriction on the incurrence of Debt, if such Debt is incurred to Refinance other Debt denominated in a foreign currency, and such Refinancing would cause the applicable Dollar-denominated restriction to be exceeded if
calculated at the relevant currency exchange rate in effect on the date of such Refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinanced Debt does not exceed the
principal amount of such Debt being Refinanced, except by an amount equal to the accrued interest and premium thereon plus other amounts paid and fees and expenses incurred in connection with such Refinancing plus an amount equal to any existing
commitment unutilized and letters of credit undrawn thereunder and (z) for the avoidance of doubt, the foregoing provisions of this Section 1.9 shall otherwise apply to such Sections, including with respect to determining whether
any Debt or Investment may be incurred or Disposition, Distribution or payment of Junior Debt may be made at any time under such Sections. For purposes of the Financial Covenant and testing the Total Net Leverage Ratio, amounts in currencies other
than Dollars shall be translated into Dollars at the applicable exchange rates used in preparing the most recently delivered Section 6.2 Financials. (b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Agent may from time to time specify
with the Borrowers consent (such consent not to be unreasonably withheld) to appropriately reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency. (c) If at any time the Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set
forth in Section 5.5 have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 5.5 have not arisen but the supervisor for the administrator of the SOFR Rate or a
Governmental Authority having jurisdiction over the Agent has made a public statement identifying a specific date after which the SOFR Rate shall no longer be used for determining interest rates for loans (or, after which, the SOFR Rate is no longer
required to be published), then the Agent and the Borrower shall endeavor to establish an alternate rate of interest to the SOFR Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for
syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the
contrary in Section 12.1, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Agent shall not have received, within five (5) Business Days of the date
notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment; provided that, if such alternate rate of interest shall be less than 1.00%,
such rate shall be deemed to be 1.00% for the purposes of this Agreement. 1.10 Rates. The Agent does not warrant or accept
responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or
Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of
any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate,
Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its Affiliates or other related entities may engage in
transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any -81-
Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Agent may select information sources or services in its reasonable discretion to
ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other Person for
damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such
rate (or component thereof) provided by any such information source or service. ARTICLE II TERM LOANS 2.1
Term Loan Commitments. Closing Date Term Loans. Subject solely to the terms and conditions set forth herein, each Closing Date Lender severally, but not jointly or jointly and severally, agrees to advance the Closing Date Term Loans to
the Borrower in Dollars on the Closing Date (or agrees to roll or convert other prior existing obligations of ProFrac Services, LLC, as the borrower, under the Existing Term Loan Facility pursuant to the Cashless Roll Letter and, accordingly, shall
be deemed to advance Closing Date Term Loans to the Borrower in Dollars on the Closing Date in accordance with the Cashless Roll Letter) in a principal amount equal to its Term Loan Commitment in effect immediately prior to the making of such
Closing Date Term Loans. The Borrowing of Closing Date Term Loans on the Closing Date shall be made from the Closing Date Lenders ratably in proportion to their respective Term Loan Commitments in effect on the Closing Date. The Term Loan
Commitments are not revolving in nature, and amounts repaid or prepaid prior to the Termination Date may not be reborrowed. The Term Loan Commitments corresponding to the Closing Date Term Loans made on the Closing Date shall terminate automatically
immediately after the making of such Term Loans on the Closing Date (and for the avoidance of doubt, any Term Loan Commitments (which do not constitute Additional Term Loan Commitments and Delayed Draw Term Loan Commitments) not funded on the
Closing Date will be terminated). The Closing Date Lenders shall be Lenders for all purposes hereunder. 2.2 Term Loans. The
Term Loans (i) may at the option of the Borrower be incurred and maintained as, and/or converted into, Base Rate Loans or SOFR Rate Loans; provided, that all Closing Date Term Loans made by each of the Closing Date Lenders on the Closing
Date shall, unless otherwise specifically provided herein, consist entirely of Term Loans of the same Type, (ii) may be repaid or prepaid (without premium or penalty, other than as set forth in Sections 4.2 and 5.4), but once
repaid or prepaid, may not be re-borrowed, (iii) shall not exceed for any Lender the Term Loan Commitment of such Lender, and (iv) shall not exceed in the aggregate the sum of the Term Loan Commitments of all Lenders. On the Termination
Date, all then outstanding Term Loans shall be repaid in full in Dollars. Each Term Loan made pursuant to this Agreement shall be made in Dollars. 2.3 Loan Administration. (a) Procedure for Borrowing. (i) The Borrowing on the Closing Date shall be made upon the Borrowers written notice delivered to the Agent in the form
of a notice of borrowing substantially in the form of Exhibit A hereto (together with any notice of borrowing delivered pursuant to Section 4(k) of the First Amendment and Section 2.5(a) of this Agreement, a Notice of
Borrowing) delivered to the Agent. Such Notice of Borrowing must be received by the Agent no later than 1:00 p.m. (New York City Time) one (1) Business Day prior to the Closing Date, specifying: (A) the amount of such Borrowing;
(B) whether such Borrowing -82-
is to be a SOFR Borrowing or a Base Rate Borrowing (and if not specified, it shall be deemed a request for a Base Rate Borrowing); and (C) in the case of a request for SOFR Rate Loans, the
duration of the initial Interest Period to be applicable thereto (and if not specified, it shall be deemed a request for an Interest Period of one month). (b) Reliance upon Authority. On or prior to the Closing Date, the Borrower shall deliver to the Agent a notice setting forth the account
of the Borrower (such account, together with any replacement account, the Designated Account) to which the Agent is authorized to transfer the proceeds of the Term Loans requested hereunder unless otherwise directed in writing by
the Borrower. The Agent is entitled to rely conclusively on any Persons request for Term Loans on behalf of the Borrower, so long as the proceeds thereof are to be transferred to the Designated Account or to another account designated by the
Borrower in writing. The Agent has no duty to verify the identity of any individual representing himself or herself as a person authorized by the Borrower to make such requests on its behalf. (c) No Liability. The Agent shall not incur any liability to the Borrower as a result of acting upon any notice referred to in
Section 2.3(a) or (b), which the Agent believes in good faith to have been given by an officer or other person duly authorized by the Borrower to request Term Loans on its behalf. The wiring of Term Loans to the Designated Account
conclusively establishes the obligation of the Borrower to repay such Term Loans as provided herein. (d) Notice Irrevocable. Any
Notice of Borrowing made and/or delivered pursuant to (i) Section 2.3(a) of this Agreement, (ii) Section 4(k) of the First Amendment or (iii) Section 2.5(a) of this Agreement shall be irrevocable;
provided that such Notice of Borrowing may be rescinded or revised, to change the requested date for the making of the Term Loans contemplated thereby, by the Borrower giving written notice to the Agent prior to 12:00 noon (New York City
Time) (or, such later time as the Required Lenders may approve in their sole discretion) on the date of the proposed Borrowing. The Borrower shall be bound to borrow the funds requested therein in accordance therewith. 2.4 Additional Term Loans. (a) Each Lender with an Additional Term Loan Commitment severally agrees to make a term loan (the Additional Term Loans) to
the Borrower on the First Amendment Effective Date in an aggregate principal amount equal to the amount of such Lenders Additional Term Loan Commitment. (b) The aggregate principal amount of the Additional Term Loans made on the First Amendment Effective Date shall not exceed the aggregate
principal amount of the Additional Term Loan Commitments. Each Lenders Additional Term Loan Commitment shall be permanently terminated immediately and without further action upon the funding of its Additional Term Loans on the First Amendment
Effective Date. The Additional Term Loan Commitment shall be permanently terminated immediately and without further action upon the funding of all of the Additional Term Loans on the First Amendment Effective Date. (c) The proceeds of the Additional Term Loans shall be used (i) to consummate one or both of the First Amendment Acquisitions,
(ii) to prepay the ABL Facility Indebtedness and (iii) for general corporate and other working capital purposes. (d) All other
terms of the Additional Term Loans are as set forth in the First Amendment and this Agreement. -83-
2.5 Delayed Draw Term Loans. (a) During the Delayed Draw Term Loan Availability Period, the Borrower may request, in accordance with this Section 2.5(a), up to four
(4) draws of delayed draw term loans (the Delayed Draw Term Loans) in an aggregate principal amount not to exceed the Delayed Draw Term Loan Amount. Each such draw of Delayed Draw Term Loans shall be in a minimum amount of
$25,000,000, or an amount equal to the remaining Delayed Draw Term Loan Commitments. Each Borrowing of the Delayed Draw Term Loans shall be made on the date stated in the Borrowers Notice of Borrowing delivered to the Agent (which shall be
delivered no less than five (5) Business Days in advance of the proposed borrowing of Delayed Draw Term Loans) in connection therewith (each such borrowing date, a Delayed Draw Funding Date). Each existing Lender shall be
offered the opportunity to provide (but, for the avoidance of doubt, shall have no obligation to provide) a portion of the Delayed Draw Term Loan Commitments requested by the Borrower on a pro rata basis based on such existing Lenders Pro Rata
Share of the Term Loans then outstanding; provided that (i) each existing Lender shall be deemed to decline to exercise its right to provide its Pro Rata Share of the Delayed Draw Term Loan Commitments if such Lender does not agree to
provide such Delayed Draw Term Loan Commitments within five (5) Business Days after the Borrower delivers a written request for such Delayed Draw Term Loan Commitments to the Agent (on behalf of such Lender) and (ii) the Borrower may offer
to additional potential Lenders (in addition to the existing Lenders) the ability to provide Delayed Draw Term Loan Commitments in its reasonable discretion. (b) The aggregate principal amount of the Delayed Draw Term Loans made on each Delayed Draw Funding Date shall not exceed the aggregate
principal amount of the then remaining Delayed Draw Term Loan Commitments (in effect immediately prior to the making of such Delayed Draw Term Loans on such Delayed Draw Funding Date). The portion of each Lenders Delayed Draw Term Loan
Commitment corresponding to the Delayed Draw Term Loan funded by such Delayed Draw Term Loan Lender shall be permanently terminated immediately and without further action upon the funding of such Delayed Draw Term Loan on the applicable Delayed Draw
Funding Date. The Delayed Draw Term Loan Commitment shall be permanently terminated immediately and without further action upon the funding of all of the Delayed Draw Term Loans on the Delayed Draw Funding Date(s). (c) The proceeds of the Delayed Draw Term Loans shall be used (i) to consummate one or both of the First Amendment Acquisitions,
(ii) to prepay the ABL Facility Indebtedness and (iii) for general corporate and other working capital purposes. (d) The
Borrower and each Delayed Draw Term Loan Lender shall execute and deliver to the Agent such documentation as the Agent shall reasonably specify to evidence the Delayed Draw Term Loan Commitment of such Delayed Draw Term Lender and, if applicable,
the joinder of such Delayed Draw Term Loan Lender to this Agreement and the other Loan Documents. (e) All other terms of the Delayed Draw
Term Loans are as set forth in the First Amendment and this Agreement. 2.6 [Reserved]. 2.7 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then for so long as such Lender is a Defaulting Lender: (a) the Term Loan Commitments and Term Loans of such Defaulting Lender
shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.1); provided
that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender disproportionately when compared to the other affected Lenders, or increases or extends the Term Loan
Commitment of such Defaulting Lender, shall require the consent of such Defaulting Lender; -84-
(b) any payment of principal, interest, fees or other amounts received by the Agent for the
account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.2 or Section 10.3 or otherwise), shall be applied at such time or times as may be determined by the Agent as follows:
first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Term Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction
obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; fourth, so long as no Default or Event of Default exists, to the payment of any amounts owing
to any Obligor as a result of any judgment of a court of competent jurisdiction obtained by any Obligor against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; and fifth, to
that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Term Loans, such payment shall be applied solely to pay the relevant Term Loans
of the relevant non-Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this clause (b); and (c) in the event that the Agent and the Borrower each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the obligations and participations of the Lenders shall be readjusted to reflect the inclusion of such Lenders Term Loan Commitment and on such date such Lender shall purchase at par such of the Term
Loans of the other Lenders as the Agent shall determine may be necessary in order for such Lender to hold such Term Loans in accordance with its Pro Rata Share; 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; provided, further, that, except to the extent otherwise expressly agreed by the affected parties and subject to Section 14.21, no
change hereunder from Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lenders having been a Defaulting Lender. 2.8 Tax Treatment. The parties hereto agree (i) that the Term Loans will be treated as debt for U.S. federal income tax
purposes, (ii) that the Term Loans are not governed by the rules set out in Section 1.1275-4 of the United States Treasury Regulations, and (iii) to adhere to this Agreement for U.S. federal income tax purposes and not to file any tax
return, report or declaration inconsistent with the foregoing, except as otherwise required by a determination within the meaning of Section 1313(a) of the Code. The inclusion of this Section 2.8 is not an admission by any Lender that it
is subject to U.S. taxation. ARTICLE III INTEREST AND FEES 3.1 Interest. (a)
Interest Rates. All outstanding Term Loans to the Borrower shall bear interest on the unpaid principal amount thereof (including, to the extent permitted by law, on interest thereon not paid when due) from the date made until paid in full in
cash at a rate determined by reference to the Base Rate or Adjusted Term SOFR plus the Applicable Margin, but not to exceed the Maximum Rate. If at any time Term Loans are outstanding with respect to which the Borrower has not delivered to
the Agent a notice specifying the basis for determining the interest rate applicable thereto in accordance herewith, those Term Loans shall be treated as Base Rate Loans until notice to the contrary has been given to the Agent in accordance with
this Agreement and such notice has become effective. Except as otherwise provided herein, the Term Loans shall bear interest as follows: -85-
(i) For all Base Rate Loans, at a fluctuating per annum rate equal to the
Base Rate plus the Applicable Margin; and (ii) For all SOFR Rate Loans, at a fluctuating per annum rate equal to
Adjusted Term SOFR plus the Applicable Margin. Each change in the Base Rate (or any component thereof) shall be reflected in the interest rate
applicable to Base Rate Loans as of the effective date of such change. All computations of interest for Base Rate Loans when the Base Rate is determined by the prime rate shall be made on the basis of a year of 365 or 366 days, 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). On the last Business Day of each calendar quarter hereafter and on the Termination Date, the Borrower shall pay to the Agent, for the ratable benefit of the Lenders, interest accrued from the last Business Day of the
preceding calendar quarter to the last Business Day of such calendar quarter (or accrued to the Termination Date in the case of a payment on the Termination Date) on all Base Rate Loans in arrears. The Borrower shall pay to the Agent, for the
ratable benefit of the Lenders, interest on all SOFR Rate Loans in arrears on each SOFR Interest Payment Date. (b) Default Rate. To
the extent permitted by law and notwithstanding anything to the contrary in this Section, upon the occurrence and during the continuance of an Event of Default, at the election of the Required Lenders by written notice to the Borrower (provided that
such written notice shall not be required upon the occurrence and during the continuance of an Event of Default pursuant to Section 10.1(e), (f) or (g)), the principal of, and all accrued and unpaid interest on, all Term Loans, fees,
indemnities or any other Obligations of the Borrower under this Agreement and the other Loan Documents, shall bear interest, from the date such Event of Default occurred (and, for the avoidance of doubt, regardless of when any written notice thereof
(to the extent required) is provided to the Borrower) until the date such Event of Default is cured or waived in writing in accordance herewith, at a rate per annum equal at all times to the Default Rate. (c) Term SOFR Conforming Changes. In connection with the use or administration of Term SOFR, the Agent will have the right to make
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other
party to this Agreement or any other Loan Document. The Agent will promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes in connection with the use or administration of Term SOFR. (d) Subject to Section 5.5, if, on or prior to the first day of any Interest Period for any SOFR Rate Loan: (i) the Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term
SOFR cannot be determined pursuant to the definition thereof, or (ii) the Required Lenders determine that for any
reason in connection with any request for a SOFR Rate Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Rate Loan does not adequately and fairly reflect
the cost to such Lenders of making and maintaining such Term Loan, and the Required Lenders have provided notice of such determination to the Agent, -86-
then the Agent shall give written notice to the Borrower and to the Lenders as soon as practicable
thereafter. Upon notice thereof by the Agent to the Borrower, any obligation of the Lenders to make SOFR Rate Loans, and any right of the Borrower to continue SOFR Rate Loans or to convert Base Rate Loans to SOFR Rate Loans, shall be suspended (to
the extent of the affected SOFR Rate Loans or affected Interest Periods) until the Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any
pending request for a borrowing of, conversion to or continuation of SOFR Rate Loans (to the extent of the affected SOFR Rate Loans or affected Interest Periods) or, 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 in the amount specified therein and (ii) any outstanding affected SOFR Rate Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest
Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 5.4. Subject to Section 5.5, if the Agent determines
(which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the
Agent without reference to clause (c) of the definition of Base Rate until the Agent revokes such determination. 3.2
Continuation and Conversion Elections. (a) The Borrower may (provided that the Borrowing of SOFR Rate Loans is then
permitted under Section 2.3(a)): (i) elect with written notice, one Business Day prior, by 1:00 p.m. (New York
City time), to convert any Base Rate Loans (or any part thereof) into SOFR Rate Loans; and (ii) elect with written notice,
as of the last day of the applicable Interest Period, to continue any SOFR Rate Loans (or any part thereof) having Interest Periods expiring on such day; provided that if the Notice of Continuation/Conversion shall fail to specify the duration of the Interest Period, such Interest Period shall be one month.
(b) The Borrower shall deliver a notice of continuation/conversion substantially in the form of Exhibit B (a Notice of
Continuation/Conversion) to the Agent not later than 1:00 p.m. (New York City time) at least three (3) Business Days in advance of the Continuation/Conversion Date if the Term Loans are to be converted into or continued as SOFR Rate
Loans and specifying: (i) the proposed Continuation/Conversion Date; (ii) the aggregate principal amount of Term Loans to be converted or continued; (iii) the Type of Term Loans resulting from the proposed conversion or continuation; and -87-
(iv) the duration of the requested Interest Period, provided,
however, the Borrower may not select an Interest Period that ends after the Stated Termination Date. (c) If, upon the expiration of
any Interest Period applicable to any SOFR Rate Loans, the Borrower fails to select timely a new Interest Period to be applicable to such SOFR Rate Loans, the Borrower shall be deemed to have elected to convert such SOFR Rate Loans into Base Rate
Loans effective as of the expiration date of such Interest Period. If any Event of Default exists, at the election of the Agent or the Required Lenders, all SOFR Rate Loans shall be converted into Base Rate Loans as of the expiration date of each
applicable Interest Period. (d) The Agent will promptly notify each Lender of its receipt of a Notice of Continuation/Conversion. All
conversions and continuations shall be made ratably according to the respective outstanding principal amounts of the Term Loans with respect to which the notice was given held by each Lender. (e) There may not be more than ten different SOFR Rate Loans in effect hereunder at any time. 3.3 Maximum Interest Rate. In no event shall any interest rate provided for hereunder exceed the maximum rate legally chargeable
under applicable law with respect to loans of the Type provided for hereunder (the Maximum Rate). If, in any month, any interest rate, absent such limitation, would have exceeded the Maximum Rate, then the interest rate for that
month shall be the Maximum Rate, and, if in future months, that interest rate would otherwise be less than the Maximum Rate, then that interest rate shall remain at the Maximum Rate until such time as the amount of interest paid hereunder equals the
amount of interest which would have been paid if the same had not been limited by the Maximum Rate. In the event that, upon payment in full of the Obligations, the total amount of interest paid or accrued under the terms of this Agreement is less
than the total amount of interest which would, but for this Section 3.3, have been paid or accrued if the interest rate otherwise set forth in this Agreement had at all times been in effect, then the Borrower shall, to the extent
permitted by applicable law, pay the Agent, for the account of the applicable Lenders, an amount equal to the excess of (a) the lesser of (i) the amount of interest which would have been charged if the Maximum Rate had, at all times, been
in effect or (ii) the amount of interest which would have accrued had the interest rate otherwise set forth in this Agreement, at all times, been in effect over (b) the amount of interest actually paid or accrued under this Agreement. If a
court of competent jurisdiction determines that the Agent and/or any Lender has received interest and other charges hereunder in excess of the Maximum Rate, such excess shall be deemed received on account of, and shall automatically be applied to
reduce, the Obligations other than interest, and if there are no Obligations outstanding, the Agent and/or such Lender shall refund to the Borrower such excess. 3.4 Closing Fees and Other Fees. The Borrower agrees to pay the Agent, the Collateral Agent and each of the Arrangers, as
applicable, all fees due and payable on any date required for payment of a fee under the Loan Documents (including, without limitation, as provided under the Fee Letter and Sections 4.2, 4.3 and 5.4). -88-
ARTICLE IV PAYMENTS AND PREPAYMENTS 4.1 Payments and Prepayments. (a) The Borrower hereby unconditionally promises to repay the outstanding principal amount of the Term Loans to the Agent for the account of
each Lender (i) commencing at the end of the first full calendar quarter ending after the calendar quarter that includes the Closing Date, and payable on the last Business Day of each March, June, September and December thereafter (prior to the
Stated Termination Date) in an amount equal to 1.25% per calendar quarter (ending on the last Business Day of the calendar quarter ending immediately prior to the Stated Termination Date) of the aggregate principal amount of the Term Loans
outstanding immediately before giving effect to such payment, as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section 4.1(c), and (ii) on the Stated Termination
Date, in an amount equal to the remainder of the principal amount of the Term Loans outstanding on such date, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment. (b) [reserved]. (c) The Borrower
may, upon written notice to the Agent, at any time or from time to time voluntarily prepay the Term Loans in whole or in part without premium or penalty (other than as set forth in Sections 4.2 and 5.4); provided that
(i) such notice must be received by the Agent not later than 1:00 p.m. (New York City time) (A) three (3) Business Days prior to any date of prepayment of SOFR Rate Loans and (B) one (1) Business Day prior to any date of
prepayment of Base Rate Loans; provided, further, that, each prepayment shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or, 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 Term Loans to be prepaid and, if SOFR Rate Loans are to be prepaid, the Interest Period(s) of such Term Loans. The Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lenders ratable portion of such prepayment (based on such Lenders Pro Rata Share). All amounts required to be paid pursuant to this Section 4.1 shall be accompanied by
any accrued interest and other amounts as required by Sections 3.1, 4.2 and 5.4. (d) Application of Voluntary
Prepayments. Any prepayment of any Class of Term Loan pursuant to this Section 4.1 shall be applied as specified by the Borrower in the applicable notice of prepayment, ratably among the Lenders; provided, in the event the
Borrower fails to specify the Class of Term Loans to which any such prepayment shall be applied, such prepayment shall be applied ratably to succeeding scheduled principal installments under the Closing Date Term Loan Facility (prior to the First
Amendment Effective Date) and the Term Loan Facility (on and after the First Amendment Effective Date). 4.2 Prepayment
Premium. (a) In the event that (i) the Borrower makes any prepayment or repayment of the Term Loans (excluding (A) any First
Amendment Acquisition Prepayment, (B) any prepayment or repayment made pursuant to Section 4.3(a) or Section 4.3(c)(ii) (in respect of any Cure Amount) and (C) required amortization payments under
Section 4.1) or (ii) the Term Loans are accelerated for any reason (including in connection with the commencement of any Insolvency Proceeding), the Borrower shall pay to the Agent, for the ratable account of each of the applicable
Lenders, a fee in an amount equal to (1) a prepayment premium of 3.00% (or, in the case of any prepayment made pursuant to Section 4.3(c) in respect of the IPO Prepayment, 2.00%) of the principal amount of Term Loans (x) being prepaid
or repaid or (y) outstanding on the date of such acceleration, as the case may be, in the case of such prepayments or repayments, or such acceleration, occurring on or prior to first anniversary of the Closing Date, (2) a prepayment
premium of 2.00% of the principal amount of Term Loans (x) being prepaid or repaid or (y) outstanding on the date of such acceleration, as the case may be, in the case of such prepayments or repayments, or such acceleration, occurring
after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, and (3) a prepayment premium of 1.00% of the principal amount of Term Loans (x) being
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prepaid or repaid or (y) outstanding on the date of such acceleration, as the case may be, in the case of such prepayments or repayments, or such acceleration, occurring after the second
anniversary of the Closing Date but prior to the Stated Termination Date. No payment or prepayment premium shall be due on account of any payments or prepayments made on the Stated Termination Date. (b) Any prepayment premium payable in accordance with this Section 4.2 shall be presumed to be equal to the liquidated damages sustained
by the Lenders as the result of the occurrence of the applicable prepayment event and the Borrower agrees that it is reasonable under the circumstances currently existing. THE BORROWER EXPRESSLY WAIVES THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE
OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY ACCELERATION. (c) The
Borrower expressly agrees that: (i) such prepayment premium is reasonable and is the product of an arms length transaction between sophisticated business people, ably represented by counsel; (ii) such prepayment premium shall be
payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay such
prepayment premium; (iv) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph; (v) the Borrowers agreement to such prepayment premium is a material inducement to the Lenders to
provide the Term Loan Commitments and make the Term Loans, and (vi) such prepayment premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and
extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of such prepayment or event. 4.3 Mandatory Prepayments. (a) Excess Cash Flow. Commencing with the calendar quarter ending December 31, 2022, not later than ten (10) Business Days
after the date on which financial statements are required to be delivered pursuant to Section 6.2(a) or (b), as the case may be (the Excess Cash Flow Application Date), for each Excess Cash Flow Period
commencing with the Excess Cash Flow Period ended on December 31, 2022, the Borrower shall prepay (or cause to be prepaid), in accordance with Section 4.3(e), Term Loans with a principal amount equal to the Applicable ECF
Percentage. If following delivery of the audited financial statements of Holdings for any Fiscal Year pursuant to Section 6.2(a), such audited financial statements show that the Applicable ECF Percentage for such Fiscal Year was greater
than the Applicable ECF Percentage calculated for such Fiscal Year based upon the unaudited quarterly financial statements delivered to the Agent and the Lenders pursuant to Section 6.2(b) (the amount of such discrepancy, the
ECF True-up Amount), then the Borrower shall prepay the outstanding principal amount of the Term Loans in accordance with Section 4.3(e) in an amount equal to the ECF True-up Amount within three (3) Business Days
after delivery of such audited financial statements to the Agent and the Lenders pursuant to Section 6.2(a). (b) Permitted
Dispositions and Casualty Events. No later than ten (10) days after receipt by the Borrower or any of its Restricted Subsidiaries of Net Cash Proceeds from any Permitted Disposition (other than Dispositions permitted under clauses
(a), (b), (c), (d), (e), (f), (g), (h) (to the extent constituting a Disposition to an Obligor), (k), (m), (o), (p), (r) or (u) of the
definition of Permitted Disposition) or Casualty Event (to the extent that (x) the Net Cash Proceeds of such Permitted Disposition or Casualty Event, individually, exceeds $5,000,000 and (y) the Net Cash Proceeds of all
Permitted Dispositions and Casualty Events in any Fiscal Year exceeds $10,000,000 in any Fiscal Year, the Borrower shall pay or cause to be paid the Term Loans in an aggregate amount equal to such Net Cash Proceeds in excess of the applicable amount
set forth in the immediately preceding clauses (x) and (y) in accordance with Section 4.3(e); provided, that the Borrower and its Restricted Subsidiaries shall have the option to (i)
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invest such Net Cash Proceeds within 360 days of receipt thereof in assets used or useful in the business of the Borrower and its Restricted Subsidiaries or (ii) enter into a legally binding
commitment to invest such Net Cash Proceeds within 360 days of receipt thereof in assets used or useful in the business of the Borrower and its Restricted Subsidiaries, provided that such Net Cash Proceeds are so reinvested within the later to occur
of (A) 360 days of receipt of such Net Cash Proceeds or (B) 180 days following the expiration of such initial 360 day period; provided, further, that in the event that such Net Cash Proceeds are not reinvested by the Borrower
or its Restricted Subsidiaries prior to the last day of such 360 day period or 540 day period, as the case may be, the Borrower shall prepay the Term Loans in an amount equal Net Cash Proceeds in excess of the applicable amount set forth in the
immediately preceding clauses (x) and (y) and in accordance with Section 4.3(e). (c) Debt Issuances; Cure Amount
and IPO. In the event that (i) the Borrower or any of its Restricted Subsidiaries receives Net Cash Proceeds from the issuance or incurrence of Debt by the Borrower or any of its Restricted Subsidiaries (other than Permitted Debt) or
(ii) the Borrower receives any Cure Amount in connection with the exercise of its Cure Right, the Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Cash
Proceeds by the Borrower or its Restricted Subsidiary or Cure Amount by the Borrower, apply an amount equal to 100% of such Net Cash Proceeds or such Cure Amount to pay the outstanding principal amount of the Term Loans in accordance with
Section 4.3(e). In addition, upon the consummation of the IPO Transactions and the receipt of the Net Cash Proceeds by any Parent Entity, Holdings or the Borrower in connection therewith, the Borrower shall, within five (5) Business
Days after any such Persons receipt of such Net Cash Proceeds, apply an amount equal to the IPO Prepayment Amount to pay the outstanding principal amount of the Term Loans in accordance with Section 4.3(e) (the IPO
Prepayment). For the avoidance of doubt, all Net Cash Proceeds that are not required to be applied to the Term Loans under this Section 4.3(c) and Section 4.3(e) (including fifty percent (50%) of all Declined Proceeds after
the second offer of prepayment is made pursuant to Section 4.3(e) hereof)) shall be retained by the Borrower for any use not prohibited hereunder including, without limitation, the prepayment of the Back-Stop Note in accordance with
Section 8.13(i)(B), the prepayment of the Equify Bridge Note in accordance with Section 8.13(i)(C) and the making of the PubCo Distribution in accordance with Section 8.10(n). Further, in the event that (A) Additional Term Loans
and Delayed Draw Term Loans (if any) are funded by Additional Term Loan Lenders and Delayed Draw Term Loan Lenders (if any), as applicable, to the Borrower and (B) the First Amendment Purchase Documents with respect to the acquisition of U.S.
Well Services Holdings, LLC (formerly known as U.S. Well Services,
Inc.) and its Subsidiaries are terminated for any reason or
U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc. ) and its
Subsidiaries are not otherwise acquired by the Borrower pursuant to the applicable First Amendment Purchase Documents on or before March 31, 2023, the Borrower shall, within five (5) Business Days of such applicable date, repay the
outstanding principal amount of the Term Loans in an aggregate amount equal to the aggregate amount of the Additional Term Loans and Delayed Draw Term Loans funded to the Borrower in excess of $175,000,000 (if any) (the First Amendment
Acquisition Prepayment). (d) Payment Certificate. At least three Business Days prior to any payment of the Term
Loans pursuant to Sections 4.3 by 2:00 p.m., the Borrower shall deliver to the Agent written notice along with a certificate of a Responsible Officer demonstrating the calculation of the amount of the applicable Net Cash Proceeds or Excess
Cash Flow, as the case may be. In the event that the Borrower subsequently determines that the actual amount received exceeded the amount set forth in such certificate, the Borrower shall promptly make an additional payment of the Term Loans in an
amount equal to such excess, and the Borrower shall concurrently therewith deliver to the Agent a certificate of a Responsible Officer demonstrating the derivation of such excess. -91-
(e) Application of Mandatory Prepayments. Except as set forth in
Section 10.3, all amounts required to be paid pursuant to this Section 4.3 (other than the IPO Prepayment Amount and the First Amendment Acquisition Prepayment) shall be applied by the Agent to the succeeding scheduled
principal installments due under the Closing Date Term Loan Facility (prior to the First Amendment Effective Date) and the Term Loan Facility (on and after the First Amendment Effective Date) in direct order of maturity. All of the IPO Prepayment
Amount payable in respect of the Closing Date Term Loan Facility shall be applied by the Agent to the succeeding scheduled principal installments due under the Closing Date Term Loan Facility in the inverse order of maturity (including, for the
avoidance of doubt, the installment due on the Stated Termination Date). All of the First Amendment Acquisition Prepayment payable in respect of the Term Loan Facility shall be applied by the Agent to the succeeding scheduled principal installments
due under the Term Loan Facility in the inverse order of maturity (including, for the avoidance of doubt, the installment due on the Stated Termination Date). All amounts required to be paid pursuant to this Section 4.3 shall be
accompanied by any accrued interest and other amounts as required by Sections 3.1, 4.2 and 5.4. Any Lender may elect, by written notice to the Agent at or prior to 3:00 p.m. one Business Day prior to any prepayment of Term Loans
required to be made by the Borrower pursuant to Section 4.3(b) or (c), to decline all (or any portion) of its Pro Rata Share of such prepayment (such declined amounts, the Declined Proceeds), in which case such
Declined Proceeds (other than Declined Proceeds in respect of the First Amendment Acquisition Prepayment) shall be offered to other Lenders in the manner specified by the Agent, with any further Declined Proceeds to then be retained and used by the
Borrower as follows: (i) 50% of such Declined Proceeds to be used by the Borrower for any purpose permitted hereunder and (ii) 50% of such Declined Proceeds to be applied to the Loans (as defined in the ABL Credit Agreement) under the ABL
Credit Agreement. If any Lender fails to deliver a notice to the Agent of its election to decline receipt of its Pro Rata Share of any mandatory prepayment within the time frame specified by the Agent, such failure will be deemed to constitute an
acceptance of such Lenders Pro Rata Share of the total amount of such mandatory prepayment of Term Loans. 4.4 SOFR Rate
Loan Prepayments. In connection with any prepayment, if any SOFR Rate Loans are prepaid prior to the expiration date of the Interest Period applicable thereto, the Borrower shall comply with Section 5.4. 4.5 Payments by the Borrower. (a) All payments to be made by the Borrower under this Agreement or the other Loan Documents shall be made without set-off, recoupment or
counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower shall be made to the Agent for the account of the Lenders entitled thereto, at the account designated by the Agent and shall be made in Dollars and in
immediately available funds, no later than 2:00 p.m. (New York City time) on the date specified herein. Any payment received by the Agent after such time may, in the Agents discretion, be deemed (for purposes of calculating interest only) to
have been received on the following Business Day and any applicable interest shall continue to accrue. (b) Subject to the provisions set
forth in the definition of Interest Period, whenever any payment is due on a day other than a Business Day, such payment shall be due on the following Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be. 4.6 Apportionment, Application and Reversal of Payments. Except as
otherwise expressly provided herein, principal and interest payments shall be apportioned ratably among the Lenders to which such payment is owed (according to the unpaid principal balance of the Term Loans to which such payments owed are held by
each such Lender) and payments of the fees shall, as applicable, be apportioned ratably (or other applicable share as provided herein) among the Lenders to which such payment is owed, except for fees payable solely to the Agent or any Arranger.
Whenever any payment received by the Agent under this Agreement or any of the other Loan Documents is -92-
insufficient to pay in full all amounts due and payable to the Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Agent and applied by the Agent and the Lenders in the order of priority set forth in Section 10.3. If the Agent receives funds for application to the Obligations of the Obligors under or in respect of the Loan
Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Agent may, 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 outstanding Term Loans at such time, in repayment or prepayment of such of the outstanding Term Loans or other Obligations then owing to such Lender. Notwithstanding anything to the contrary contained in this
Agreement, unless so directed by the Borrower, or unless an Event of Default has occurred and is continuing, neither the Agent nor any Lender shall apply any payments which it receives to any SOFR Rate Loan, except (a) on the expiration date of
the Interest Period applicable to any such SOFR Rate Loan or (b) in the event, and only to the extent, that there are no outstanding Base Rate Loans and, in such event, the Borrower shall pay SOFR breakage losses in accordance with
Section 5.4. 4.7 Indemnity for Returned Payments. If after receipt of any payment which is applied to the
payment of all or any part of the Obligations under this Agreement or the other Loan Documents, the Agent, any Lender, or any other Secured Party is for any reason compelled to surrender such payment or proceeds to any Person because such payment or
application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then such Obligations or part thereof intended
to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Agent, such Lender, or such other Secured Party, and the Borrower shall be liable to pay to
the Agent, the Lenders, or such other Secured Party and hereby do indemnify the Agent, the Lenders, or such other Secured Party and hold the Agent, the Lenders, or such other Secured Party harmless for the amount of such payment or proceeds
surrendered. The provisions of this Section 4.7 shall be and remain effective notwithstanding any release of Collateral or guarantors, cancellation or return of Loan Documents, or other contrary action which may have been taken by the
Agent, any Lender, or such other Secured Party in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the Agents, the Lenders, or such other Secured Partys
rights under this Agreement and the other Loan Documents and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable. The provisions of this Section 4.7 shall survive the
repayment of the Obligations and termination of this Agreement. 4.8 Agents and Lenders Books and Records. The
Agent shall record the principal amount of the Term Loans owing to each Lender on its books. In addition, each Lender may note the date and amount of each payment or prepayment of principal of such Lenders Term Loans in its books and records.
Failure by the Agent or any Lender to make such notation shall not affect the obligations of the Borrower with respect to the Term Loans. The Borrower agrees that the Agents and each Lenders books and records showing the Obligations and
the transactions pursuant to this Agreement and the other Loan Documents shall be admissible in any action or proceeding arising therefrom, and shall constitute rebuttable presumptive proof thereof (absent manifest error), irrespective of whether
any Obligation is also evidenced by a promissory note or other instrument. Such statement shall be deemed correct, accurate, and binding on the Borrower and an account stated (absent manifest error and except for reversals and reapplications of
payments made as provided in Section 4.6 and corrections of errors discovered by the Agent), unless the Borrower notifies the Agent in writing to the contrary within 30 days after such statement is rendered. In the event a timely written
notice of objections is given by the Borrower, only the items to which exception is expressly made will be considered to be disputed by the Borrower. -93-
ARTICLE V TAXES, YIELD PROTECTION AND ILLEGALITY 5.1 Taxes. (a)
Payments Free of Taxes. Unless otherwise required by applicable Law, all payments by or on behalf of an Obligor to a Lender or the Agent under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. If any applicable Withholding Agent shall be required by any applicable Law (as determined in the good faith discretion of such Withholding Agent) to deduct or withhold any Tax from any payment to a Recipient under this
Agreement or any Loan Document, then (i) such Withholding Agent shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and
(ii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Obligor shall be increased as necessary so that after all such required deductions and withholdings are made (including deductions and withholdings applicable to
additional sums payable under this Section 5.1) the applicable Lender (or, in the case of a payment made to the Agent for its own account, the Agent) receives an amount equal to the sum it would have received had no such deductions or
withholdings been made. In addition, the Borrower shall pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Agent timely reimburse it for the payment of, all Other Taxes when due. (b) Indemnification by Obligors. The Obligors agree jointly and severally to indemnify and hold harmless each Lender and the Agent for
the full amount of Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 5.1) paid or payable by any Lender or the Agent or required to be withheld or deducted
from a payment to the Lender or the Agent and any reasonable and documented or invoiced out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 10 days after the date such Lender or the Agent makes written demand therefor in accordance with Section 5.6. A certificate as to the amount of such payment or liability delivered to the Borrower by a
Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (c) Evidence of Payments. As soon as practicable after the date of any payment by an Obligor of Taxes to a Governmental Authority
pursuant to this Section 5.1, the relevant Obligor shall furnish the Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment reasonably satisfactory to the Agent. (d) Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments
made under any Loan Document shall deliver to the Borrower and Agent, at the time or times reasonably requested by the Borrower or Agent, such properly completed and executed documentation reasonably requested by the Borrower or 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 Agent, shall deliver such other documentation prescribed by applicable Law or reasonably
requested by the Borrower or the Agent as will enable the Borrower or the 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 paragraphs -94-
(d)(i), (ii) and (iv) of this Section) shall not be required if in the Lenders 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. Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any
respect, it shall update such documentation or promptly notify the Borrower and the Agent in writing of its legal ineligibility to do so. Without limiting the generality of the foregoing, (i) any Lender that is a U.S. Person shall deliver to the Borrower and the 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 Agent), two duly executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
Tax; (ii) any Lender that is not a U.S. Person shall, to the extent it is legally eligible to do so, deliver to the
Borrower and the Agent on or prior to the date on which such non-U.S. Person becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(A) In the case of a Lender claiming the benefits of an income Tax treaty to which the United States in a party
(x) with respect to payments of interest under any Loan Document, two duly executed copies of IRS Form W-8BEN or 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 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; (B) two duly executed copies of IRS Form W-8ECI;
(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) two duly executed copies of a certificate substantially in the form of Exhibit I-1 to the effect that such non-U.S. 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) two duly executed copies of IRS Form W-8BEN or W-8BEN-E; or (D) to the extent a Lender
is not the beneficial owner, two duly executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, 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 such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such
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; -95-
(iii) any Lender that is not a U.S. Person shall deliver to the Borrower and
the Agent (in such number of copies as shall be requested by the recipient) 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
Agent), executed copies 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 applicable Withholding Agent to determine the withholding or deduction required to be made; and (iv) if any payment made to a Lender under any Loan Document would be subject to Tax imposed by FATCA if such Lender 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 Lender shall deliver to the Borrower and the Agent at the time or times prescribed by
Law and at such time or times reasonably requested by the Borrower or the 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 Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lenders obligations under FATCA and to determine
the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), FATCA shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding anything to the contrary in this Section 5.1(d), a Lender shall not be required to deliver any
documentation pursuant to this Section 5.1(d) that it is not legally eligible to deliver. Each Lender hereby authorizes the Agent to deliver to the Obligors and to any successor Agent any documentation provided by such Lender to the
Agent pursuant to this Section 5.1(d). (e) Treatment of Certain Refunds. If any party determines, in its reasonable
discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.1 (including by the payment of additional amounts pursuant to this Section 5.1), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.1 with respect to the Taxes giving rise to such refund), net of all reasonable and documented or invoiced
out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified
party, shall repay to such indemnified party the amount paid over pursuant to this Section 5.1(e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.1(e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 5.1(e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not
been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 5.1(e) shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. -96-
(f) The Agent shall provide the Borrower with two duly completed original copies of, if it
is a U.S. Person, IRS Form W-9 certifying that it is exempt from U.S. federal backup withholding, and, if it is not a U.S. Person, (1) IRS Form W-8ECI with respect to payments to be received by it as a beneficial owner and (2) IRS Form
W-8IMY (together with required accompanying documentation) with respect to payments to be received by it on behalf of the Lenders, certifying that, for such purpose, it is a U.S. branch that has agreed to be treated as a U.S. person for U.S. federal
tax purposes. Notwithstanding any other provision of this clause (f), the Agent shall not be required to deliver any documentation that the Agent is not legally eligible to deliver as a result of a Change in Law after the Agreement Date. (g) Each partys obligations under this Section shall survive the resignation or replacement of the Agent or any assignment of rights by,
or the replacement of, a Lender, the termination of the Term Loan Commitments, the expiration or cancellation of all letters of credit and the repayment, satisfaction or discharge of all obligations under any Loan Document. 5.2 Illegality. (a) If any Lender determines that any Requirement of 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 Term Loans whose interest is determined by reference to the SOFR Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge
interest based upon the SOFR Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through the Agent) (an Illegality Notice), (i) any obligation of the
Lenders to make SOFR Rate Loans, and any right of the Borrower to continue SOFR Rate Loans or to convert Base Rate Loans to SOFR Rate Loans, shall be suspended, and (ii) the interest rate on which Base Rate Loans shall, if necessary to avoid
such illegality, be determined by the Agent without reference to clause (c) of the definition of Base Rate, in each case until each affected Lender notifies the Agent and the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any affected Lender (with a copy to the Agent), prepay or, if applicable, convert all SOFR Rate Loans to
Base Rate Loans (the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined by the Agent without reference to clause (c) of the definition of Base Rate), on the last day of the Interest
Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Rate Loans to such day, or immediately, if any affected Lender may not lawfully continue to maintain such SOFR Rate Loans to such day, in each case until the Agent
is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the SOFR Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 5.4. 5.3 Increased Costs and Reduction of Return. (a) If any Lender determines that due to any Change in Law occurring after the later of the Agreement Date or the date such Lender became a
party to this Agreement, there shall be any increase in the cost (including Taxes) to such Lender of agreeing to make or making, funding, continuing, converting to or maintaining any SOFR Rate Loans (other than any increase in cost resulting from
(i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, or (iii) Connection Income Taxes), then, subject to clause (c) of this
Section 5.3, the Borrower shall be liable for, and shall from time to time, upon demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of such Lender, additional amounts as are sufficient to
compensate such Lender for such increased costs. -97-
(b) If any Lender shall have determined that due to any Change in Law in respect of any
Capital Adequacy Regulation occurring after the later of the Agreement Date or the date such Lender became a party to this Agreement that affects or would affect the amount of capital or liquidity required or expected to be maintained by such Lender
or any corporation or other entity controlling such Lender and such Lender (taking into consideration such Lenders or such corporations or other entitys policies with respect to capital adequacy and such Lenders desired
return on capital) determines that the amount of such capital or liquidity is required to be increased as a consequence of its Term Loan Commitments, loans, credits or obligations under this Agreement, then, upon demand of such Lender to the
Borrower through the Agent, subject to clause (c) of this Section 5.3, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender for such
increase. (c) Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this
Section 5.3 shall not constitute a waiver of such Lenders right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this
Section 5.3 for any increased costs incurred or reductions suffered more than 90 days prior to the date that such Lender notifies the Borrower of the event giving rise to such increased costs or reductions and of such Lenders
intention to claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is retroactive, then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof).
Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 5.3 if it shall not at the time be the general policy or practice of such Lender to demand such compensation in similar
circumstances for similarly situated borrowers under comparable provisions of other credit agreements, if any. 5.4 Funding
Losses. The Borrower shall reimburse each Lender and hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of: (a) the failure of the Borrower to borrow a SOFR Rate Loan after the Borrower has given (or is deemed to have given) a Notice of Borrowing;
(b) the failure of the Borrower to continue a SOFR Rate Loan or convert a Term Loan into a SOFR Rate Loan after the Borrower has given (or
is deemed to have given) a Notice of Continuation/Conversion; or (c) the prepayment or other payment (including after acceleration
thereof) of any SOFR Rate Loans on a day that is not the last day of the relevant Interest Period (including, without limitation, any payment in respect thereof pursuant to Section 5.8), including any loss or expense arising from the
liquidation or reemployment of funds obtained by it to maintain its SOFR Rate Loans (but not in respect of lost profits) or from fees payable to terminate the deposits from which such funds were obtained. 5.5 Inability to Determine Rates. (a) If, on or prior to the first day of any Interest Period for any SOFR Rate Loan: (i) the Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR
cannot be determined pursuant to the definition thereof, or (ii) the Required Lenders determine that for any reason in connection with
any request for a SOFR Rate Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Rate Loan does not adequately and fairly reflect the cost to such Lenders of
making and maintaining such Term Loan, and the Required Lenders have provided notice of such determination to the Agent, -98-
then the Agent shall give written notice to the Borrower and to the Lenders as soon as practicable thereafter. Upon notice thereof by the Agent to the Borrower, any obligation of the Lenders to
make SOFR Rate Loans, and any right of the Borrower to continue SOFR Rate Loans or to convert Base Rate Loans to SOFR Rate Loans, shall be suspended (to the extent of the affected SOFR Rate Loans or affected Interest Periods) until the Agent (with
respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Rate Loans (to the
extent of the affected SOFR Rate Loans or affected Interest Periods) or, 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 in the amount specified therein
and (B) any outstanding affected SOFR Rate Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so
converted, together with any additional amounts required pursuant to Section 5.4. If the Agent determines (which determination shall be conclusive and binding absent manifest error) that Adjusted Term SOFR cannot be
determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Agent without reference to clause (c) of the definition of Base Rate until the Agent revokes such
determination. (b) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a
Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of the then-current Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of
Benchmark Replacement for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark
settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of
Benchmark Replacement for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York
City time) 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 Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily
Simple SOFR, all interest payments will be payable on a monthly basis. (c) Benchmark Replacement Conforming Changes. In connection
with the use, administration, adoption or implementation of a Benchmark Replacement, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any
amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. (d) Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the Lenders of (i) the
implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Agent will notify the Borrower of
(A) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 5.5(e) and (B) the commencement and expiration of any Benchmark Unavailability Period. Any determination, decision or election that may be made by
the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 5.5, 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 or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other
Loan Document, except, in each case, as expressly required pursuant to this Section 5.5. -99-
(e) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary
herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any
tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such
Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Agent may modify the definition of Interest Period (or any similar or
analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a
screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then
the Agent may modify the definition of Interest Period (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. (f) Benchmark Unavailability Period. Upon the Borrowers receipt of notice of the commencement of a Benchmark Unavailability
Period, the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period 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 a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the
Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. 5.6 Certificates of Agent. If the Agent or any Lender claims reimbursement or compensation under this Article V, the Agent
or the affected Lender shall determine the amount thereof and shall deliver to the Borrower (with a copy to the Agent) a certificate setting forth in reasonable detail the amount payable to the Agent or the affected Lender, and such certificate
shall be conclusive and binding on the Borrower in the absence of manifest error; provided that, except for compensation under Section 5.1, the Borrower shall not be obligated to pay the Agent or such Lender any compensation
attributable to any period prior to the date that is ninety (90) days prior to the date on which the Agent or such Lender first gave notice to the Borrower of the circumstances entitling such Lender to compensation. The Borrower shall pay the
Agent or such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof. 5.7
Survival. The agreements and obligations of the Borrower and each Recipient in this Article V shall survive the assignment of rights by, or the replacement of, a Lender, the repayment, satisfaction or discharge of all other Obligations
and termination of this Agreement. 5.8 Assignment of Term Loan Commitments Under Certain Circumstances. In the event
(a) any Lender requests compensation pursuant to Section 5.3, (b) any Lender delivers a notice described in Section 5.2, (c) Holdings or any Obligor is required to pay additional amounts to any Lender or any
Governmental Authority on account of any Lender pursuant to Section 5.1, (d) [reserved] or (e) any Lender is a Defaulting Lender, the Borrower may, at its sole expense and effort (including with respect to the processing fee
referred to in Section 12.2(a)), upon notice to such Lender and the Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 12.2), all of
its interests, rights -100-
and obligations under the Loan Documents to an Eligible Assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) such assignment shall not conflict with any Law or order of any court or other Governmental Authority having jurisdiction, (ii) except in the case of clause (d) or (e) above, no Event of
Default shall have occurred and be continuing, (iii) the Borrower or such assignee shall have paid to such Lender in immediately available funds an amount equal to the sum of 100% of the principal of and interest accrued to the date of such
payment on the outstanding Term Loans of such Lender, plus all fees and other amounts accrued for the account of such Lender hereunder (including any amounts under Sections 3.4, 4.2, 5.1, 5.2, 5.3 and
5.4), (iv) such assignment is consummated within 180 days after the date on which the Borrowers right under this Section 5.8 arises, in the case of any such assignment resulting from payments required to be made
pursuant to Section 5.1, such assignment will result in a reduction in such payments thereafter, and (v) if the consent of the Agent is required pursuant to Section 12.2, such consents are obtained; provided,
further, that if prior to any such assignment the circumstances or event that resulted in such Lenders request or notice under Section 5.2 or 5.3 or demand for additional amounts under Section 5.1, as the
case may be, shall cease to exist or become inapplicable for any reason, or if such Lender shall waive its rights in respect of such circumstances or event under Section 5.1, 5.2 or 5.3, as the case may be, then such Lender
shall not thereafter be required to make such assignment hereunder. In the event that a replaced Lender does not execute an Assignment and Acceptance pursuant to Section 12.2 within two Business Days after receipt by such replaced Lender
of notice of replacement pursuant to this Section 5.8 and presentation to such replaced Lender of an Assignment and Acceptance evidencing an assignment pursuant to this Section 5.8, the Borrower shall be entitled (but not
obligated), upon receipt by the replaced Lender of all amounts required to be paid under this Section 5.8, to execute such an Assignment and Acceptance on behalf of such replaced Lender, and any such Assignment and Acceptance so executed
by the Borrower, the replacement Lender and, to the extent required pursuant to Section 12.2, the Agent, shall be effective for purposes of this Section 5.8 and Section 12.2. ARTICLE VI BOOKS AND
RECORDS; FINANCIAL INFORMATION; NOTICES 6.1 Books and Records. Holdings shall maintain, and shall cause the Borrower
and each of the Restricted Subsidiaries to maintain, at all times, proper books and records and accounts prepared in conformity with GAAP consistently applied in respect of all material financial transactions and matters involving all material
assets, business and activities of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole. Holdings shall maintain, and shall cause each of the Restricted Subsidiaries to maintain, at all times books and records pertaining to the
Collateral in such detail, form and scope as is consistent in all material respects with good business practice or consistent with past practice. 6.2 Financial Information. Holdings shall promptly furnish to the Agent (for further distribution to each Lender): (a) As soon as available, but in any event not later than one hundred and twenty (120) days after the close of such Fiscal Year (for the
avoidance of doubt, commencing with the Fiscal Year ending December 31, 2021), consolidated audited balance sheets, income statements and cash flow statements of the Consolidated Parties and, if different, Holdings and its Restricted
Subsidiaries, for such Fiscal Year, and the accompanying notes thereto, setting forth in each case in comparative form figures for and as of the end of the previous Fiscal Year (or, in lieu of such audited financial statements of Holdings and its
Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for Holdings -101-
and its Restricted Subsidiaries, on the one hand, and the Consolidated Parties, on the other hand), all in reasonable detail, fairly presenting in all material respects the financial position and
the results of operations of the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) as at the date thereof and for the Fiscal Year then ended, and prepared in accordance with GAAP in all material respects. Such
consolidated statements shall be certified, reported on without a going concern or like qualification (other than (x) with respect to, or resulting from, the upcoming maturity of the Term Loans hereunder or (y) a prospective
default under the Financial Covenant or ABL Financial Covenant), or qualification arising out of the scope of the audit, by a firm of independent registered public accountants of recognized national standing selected by the Borrower. Notwithstanding
the foregoing, the obligations in this Section 6.2(a) may be satisfied with respect to financial information of the Consolidated Parties by furnishing (A) the applicable financial statements of Holdings (or any Parent Entity of
Holdings) or (B) Borrowers or Holdings (or any Parent Entity thereof), as applicable, Form 10-K filed with the SEC; provided that, with respect to each of clauses (A) and (B) above, (i) to the
extent such information relates to Holdings (or such Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent
Entity), on the one hand, and the information relating to the Consolidated Parties on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under the first sentence of
this Section 6.2(a), such statements shall be certified, reported on without a going concern or like qualification (other than (x) with respect to, or resulting from, the upcoming maturity of the Term Loans hereunder or
(y) a prospective default under the Financial Covenant or ABL Financial Covenant), or qualification arising out of the scope of the audit, by a firm of independent registered public accountants of recognized national standing selected by
Holdings (or such Parent Entity). In addition, together with the Financial Statements required to be delivered pursuant to this Section 6.2(a), Holdings shall deliver a customary managements discussion and analysis of
financial condition and results of operations with respect to the periods covered by such Financial Statements. (b) As soon as
available, but in any event not later than forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year, consolidated unaudited balance sheets of the Consolidated Parties and, if different, Holdings and its Restricted
Subsidiaries, as at the end of such Fiscal Quarter, and consolidated unaudited income statements and cash flow statements for the Consolidated Parties, and, if different from Holdings and its Restricted Subsidiaries for such Fiscal Quarter and for
the period from the beginning of the Fiscal Year to the end of such Fiscal Quarter, setting forth, in each case, in reasonable detail, in comparative form, the figures for and as of the corresponding period in (i) the prior Fiscal Year and
(ii) the annual forecast for such Fiscal Year delivered pursuant to clause (d) below (or, in lieu of such Financial Statements of Holdings and its Restricted Subsidiaries, a detailed reconciliation, reflecting such financial
information for Holdings and its Restricted Subsidiaries, on the one hand, and the Consolidated Parties on the other hand), and prepared in all material respects in conformity with GAAP consistently applied, subject to changes resulting from normal
year-end audit adjustments and to the absence of footnotes and certified by a Responsible Officer of Holdings as being complete and correct in all material respects in conformity with GAAP, prepared in reasonable detail in accordance with GAAP in
all material respects consistently applied and fairly presenting in all material respects the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) financial position as at the dates thereof and their
results of operations for the periods then ended, subject to changes resulting from normal year-end audit adjustments and to the absence of footnotes. Notwithstanding the foregoing, the obligations in this Section 6.2(b) may be satisfied
with respect to financial information of the Consolidated Parties by furnishing (A) the applicable Financial Statements of Holdings (or any Parent Entity thereof) or (B) the Borrowers or Holdings (or any Parent Entity thereof),
as applicable, Form 10-Q filed with the SEC; provided that, with respect to each of clauses (A) and (B), to the extent such information relates to Holdings (or any such Parent Entity), such information is accompanied by
consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Consolidated Parties on a standalone basis, on
the other hand. In addition, together with the Financial Statements required to be delivered pursuant to this Section 6.2(b), Holdings shall deliver a customary managements discussion and analysis of financial condition and
results of operations with respect to the periods covered by such Financial Statements. -102-
(c) Concurrently with the delivery of the annual audited Financial Statements pursuant to
Section 6.2(a) and the quarterly Financial Statements pursuant to Section 6.2(b), a duly completed Compliance Certificate signed by a Responsible Officer of Holdings and including setting forth a reasonably detailed
calculation of Excess Cash Flow. (d) As soon as available, but in any event not later than forty-five (45) days after the end of each
Fiscal Year, commencing with the Fiscal Year ending on December 31, 2022, annual forecasts (to include forecasted consolidated balance sheets, income statements and cash flow statements) for Holdings and its Restricted Subsidiaries as at the
end of and for each Fiscal Quarter of such Fiscal Year. (e) Subject to applicable Laws and confidentiality restrictions, promptly upon the
filing thereof, copies of all reports, if any, to or other documents filed by Holdings or any of its Restricted Subsidiaries with the SEC under the Exchange Act or any other similar regulatory or Governmental Authority of any jurisdiction, and all
material reports, notices, or statements sent or received by Holdings or any of its Restricted Subsidiaries to or from the holders of any Material Indebtedness of Holdings or any of its Restricted Subsidiaries registered under the Securities Act of
1933 or any other similar Laws in any jurisdiction (other than, in each such case, amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the Agent for further delivery
to the Lenders), exhibits to any registration statement and, if applicable, any registration statements on Form S-8 and other than any filing filed confidentially with the SEC or any analogous Governmental Authority in any relevant jurisdiction).
(f) Within thirty (30) days after the end of each month, a monthly report in the form attached hereto as Exhibit L. (g) Concurrently with the execution, receipt or delivery thereof (but without duplication of any notices provided to Agent and Lenders under
this Agreement), (i) copies of all material notice (including, without limitation, default notices), reports (including, without limitation, borrowing base reports), statements or other material information that Holdings or any of its
Restricted Subsidiaries executes, receives or delivers in connection with any ABL Facility Indebtedness, Subordinated Debt, Junior Debt or Material Indebtedness and (ii) copies of any amendments, restatements, supplements or other
modifications, waivers, consents or forbearances that Holdings or any of its Restricted Subsidiaries executes, receives or delivers with respect to the definitive legal documentation for any ABL Facility Indebtedness, Subordinated Debt, Junior Debt
or Material Indebtedness; provided that the First Financial Loan Documents shall not be subject to the notice requirements of this clause (g). (h) Subject to applicable Laws and confidentiality restrictions set forth in this Agreement, (i) such additional information as the Agent
or any Lender may from time to time reasonably request regarding the business, legal, or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole and (ii) such additional information and documentation reasonable
requested by the Agent or any Lender for purposes of compliance with applicable know your customer requirements under the PATRIOT Act or other applicable anti-money laundering laws. Upon the request of the Agent or the Required Lenders, the Borrower shall make its Chief Financial Officer available for a
management call with the Agent and the Lenders at such time (but, so long as no Event of Default shall have occurred and be continuing, not more frequently than once during each Fiscal Quarter) as may be agreed to by the Borrower and the Agent or
the Required Lenders. -103-
Documents required to be delivered pursuant to Section 6.2(a),
(b) and (e) (to the extent any such documents are included in materials otherwise filed with the SEC or any similar regulator or Governmental Authority of any jurisdiction) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date on which such documents are posted on the Borrowers or Holdings behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial,
third-party website or whether sponsored by the Agent); provided that the Borrower or Holdings shall notify the Agent (by facsimile or electronic mail) of the posting of any such documents and shall deliver paper copies of such documents to
the Agent or any Lender that so requests. 6.3 Notices to the Agent. The Borrower shall notify the Agent (for further
distribution to the Lenders) in writing of the following matters at the following times: (a) Promptly, and in any event within five
(5) Business Days, after a Responsible Officer becoming aware of any Default or Event of Default. (b) Promptly, and in any event
within five (5) Business Days, after a Responsible Officer becoming aware of any claim, action, suit, or proceeding, by any Person, or any investigation by a Governmental Authority, in each case affecting Holdings or any of its Restricted
Subsidiaries and which would reasonably be expected to have a Material Adverse Effect. (c) Promptly, and in any event within five
(5) Business Days, after a Responsible Officer becoming aware of any violation of any Law (including any Environmental Law), statute, regulation, or ordinance of a Governmental Authority affecting Holdings or any of its Restricted Subsidiaries,
which, in any case, would reasonably be expected to have a Material Adverse Effect. (d) Any change in Holdings or any Obligors
state of incorporation or organization, name as it appears in the state of its incorporation or other organization, type of entity, organizational identification number, or form of organization, each as applicable, in each case no later than ten
(10) Business Days (or such longer period to which the Required Lenders may agree in their discretion) after the occurrence of any such change. (e) Promptly, and in any event within fifteen (15) Business Days, after a Responsible Officer of Holdings, the Borrower or any ERISA
Affiliate knows that an ERISA Event has occurred or is reasonably expected to occur, that, alone or with another ERISA Event that has occurred or is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect, and
any action taken (or threatened in writing) by the IRS, the DOL, the PBGC or the Multi-employer Plan sponsor with respect thereto; provided, however, in the event of a Reportable Event, the Borrower shall notify the Agent by the later of fifteen
(15) Business Days and the date on which notification is required to be provided to the PBGC pursuant to Section 4043(a) of ERISA. (f) Upon reasonable request, with respect to any Multi-employer Plan, (A) any documents described in Section 101(k) of ERISA that
Holdings, the Borrower or any ERISA Affiliate may request and (B) any notices described in Section 101(l) of ERISA that Holdings, the Borrower or any ERISA Affiliate may request; provided that if Holdings, Borrower or ERISA
Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multi-employer Plan, Holdings, the Borrower or ERISA Affiliate shall promptly make a request for such documents or notices from such
administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. -104-
(g) Within fifteen (15) Business Days after the occurrence of the assumption or
establishment of any new Pension Plan or Multi-employer Plan, or the commencement of contributions to any Pension Plan or Multi-employer Plan, to which Holdings, the Borrower or any ERISA Affiliate was not previously contributing, which in any event
could reasonably be expected to have a Material Adverse Effect. (h) Promptly, and in any event within five (5) Business Days, after a
Responsible Officer becoming aware of any event or circumstance which would reasonably be expected to have a Material Adverse Effect. (i)
Unless otherwise publicly disclosed in an annual or quarterly report filed by the Borrower or any Parent Entity with the SEC under the Exchange Act, promptly after any material change in accounting policies or financial reporting practices
(including as a result of a change in GAAP or the application thereof) by Holdings or any Restricted Subsidiary thereof. (j) Promptly, and
in any event within five (5) Business Days, after a Responsible Officer becoming aware of any action, suit or proceeding pursuant to which a holder of any Lien on any Collateral makes a claim with respect to any such Collateral but only if the
Collateral subject to such claim has a Fair Market Value in excess of $1,000,000. (k) Within five (5) Business Days after any change
in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) and (d) of such certification. (l) Promptly after the completion thereof, notice of the completion of any fleet of hydraulic fracturing equipment, including, without
limitation, the identity of such fleet and the initial location to which such fleet will be deployed. (m) Each notice given under this
Section 6.3 shall be accompanied by a statement of a Responsible Officer describing the subject matter thereof in reasonable detail and setting forth the action that Holdings, its applicable Subsidiary, or ERISA Affiliate has taken or
proposes to take with respect thereto. ARTICLE VII GENERAL WARRANTIES AND REPRESENTATIONS Holdings and the Borrower each warrants and represents to the Agent and the Lenders on the Closing Date and on the date of
each Borrowing that: 7.1 Authorization, Validity, and Enforceability of this Agreement and the Loan Documents. Holdings and
each Obligor party to this Agreement and the other Loan Documents has the power and authority to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, to incur the Obligations, and to grant the Collateral
Agents Liens. Holdings and each Obligor party to this Agreement and the other Loan Documents has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its shareholders,
if necessary) to authorize its execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party. This Agreement and the other -105-
Loan Documents to which it is a party have been duly executed and delivered by Holdings and each Obligor party thereto, and constitute the legal, valid and binding obligations of Holdings and
each such Obligor, enforceable against it in accordance with their respective terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting
creditors rights generally and general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing. Holdings and each Obligors execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a party, do not (x) conflict with, or constitute a violation or breach of, the terms of (a) any contract, mortgage, lease, agreement, indenture, or instrument to
which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries, or (c) any Charter Documents
of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case with respect to clauses (a), (b) and (c) of this sentence, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result
in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing other than pursuant to the ABL Intercreditor
Agreement and [**], if any. 7.2 Validity and Priority of Security Interest. Upon execution and delivery thereof by the parties thereto, the applicable
Security Documents will be effective to create legal and valid first priority Liens on all the Collateral (other than with respect to the Current Asset Collateral, in which the applicable Security Documents will be effective to create legal and
valid second priority Liens in favor of the Collateral Agent for the benefit of the Secured Parties) in favor of the Collateral Agent for the benefit of the Secured Parties, subject to the terms of the ABL Intercreditor Agreement, [**] and other Permitted Liens permitted to be senior to the Liens
securing the Obligations and to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors rights generally, general equitable principles
(whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing and, upon the taking of such actions when and to the extent required under the Security Documents or this Agreement, but subject to any
exceptions in regards to taking any actions and limitations in regards to the scope, perfection and priority of Collateral Agents Lien in the assets of Holdings and its Restricted Subsidiaries as set forth therein or in the definition of
Collateral and Guarantee Requirement, such Liens (a) constitute perfected Liens on all of the applicable Collateral, (b) have priority over all other Liens on the Collateral, subject to Permitted Liens and the provisions of the
ABL Intercreditor Agreement, [**] or another customary
intercreditor agreement or arrangements reasonably satisfactory to the Agent, the Required Lenders and the Borrower, in each case, then in existence, and (c) are enforceable against each Obligor, as applicable, granting such Liens. Schedule
7.2 attached hereto contains a complete and accurate list in all material respects as of the Closing Date of all Real Estate (other than the Excluded Real Property, if any, as of such date). 7.3 Organization and Qualification. Holdings and each Restricted Subsidiary (a) is duly organized and validly existing in
good standing under the laws of the jurisdiction of its organization, (b) is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is in good standing in each jurisdiction in which the failure to
be so qualified and in good standing would reasonably be expected to have a Material Adverse Effect, and (c) has all requisite power and authority to conduct its business and to own its property, except where the failure to have such power and
authority would not reasonably be expected to have a Material Adverse Effect. -106-
7.4 Subsidiaries; Stock. As of the Agreement Date, Schedule 7.4
contains a correct and complete list of Holdings and its Subsidiaries, including (a) jurisdiction of organization, (b) the form of organization, (c) identification number of such Person in its jurisdiction of organization, if any,
(d) the address of each Persons chief executive office and (e) each jurisdiction where such Person is qualified to do business. The Stock of Holdings and its Subsidiaries is free and clear of all Liens (other than, statutory
Permitted Liens, if applicable) and has been duly authorized and validly issued in compliance with all applicable federal, state and other Laws and is fully paid and non-assessable (except to the extent such concepts are not applicable under the
applicable Law of such Subsidiarys jurisdiction of formation). Except as set forth on Schedule 7.4, in each case as of the Closing Date, there is no existing option, warrant, call, right, commitment or other agreement (including,
without limitation, preemptive rights) to which Holdings or any of its Subsidiaries is a party requiring, and there is no membership interest or other Stock of Holdings or any of its Subsidiaries outstanding which upon conversion or exchange would
require, the issuance by Holdings or any of its Subsidiaries of any additional membership interests or other Stock of Holdings or any of its Subsidiaries or other securities convertible into, exchangeable for or evidencing the right to subscribe for
or purchase, a membership interest or other Stock of Holdings or any of its Subsidiaries. Schedule 7.4 correctly sets forth the ownership interest of Holdings, the Borrower and each of their respective Subsidiaries as of the Agreement Date.
As of the Closing Date, the Obligors have no equity investments in any other Person other than those specifically disclosed in Schedule 8.11. The copies of the Organization Documents of each Obligor and each amendment thereto provided
pursuant to Section 9.1 are true and correct copies of each such document as of the Closing Date, each of which is valid and in full force and effect as of the Closing Date. 7.5 Financial Statements. (a) Holdings has delivered to the Agent (for further distribution to the Lenders) the Historical Financial Statements. The Historical Financial
Statements, including the schedules and notes thereto, if any, have been prepared in reasonable detail in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible Officer of Holdings, and
disclosed in any such schedules and notes or otherwise disclosed to the Agent prior to the Agreement Date) and present fairly, in all material respects, the Consolidated Parties financial position as at the dates thereof and their results of
operations for the periods then ended, subject, in the case of such unaudited Financial Statements, to changes resulting from normal year-end audit adjustments and to the absence of footnotes. Each Lender and the Agent hereby acknowledges and agrees that Holdings and its Subsidiaries may be required to restate the
Historical Financial Statements as the result of the implementation of changes in GAAP or the interpretation thereof, and that such restatements will not result in a Default under the Loan Documents (including any effect on any conditions required
to be satisfied on the Closing Date) to the extent that the restatements do not reveal any material omission, misstatement or other material inaccuracy in the reported information from actual results for any relevant prior period. 7.6 Solvency. On the Closing Date and after giving effect to the Transactions to be consummated on the Closing Date, Holdings and
its Subsidiaries, on a consolidated basis, are Solvent. 7.7 Property. Each Obligor and each of its Restricted Subsidiaries
has good and defensible title in fee simple to, or valid leasehold interests in, or easements or other limited property interests in, all property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor
defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Permitted Liens and except where the failure to have such title or other interest could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. -107-
7.8 Intellectual Property. The conduct of the businesses of Holdings and each
of its Restricted Subsidiaries (including their use of Intellectual Property) does not infringe upon, misappropriate or violate the Intellectual Property of any other Person, and, to the knowledge of Holdings and the Borrower, no other Person is
infringing or violating their own Intellectual Property, in each case except as would not reasonably be expected to have a Material Adverse Effect. Holdings and each of its Restricted Subsidiaries owns or is licensed or otherwise has the right to
use all Intellectual Property that is used or held for use in or is otherwise reasonably necessary for the operation of its businesses as presently conducted, except as would not reasonably be expected to have a Material Adverse Effect. 7.9 Litigation. There is no pending, or to Holdings or the Borrowers knowledge, threatened, action, suit, proceeding,
or counterclaim by any Person, or to Holdings or the Borrowers knowledge, investigation by any Governmental Authority, which, in any case, has a reasonable likelihood of being adversely determined and if so adversely determined, either
(a) would reasonably be expected to have a Material Adverse Effect or (b) relates directly to any of the Loan Documents. 7.10 Labor Disputes. There is no strike, work stoppage, unfair labor practice claim, or other labor dispute pending or, to
Holdings or the Borrowers knowledge, reasonably expected to be commenced against Holdings or any of its Restricted Subsidiaries, which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
7.11 Environmental Laws. Except for any matters that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect: (a) Holdings and its Restricted Subsidiaries and each of their respective facilities, locations and
operations are and, to the Borrowers knowledge, within the past three (3) years have been in compliance with all Environmental Laws. (b) Each of Holdings and its Restricted Subsidiaries have obtained all permits under Environmental Laws necessary for their current facilities
and operations, all such permits are valid and in full force and effect, each of Holdings and its Restricted Subsidiaries is in compliance with all terms and conditions of such permits and none of such permits is, as of the Closing Date, subject to
any pending proceedings or other actions (or to Borrowers knowledge, any threatened proceedings or other actions) for violation, modification or revocation of such permits. (c) (i) Neither Holdings nor any of its Restricted Subsidiaries, nor to Holdings or the Borrowers knowledge any of its predecessors
in interest with respect to the Real Estate or any other location at which Holdings, any of the Restricted Subsidiaries or the Borrower conducts or has conducted its business or operations,, has stored, treated or released any Contaminant except in
compliance with Environmental Laws at any location, (ii) neither Holdings nor any Restricted Subsidiary nor any of the presently owned or leased Real Estate or presently conducted operations, nor, to any of Holdings or the Borrowers
knowledge, its previously owned or leased Real Estate or prior operations, is subject to any pending proceeding or other action under any Environmental Law, and (iii) neither Borrower nor Holdings has any knowledge of any threatened proceeding
or reasonable basis for, any alleged non-compliance, claim or liability arising out of or in connection with any Environmental Law (including from any Release or threatened Release of a Contaminant). -108-
(d) None of the present or, to Holdings or the Borrowers knowledge, former operations,
and none of the real estate interests of Holdings or any of its Restricted Subsidiaries, is subject to any investigation by any Governmental Authority against or involving Holdings or any of its Restricted Subsidiaries, evaluating whether, or
alleging that, any investigation or remedial action is needed to respond to a Release or threatened Release of a Contaminant or the presence of a Contaminant attributed to, or alleged to have been attributed to Holdings or any of its Restricted
Subsidiaries or any predecessors thereof, or of any of their operations. 7.12 No Violation of Law. Neither Holdings, nor any
of its Restricted Subsidiaries is in violation of any Law, judgment, order or decree applicable to it, where such violation would reasonably be expected to have a Material Adverse Effect. 7.13 No Default. No Default or Event of Default has occurred and is continuing. 7.14 ERISA Compliance. Except as would not reasonably be expected to result in a Material Adverse Effect: (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law. The Borrower, each Guarantor
and each ERISA Affiliate, as applicable, has made all required contributions to any Pension Plan subject to Section 412 or 430 of the Code or Section 302 or 303 of ERISA or other applicable laws when due, and no application for a funding
waiver or an extension of any amortization period (pursuant to Section 412 of the Code, or otherwise) has been made with respect to any Pension Plan. (b) There are no pending or, to the best knowledge of Holdings and the other Obligors, threatened, claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan. (c) (i) No ERISA Event has occurred or is reasonably expected to occur,
(ii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in liability) under
Section 4201 or 4243 of ERISA with respect to a Multi-employer Plan and (iii) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. 7.15 Taxes. Holdings and each of its Restricted Subsidiaries have filed all federal, state and other material Tax returns
required to be filed by them, and have paid all Taxes and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable by them (including in their capacity as a withholding agent), other than
Taxes (i) the failure of which to pay, in the aggregate, would not have a Material Adverse Effect or (ii) that are being contested in good faith and by the appropriate proceedings and for which adequate reserves have been established in
accordance with GAAP. There are no current, pending or proposed Tax deficiencies, assessments or other claims against Holdings or any Restricted Subsidiary that would reasonably be expected to, in the aggregate, have a Material Adverse Effect. 7.16 Investment Company Act. None of Holdings, or any Restricted Subsidiary of Holdings, is an Investment Company, or
a company controlled by an Investment Company within the meaning of the Investment Company Act of 1940, as amended. 7.17 Use of Proceeds. The proceeds of the Term Loans under the Closing Date Term Loan Facility are to be used on solely
(i) to pay fees, costs and expenses payable in connection with the Closing Date Term Loan Facility, (ii) to make the payments set forth on Schedule 7.17, (iii) to fund other general corporate purposes and (iv) to fund the
FTS Acquisition, including any fees and expenses due and payable with respect thereto. -109-
7.18 Margin Regulations. As of the Closing Date, none of the Collateral is
comprised of any Margin Stock. None of Holdings or any Obligor is engaged, 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 Federal Reserve
Board), or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U or Regulation X of Federal Reserve Board. 7.19 No Material Adverse Change. No Material Adverse Effect has occurred since December 31, 2020. 7.20 Full Disclosure. (a) None of the information or data (taken as a whole) heretofore or contemporaneously furnished by Holdings, the Borrower, any
of their respective Restricted Subsidiaries or any of their respective authorized representatives in writing to the Agent, the Collateral Agent, any Arranger or any Lender on or before the Closing Date for purposes of or in connection with this
Agreement or any transaction contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information and data (taken as a whole) not materially misleading at such time (after
giving effect to all supplements so furnished prior to such time) in light of the circumstances under which such information or data was furnished; it being understood and agreed that for purposes of this Section 7.20, such information
and data shall not include projections (including financial estimates, forecasts and other forward-looking information), pro forma financial information or information of a general economic or general industry nature. The projections contained in
the information and data referred to in this Section 7.20 were prepared in good faith based upon assumptions believed by Holdings and the Borrower to be reasonable at the time made and at the time delivered; it being recognized by the
Agent, the Collateral Agent and the Lenders that such projections are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies, many of which are beyond the control of
Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such projections may differ from the
projected results and such differences may be material. (b) As of the Closing Date, the information included in the
Beneficial Ownership Certification is true and correct in all material respects. 7.21 Government Authorization. No approval,
consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings
or any of its Restricted Subsidiaries of this Agreement or any other Loan Document, other than (i) those that have been obtained or made and are in full force and effect, (ii) those required to perfect the Liens created pursuant to the
Security Documents, or (iii) where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect. -110-
7.22 Anti-Terrorism Laws. (a) None of Holdings, nor any of its Restricted Subsidiaries nor, to the knowledge of Holdings or any of its Restricted Subsidiaries, any of
their respective officers, directors, or employees is in violation of any applicable Anti-Terrorism Law, or engages in any transaction that attempts to violate, or otherwise evades or avoids (or has the purpose of evading or avoiding) any
prohibitions set forth in any applicable Anti-Terrorism Law. (b) The use of proceeds of the Term Loans will not violate any applicable
Anti-Terrorism Laws. 7.23 FCPA. No part of the proceeds of the Term Loans will be used, directly, or, to the knowledge of
the Borrower, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or other applicable anti-corruption laws or anti-money laundering laws. 7.24 Sanctioned Persons. (a) None of Holdings, nor any Restricted Subsidiary nor, to the knowledge of Holdings, or any of its Restricted Subsidiaries, any officer,
director or employee thereof is currently the target of any U.S. sanctions administered by the Office of Foreign Assets Control (OFAC) of the U.S. Treasury Department or the U.S. Department of State. (b) The Borrower will not to its knowledge, directly or indirectly, use the proceeds of the Term Loans in any manner that will result in a
violation by any Lender of any U.S. sanctions administered by OFAC or the U.S. Department of State. 7.25 Designation of Senior
Debt. The Obligations are Designated Senior Debt (or any similar term) under the terms of the documentation governing any Subordinated Debt. 7.26 Insurance. The properties of Holdings and its Subsidiaries are insured with financially sound insurance companies that are
not Affiliates of the Borrower (other than an Affiliated Insurance Entity), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in
localities where Holdings or the applicable Subsidiary operates.; provided that it is agreed that the insurance on AG
PSC Funding, LLC and its property as of the Second Amendment Effective Date satisfies this Section 7.26. 7.27 FTS Assets. After giving effect to the consummation of the FTS Distribution and Contribution Transaction on the Closing
Date, FTS shall not own any assets or property (other than the Stock of Holdings, net operating losses which have immaterial value and other property and assets with immaterial value). ARTICLE VIII AFFIRMATIVE AND NEGATIVE COVENANTS Holdings, the Borrower and each Guarantor covenant to the Agent and each Lender that, from and after the Agreement Date, so
long as any of the Term Loan Commitments are outstanding and until Full Payment of the Obligations: -111-
8.1 Taxes. Holdings and the Borrower shall, and shall cause each of
Holdings Restricted Subsidiaries to, (a) file when due (after giving effect to any valid extensions for the payment thereof) all federal, state and other material Tax returns that it is required to file and (b) pay, or provide for
the payment of, when due (after giving effect to any valid extensions for the payment thereof), all Taxes imposed upon it or upon its property, income and franchises (including in its capacity as a withholding agent); provided,
however, neither Holdings nor any of its Restricted Subsidiaries need pay any Tax described in this Section 8.1 as long as (i) such Tax is being contested in good faith and by the appropriate proceedings and adequate reserves
have been established for such Tax in accordance with GAAP or (ii) the failure to pay, or provide for payment of such Tax would not reasonably be expected to have a Material Adverse Effect. 8.2 Legal Existence and Good Standing. Holdings and the Borrower shall, and shall cause each of Holdings Restricted
Subsidiaries to, maintain (a) its legal existence and good standing in its jurisdiction of organization, and (b) its qualification and good standing in all other jurisdictions necessary or desirable in the ordinary course of business of
Holdings or such Restricted Subsidiary except, in the case of clause (a) (other than with respect to the Borrower) or clause (b) of this Section 8.2, in such cases where the failure to maintain its existence,
qualification or good standing would not reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and the Restricted Subsidiaries may consummate any transaction permitted under any of
Section 8.8, 8.9 or 8.11. 8.3 Compliance with Law; Maintenance of Licenses. Holdings and the
Borrower shall comply, and shall take all reasonable action to cause each of Holdings Restricted Subsidiaries to comply, with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the
Federal Fair Labor Standards Act, all Anti-Terrorism Laws, all Environmental Laws, Laws administered by OFAC and the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder), except where noncompliance
would not reasonably be expected to have a Material Adverse Effect. Holdings and the Borrower shall, and shall cause each of Holdings Restricted Subsidiaries to take all reasonable action to, obtain and maintain all licenses, permits,
franchises, and governmental authorizations necessary to own its property and to conduct its business, except where the failure to so obtain and maintain such licenses, permits, franchises, and governmental authorizations would not reasonably be
expected to have a Material Adverse Effect. 8.4 Maintenance of Property, Inspection. (a) Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, maintain all of its material property necessary and useful
in the conduct of its business, taken as a whole, in good operating condition and repair (or, in the case of Inventory, in saleable, useable or rentable condition), ordinary wear and tear and Casualty Events excepted, except, in each case, to the
extent the failure to do so would not reasonably be expected to have a Material Adverse Effect. (b) Holdings and the Borrower shall, and
shall cause the Restricted Subsidiaries to, permit representatives and independent contractors of the Agent (with the consent or at the direction of the Required Lenders) and/or the Collateral Agent (with the consent or at the direction of the
Required Lenders) (and, in each case, at the expense of the Borrower) to visit and inspect any of Holdings, the Borrowers or any Restricted Subsidiaries properties (to the extent it is within such Persons control to permit
such inspection), to examine Holdings and its Restricted Subsidiaries corporate, financial and operating records, and make copies thereof or abstracts therefrom, to examine and audit the Collateral (to the extent it is within such
Persons control to permit such examination and audit and subject to the limitations otherwise set forth in this Section 8.4), and to discuss Holdings and its Restricted Subsidiaries
-112-
affairs, finances and accounts with their respective directors, officers and independent public accountants, at such reasonable times during normal business hours, upon reasonable advance notice
to the Borrower (and subject, in the case of any such meetings or advice from such independent public accountants, to such accountants customary policies and procedures); provided, however, excluding any such visits and
inspections during the continuation of an Event of Default and without in any way limiting the rights of the Agent and/or the Collateral Agent set forth herein, neither the Agent nor the Collateral Agent shall exercise such rights more often than
once during any calendar year absent the existence of an Event of Default at the Borrowers expense; and provided, further, that when an Event of Default exists, the Agent and the Collateral Agent (or any of their 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 upon reasonable advance notice. The Agent and the Collateral Agent shall give the Borrower the
opportunity to participate in any discussions with Holdings or any of its Restricted Subsidiaries independent public accountants. Notwithstanding anything to the contrary in Article VI or any other provisions set forth herein,
none of Holdings, the Borrower or any Restricted Subsidiary will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes
non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Agent, the Collateral Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable Law or
any binding agreement with a non-affiliate, or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product. 8.5 Insurance. (a)
Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, maintain with financially sound insurance companies, insurance on (or self-insure in such amounts and against such risks; provided that no such insurance or
self-insurance shall be provided by any Obligor or any Affiliate of the Borrower other than an Affiliated Insurance Entity, which Affiliated Insurance Entity may provide insurance policies or products to Holdings and its Restricted Subsidiaries
(i) in an amount not to exceed $10,000,000 per incident and (ii) in an aggregate underwritten amount not to exceed, at any one time, $10,000,000 (unless the aggregate underwritten amount in excess of $10,000,000 is reinsured by a bona fide
financially sound reinsurer (with a rating of at least A by A.M. Best Company, Inc.) that is not an Affiliate of the Borrower or any such Affiliated Insurance Entity)) all property material to the business of Holdings and its Restricted
Subsidiaries, taken as a whole, in at least such amounts and against at least such risks (but including, in any event, public liability, casualty, hazard, theft, product liability and business interruption) as are customarily insured against by
companies of established reputation engaged in the same or similar business and in the same general area as Holdings, the Borrower and the Restricted Subsidiaries, all as determined in good faith by Holdings, the Borrower or such Restricted
Subsidiaries. For the avoidance of doubt, it is agreed that the insurance on AG PSC Funding, LLC and its property, as
determined by the insurance deliverables disclosed to the Agent, as of the Second Amendment Effective Date satisfies this Section 8.5. (b) For any Mortgaged Property of the Obligors which is, at any time, located within an area that has been identified by a Governmental
Authority (including, by the Federal Emergency Management Agency) as a special flood hazard area, Holdings and its Restricted Subsidiaries shall also (i) maintain, or cause to be maintained, with a financially sound insurer, flood insurance in
an amount reasonably satisfactory to the Agent and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws, and (ii) deliver to the Agent evidence of such compliance in form and
substance reasonably acceptable to the Collateral Agent, including, without limitation, evidence of annual renewals of such insurance. Each such insurance policy shall (i) indicate which Mortgaged Properties are located in a special flood
hazard area and state the corresponding flood zone designation and, for each Mortgaged Property, the number of buildings located at such Mortgaged Property, (ii) indicate the flood insurance coverage and the deductible relating thereto,
(iii) include a statement of values relating to all properties insured by the insurance policy, and (iv) be otherwise in form and substance reasonably satisfactory to the Collateral Agent. Each flood insurance policy shall provide that the
insurer will give the Agent 10 days written notice of cancellation or non-renewal. -113-
(c) Holdings and the Borrower shall cause the Collateral Agent, for the ratable benefit of
the Collateral Agent and the other Secured Parties, to be named as secured parties or mortgagees and lender loss payees or additional insureds, as applicable, in a manner reasonably acceptable to the Collateral Agent, under all insurance policies
required to be maintained by the Obligors (or in the case of AG PSC Funding, LLC with respect to its property insurance
coverage as of the Second Amendment Effective Date, the property insurance maintained by PSC Holdings, Inc. on its behalf) under clauses (a) and (b) above. Each such policy of insurance shall contain a clause or
endorsement requiring the insurer to give not less than thirty days prior written notice to the Collateral Agent in the event of cancellation of the policy for any reason whatsoever (other than cancellation for non-payment in which case no notice
shall be required if unobtainable after use of commercially reasonable efforts), and, if obtainable (using commercially reasonable efforts), a clause or endorsement stating that the interest of the Collateral Agent shall not be impaired or
invalidated by any act or neglect of any Obligor or the owner of any Real Estate for purposes more hazardous than are permitted by such policy. 8.6 Environmental Laws. Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, conduct its business in
compliance with all Environmental Laws, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, (i) correct any
material non-compliance with Environmental Laws and (ii) take any investigatory and remedial action needed to respond to the presence of Contaminants or a Release of Contaminants on the Real Estate or at any other locations at which
Contaminants are present that are attributable to the operations of Holdings or any of its Restricted Subsidiaries or Borrower, as required by Environmental Laws other than to the extent that the failure to take such investigatory, corrective or
remedial action would not reasonably be expected to cause a Material Adverse Effect. 8.7 Compliance with ERISA. Holdings and
the Borrower shall, and shall cause each of its ERISA Affiliates and Subsidiaries to: (a) maintain each Plan in compliance with the applicable provisions of ERISA and the Code; and (b) not cause an ERISA Event to occur with respect to a
Pension Plan or Multi-employer Plan which the Borrower or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, except in the case of each of clauses (a) and (b), to the
extent such failure to do so would not reasonably be expected to have a Material Adverse Effect. 8.8 Dispositions. Holdings
and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, Dispose of any of its property, business or assets, except for Permitted Dispositions. 8.9 Mergers, Consolidations, etc. Other than to the extent permitted as a Permitted Investment or Permitted Disposition, Holdings
and the Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, merge, amalgamate or consolidate, or Dispose of all or substantially all of its business units, assets and properties, or wind up, liquidate or dissolve, except:
(a) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with or into the
Borrower; provided that the Borrower shall be the continuing or surviving Person; -114-
(b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged,
amalgamated or consolidated with or into any one or more Wholly-Owned Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business units, assets and other properties; provided
that, (i) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Wholly-Owned Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of
such assets or (B) the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary,
(ii) in the case of any merger, amalgamation, consolidation or Disposition involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation,
consolidation or the transferee of such assets (in each case, if other than such Guarantor) shall execute a Guaranty Supplement referred to in the Guarantee Agreement and a Security Agreement Supplement referred to in the
Security Agreement, in order for the surviving or continuing Person or such transferee to become a Guarantor and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the
consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) no Event of Default under any of Section 10.1(a), (e), (f) or (g) has
occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the
Agent a certificate of a Responsible Officer stating that such merger, amalgamation, consolidation or Disposition and any supplements to any Loan Document (or new Loan Documents delivered concurrently therewith) create and preserve, as applicable,
the enforceability of the Guarantee Agreement and the perfection and priority of the Collateral Agents Liens, and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition
of the term Permitted Acquisition or otherwise constitutes a Permitted Investment; (c) any Restricted Subsidiary that is not a
Guarantor may (i) merge, amalgamate or consolidate with or into any Wholly-Owned Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor or any Wholly-Owned
Restricted Subsidiary of Holdings; (d) any Guarantor may (i) merge, amalgamate or consolidate with or into any other Restricted
Subsidiary that is a Guarantor, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Guarantor or transfer all or any of its assets to a Restricted Subsidiary that is not a Guarantor; provided
that, if such Guarantor is not the surviving Person or the transferee is not a Guarantor, (x) before and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing and (y) such merger, amalgamation,
consolidation, or transfer shall be deemed to be an Investment and shall be only permitted if it constitutes a Permitted Investment, and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other Restricted Subsidiary that is a Guarantor; and (e) any Restricted Subsidiary may liquidate or dissolve if
(x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Guarantor,
any assets or business not otherwise Disposed of or transferred in accordance with Section 8.8 or Section 8.11, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by,
the Borrower or another Restricted Subsidiary that is a Guarantor after giving effect to such liquidation or dissolution; -115-
8.10 Distributions. Holdings and the Borrower shall not, and shall not permit
any of its Restricted Subsidiaries to, make any Distribution, other than the following (collectively, Permitted Distributions): (a) each Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a
Distribution by a non-Wholly-Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of
the relevant class of Stock); (b) without duplication of any Distributions made pursuant to clause (m) below, (i) Holdings may
(or may make Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entitys) Stock or rights to acquire its Stock, (B) with
proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent Entity);
provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to the Lenders as those contained
in the Stock redeemed thereby and (ii) Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings; (c) to the extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter into and consummate transactions expressly
permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the definition of Permitted Investments) or Section 8.14(f); (d) repurchases of Stock of Holdings (or Stock of any Parent Entity) or any Restricted Subsidiary deemed to occur upon exercise, vesting and/or
settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or settlement thereof; (e) so long as no Default or Event of Default shall be continuing, from and after the date that is twelve (12) months after the
consummation of the IPO Transactions, Holdings or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for value of Stock of it or any Parent
Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service provider (or any Affiliates, spouses,
former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of Holdings (or any Parent Entity) or any of the other Restricted Subsidiaries pursuant to any employee,
management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock appreciation or similar rights plan, any
management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders agreement) with any employee, director, officer
or other individual service provider of Holdings (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments, when taken together with (i) the aggregate principal amount of loans and advances made under clause
(j) of the definition of Permitted Investments and (ii) the aggregate amount of Investments made under clause (t) of the definition of Permitted Investments, do not exceed (A) $15,000,000 in any
Fiscal Year and (B) $30,000,000 during the term of the Agreement; provided that any unused portion of the preceding basket calculated pursuant to clause (A) above for any Fiscal Year may be carried forward to the next
succeeding Fiscal Year up to a maximum of $5,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings or any of its Restricted Subsidiaries from employees, directors, officers or other
individual service providers of Holdings or any of its Restricted Subsidiaries in connection with a repurchase of Stock of Holdings or any of its Restricted Subsidiaries will not be deemed to constitute a Distribution for purposes of this covenant
or any other provision of this Agreement; -116-
(f) Holdings and its Restricted Subsidiaries may make Distributions to any direct or
indirect owner thereof (including but not limited to any Parent Entity of Holdings): (i) the proceeds of which shall be
used to make Permitted Tax Distributions; (ii) the proceeds of which shall be used: (A) to make payments to Wilks Brothers, LLC, a Texas limited liability company, in respect of the retainer fees
under the Shared Services Agreement in an aggregate amount not to exceed in any Fiscal Year $7,000,000; and (B) to pay
such Parent Entitys operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as
trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and
customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by
Holdings under the Shared Services Agreement in respect of services provided thereunder (for the avoidance of doubt, excluding any retainer fees permitted to be paid thereunder pursuant to subclause (A) of this clause (ii)) in an
aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (1) $4,500,000 and (2) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such Fiscal
Year; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Restricted Subsidiaries on an arms length basis after the earlier of (I) the consummation
of the IPO Transactions and (II) the twelve (12) month anniversary of the Closing Date, and (y) such payments are approved by the Board of Directors of ProFrac PubCo if required by the policies of such Board of Directors related to
arms length transactions; (iii) the proceeds of which shall be used to pay franchise, excise and similar taxes, and
other fees and expenses, required to maintain its (or any of its direct or indirect parents) existence; (iv) the
proceeds of which shall be used to finance any Permitted Acquisition or any other acquisition constituting a Permitted Investment; provided that (A) such Distribution shall be made substantially concurrently with the closing of such
Investment and (B) Holdings, the Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock (other than Excluded Stock described in clause (g) of the definition
thereof)) to be held by or contributed to the Borrower or a Restricted Subsidiary of the Borrower; -117-
(v) the proceeds of which shall be used to pay customary costs, fees and
expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement in an aggregate amount for all such
Distributions made pursuant to this clause (v) not to exceed (A) $5,000,000 during any Fiscal Year and (B) $10,000,000 during the term of this Agreement; and (vi) the proceeds of which shall be used to pay customary salary, compensation, bonus and other benefits payable to officers,
employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to the ownership or operation of Holdings and its Restricted
Subsidiaries in an aggregate amount not to exceed $3,000,000; (g) Holdings or any of its Restricted Subsidiaries may (a) pay cash in
lieu of fractional Stock in connection with any dividend, split or combination thereof or any Permitted Acquisition (or any other acquisition constituting a Permitted Investment) and (b) honor any conversion request by a holder of convertible
Debt and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms; (h) in addition to the foregoing Distributions, Holdings or any Restricted Subsidiary of Holdings may make additional Distributions, measured
at the time made, (i) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, in an aggregate amount not to exceed $5,000,000 and (ii) Distributions using the Available Amount so long as
(x) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (y) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such
Distribution, does not exceed 0.75:1.00; (i) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow
any Parent Entity to pay) Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of
their respective estates or immediate family members) and any repurchases of Stock in consideration of such payments including deemed repurchases in connection with the exercise of Stock options; (j) to the extent constituting Distributions, the transactions described in clause (i) of the definition of IPO Transactions; (k) any Distribution by Holdings pursuant to the FTS Distribution and Contribution Transaction; (l) any Distribution by Holdings of the Stock of a Person acquired by Holdings or any of its Subsidiaries in accordance with the provisions set
forth herein so long as all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) were contributed to the Borrower or a Guarantor (other than
Holdings) substantially simultaneously with such acquisition (and, for the avoidance of doubt, prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property
and assets (including any Stock owned by such Person) so contributed; -118-
(m) without duplication of any Distributions made pursuant to clause (b) above, any
non-cash redemption or other acquisition by Holdings of its Stock pursuant to the Redemption Right or the Call Right (each as described in the Section of the Registration Statement for the IPO Transactions entitled
Corporate reorganization) to be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions (it being understood and agreed, for the avoidance of doubt, that such redemption shall not in any event be made with
the proceeds of any Distribution from the Borrower or any of its Restricted Subsidiaries to Holdings); and (n) the PubCo Distribution,
which shall only be permitted to be made so long as (i) the Borrower has already (A) made all mandatory prepayments of the Term Loans from the first $100,000,000 of Net Cash Proceeds from the IPO required pursuant to
Section 4.3(c) and (B) repaid $27,070,000 in respect of the Back-Stop Note and (ii) such Pubco Distribution is made solely from the remaining Net Cash Proceeds from the IPO after giving effect to the payments described in the
foregoing clauses (i) and (ii). 8.11 Investments. Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, make any Investment, except Permitted Investments. 8.12 Debt. Holdings and the Borrower shall
not, and shall not permit any of its Restricted Subsidiaries to, incur or maintain any Debt, other than the following Debt (collectively, Permitted Debt): (a) Debt of Holdings and any of its Restricted Subsidiaries under the Loan Documents; (b) (i) Debt described on Schedule 8.12 (it being understood and agreed that any such Debt that is repaid shall not be reborrowed) and
any Refinancing Debt thereof and (ii) any intercompany Debt outstanding on the Closing Date; (c) (i) Capital Leases and purchase
money Debt incurred to finance the acquisition, construction, repair, replacement, lease or improvement of any Equipment (as defined in Article 9 of the UCC) held for sale or lease or any fixed or capital assets (whether pursuant to a loan, a
Capital Lease or otherwise) , including, without limitation, any Debt evidenced by the Enterprise Master Lease
Agreement and (ii) any Refinancing Debt incurred to Refinance such Debt; provided that, at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds
thereof, the aggregate principal amount of Debt incurred under this clause (c) and then-outstanding of Holdings and its Restricted Subsidiaries , shall not, when taken together with the aggregate principal amount of Debt permitted under
this Section 8.12, that is secured by Liens incurred under clause (pp) of the definition of Permitted Liens, exceed the greater of (A) $75,000,000 and (B) 3.0% of Consolidated Total Assets (measured as of the date such
Debt was incurred based upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence); (d)
Debt of (A) any Restricted Subsidiary that is not an Obligor owing to Holdings or any Restricted Subsidiary that is not an Obligor, (B) any Restricted Subsidiary that is not an Obligor owing to another Obligor; provided that the
aggregate amount of Debt incurred under this clause (d)(B) is permitted to be incurred as an Investment pursuant to Section 8.11 or (C) any Obligor that is owing to Holdings or any Restricted Subsidiary that is not an
Obligor; provided that the Debt incurred under this clause (d)(C) shall be subject to the Subordinated Intercompany Note; (e) Debt incurred under Hedge Agreements, provided that such Hedge Agreements are entered into by a Borrower or Restricted Subsidiary of
Holdings in the ordinary course of business and not for speculative purposes; -119-
(f) Guaranties by Holdings and its Restricted Subsidiaries in respect of Debt of the
Borrower or any of its Restricted Subsidiary otherwise permitted under this Agreement; provided that (i) if the Debt being guaranteed is Subordinated Debt, such Guaranties shall be subordinated in right of payment to the Guaranty of the
Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Subordinated Debt, (ii) if the Debt being guaranteed by any Obligor is Debt of a Restricted Subsidiary that is not an Obligor, such
Guaranty must be permitted to be incurred as an Investment pursuant to Section 8.11 and (iii) no Guaranty by any Restricted Subsidiary of any Debt of an Obligor shall be permitted unless such Restricted Subsidiary shall have also
provided a Guaranty of the Obligations; (g) (i) Debt arising from the honoring by a bank or other financial institution of a check, draft
or similar instrument drawn against insufficient funds; provided that such Debt is extinguished within five Business Days of its incurrence and (ii) customer deposits and advance payments received in the ordinary course of business from
customers for goods and services purchased or rented in the ordinary course of business; (h) Debt of any Obligor owing to any other
Obligor; (i) Debt of any Obligor or Restricted Subsidiary in respect of (i) performance bonds, completion guarantees, surety bonds,
appeal bonds, bid bonds, other similar bonds, instruments or obligations, in each case provided in the ordinary course of business (including to secure workers compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations), but excluding any of the foregoing issued in respect of or to secure Debt for Borrowed Money; (ii) Debt owed to any Person
providing workers compensation, health, disability or other employee benefits or property, casualty, liability, or other insurance to any Obligor or any of its Restricted Subsidiaries, so long as the amount of such Debt is not in excess of the
amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Debt is incurred and such Debt is outstanding only during such year, (iii) Cash Management Obligations and other Debt in
respect of netting services, ACH arrangements, overdraft protection and other arrangements arising under standard business terms of any bank at which any Obligor or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar
facility or in connection with Deposit Accounts incurred in the ordinary course or (iv) Debt consisting of accommodation Guaranties for the benefit of trade creditors of any Obligor or any Subsidiary issued by such Obligor or Subsidiary in the
ordinary course of business; (j) Debt incurred under this clause (j) and then outstanding in an aggregate principal amount,
measured at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, not to exceed the greater of (x) $30,000,000 and (y) 4.5% of Consolidated Total Assets (measured as of the date such Debt was
incurred based upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence); (k) Debt
(x) representing deferred compensation, severance and health and welfare retirement benefits to current and former employees, directors, consultants, partners, members, contract providers, independent contractors or other service providers of
Holdings (or any Parent Entity thereof), the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business, (y) consisting of indemnities or similar obligations created, incurred or assumed in connection with Permitted
Acquisitions, other Investments and the Disposition of any business, assets or Stock permitted hereunder, other than Guaranties incurred by any Person acquiring all or any portion of such business, assets or Stock for the purpose of financing such
acquisition or (z) consisting of earnout obligations incurred in connection with any Permitted Acquisition or any other acquisition constituting a Permitted Investment permitted hereunder not to exceed in the aggregate outstanding at any time
$20,000,000; provided that the holder of such earnout obligations shall have agreed to restrictions to be determined by the Agent and the Required Lenders and such earnout obligations are subordinated to the Obligations on terms and pursuant to
documentation reasonably acceptable to the Agent and the Required Lenders; -120-
(l) Debt consisting of (x) obligations of Holdings (or any Parent Entity thereof), the
Borrower or the Restricted Subsidiaries under deferred compensation arrangements to their employees, directors, partners, members, consultants, independent contractors or other service providers, (y) other similar arrangements incurred by such
Persons in connection with Permitted Acquisitions (or other acquisitions constituting Permitted Investments) or (z) any other Investment permitted under Section 8.11; (m) Debt consisting of promissory notes issued by the Restricted Subsidiaries to their current or former officers, directors, partners,
members, and employees and their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes to finance the retirement, acquisition, repurchase, purchase or redemption of Stock of Holdings (or Stock of
any Parent Entity or the Borrower) in each case permitted by Section 8.10; (n) Debt consisting of (i) the financing of
insurance premiums or (ii) take or pay obligations entered into in the ordinary course of business; (o) Debt incurred pursuant to the
First Financial Loan Documents, in an aggregate principal amount not to exceed $30,000,000 and any Refinancing Debt related thereto; (p)
Debt of any Restricted Subsidiary that is not an Obligor incurred under this clause (p); provided that (i) such Debt is not guaranteed by any Obligor, (ii) the holder of such Debt does not have, directly or indirectly, any
recourse to any Obligor, whether by reason of representations or warranties, agreement of the parties, operation of law or otherwise, (iii) such Debt is not secured by any assets other than assets of such Restricted Subsidiary and its
Subsidiaries and (iv) the aggregate amount of Debt incurred under this clause (p) shall not exceed the greater of (x) $10,000,000 and (y) 1.5% of Consolidated Total Assets (measured as of the date such Debt was incurred
based upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence); (q) ABL Facility Indebtedness
in an aggregate principal amount not to exceed the amount permitted under the ABL Intercreditor Agreement and any Refinancing Debt thereof not prohibited by the terms of the ABL Intercreditor Agreement; (r) Guaranties incurred in the ordinary course of business (and not in respect of Debt for borrowed money) in respect of obligations to
suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; (s) (i) unsecured Debt in respect of
obligations of Holdings or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open
accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (ii) unsecured Debt in respect of intercompany obligations of Holdings or any Restricted Subsidiary
in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money; (t) the IO-TEQ Debt in an aggregate amount not to exceed $413,080.00; (u) solely to the extent that the Permitted Sale Leaseback Transaction has occurred, Attributable Indebtedness incurred in connection with the
Permitted Sale Leaseback Transaction; -121-
(v) solely to the extent that the Permitted Sale Leaseback Transaction has not occurred,
purchase money Debt incurred to finance (or refinance) the acquisition of the Specified FTS Real Property in an aggregate principal amount not to exceed $50,000,000 (not including any reasonable and document out-of-pocket fees, costs and expenses
incurred or assessed in connection with such Debt); (w) Debt evidenced by the Back-Stop Note, the Closing Date Note and the Equify Bridge
Note, in each case, in an aggregate principal amount not to exceed the outstanding principal amount thereof on the Closing Date (such capped amount not including interest paid in kind in respect thereof at the rate per annum in effect thereunder on
the Closing Date); (x)
[**]; (y) the U.S.
Well Direct Loans, in an aggregate principal amount not to exceed $6,000,000, less the aggregate amount of all payments and prepayments after the Second Amendment Effective Date in respect of the principal amount thereof (excluding, for the
avoidance of doubt, any fees, costs, expenses and indemnification obligations that may also be payable thereunder); and (z) For purposes of determining compliance with this Section 8.12, in the event that an item of Debt meets the
criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, may classify (but not reclassify) such item of Debt (or any portion thereof) and will only be required to include the amount and
type of such Debt in one or, if it satisfies the criteria for more than one clause above, can be allocated among one or more of the above clauses. The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Debt shall not
be deemed to be an incurrence of Debt for purposes of this Section 8.12. Notwithstanding anything herein to
the contrary, neither Equify Financial LLC (nor any of its Affiliates) shall loan or otherwise provide any Debt or any commitment to provide Debt to any Obligor or any other Subsidiary of Holdings (other than (i) Back-Stop Note, the Closing
Date Note and the Equify Bridge Note, (ii) purchase money equipment financing to be provided by Equify Financial LLC to Flotek, BPC and their respective Subsidiaries for so long as such Persons (x) are not Subsidiaries of Holdings or
(y) are Specified Unrestricted Subsidiaries, and (iii) the purchase money equipment financing provided by Equify Financial LLC to U.S.
Well Services Holdings, LLC (formerly known as U.S. Well Services,
Inc.) and/or its Subsidiaries). 8.13 Prepayments of Debt. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, voluntarily 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 principal outstanding in respect of (i) any Subordinated Debt, except, in
the case of this clause (i), (A) prepayment in full of the Closing Date Note solely with (x) on or within three (3) Business Days of the Closing Date, the cash held by FTS and the FTS Subsidiaries after the FTS Acquisition is
consummated and contributed to Holdings on the Closing Date in connection with the FTS Transaction and in accordance with the FTS Distribution and Contribution Transaction and -122-
(y) the proceeds of Loans (as defined in the ABL Credit Agreement) under the ABL Credit
Agreement, so long as after giving pro forma effect to such prepayment, the Borrower is in compliance with Section 8.20(c), (B) prepayment of the Back-Stop Note solely with the Net Cash Proceeds of the IPO, so long as (1) the Borrower
has made all mandatory prepayments of the Term Loans from the first $100,000,000 of Net Cash Proceeds from the IPO required pursuant to Section 4.3(c) prior to any such prepayment of the Back-Stop Note and (2) the aggregate amount
of all such prepayments of the Back-Stop Note shall not exceed $27,070,000 (not including interest paid in kind), and (C) prepayment of the Equify Bridge Note solely from (1) the proceeds of the Loans (as defined in the ABL Credit
Agreement) under the ABL Credit Agreement, so long as after giving pro forma effect to such prepayment, the Borrower is in compliance with Section 8.20(c), and (2) the Net Cash Proceeds of the IPO that the Borrower is permitted to retain
pursuant to Sections 4.3(c) and 4.3(e) hereof and after giving effect to all payments required to be made thereunder (including after payment of the full amount of the IPO Prepayment and any amounts required to be applied to the Loans (as defined in
the ABL Credit Agreement) under the ABL Credit Agreement) 8.14 Transactions with Affiliates. Except as set forth below, the Borrower shall not, and shall not permit any
of the Restricted Subsidiaries to, sell, transfer, distribute, or pay any money or property, including, but not limited to, any fees or expenses of any nature (including, but not limited to, any fees or expenses for management services), to any
Affiliate, or lend or advance money or property to any Affiliate, or invest in (by capital contribution or otherwise) or purchase or repurchase any Stock or Debt, or any property, of any Affiliate, or become liable on any Guaranty of the Debt,
dividends, or other obligations of any Affiliate, in each case, involving aggregate payments or consideration in excess of $1,000,000 for any single transaction or series of related transactions. Notwithstanding the foregoing, the following shall be
permitted: -123-
(a) transactions between or among (i) Holdings, the Borrower or any Restricted
Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction, in each case, that is otherwise permitted under this Agreement and (ii) Holdings and its Subsidiaries, on one hand, and BPC, on the other hand, in
each case, in connection with the acquisition by Holdings and its Subsidiaries of the Stock of BPC not owned by them on the Closing Date. (b) transactions on terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or
such Restricted Subsidiary at the time in a comparable arms-length transaction with a Person other than an Affiliate; (c) Permitted
Distributions (including the FTS Distribution and Contribution Transaction); (d) loans and other transactions by and among Holdings and/or
one or more Subsidiaries to the extent permitted under this Article VIII; (e) employment, compensation, severance or termination
arrangements between any Parent Entity, Holdings or any of its Restricted Subsidiaries and their respective officers, employees and consultants (including management and employee benefit plans or agreements, subscription agreements or similar
agreements pertaining to the issuance or repurchase of equity interests held by officers, employees and consultants pursuant to put/call rights or similar rights with current or former employees, officers, directors consultants and stock option or
incentive plans (including equity-based incentive plans) and other compensation arrangements) in the ordinary course of business and transactions pursuant to management equity plans, stock option plans and other employee benefit plans, agreements
and arrangements; (f) the payment of (x) customary fees to directors, officers, managers, employees, consultants and other service
providers of Holdings and its Restricted Subsidiaries or any Parent Entity in the ordinary course of business to the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries and (y) reasonable out of pocket
costs to, and indemnities provided on behalf of, directors, officers, managers, employees, consultants, partners, members and other service providers of Holdings and its Restricted Subsidiaries or any Parent Entity in the ordinary course of business
to the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries, including, without limitation, by reason of the fact that such Person is or was serving at the request of the Parent Entity, Holdings, or any
Restricted Subsidiary as a director, officer, manager, employee, consultant or other service provider of another person; (g) transactions
pursuant to permitted agreements (and such permitted agreements) in existence on the Closing Date and set forth on Schedule 8.14 or any amendment thereto to the extent such an amendment, taken as a whole, is not adverse to the Lenders in any
material respect; (h) the consummation of the IPO Transactions in accordance with the terms of this Agreement and the payment of fees and
expenses in connection therewith in accordance with the terms of this Agreement; (i) transactions between Holdings (and/or its
Subsidiaries and/or its Parent Entity) and Wilks Brothers, LLC for activities and services provided by Wilks Brothers, LLC in connection with the consummation of the IPO Transactions, through and including the date of effectiveness of the IPO,
including, without limitation, legal, tax, technology and accounting support services provided in connection -124-
with the West Munger Acquisition, Alpine Acquisition, Best Pump Acquisition and preparation for the IPO;
provided, that payments made from Holdings or any of its Restricted Subsidiaries to Wilks Brothers, LLC for the foregoing interest, activities and services shall not exceed in the aggregate $4,500,000; provided, further, that if the
IPO shall not occur on or before May 31, 2022, such payments to Wilks Brothers, LLC for the foregoing activities and services shall be payable in four equal quarterly installments commencing on June 7, 2022; (j) the issuance or transfer of Stock (other than Disqualified Stock) of Holdings (or any Parent Entity) to any Permitted Holder or to any
former, current or future director, manager, officer, partner, member, employee, consultant or other service provider (or any Affiliate of any of the foregoing) of Holdings (or any Parent Entity), the Borrower, any of the Restricted Subsidiaries or
any direct or indirect parent thereof, to the extent permitted under this Agreement; (k) any issuance of Stock, or other payments, awards
or grants in cash, securities, Stock or otherwise pursuant to, or the funding of, employment arrangements, compensation arrangements, stock options and stock ownership plans, and other employee benefit plans approved by the Board of Directors of
Holdings (or any Parent Entity); (l) the transactions contemplated by the Shared Services Agreement; provided that any and all payments
thereunder by Holdings or any of its Restricted Subsidiaries shall be subject to the limitations set forth in Section 8.10(f)(ii); (m) the payments contemplated by the Tax Receivable Agreement to the extent permitted by the definition of Permitted Tax
Distributions; (n) any business arrangements pursuant to which Automatize LLC provides, on an arms length basis, services to
Holdings and/or its Restricted Subsidiaries including, without limitation, manage last miles logistics, software logistics and trucking logistics; (o) insurance policies or products provided to Holdings and its Restricted Subsidiaries by Affiliated Insurance Entities in accordance with the
terms of Section 8.5; (p) certain transactions with Affiliates described in that certain letter agreement not to exceed
$4,000,000 per Fiscal Year (Transactions with Affiliates Letter Agreement); (q) (i) the transactions contemplated by
the Basin Units Acquisition, (ii) the transactions contemplated by the Flotek Supply Agreement, as amended, restated, modified and/or supplemented from time to time to the extent not materially adverse to the Obligors or the Lenders and
(iii) the transactions contemplated by the Back-Stop Note, the Closing Date Note and the Equify Bridge Note (in each case, as amended, restated, modified and/or supplemented from time to time to the extent not materially adverse to the Obligors
or the Lenders) and (iv) the PubCo Distribution to the extent permitted under Section 8.10(n); (r) the transactions contemplated
by that certain Payment Agreement, dated as of the Closing Date, by and among Holdings, Alpine, Best Pump and Equify Financial LLC; (s)
the transactions contemplated by the Well Services Debt; (t) the transactions contemplated by the First Amendment
Acquisitions; and -125-
(u)
[**]. For purposes of this Section 8.14,
(x) any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in clause (b) if such transaction is approved by the Board of Directors of the Borrower or such Restricted Subsidiary, as applicable,
provided that such transaction does not exceed $1,000,000 and (y) any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in clause (b) if with respect to any transaction with an Affiliate
(i) in excess of $1,000,000 for any single transaction or series of related transactions, or (ii) in excess of $5,000,000 for transactions with all Affiliates during any twelve (12) month period, the Borrower will (a) memorialize in
writing such affiliate transaction, and (b) obtain a written opinion of an appraiser or auditor, stating that the transaction or series of transactions is (A) fair to the Borrower or such Restricted Subsidiary from a financial point of
view taking into account all relevant circumstances or (B) on terms, taken as a whole, not materially less favorable than might have been obtained in a comparable transaction at such time on an arms length basis from a Person who is not
an Affiliate. 8.15 Business Conducted. Holdings and its Restricted Subsidiaries (taken as a whole) shall not engage at any
time in any line of business other than the lines of business of the same general type currently conducted by it and any businesses incidental to, reasonably related or ancillary thereto, and the lines of business of the general type described on
Schedule 8.15 attached hereto and any businesses incidental to, reasonably related or ancillary thereto. 8.16 Liens.
The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, create, incur, assume, or permit to exist any Lien on any property now owned or hereafter acquired by any of them, except Permitted Liens. 8.17 Restrictive Agreements. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (i) the ability of Holdings, the Borrower or any Guarantor to create, incur, assume or suffer to exist Liens on
property of such Person for the benefit of the Secured Parties with respect to the Obligations or under the Loan Documents or (ii) the ability of any Restricted Subsidiary of the Borrower that is not a Guarantor to pay dividends or other
Distributions with respect to any of its Stock; provided that the foregoing shall not apply to: (a) restrictions and conditions
imposed by (A) Law, (B) any Loan Document, (C) with respect to clause (ii) above, any documentation related to any Permitted Debt, and (D) with respect to clause (ii) above, any documentation governing any
Refinancing Debt incurred to Refinance any such Debt referenced in clauses (B) through (C) above; (b) customary restrictions and
conditions existing on the Closing Date or to any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition in a
manner adverse to Lenders; -126 -
(c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary
or any assets pending such Disposition; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be Disposed and such Disposition is permitted hereunder; (d) customary restrictions in leases, subleases, licenses, sublicenses and other contracts so long as such restrictions relate solely to the
assets subject thereto; (e) restrictions imposed by any agreement relating to secured Debt permitted by this Agreement to the extent such
restriction applies only to specific property securing such Debt and not all assets; (f) any restrictions or conditions set forth in any
agreement in effect at any time any Person becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition in a manner adverse to Lenders); provided that such agreement was not
entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any other Restricted Subsidiary; (g) restrictions or conditions in any Permitted Debt that is incurred or assumed by a Subsidiary that is not a Guarantor to the extent such
restrictions or conditions are no more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Subordinated Debt, are market terms, taken as a whole, at the time of issuance or, in the case of any such Debt of any
Subsidiary that is not a Guarantor, are imposed solely on such non-Guarantor and its Subsidiaries; (h) restrictions on cash, Cash
Equivalents or other deposits imposed by agreements entered into in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry (or other restrictions on such cash, Cash
Equivalents or deposits constituting Liens permitted hereunder); (i) customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures constituting Permitted Investments and applicable solely to such joint venture and entered into (1) in the ordinary course of business or the ordinary course of business for similarly situated businesses
in the Borrowers industry or (2) to the extent that the Borrower determines, in its good faith business judgment, that entering into such joint venture is beneficial to Holdings and its Subsidiaries, taken as a whole, and is otherwise
permitted under this Agreement; (j) negative pledges and restrictions on Liens in favor of any holder of Debt permitted under clauses
(b), (c), (e), (f), (i), (o), (p), (q), (t), (u) and (v) of Section 8.12, but solely to the extent any negative pledge relates to the property financed by, the subject
of or securing such Debt; (k) customary provisions restricting assignment, transfer or sub-letting of any agreement entered into in the
ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry; (l)
customary net worth provisions contained in Real Estate leases entered into by the Holdings or any of its Restricted Subsidiaries, so long as Holdings or Borrower has determined in good faith that such net worth provisions could not reasonably be
expected to impair the ability of Holdings and its Subsidiaries to meet their ongoing obligation; (m) provisions restricting the granting
of a security interest in Intellectual Property contained in licenses or sublicenses by Holdings and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the ordinary course of business or to
the extent that the Borrower determines, in its good faith business judgment, that entering into such licenses and sublicenses is beneficial to Holdings and its Subsidiaries, taken as a whole (in which case such restriction shall relate only to such
Intellectual Property); -127-
(n) restrictions or conditions contained in any trading, netting, operating, construction,
service, supply, purchase, sale or other agreement to which Holdings, Borrower or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the
property or assets of Holdings, the Borrower or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of Holdings, Borrower
or such Restricted Subsidiary or the assets or property of another Restricted Subsidiary; (o) restrictions or conditions imposed by any
arrangement relating to the Well Services Debt solely with respect to U.S. Well Services Holdings, LLC (formerly known
as U.S. Well Services, Inc.) and its Subsidiaries and/or their respective assets; (p) other restrictions described on Schedule 8.17; (q) restrictions or conditions imposed by any agreement relating to the IO-TEQ Debt, the EKU Debt, solely with respect to EKU Power Drives GmbH
and EKU Power Drives Inc. and their assets; (r) restrictions set forth in the Flotek Notes, the Flotek Note Purchase Agreement, the Flotek
Securities Purchase Agreement and the First Financial Loan Documents; (s) restrictions set forth in Organizational Documents with respect
to Persons who are not wholly owned by Obligors and/or any of their Subsidiaries; (t)
[**]; (u)
restrictions or conditions imposed by any arrangement relating to the U.S. Well Direct Loans solely with respect to U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.) and its Subsidiaries and/or their respective assets;
and (v) 8.18 Restrictions on FTS Acquisition Transactions. Prior to the full and complete consummation of the FTS Distribution and
Contribution Transaction, FTS and the FTS Subsidiaries shall not, except to the extent required to consummate the FTS Distribution and Contribution Transaction: (a) make any Distribution (other than to an Obligor); (b) make any Investment (other than to an Obligor); or -128-
(c) merge, amalgamate or consolidate, or Dispose of all or substantially all
of its business units assets and properties or wind up, liquidate or dissolve, in each case, other than with or to an Obligor, as applicable. 8.19 Fiscal Year; Accounting. Holdings shall not, and shall cause its Restricted Subsidiaries not to, (i) change their
Fiscal Year end date from December 31 or method for determining Fiscal Quarters of any Obligor or of any Subsidiary of any Obligor or (ii) make any significant change in accounting treatment or reporting practices, except as required by
GAAP; provided, however, that Holdings may, and may cause any of its Restricted Subsidiaries to, upon written notice to, and consent by, the Agent, change the Fiscal Year end date convention specified above to any other Fiscal Year end
date reporting convention reasonably acceptable to the Agent, in which case the Borrower and the Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change.
Holdings shall not, and shall cause its Restricted Subsidiaries not to, make any significant change in accounting treatment or reporting practices, except as required by GAAP. 8.20 Financial Covenants. (a) Total Net Leverage Ratio. Holdings and its Restricted Subsidiaries, on a consolidated basis, shall not permit the
Total Net Leverage Ratio on the last day of any Test Period to exceed the ratio set forth below opposite the last day of such Test Period: (b) Capital Expenditures. Holdings and its Restricted Subsidiaries, on a consolidated basis, shall not
make, commit or agree to make Capital Expenditures in excess of (i) in the case of the Fiscal Year ended December 31, 2022, the greater of (x) $275,000,000 in the aggregate and (y) in the case of any period of four consecutive
fiscal quarters ending in such Fiscal Year, 50.0% of Consolidated EBITDA for the Test Period most recently ended prior to the date of the applicable Capital Expenditure and (ii) in the case of any period of four consecutive fiscal quarters
ending thereafter, commencing with the period of four consecutive fiscal quarters ending on March 31, 2023, an aggregate amount equal to 50.0% of Consolidated EBITDA for the Test Period most recently ended prior to the date of the applicable
Capital Expenditure; provided if the amount of the Capital Expenditures permitted to be made in any Fiscal Year is greater than the actual amount of the Capital Expenditures actually made in such Fiscal Year (the amount by which such
permitted Capital Expenditures for such Fiscal Year exceeds the actual amount of Capital Expenditures made for such Fiscal Year, the Excess Amount), then up to $20,000,000 of such Excess Amount (such amount, the
Carry-Over Amount) may be carried forward to the next succeeding Fiscal Year (the Succeeding Fiscal Year); provided that the Carry-Over Amount applicable to a particular Succeeding Fiscal Year may not be
carried forward to another Fiscal Year. Capital Expenditures made by Holdings and its Restricted Subsidiaries in any Fiscal Year shall be deemed to reduce first, the amount set forth above for such Fiscal Year, and then, the Carry-Over Amount. -129-
(c) Minimum Liquidity. Holdings and its Restricted Subsidiaries, on a consolidated
basis, shall not permit Liquidity to be less than $30,000,000 at any time. 8.21 Information Regarding Collateral. Holdings
shall not, and shall cause its Restricted Subsidiaries not to, without at least ten (10) days (or such shorter period as the Required Lenders may agree in their sole discretion) prior written notice to Agent, make any change in: (i) any
Obligors legal name; (ii) the location of any Obligors chief executive office, its principal place of business, any office in which it maintains books or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it with an aggregate Fair Market Value in excess of $5,000,000 is located (including the establishment of any such new
office or facility, but excluding in-transit Collateral, Collateral out for repair, and Collateral temporarily stored at a customers location in connection with the providing of services to such customer); (iii) any Obligors
organizational structure or jurisdiction of incorporation or formation; or (iv) any Obligors Federal Taxpayer Identification Number or organizational identification number assigned to it by its state of organization. 8.22 Ratings. Until the Term Loans are paid in full and terminated in accordance with this Agreement, the Borrower shall use
commercially reasonable efforts to cause (x) S&P and Moodys to continue to issue ratings for the Term Loans, (y) Moodys to continue to issue a corporate family rating (or the equivalent thereof) of the Borrower and
(z) S&P to continue to issue a corporate credit rating (or the equivalent thereof) of the Borrower (it being understood, in each case, that such obligation shall not require the Borrower to maintain a specific rating). 8.23 Additional Obligors; Covenant to Give Security. At the Borrowers expense, Holdings and the Borrower shall, and shall
cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by the Collateral Agent to ensure that the Collateral and Guarantee Requirement (subject to the limitations set forth therein and in the Security
Documents) continues to be satisfied, including: (i) upon the formation or acquisition of any new direct or indirect
Domestic Subsidiary (in each case, other than an Excluded Subsidiary) by any Obligor, the designation in accordance with Section 8.26 of any existing direct or indirect Subsidiary as a Restricted Subsidiary (in each case, other than an
Excluded Subsidiary), or any Restricted Subsidiary ceasing to be an Excluded Subsidiary, within thirty (30) days (or, in the case of Mortgages and Certificates of Title for Titled Goods, ninety (90) days) after such formation, acquisition,
designation or occurrence (or such longer period as the Required Lenders may agree in their reasonable discretion): (A)
causing each such Restricted Subsidiary that is required to become a Guarantor under the Collateral and Guarantee Requirement to furnish to the Collateral Agent a description of any Real Estate owned by such Restricted Subsidiary (in detail
reasonably satisfactory to the Collateral Agent) solely to the extent such Real Estate is required to become subject to a Mortgage hereunder; -130-
(B) causing each such Restricted Subsidiary that is required to become a
Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Agent and the Collateral Agent (x) a Guaranty Agreement Supplement referred to in the Guarantee Agreement guaranteeing the Obligations
under the Loan Documents and (y) Mortgages on any Real Estate required to be mortgaged pursuant to the Collateral and Guarantee Requirement, a Security Agreement Supplement referred to in the Security Agreement and any required
Intellectual Property security agreements and other security agreements and documents or joinders or supplements thereto (consistent with the Security Agreement and other Security Documents in effect on the Closing Date), as reasonably requested by
and in form and substance reasonably satisfactory to the Collateral Agent, in each case of this clause (y), granting the Collateral Agents Liens solely to the extent required pursuant to the Collateral and Guarantee Requirement; (C) delivering, and causing each such Restricted Subsidiary that is, or is required to become, a Guarantor pursuant to the
Collateral and Guarantee Requirement to deliver instruments evidencing the intercompany Debt held by such Restricted Subsidiary and required to be pledged pursuant to the Collateral and Guarantee Requirement (including the execution of the
Subordinated Intercompany Note), indorsed in blank to the Collateral Agent (or such other Person specified pursuant to the ABL Intercreditor Agreement, if applicable); (D) taking and causing such Restricted Subsidiary and each direct or indirect parent of such Restricted Subsidiary that is
required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action, to the extent required pursuant to the Collateral and Guarantee Requirement (including, if applicable, the recording of Mortgages and of any
Intellectual Property security agreements, the filing of financing statements) as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it)
valid and perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms; and (E) causing each such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement to duly execute and deliver to the Agent and the Collateral Agent opinions, certificates and other documents, as reasonably requested by and in form and substance reasonably satisfactory to the Agent (it being understood and agreed that
any opinions, certificates and other documents that are consistent with those delivered by the Obligors on the Closing Date shall be deemed to be in form and substance reasonably satisfactory to the Agent); (ii) not later than ninety (90) days (or such longer period as the Required Lenders may agree to in writing in their
reasonable discretion) after the acquisition by any Obligor of any Real Estate (other than the Excluded Real Property) that is required to be provided as Collateral pursuant to the Collateral and Guarantee Requirement, or after the date any Excluded
Real Property no longer satisfies the criteria therefor in the definition thereof, causing such property to be subject to a Lien and Mortgage in favor of the Collateral Agent for the benefit of the Secured Parties and taking, or causing the relevant
Obligor to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect or record such Lien, in each case to the extent required by, and subject to the limitations and exceptions of, the Collateral
and Guarantee Requirement and otherwise complying with the requirements of the Collateral and Guarantee Requirement; and, upon recordation in the proper recording offices of the Mortgages, if and when applicable, the Mortgages shall each constitute
a perfected first priority Lien (subject to the terms of the ABL Intercreditor Agreement, [**] and other Permitted Liens) on, and security interest in, all right, title and interest of Holdings and its Restricted Subsidiaries in the Collateral described therein, subject only to Permitted Liens; and
-131-
(iii) immediately prior to or simultaneously with the incurrence of Debt
pursuant to Section 8.12(q), or any amendments to the documents related thereto, entering into to Security Documents or amendments or supplements to existing Security Documents to (x) if any other Person is a borrower or guarantor
in respect of such Debt, to enter into or join such Persons to the applicable Security Documents and to cause such other Person to become a Guarantor hereunder and under the other Loan Documents pursuant to Section 8.23, (y) to
grant Collateral Agent a Lien (to secure the Obligations) on the Collateral that will also be collateral for such Debt and (z) to provide Collateral Agent with corollary rights (including representations, covenants and remedies) relative to
such Collateral as are provided for the benefit of such Debt. 8.24 Use of Proceeds. The Borrower shall use the proceeds of
the Term Loans in the manner set forth in Section 7.17. 8.25 Further Assurances. Subject to any limitations and
exceptions set forth in the Security Documents and in the definition of Collateral and Guarantee Requirement, Holdings and the Borrower shall, and shall cause each of the other Obligors to, promptly execute and deliver, or cause to be
promptly executed and delivered, to the Collateral Agent, such documents and agreements, and shall promptly take or cause to be taken such actions, as the Collateral Agent may, from time to time, reasonably request to grant, preserve, protect or
perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien. 8.26
Designation of Subsidiaries; [**]. (a) The Board of Directors of Holdings or the Borrower may at any time designate any Restricted Subsidiary of the Borrower as
an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by notice to the Agent; provided that, in each case, (i) no Default or Event of Default is then continuing or would result therefrom; (ii) after
giving effect to such designation, the Total Net Leverage Ratio on a Pro Forma Basis as of the last day of the most recently completed Test Period shall be less than or equal to 1.00:1:00; provided that, any designation of Flotek and/or BPC as an
Unrestricted Subsidiary (in the case of any such designation, such Unrestricted Subsidiary and each of its Subsidiaries, a Specified Unrestricted Subsidiary) prior to the date on which Holdings owns, directly or indirectly, more
than 66 2⁄3% of the Stock of such Person shall not be subject to the requirements of this clause (ii); (iii) no Restricted Subsidiary may be designated as
an Unrestricted Subsidiary if it was previously designated as an Unrestricted Subsidiary and then re-designated as a Restricted Subsidiary; and (iv) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if after such
designation it would be a restricted subsidiary for the purpose of the ABL Credit Agreement or any other Material Indebtedness. (b) The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an
Investment by the Borrower therein at the date of designation in an amount equal to the Fair Market Value of the Borrowers investment therein and the Investment resulting from such designation must otherwise be in compliance with
Section 8.11 (as determined at the time of such designation); provided that, any designation of Flotek and/or BPC as a Specified Unrestricted Subsidiary shall not constitute an Investment by any of the Obligors unless such designation
occurs after Holdings owns, directly or indirectly, more than 66 2⁄3% of the Stock of such Specified Unrestricted Subsidiary. -132-
(c) The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute the incurrence at the time of designation of any Debt or Liens of such Subsidiary existing at such time and the Debt or Liens of such Subsidiary must otherwise be in compliance with Section 8.12 and
8.16 (as determined at the time of such designation). (d) (i) no Unrestricted Subsidiary may at any time hold (directly or indirectly) Stock in, or Debt of, or Liens on the Stock or
assets of, any Restricted Subsidiary, other than in the case of Flotek and BPC (as applicable), any Liens described in clause (mm)(ii) of the definition of Permitted Liens and other similar contractual encumbrances (but, for the avoidance of doubt,
not in respect of Debt) that are not otherwise prohibited under Section 8.17; (ii) in no event shall any Restricted
Subsidiary that owns (or has an exclusive license to) any Intellectual Property that is material to the operations or the business of Holdings and its Restricted Subsidiaries be permitted to be designated as an Unrestricted Subsidiary, nor shall any
Unrestricted Subsidiary be permitted to own (or have an exclusive license to), develop, or receive from Holdings or any of its Restricted Subsidiaries, any Intellectual Property that is material to the operations or the business of Holdings and its
Restricted Subsidiaries; and (iii) in the case of any Unrestricted Subsidiary that is a Specified Unrestricted Subsidiary,
(A) the Stock of such Specified Unrestricted Subsidiary shall not constitute Excluded Stock and shall be required to be pledged by an Obligor to the Agent for the benefit of the Secured Parties in accordance with the terms of this Agreement and
the Security Agreement, (B) all transactions between such Specified Unrestricted Subsidiary, on the one hand, and any Affiliate of such Specified Unrestricted Subsidiary, on the other hand, entered into after the date hereof, shall be
consummated in the ordinary course of its business, for fair consideration and on terms no less favorable to it than would be obtainable in a comparable arms length transaction with a Person that is not an Affiliate thereof, and that are fully
disclosed to the Agent and the Lenders prior to the consummation thereof, if they involve one or more payments by or to such Specified Unrestricted Subsidiary in excess of $5,000,000 for any single transaction or series of related transactions,
other than any transactions permitted under clauses (a)(ii), (q)(i) and (q)(ii) of Section 8.14 and the last paragraph of Section 8.14, (C) all dividends and distributions made by such Specified Unrestricted Subsidiary, all proceeds
of sales, transfers or other dispositions of assets by such Specified Unrestricted Subsidiary, and all returns on investments of such Specified Unrestricted Subsidiary shall, in each case, to the extent distributed to the equity holders thereof, be
distributed to the equity holders thereof on a pro rata basis, and solely in cash, and in the case of equity holders that are Affiliates of Holdings and its Restricted Subsidiaries (including, without limitation, any Parent Entity), only through
distributions made to Holdings and its Restricted Subsidiaries for further distribution thereof by Holdings and its Restricted Subsidiaries in the manner and to the extent permitted under this Agreement (and not through any other Affiliate or Parent
Entity directly), (D) the Borrower shall not vote to permit any Dispositions by such Specified Unrestricted Subsidiary made outside the ordinary course of business (other than Dispositions of the type described in clauses (b), (c), (d), (e),
(j), (m), (n), (o), (p) and (s) of the definition of Permitted Disposition) unless such Disposition shall be made for Fair Market Value and, with respect to any such Disposition (or series of related Dispositions) for a purchase price in
excess of $5,000,000, such Specified Unrestricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents and (E) the Borrower shall not vote to permit any such Specified Unrestricted Subsidiary
to enter into any transaction, take any action, or fail to take any action that, individually or in the aggregate that could reasonably be expected to have a Material Adverse Effect. -133-
(iv) Holdings and/or the Borrower may continue to designate Flotek and/or BPC as an
Unrestricted Subsidiary (but not a Specified Unrestricted Subsidiary) at any time after Holdings owns, directly or indirectly, more than 66 2⁄3% of the Stock
of such Person, so long as at the time of the continuance of such designation, the conditions to the designation of a Restricted Subsidiary as an Unrestricted Subsidiary set forth in clauses (a) (without giving effect to the proviso set forth
in clause (a)(ii) thereof), (b) (without giving effect to the proviso set forth therein), (c), (d)(i) and (d)(ii) of this Section 8.26 are satisfied as of such date as if the continuance of such designation was an initial designation of
such Subsidiary as an Unrestricted Subsidiary hereunder as of such date. (e) [**]: (i)
[**]; (ii)
[**]; (iii)
[**]; (iv)
[**]; (v)
[**]. 8.27 Passive Holding Company; Etc. (a) After the date hereof, Holdings will not conduct, transact or otherwise engage in any business or operations other than
(i) the ownership and/or acquisition of the Stock (other than Disqualified Stock) of the Borrower and the indirect ownership of the Stock (other than -134-
Disqualified Stock) of the Subsidiaries of the Borrower, (ii) the maintenance of its
legal existence, including the ability to incur fees, costs and expenses relating to such maintenance and to open and maintain bank accounts, (iii) to the extent applicable, participating in tax, accounting and other administrative matters as a
member of the consolidated group that includes Holdings or the Borrower and their respective Subsidiaries, (iv) the performance of its obligations under and in connection with the Loan Documents and any documents relating to other Permitted
Debt, (v) any public offering of its common Stock or any other issuance or registration of its Stock for sale, resale or otherwise to the extent permitted by this Agreement, including the costs, fees and expenses related thereto, (vi) any
transaction that Holdings is permitted to enter into or consummate under this Agreement and any transaction between Holdings and the Borrower or any of its Restricted Subsidiaries permitted under this Agreement, including (A) making any
dividend or distribution or other transaction similar to a Distribution permitted by Section 8.10 (or the making of a loan to its Parent Entities in lieu of any such permitted Distribution or other transaction similar to a permitted
Distribution) or holding any cash received in connection with Distributions made by the Borrower in accordance with Section 8.10 pending application thereof by Holdings in the manner contemplated by Section 8.10 (including
the redemption in whole or in part of any of its Stock (other than Disqualified Stock) in exchange for another class of Stock (other than Disqualified Stock) or rights to acquire its Stock (other than Disqualified Stock) or with proceeds from
substantially concurrent equity contributions or issuances of new shares of its Stock (other than Disqualified Stock)), (B) making any Investment to the extent (1) payment therefor is made solely with the Stock of Holdings (other than
Disqualified Stock) or a Parent Entity, the proceeds of Distributions received from the Borrower and/or proceeds of the issuance of, or contribution in respect of, the Stock (other than Disqualified Stock) of Holdings or a Parent Entity, in each
case, in accordance with the terms of this Agreement and (2) any property (including Stock) acquired in connection therewith is contributed by Holdings to the Borrower or a Guarantor (or, if otherwise constituting Permitted Investments, a
Restricted Subsidiary) or the Person formed or acquired in connection therewith is merged or consolidated with the Borrower or a Restricted Subsidiary and (C) the (w) provision of Guaranties in the ordinary course of business in respect of
obligations of the Borrower or any of its Restricted Subsidiaries to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; provided, for the avoidance of doubt, that such Guaranty shall not be in
respect of Debt for Borrowed Money, (x) incurrence of Debt of Holdings contemplated by Section 8.12 (and satisfaction of Holdings obligations under the loan agreements, loan documents, security documents and other financing
agreements evidencing such Debt) (y) incurrence of Guaranties and the performance of its other obligations in respect of Debt incurred pursuant to Section 8.12 and (z) granting of Liens to the extent permitted under
Section 8.16 or Liens imposed by operation of law, (vii) incurring fees, costs and expenses relating to overhead and general operating expenses including professional fees for legal, tax and accounting issues and payment of taxes,
(viii) providing indemnification to officers and directors and as otherwise permitted in this Agreement, (ix) activities incidental to the consummation of the Transactions, (x) organizational activities incidental to Permitted
Acquisitions or acquisitions constituting Permitted Investments consummated by Holdings, the Borrower or its Restricted Subsidiaries, including the formation of acquisition vehicle entities and intercompany loans and/or investments incidental to
such Permitted Acquisitions or acquisitions constituting Permitted Investments in each case consummated substantially contemporaneously with the consummation of the applicable Permitted Acquisitions or acquisitions constituting Permitted
Investments, in each case, in accordance with the other terms and provisions of this Agreement, (xi) the making of any loan to any officers or directors permitted by Section 8.11, the making of any Investment in the Borrower or any
Guarantor or, to the extent otherwise allowed under Section 8.11, a Restricted Subsidiary, (xii) the entry into customary shareholder agreements, (xiii) as specified on Schedule 8.27 and (xiv) activities incidental
to the businesses or activities described in clauses (i) to (xiii) of this Section 8.27. -135-
(b) After the date hereof, Holdings will not consummate any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose all or substantially all of its assets and properties, except that Holdings may merge, amalgamate or consolidate with or
into any other Person (other than the Borrower) or otherwise Dispose of all or substantially all of its assets and property; provided that (i) Holdings shall be the continuing or surviving Person of such merger, amalgamation or
consolidation or, in the case of a merger, amalgamation or consolidation where Holdings is not the continuing or surviving Person or where Holdings has been liquidated or in connection with a Disposition of all or substantially all of its assets, in
any such case, the Person formed by or surviving any such merger, amalgamation or consolidation or the Person into which Holdings has been liquidated or to which Holdings has transferred such assets shall be an entity organized or existing under the
laws of the United States, any state thereof, the District of Columbia or any territory thereof (Holdings or such Person, as the case may be, being herein referred to as the Successor Holdings), (ii) the Successor Holdings
(if other than Holdings) shall (y) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent (including a
Guaranty Supplement referred to in the Guarantee Agreement and a Security Agreement Supplement referred to in the Security Agreement, in order for the surviving or continuing Person or such transferee to become a Guarantor)
and (z) as a condition to becoming Successor Holdings shall take all action necessary or reasonably requested by the Collateral Agent to ensure that the Collateral and Guarantee Requirement (subject to the limitations set forth therein and in
the Security Documents) is satisfied with respect to Successor Holdings assets and properties and shall otherwise comply with Section 8.23 (as though Successor Holdings were a Restricted Subsidiary), (iii) each Guarantor shall have
by a supplement to the Guarantee Agreement confirmed that its Guaranty shall apply to the Successor Holdings obligations under this Agreement, (iv) each Guarantor shall have by a supplement to the Security Agreement confirmed that its
obligations thereunder shall apply to the Successor Holdings obligations under this Agreement, (v) Holdings shall have delivered to the Agent an officers certificate stating that such merger, amalgamation, consolidation, liquidation
or Disposition and any supplements to the Loan Documents preserve the enforceability of the Guarantee Agreement and the perfection of the Collateral Agents Liens, (vi) the Successor Holdings shall, immediately following such merger,
amalgamation, consolidation, liquidation or Disposition, directly or indirectly, own all Subsidiaries owned by Holdings immediately prior to such merger, amalgamation, consolidation, liquidation or Disposition, (vii) if reasonably requested by
the Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation, consolidation, liquidation, or Disposition does not breach or result in a default under this Agreement or any other Loan Document,
(viii) no Event of Default has occurred and is continuing or would result from the consummation of such event, and (ix) the Borrower shall have delivered to the Agent a certificate of a Responsible Officer stating that such merger,
amalgamation, consolidation or Disposition or other event and any supplements to any Loan Document (or new Loan Documents delivered concurrently therewith) create and preserve, as applicable, the enforceability of the Guarantee Agreement in regards
to Successor Holdings and the perfection and priority of the Collateral Agents Lien in Successor Holdings assets and property subject to the limitations of and exceptions set forth in the Collateral and Guarantee Requirement, the other
provisions set forth herein and the Security Documents; provided, further, that if the foregoing are satisfied, the Successor Holdings (if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement. -136-
8.28 Amendments to Certain Documents. Holdings and the Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to amend, modify or change in any manner that is materially adverse to the interests of (i) the Obligors or the Lenders any term or condition of (A) 8.29 Certain Post-Closing Obligations. As promptly as practicable, and in any event within the time periods after the Closing
Date or the Second Amendment Effective Date, as applicable, as
specified in Schedule 8.29 or such later date as the Required Lenders reasonably agree to in writing, including to reasonably accommodate circumstances unforeseen on the Closing Date or the Second Amendment Effective Date, as applicable, the Borrower and
each other Obligor shall deliver the documents or take the actions specified in Schedule 8.29, in each case except to the extent otherwise agreed by the Required Lenders pursuant to their authority as set forth in the definition of the term
Collateral and Guarantee Requirement. ARTICLE IX CONDITIONS OF LENDING 9.1 Conditions Precedent to Effectiveness of Agreement and Making of Term Loans on the Closing Date. The effectiveness of this
Agreement, the obligation of the Closing Date Lenders to make the Term Loans on the Closing Date is subject to the satisfaction (or waiver in writing by each Closing Date Lender) of the following conditions precedent: (a) The Agents receipt of the following, each of which shall be originals, facsimiles or electronic copies (followed promptly by
originals if requested by Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor: (i) executed counterparts of this Agreement, the Guarantee Agreement, the Security Agreement, the ABL Intercreditor Agreement,
the Fee Letter, the VCOC Lender Rights Letter and Notes (to the extent requested by any Lender); -137-
(ii) each Security Document set forth on Schedule 1.5 (including the
delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement) required to be executed on the Closing Date as indicated on such schedule, duly executed by Holdings (to the extent a party thereto) and/or each
Obligor thereto, together with (except as provided in such Security Documents): (A) executed Intellectual Property
Security Agreement(s) in substantially the form of Exhibit B to the Security Agreement; (B) evidence that all
financing statements under the Uniform Commercial Code have been filed or are otherwise in a form appropriate for filing; (C) an executed Perfection Certificate; and (D) lien searches reasonably satisfactory to the Agent; (iii) certificates substantially in the form of Exhibit G for Holdings and the Borrower which attach
(A) resolutions or other equivalent action documentation, (B) incumbency certificates, (C) Organization Documents and (D) good standing certificates; (iv) an opinion from Brown Rudnick LLP and an opinion from The Whitten Law Firm, PC, each counsel to the Obligors, addressed to
the Agent and the Lenders as of the Closing Date; (v) a certificate, in the form of Exhibit F, attesting to the
Solvency of Holdings and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transactions consummated on the Closing Date, from the Chief Executive Officer of Holdings; (vi) a Notice of Borrowing relating to the Borrowing of the Term Loans on the Closing Date; and (vii) a copy of, or a certificate as to coverage under, the insurance policies required by Section 8.5 and the
applicable provisions of the Security Documents. (b) All fees and expenses required to be paid hereunder or pursuant to the Fee Letter, in
the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed by the Borrower) shall, substantially concurrently with the Borrowing on the Closing Date, have been paid (which
amounts may, at the Borrowers option, be offset against the proceeds of the Term Loans borrowed on the Closing Date). (c) The Agent
and Arrangers shall have received a true, correct and complete copy of the ABL Credit Agreement and each other material Loan Document (as defined in the ABL Credit Agreement), in each case, including all exhibits and schedules related thereto
(including, for the avoidance of doubt, a true, correct and complete copy of that certain Security Agreement, dated as of the date hereof, among Holdings, Borrower, certain of their respective Subsidiaries, as grantors and ABL Collateral Agent).
(d) The Agent and Arrangers shall have received the Historical Financial Statements. (e) (1) The Agent shall have received an executed payoff letter with respect to existing Debt of Holdings, the Borrower, the Restricted
Subsidiaries and FTS and each of its Subsidiaries set forth on Schedule 9.1, along with all associated UCC termination statements or other termination statements with respect to any related filings, in each case in form and substance
satisfactory to the Agent, and, (2) simultaneously or substantially concurrently with the funding of the Term Loans under this Agreement (i) -138-
all principal, accrued and unpaid interest, fees, premium, if any, and other amounts outstanding as set
forth on Schedule 9.1 (in each case, other than contingent indemnification obligations not then due and payable and that by their terms expressly survive the termination of the existing Debt of Holdings, the Borrower and the Restricted
Subsidiaries set forth on Schedule 9.1) shall be paid or repaid in full, (ii) all commitments to extend credit thereunder will be terminated, (iii) any security interest and guarantees in connection therewith shall be terminated and
released and (iv) all of the loan documents (or such similar term as used therein) with respect to the existing Debt of Holdings, the Borrower and the Restricted Subsidiaries set forth on Schedule 9.1, in each case, shall be
terminated and of no further force or effect (other than customary provisions therein that survive pursuant to the terms thereof). (f)
After giving effect to the incurrence of the Term Loans on a Pro Forma Basis and excluding the cash proceeds to the Borrower therefrom, Holdings and its Restricted Subsidiaries shall have Liquidity in excess of $25,000,000. (g) The Agent and each Lender shall have received at least three (3) Business Days prior to the Closing Date all documentation and other
information (including a duly executed IRS Form W-9 or other applicable tax form) about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Agent and each
Lender that they reasonably determine is required by United States regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. (h) Since December 31, 2020, there has not been any fact, change, event, circumstance, effect, development or occurrence which,
individually or in the aggregate with any other facts, changes, events, circumstances, effects, developments or occurrences, has had, or would reasonably be expected to have, a Material Adverse Effect. (i) No Default or Event of Default shall have occurred and be continuing before or immediately after giving effect to this Agreement and the
borrowing of the Term Loans hereunder. (j) No Default or Event of Default (in each case, as defined under the ABL Credit Agreement) shall
have occurred and be continuing before or immediately after giving effect to this Agreement and the borrowing of the Term Loans hereunder. (k) The Collateral Agent shall have received the original stock certificates representing the pledged Stock constituting Collateral (to the
extent such Stock is certificated) of the Borrower and its Restricted Subsidiaries, together with customary blank stock or unit transfer powers and irrevocable powers duly executed in blank. (l) The Agent and each Lender shall have received at least three (3) Business Days prior to the Closing Date a Beneficial Ownership
Certification from any Borrower that qualifies as a legal entity customer under the Beneficial Ownership Regulation. (m)
Holdings shall have (i) received the full cash proceeds of the Back-Stop Note and the Closing Date Note, (ii) issued the Equify Bridge Note and (iii) received the Net Cash Proceeds of the Permitted Sale Leaseback Transaction. (n) The following statements shall be true, and the acceptance by the Borrower of any extension of credit shall be deemed to be a statement to
the effect set forth in clauses (i) and (ii) with the same effect as the delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer, dated the date of such extension of credit, stating that: -139-
(i) the Specified Representations shall be true and correct in all material
respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the date of such extension of credit, other than any such representation or warranty which
relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date, and except to the extent the Agent and the Lenders have been notified in writing by the
Borrower that any representation or warranty is not correct in all material respects (or that any representation and warranty that is qualified as to materiality or Material Adverse Effect is not correct in all respects) and the Required Lenders
have explicitly waived in writing compliance with such representation or warranty; and (ii) no Default or Event of Default
has occurred and is continuing, or would result from such extension of credit. (o) The FTS Acquisition Agreement representations of FTS
shall be true and correct (after giving effect to all applicable materiality qualifiers applicable thereto) such that the closing condition set forth in Section 9.02(a) of the FTS Acquisition Agreement would not fail to be satisfied or waived
(with the prior written consent of the Agent). (p) The Borrower shall have delivered to the Agent complete and correct copies of the FTS
Acquisition Documents, including all schedules and exhibits thereto (other than the FTS Acquisition Agreement which has already been publicly filed with the SEC and any other amendments and FTS Acquisition Documents which are on file with the SEC as
of the Closing Date). (q) The FTS Acquisition shall have been or, substantially concurrently with the Borrowing of the Term Loans shall
be, consummated in all material respects in accordance with the terms of the FTS Acquisition Agreement, all conditions to the closing of the FTS Acquisition shall have been satisfied or waived (with the prior written consent of the Agent) other than
the payment of the purchase price and the Agent shall have received evidence satisfactory to it (in the form of written confirmation (which may be by electronic mail) from American Stock Transfer & Trust Company, LLC) that amounts at least
equal to the Net Cash Proceeds of the Permitted Sale Leaseback Transaction and $50,511,859.92 of the cash proceeds of the Back-Stop Note and the Closing Date Note have been received by American Stock Transfer & Trust Company, LLC, as paying
agent under the FTS Acquisition Agreement. (r) The Borrower shall have delivered to the Collateral Agent complete and correct copies of
(i) the FTS Pledge Agreements, in forms reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, in respect of the Stock of FTS, duly executed and delivered by each FTS Pledgor, in favor of the Collateral
Agent, and (ii) the FTS Control Agreements, in forms reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, duly executed and delivered by each FTS Pledgor, in favor of the Collateral Agent. ARTICLE X DEFAULT;
REMEDIES 10.1 Events of Default. It shall constitute an event of default (Event of Default) if any
one or more of the following shall occur for any reason: (a) any failure by the Borrower to pay: (i) the principal of any of the Term
Loans when due, whether upon demand or otherwise; or (ii) any interest, fee or other amount owing hereunder or under any of the other Loan Documents within five (5) Business Days after the due date therefor, whether upon demand or
otherwise; -140-
(b) any representation or warranty made or deemed made by Holdings or the Borrower in this
Agreement or by any Obligor or any FTS Pledgor in any of the other Loan Documents or any certificate furnished by any Obligor or any FTS Pledgor at any time to the Agent, the Collateral Agent or any Lender pursuant to the Loan Documents shall prove
to be untrue in any material respect as of the date on which made, deemed made, or furnished; (c) any default shall occur in the
observance or performance of any of the covenants and agreements contained in: (i) Section 6.3(a),
Section 8.2(a) (with respect to the maintenance of the Borrowers existence only), Section 8.8, Section 8.9, Section 8.10, Section 8.11, Section 8.12,
Section 8.13, Section 8.14, Section 8.16, Section 8.17, Section 8.22, Section 8.24, Section 8.27 or Section 8.28; (ii) Section 8.20; provided that an Event of Default shall not occur under this clause (iii) until the expiration of the Cure Deadline for the applicable Test Period for which Holdings, the Borrower and its
Restricted Subsidiaries were not in compliance with the Financial Covenant; (iv) Section 8.20 of the ABL
Credit Agreement; provided that an Event of Default shall not occur under this clause (iii) until the expiration of the Cure Deadline (as defined in the ABL Credit Agreement) for the applicable Test Period for which the Borrower was not
in compliance with the ABL Financial Covenant; or (v) any other provision of this Agreement or any other Loan Document and
such default shall continue for thirty (30) days after receipt by the Borrower of written notice thereof by the Agent or the Required Lenders; (d) any default shall occur with respect to any Debt (other than the Obligations) of any Obligor or any of its Restricted Subsidiaries in an
outstanding principal amount which constitutes Material Indebtedness, or under any agreement or instrument under or pursuant to which any such Material Indebtedness may have been issued, created, assumed, or guaranteed by any Obligor or any of its
Restricted Subsidiaries, and such default shall continue for more than the period of grace, if any, therein specified, in each case if the effect thereof (with or without the giving of notice) is to accelerate, or to permit the holders of any such
Material Indebtedness to accelerate, the maturity of any such Material Indebtedness; or any such Material Indebtedness shall be declared due and payable or be required to be prepaid (other than by a regularly scheduled or required prepayment) prior
to the stated maturity thereof; or any such Material Indebtedness shall not be paid in full upon the scheduled maturity thereof; provided that this clause (d) shall not apply to (x) termination events or equivalent events not
constituting events of default pursuant to the terms of any Hedge Agreement and (y) Material Indebtedness that becomes due or as to which an offer to prepay is required to be made as a result of the voluntary Disposition of the property or
assets securing such Material Indebtedness, if such Disposition is permitted hereunder and under the documents providing for such Material Indebtedness; provided, further, that any such default (other than a default in respect of the
payment of principal, interest, fees or any other amounts) in respect of the First Financial Loan Documents shall not, until the first to occur of (i) such event of default has continued for thirty (30) days, (ii) all or any portion
of the Debt under the First Financial Loan Documents has been accelerated, or (iii) the lender under the First Financial Loan Documents has exercised any remedies under the First Financial Loan Documents, constitute an Event of Default under
this clause (d); -141-
(e) Holdings, the Borrower or any Significant Subsidiary shall (i) file a voluntary
petition in bankruptcy or file a voluntary petition, proposal, notice of intent to file a proposal or an answer or otherwise commence any action or proceeding seeking reorganization, arrangement or readjustment of its debts or for any other relief
under the federal Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or Law, state, or federal, now or hereafter existing, or consent to, approve of, or acquiesce in, any such petition, action or proceeding; (ii) apply
for or acquiesce in the appointment of a receiver, assignee, liquidator, sequestrator, custodian, monitor, trustee or similar officer for it or for all or any part of its property; or (iii) make an assignment for the benefit of creditors; (f) an involuntary petition shall be filed or an action or proceeding otherwise commenced seeking reorganization, arrangement, consolidation or
readjustment of the debts of Holdings, the Borrower or any Significant Subsidiary for any other relief under the federal Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or Law, state or federal, now or hereafter
existing, and such petition or proceeding shall not be dismissed within sixty (60) days after the filing or commencement thereof or an order of relief shall be entered with respect thereto; (g) (i) a receiver, interim receiver, assignee, liquidator, sequestrator, custodian, monitor, trustee or similar officer for Holdings, the
Borrower or any Significant Subsidiary for all or any material part of such Persons property shall be appointed or (ii) a warrant of attachment, execution or similar process shall be issued against any material part of the property of
Holdings, the Borrower or any Significant Subsidiary and such warrant or similar process shall not be vacated, discharged, stayed or bonded pending appeal within sixty (60) days after the entry thereof; (h) this Agreement, the Guarantee Agreement, any Security Document or the ABL Intercreditor Agreement, or any other intercreditor agreement
entered into in connection with the Obligations hereunder shall be terminated (other than in accordance with its terms or the terms hereof or thereof), revoked or declared void or invalid or unenforceable or challenged by any Obligor or any FTS
Pledgor; (i) one or more monetary judgments, orders, decrees or arbitration awards is entered against any Holdings, the Borrower or any
Restricted Subsidiary involving in the aggregate for all Obligors and Restricted Subsidiaries liability as to any single or related or unrelated series of transactions, incidents or conditions, in excess of $30,000,000 (in each case, except to the
extent covered by insurance through a financially sound insurance company (other than an Affiliated Insurance Entity for any amounts over $10,000,000 unless reinsured pursuant to the provisions set forth herein) who does not deny or dispute
coverage), and the same shall remain unsatisfied, unbonded, unvacated and unstayed pending appeal for a period of sixty (60) days after the entry thereof; (j) for any reason, any Lien on any Collateral having a Fair Market Value in excess of $10,000,000 ceases to be, or is not, valid, perfected
and prior to all other Liens in accordance with the provisions hereof (subject to (A) the terms of the Collateral and Guarantee Requirement and the Security Documents and (B) Permitted Liens) or is terminated, revoked or declared void
other than (i) as a result of a release of Collateral permitted by Section 13.10 or in accordance with the terms of the relevant Security Document, (ii) in connection with the Full Payment of the Obligations or (iii) any
loss of perfection (x) that results from the failure of the Collateral Agent to (A) maintain possession of certificates, promissory notes or other instruments delivered to it representing securities or other assets pledged under the
Security Documents or (B) file and maintain proper UCC financing statements or similar filings (including continuation statements) or (y) as to Collateral consisting of real property subject to a Mortgage pursuant to the provisions hereof,
to the extent such real property is covered by a title insurance policy and such insurer has not denied coverage; -142-
(k) (i) an ERISA Event shall occur which has resulted or could reasonably be expected
to result in a Material Adverse Effect or (ii) an Obligor or any ERISA Affiliate shall fail 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 Multi-employer Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect; (l) there occurs a Change of Control; (m) Holdings shall fail to receive cash equity contributions or Net Cash Proceeds of issuances of Qualified Stock of Holdings or any Parent
Entity of at least $200,000,000 (excluding, for the avoidance of doubt, any contribution or issuance of Stock related to the FTS Acquisition or the FTS Distribution and Contribution Transaction, any proceeds of the Permitted Sale Leaseback
Transaction or any proceeds of the Back-Stop Note, the Closing Date Note or the Equify Bridge Note, but including, for the avoidance of doubt, any Net Cash Proceeds received in connection with the IPO), or fail to contribute all such amounts to the
Borrower, after the Closing Date and on or prior to December 31, 2022. 10.2 Remedies. (a) If an Event of Default has occurred and is continuing, the Agent may, with the consent of the Required Lenders, and shall, at the direction
of the Required Lenders, do one or more of the following at any time or times and in any order, without notice to or demand on the Borrower: (i) declare the Term Loans to be immediately due and payable; provided, however, that upon the occurrence of any
Event of Default described in Section 10.1(e), 10.1(f), or 10.1(g) with respect to any Obligor, all Term Loans shall automatically become immediately due and payable without notice or demand of any kind; and (ii) pursue its other rights and remedies under the Loan Documents and applicable Law. (b) If an Event of Default has occurred and is continuing and subject to the ABL Intercreditor Agreement or any intercreditor or subordination
agreement or arrangements then in effect: (i) the Agent shall have, for the benefit of the respective Secured Parties, in addition to all other rights of the Agent and the Lenders, the rights and remedies of a secured party under the Loan
Documents or the UCC; (ii) the Agent may (with the consent or at the direction of the Required Lenders), at any time, take possession of the respective Collateral and keep it on the Obligors premises, at no cost to the Agent or any Lender, or
remove any part of it to such other place or places as the Agent may desire, or the Borrower shall, and shall cause their Restricted Subsidiaries to, upon the Agents demand (with the consent or at the direction of the Required Lenders), at the
Borrowers cost, assemble the Collateral and make it available to the Agent at a place reasonably convenient to the Agent; and (iii) the Agent may (with the consent or at the direction of the Required Lenders) sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as the Required Lenders deem advisable, in their sole discretion, and may, if the Required Lenders deem it reasonable, postpone or adjourn
any sale of any Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, each Obligor agrees that
any notice by the Agent of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable notice to the Borrower if such notice is mailed by registered or
certified mail, return receipt requested, postage prepaid, -143-
or is delivered personally against receipt, at least ten (10) days prior to such action to the Borrower at the address specified in or pursuant to Section 14.8. If any Collateral
is sold on terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Agent or the Lenders receive payment, and if the buyer defaults in payment, the Agent may (with the consent or at the
direction of the Required Lenders) resell the Collateral without further notice to the Borrower or any other Obligor. In the event the Agent seeks to take possession of all or any portion of the Collateral by judicial process, the Borrower and each
other Obligor irrevocably waives: (A) the posting of any bond, surety or security with respect thereto which might otherwise be required; (B) any demand for possession prior to the commencement of any suit or action to recover the
Collateral; and (C) any requirement that the Agent retain possession and not dispose of any Collateral until after trial or final judgment. The Borrower and the other Obligors agree that the Agent has no obligation to preserve rights to the
Collateral or marshal any Collateral for the benefit of any Person. 10.3 Application of Funds. Subject to any Intercreditor
Agreement in effect, if the circumstances described in Section 4.6 have occurred, or after the exercise of remedies provided for in Section 10.2 or under any other Loan Document (or after the Term Loan Commitments have
automatically been terminated, the Term Loans have automatically become immediately due and payable as set forth in Section 10.2), including in any bankruptcy or insolvency proceeding, any amounts received on account of the Obligations
shall be applied (notwithstanding the provisions of Sections 4.1(c) and 4.3(e)) by the Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other
than principal and interest, but including Attorney Costs payable under Section 14.7) payable to the Agent and/or the Collateral Agent in its capacity as such (other than in connection with Cash Management Obligations or Obligations in
respect of Secured Hedge Agreements); Second, to all fees, costs, indemnities, liabilities, obligations and
expenses owing to any Lender with respect to this Agreement, the other Loan Documents or the Collateral (but excluding the principal amount of and interest on the Obligations); Third, to the payment of accrued and unpaid interest on the Obligations (including any interest which, but for the
provisions of the Bankruptcy Code, would have accrued on such amounts); Fourth, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 14.7), ratably among them in proportion to the amounts described in this
clause Fourth payable to them (other than in connection with Cash Management Obligations or Obligations in respect of Secured Hedge Agreements); Fifth, to any other Debt or obligations of any Obligor owing to the Agent, the Collateral Agent, any Lender or any other
Secured Party under the Loan Documents for which the Agent has received written notice of such Obligations as being outstanding; Sixth, ratably to pay (i) any amounts owing with respect to any Obligations in respect of Secured Hedge Agreements,
until paid in full and (ii) any amounts owing with respect to any Cash Management Obligations, until paid in full; Seventh, to the payment of all other Obligations of the Obligors that are due and payable to the Agent and the other
Secured Parties (other than any Defaulting Lenders) on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Agent and the other Secured Parties (other than any Defaulting Lenders) on such date, until
paid in full; -144-
Eighth, ratably to pay any Obligations owed to Defaulting Lenders,
until paid in full; and Last, the balance, if any, after all of the Obligations have been paid in full, to the
Borrower or as otherwise required by Law. In carrying out the foregoing, (x) amounts received shall be applied in the
numerical order provided until exhausted prior to the application to the next succeeding category and (y) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of
amounts available to be applied pursuant thereto for such category. 10.4 Permitted Holders Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 10.1(c), in the event that the Borrower fails to comply with the
requirements of the Financial Covenant, any of the Permitted Holders, any Parent Entity or any Subsidiary of any Parent Entity (other than Holdings and its Restricted Subsidiaries) shall have the right, during the period beginning at the end of the
last Fiscal Quarter of the applicable Test Period and until the tenth (10th) Business Day after the date on which Financial Statements with respect to the Test Period in which such covenant is being measured are required to be delivered
pursuant to Section 6.2 (such date, the Cure Deadline), to make a direct or indirect equity investment in Holdings in cash (the Cure Right), which cash shall be promptly contributed by Holdings to
the Borrower, and upon the receipt by the Borrower of net proceeds pursuant to the exercise of the Cure Right (the Cure Amount) and the application by the Borrower of the Cure Amount to the outstanding principal amount of the Term
Loans in accordance with Section 4.3(c) and Section 4.3(e), the Financial Covenant shall be recalculated, giving effect to a pro forma increase to Consolidated EBITDA for such Test Period in an amount equal to such Cure Amount;
provided that such pro forma adjustment to Consolidated EBITDA shall be given solely for the purpose of determining the existence of a Default or an Event of Default under the Financial Covenant with respect to any Test Period that includes the
Fiscal Quarter for which such Cure Right was exercised and not for any other purpose under any Loan Document. (b) If, after the receipt of
the Cure Amount and the recalculations pursuant to clause (a) above, the Borrower shall then be in compliance with the requirements of the Financial Covenant during such Test Period, the Borrower shall be deemed to have satisfied the
requirements of the Financial Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Event of Default that had occurred shall be deemed cured;
provided that (i) the Cure Right may be exercised on no more than five (5) occasions, (ii) in each four Fiscal Quarter period, there shall be at least two Fiscal Quarters in respect of which no Cure Right is exercised, (iii) with
respect to any exercise of the Cure Right, the Cure Amount shall be no greater than the amount required to cause the Borrower to be in compliance with the Financial Covenant, (iv) all Cure Amounts shall be disregarded for purposes of
determining any baskets or ratios with respect to the covenants contained in the Loan Documents and (v) there shall be no pro forma reduction in Debt (by netting or otherwise) with the proceeds of any Cure Amount for determining compliance with
the Financial Covenant for any Test Period for which such Cure Amount is deemed applied. (c) Prior to the Cure Deadline, neither the
Agent, the Collateral Agent nor any Lender shall exercise any rights or remedies under Article X (or under any other Loan Document available during the continuance of any Default or Event of Default) solely on the basis of any actual or
purported failure to comply with the Financial Covenant unless such failure is not cured by the Cure Deadline (it being understood that this sentence shall not have any effect on the rights and remedies of the Lenders with respect to any other
Default or Event of Default pursuant to any other provision of any Loan Document other than breach of the Financial Covenant); provided, however, that the Lenders shall have no obligation to make any Term Loans prior to receipt of the
Cure Amount. -145-
ARTICLE XI TERM AND TERMINATION 11.1 Term and Termination. The term of this Agreement shall end on the Stated Termination Date unless sooner terminated in
accordance with the terms hereof. The Agent, upon direction from the Required Lenders, may terminate this Agreement without notice upon the occurrence and during the continuance of an Event of Default. Upon the effective date of termination of this
Agreement for any reason whatsoever, all Obligations (other than contingent obligations not then due and payable, Obligations under Secured Hedge Agreements and Cash Management Obligations) (including all unpaid principal, accrued and unpaid
interest and any amounts due under Sections 3.1, 4.2 and 5.4) shall become immediately due and payable. Notwithstanding the termination of this Agreement, until Full Payment of all Obligations, the Borrower shall remain bound by
the terms of this Agreement and shall not be relieved of any of its Obligations hereunder or under any other Loan Document, and the Agent, the Collateral Agent and the Lenders shall retain all their rights and remedies hereunder (including the
Collateral Agents Liens in and all rights and remedies with respect to all then-existing and after-arising Collateral). ARTICLE
XII AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS 12.1 Amendments and Waivers. (a) (i) Except as otherwise specifically set forth in this Agreement, no amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by the Borrower or other Obligor therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders (with a fully executed copy thereof delivered to
the Agent) (or by the Agent with the consent of the Required Lenders) and the Obligors party thereto and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (ii) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective with respect to the following,
unless consented to in writing by all Lenders (or the Agent with the consent of all Lenders) and the Borrower: (A) amend
this Section 12.1 (or any provision of this Agreement providing for consent or other action by all Lenders) or Section 12.2 (or the definition of Eligible Assignee); (B) release all or substantially all of the value of the Guarantors with respect to their Obligations owing under the
Guarantee Agreement other than as permitted by Section 13.10; (C) release or subordinate the Collateral
Agents Liens on all or substantially all of the Collateral other than as permitted by Section 13.10; or -146-
(D) change the definition of Required Lenders. (iii) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective with respect to the following,
unless consented to in writing by all affected Lenders (or the Agent with the consent of all affected Lenders) and the Borrower: (A) increase or extend any Term Loan Commitment or any Term Loan of any Lender; (B) postpone or delay any date fixed by this Agreement or any other Loan Document for any (i) scheduled payment of
principal, interest or fees or (ii) payment of other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document; (C) reduce or forgive the principal of, or the rate of interest specified herein (other than waivers of the Default Rate) on
any Term Loan, or any fees or other amounts payable hereunder or under any other Loan Document; (D) amend, waive or
otherwise modify the default waterfall set forth in Section 10.3 (or any similar provisions); (E)
impose any greater restrictions on the ability of the Lenders of any Class to assign any of their respective rights or obligations hereunder; (F) amend, waive or otherwise modify the definition of Pro Rata Share or Sections 4.1, 4.2,
4.6 or 13.1 (or any similar provisions) in a manner that would alter the pro rata sharing of payments or the order of payment required thereby; (G) amend, waive or otherwise modify the definition of Net Cash Proceeds or Section 4.3(b) such that
proceeds payable pursuant to such Section (or any similar provision) would not be paid on a pro rata basis to the Lenders as constituted immediately prior to such amendment; or (H) amend this Agreement to permit the purchase, repurchase or buyback of Term Loans on a less than pro rata basis, including
in the open market. It is understood that a waiver of any condition precedent or the waiver of any Default,
Event of Default or mandatory prepayment or commitment reduction under this Agreement and the other Loan Documents shall not give rise to an all affected Lender vote pursuant to this clause (iii). (iv) Reserved. (v) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective to increase the obligations or
adversely affect the rights of the Agent, the Collateral Agent or any Arranger without the consent of the party adversely affected thereby. -147-
provided, however, that (A) Schedule 1.1 hereto (Lenders Term Loan
Commitments) may be amended from time to time by the Agent alone to reflect assignments of Term Loan Commitments in accordance herewith; (B) no amendment or waiver shall be made to Section 13.17 or to any other provision of any Loan
Document as such provisions relate to the rights and obligations of any Arranger without the written consent of such Arranger, as applicable, and (C) the Fee Letter may be amended or waived in a writing signed by the Borrower and the Agent.
Further, notwithstanding anything to the contrary contained in Section 12.1, if the Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any
provision of the Loan Documents, then the Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not
objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that (i) the Term Loan Commitment of such Lender may not be increased or extended and (ii) the accrued and unpaid amount of any principal, interest or fees payable to such Lender shall not be
reduced, in either case, without the consent of such Lender. (b) If, in connection with any proposed amendment, waiver or consent (a
Proposed Change) requiring the consent of all Lenders or all affected Lenders, the consent of Required Lenders is obtained, but the consent of other Lenders is not obtained (any such Lender whose consent is not obtained being
referred to as a Non-Consenting Lender), then, at the Borrowers request (and if applicable, payment by the Borrower of the processing fee referred to in Section 12.2(a)), the Agent (so long as the Agent is not a
Non-Consenting Lender) or an Eligible Assignee shall have the right (but not the obligation), to purchase from the Non-Consenting Lenders, and the Non-Consenting Lenders agree that they shall sell, all of the Non-Consenting Lenders interests,
rights and obligations under the Loan Documents, in accordance with the procedures set forth in clauses (i) through (v) in the proviso to Section 5.8 and the last sentence in Section 5.8, as if each
such Non-Consenting Lender is an assignor Lender thereunder. 12.2 Assignments; Participations. (a) Any Lender may, with the written consent (in each case, which consents shall not be unreasonably withheld or delayed) of (x) the Agent
and (y) so long as no Event of Default has occurred and is continuing, the Borrower, assign and delegate to one or more Eligible Assignees (each an Assignee) all, or any ratable part of all, of the Term Loans, the Term Loan
Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of $5,000,000, or an integral multiple of $1,000,000 in excess thereof; provided, that (i) an amount less than the minimum amount of
$5,000,000 may be assigned if agreed to by the Borrower and the Agent, or if such amount represents all of the Term Loans, the Term Loan Commitments and the other rights and obligations of the Lender hereunder, (ii) no such minimum amount shall
apply to any assignment to an Approved Fund or to a Lender or to an Affiliate of a Lender, and (iii) in the case of a prospective assignment to a Disqualified Lender following the occurrence and during the continuance of an Event of Default
under any of Sections 10.1(a), (e), (f) or (g), any Affiliate of the Borrower (other than Holdings or any of its Subsidiaries) (such Affiliate, in such capacity, an Affiliated Lender) shall have
the right, but not an obligation (the Right of First Refusal) to purchase the Term Loans, the Term Loan Commitments and the other rights and obligations of such Lender hereunder, that such Lender intends to sell to such
Disqualified Lender, at the same price and on the same terms and conditions as those offered to such Disqualified Lender, all in accordance with this Section 12.2(a) and Section 12.2(b); provided, further, that
notwithstanding anything to the contrary herein, (i) no consent shall be required for the assignment of Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund and (ii) to the extent required pursuant to the foregoing
subclause (y), consent of the Borrower and/or a waiver of the Borrowers Right of First Refusal shall be deemed to have been given if the Borrower has not responded within ten (10) Business Days of receipt of a written request for
consent; -148-
provided, further, that (A) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall be
given to the Borrower and the Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall deliver to the Borrower and the Agent an Assignment and Acceptance, along with an Administrative Questionnaire and any
know-your-customer documentation; and (C) the assignor Lender or Assignee shall pay to the Agent a processing fee in the amount of $3,500 unless the Agent elects to waive such processing fee in their sole discretion. Upon the request of any
Lender, the Agent shall, and the Borrower hereby expressly authorizes the Agent, to make available the list of Disqualified Lenders to any Lender, any potential assignee or any potential participant for the purpose of verifying whether such Person
is a Disqualified Lender. (b) By its acquisition of Term Loans pursuant to the Right of First Refusal in clause (a) above, an
Affiliated Lender shall be deemed to have acknowledged and agreed that: (i) the Term Loans held by such Affiliated Lender
shall be deemed to have voted in the same pro-portion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders in the calculation of any Lender vote; (ii) the Agent shall vote on behalf of such Affiliated Lender in the event that any proceeding under Sections 1126 or 1129 of
the Bankruptcy Code shall be instituted by or against the Borrower or any Guarantor (and each Affiliated Lender hereby grants to the Agent a power of attorney, irrevocable and coupled with an interest, to so vote such Affiliated Lenders claims
associated with the Term Loans and Term Loan Commitments in accordance with this 12.2(b)), or, alternatively, to the extent that the foregoing is deemed unenforceable for any reason, such Affiliated Lender shall vote in such proceedings in
the same proportion as the allocation of voting with respect to such matter by Lenders of the same class who are not Affiliated Lenders; (iii) such Affiliated Lender, solely in its capacity as an Affiliated Lender (and not in any other capacity), will not be
entitled to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Agent, the Collateral Agent or any Lender or among Lenders to which the Borrower or its representatives are not invited, or (B) receive
any information or material prepared by the Agent, the Collateral Agent or any Lender or any communication by or among the Agent, the Collateral Agent and one or more Lenders, except to the extent such information or materials have been made
available to the Borrower or its representatives (and in any case, other than the right to receive Notices of Borrowing, pre-payments and other administrative notices in respect of its Term Loans and Term Loan Commitments required to be delivered to
Lenders pursuant to the terms of the Loan Documents) or (C) make or bring (or participate in) any claim, in its capacity as a Lender, against the Agent or the Collateral Agent hereunder with respect to any duties or obligations or alleged
duties or obligations of the Agent or the Collateral Agent under the Loan Documents; (iv) it shall not have any right to
receive advice of counsel to the Agent, the Collateral Agent or to the Lenders (other than Affiliated Lenders) or to challenge the Lenders attorney-client privilege; and (c) Each Affiliated Lender hereby irrevocably appoints the Agent (such appointment being coupled with an interest) as such Affiliated
Lenders attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the discretion of the Agent and the Required Lenders, to take any action and to
execute any instrument that the Agent or the Required Lenders may deem reasonably necessary to carry out the provisions of this Section 12.2(b). -149-
In furtherance of the foregoing, each Affiliated Lender agrees to execute and deliver to the Agent any instrument reasonably requested by the Agent or the Required Lenders to evidence the voting
of its interest as a Lender in accordance with the provisions of this Section 12.2(b) (it being understood and agreed that if such Affiliated Lender fails to promptly execute such instrument such failure shall in no way prejudice any of the
rights of the Agent and the Required Lenders under this Section 12.2(b)). (d) From and after the date that the Agent has received an
executed Assignment and Acceptance, the Agent has received payment of the above-referenced processing fee and the Agent has recorded such assignment in the Register as provided in Section 13.18 herein, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender
shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and
in the case of an Assignment and Acceptance covering all or the remaining portion of an assignor Lenders rights and obligations under this Agreement, such assignor Lender shall cease to be a party hereto). (e) By executing and delivering an Assignment and Acceptance, the assignor Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assignor Lender makes no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished
pursuant hereto or the attachment, perfection, or priority of any Lien granted by any Obligor to the Agent or any Lender in the applicable Collateral; (ii) such assignor Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Obligor or the performance or observance by any Obligor of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto; (iii) such Assignee confirms that it has
received a copy of this Agreement, together with 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 the Agent, such assignor 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 appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers, including
the discretionary rights and incidental powers, as are reasonably incidental thereto; and (vi) such Assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to
be performed by it as a Lender. (f) Immediately upon satisfaction of the requirements of Section 12.2(a) and recordation in
the Register, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Term Loan Commitments arising therefrom. Each Term Loan
Commitment allocated to each Assignee shall reduce the applicable Term Loan Commitment of the assignor Lender pro tanto. (g) Any
Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of the Borrower (a Participant), in each case that is not a Disqualified Lender so long as the list of
Disqualified Lenders shall have been made available to all Lenders by the Borrower, participating interests in any Term Loans, any Term Loan Commitment of that Lender and the other interests of that Lender (the Originating Lender)
hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lenders obligations under this Agreement shall -150-
remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrower and the Agent shall continue to deal solely and
directly with the Originating Lender in connection with the Originating Lenders rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which
the Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document except the matters set forth in Sections 12.1(a)(ii)(B) and (C) and
Section 12.1(a)(iii)(B) and (C), and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid,
or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent and
subject to the same limitation as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. Subject to paragraph (g) of this Section 12.2, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 5.1, 5.2 and 5.3, subject to the requirements and limitations of such Sections (including Sections 5.1(d)) and Sections 5.6 and 5.8, to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section 12.2 (provided that any documentation required to be provided pursuant to Section 5.1(d) shall be
provided solely to the Originating Lender and provided further, for the avoidance of doubt, that if the Originating Lender is not a U.S. Person, such Lender shall include a copy of such documentation as an exhibit to its IRS Form W-8IMY in
accordance with Section 5.1(d)(ii)(D)). (h) Notwithstanding any other provision in this Agreement, any Lender may at any time
create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement (including its Note, if any) in favor of any Federal Reserve Bank or any other central bank having jurisdiction over such Lender in
accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (i) A Participant shall not be entitled to receive any greater payment under Section 5.1 or 5.3 than the Originating Lender
would have been entitled to receive with respect to the participating interest sold to such Participant, unless the sale of the participating interest to such Participant is made with the Borrowers prior written consent and (1) the
request for such consent discloses that greater payments may be due and (2) such Participant agrees to be subject to the provisions of Section 5.8 as though it were a Lender, or to the extent that such entitlement to a greater
payment results from a Change in Law after the Participant became a Participant. ARTICLE XIII THE APPOINTED AGENTS 13.1 Appointment and Authorization. Each Lender hereby designates and appoints the Agent and the Collateral Agent (collectively,
the Appointed Agents) as its agents under this Agreement and the other Loan Documents and each Lender hereby irrevocably authorizes each Appointed Agent, in its respective capacity, to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably
incidental thereto. Each Appointed Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this Article XIII (other than Sections 13.9, 13.10(a) and 13.10(b)) are
solely for the benefit of the Appointed Agents and the Lenders, and the Borrower shall have no rights as third party beneficiaries of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, each Appointed Agent shall not have any duties or -151-
responsibilities, except those expressly set forth herein, nor shall any Appointed Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Appointed Agent. Without limiting the generality of the foregoing sentence, the use of the term
agent in this Agreement with reference to any Appointed 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 merely as a
matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreement (including any required consent or direction from the
Required Lenders), each Appointed Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Appointed Agent is
expressly entitled to take or assert under this Agreement and the other Loan Documents, including the exercise of remedies pursuant to Section 10.2, and any action so taken or not taken shall be deemed consented to by the Lenders. 13.2 Delegation of Duties. Each Appointed Agent may execute any of its duties under this Agreement or any other Loan Document by
or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Each Appointed Agent shall not be responsible for the negligence or misconduct of any agent or attorney in
fact that it selects as long as such selection was made without gross negligence, bad faith or willful misconduct. 13.3
Liability of Appointed Agents. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)), (b) be responsible in any manner to any of the Lenders for
any recital, statement, representation or warranty made by any Obligor or any Subsidiary or Affiliate of any Obligor, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by any Appointed Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Obligor or any other party to any Loan Document to perform its
obligations hereunder or thereunder or (c) 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 Lenders; further, without
limiting the generality of the foregoing clause (c), no Agent-Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or
(y) have any liability with respect to or arising out of any assignment or participation of Term Loans, or disclosure of confidential information (subject in all respects to Section 14.16), to any Disqualified Lender. No
Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Obligor or any of their Subsidiaries or Affiliates. 13.4 Reliance by Appointed Agent.
Each Appointed Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person -152-
or Persons, and upon advice and statements of legal counsel (including counsel to any Obligor), independent accountants and other experts selected by such Appointed Agent. Each Appointed Agent
shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Appointed Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or all Lenders or all affected Lenders, as applicable) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders. 13.5 Notice of Default. The Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a notice of default. The Agent will notify the Lenders of its receipt of any such notice. The Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required
Lenders in accordance with Article X. 13.6 Credit Decision. Each Lender acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by any Appointed Agent hereinafter taken, including any review of the affairs of the Borrower and its Affiliates, shall be deemed to constitute any representation or warranty by
any Agent-Related Person to any Lender. Each Lender represents to each Appointed Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and information as it has deemed appropriate, made its
own appraisal of, and investigation into, the business, prospects, operations, property, financial and other condition and creditworthiness of the Obligors and their Affiliates, and all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Obligors and their Affiliates. Except for notices, reports and other documents expressly herein required
to be furnished to the Lenders by the Agent, the Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of the Obligors or any of their Affiliates which may come into the possession of any of the Agent-Related Persons. 13.7 Indemnification. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon
demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), ratably in accordance with their respective Pro Rata Shares, from and against any and all
Losses as such term is defined in Section 14.10; provided, however, that no Lender shall be liable for the payment to such Agent-Related Persons of any portion of such Losses to the extent resulting from such Persons
gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision); provided, further, that any action taken by any Agent-Related Person at the request of the
Required Lenders (or all Lenders or all affected Lenders, as applicable) shall not constitute gross negligence, bad faith or willful -153-
misconduct. Without limitation of the foregoing, each Lender shall ratably reimburse the Agent upon demand for its share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities
under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Agent is not reimbursed for such expenses by or on behalf of the Borrower. The undertaking in this Section 13.7
shall survive the payment of all Obligations hereunder and the resignation or replacement of the Agent. 13.8 Appointed Agents in
Individual Capacity. Each Appointed Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Stock in and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Obligors and their Subsidiaries and Affiliates as though such Appointed Agent was not an Appointed Agent hereunder and without notice to or consent of the Lenders. Each Appointed Agent and its Affiliates may
receive information regarding the Obligors, their Affiliates and Account Debtors (including information that may be subject to confidentiality obligations in favor of the Obligors or such Affiliates) and the Lenders hereby acknowledge that each
Appointed Agent shall be under no obligation to provide such information to them. With respect to its Term Loans, each Appointed Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though
it were not an Appointed Agent, and the terms Lender and Lenders include each Appointed Agent in its individual capacity. 13.9 Successor Agents. Each Appointed Agent may resign as an Appointed Agent upon at least 30 days prior notice to the
Lenders and the Borrower. In the event any Appointed Agent (solely in the case where such Appointed Agent is also a Lender) sells all of its Term Loans and/or Term Loan Commitments as part of a sale, transfer or other disposition by such Appointed
Agent of substantially all of its loan portfolio, such Appointed Agent shall resign as an Appointed Agent and such purchaser or transferee shall become the successor Appointed Agent hereunder. In the event that an Appointed Agent (solely in the case
where such Appointed Agent is also a Lender) becomes a Defaulting Lender, such Appointed Agent may be removed at the reasonable request of the Borrower and the Required Lenders. Subject to the foregoing, if an Appointed Agent resigns or is removed
under this Agreement, the Required Lenders (with the prior consent of the Borrower, such consent not to be unreasonably withheld and such consent not to be required if an Event of Default under any of Section 10.1(a), (e),
(f) or (g) has occurred and is continuing) shall appoint from among the Lenders a successor agent, which successor agent shall be a Lender or a commercial bank, commercial finance company or other similar lender having total
assets in excess of $5,000,000,000. If no successor agent is appointed prior to the effective date of the resignation of any Appointed Agent, such Appointed Agent may appoint (but without the need for the consent of the Borrower) a successor agent
from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Appointed Agent and the term Appointed Agent shall mean
such successor agent and the retiring Appointed Agents appointment, powers and duties as an Appointed Agent shall be terminated. After any retiring Appointed Agents resignation hereunder as an Appointed Agent, the provisions of this
Article XIII and Section 14.10 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was an Appointed Agent under this Agreement. -154-
13.10 Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably
authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agents Liens upon any Collateral shall be
automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral constitutes property in which the
Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in a transaction permitted under
this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the second succeeding sentence and
the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents,
(vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, consent to the Collateral being released.
Except as provided above, the Collateral Agent will not release any of the Collateral Agents Liens without the prior written authorization of the Required Lenders (or such other percentage of Lenders whose consent is required in accordance
with Section 12.1). Upon request by the Collateral Agent or the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the
Collateral Agent may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agents authority to release any applicable Collateral Agents Liens upon particular types or
items of Collateral pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral
Agent to subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Current Asset Collateral
only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person
otherwise becomes an Excluded Subsidiary, in each case, solely to the extent (1) such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is permitted by this Agreement and in the case of a
Subsidiary ceasing to constitute a Subsidiary, the Borrower will be deemed to make a new Investment in the residual equity retained directly or indirectly by the Borrower and (2) no Default or Event of Default has occurred or is continuing or
would result therefrom and (y) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains possession of any Collateral by operation of
Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or any other contractual arrangement with any
Obligor, following the written request by Borrower, Collateral Agent shall (to the extent permitted by applicable law or legal process) deliver such Collateral in accordance with the terms of the ABL Intercreditor Agreement ([**]) or, if the ABL Intercreditor Agreement -155-
deemed terminated and released (automatically and through no further action of any Person), and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan
Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly
execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security interests, pledges and other similar discharge or release documents or other writings to effect or evidence such
release and termination. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing
such Appointed Agents authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a). (b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the Lenders of such
Appointed Agents authority to release or subordinate the applicable Collateral Agents Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and upon at least
three (3) Business Days prior written request by the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to evidence the
release of such Collateral Agents Liens upon such Collateral or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that (i) such Appointed
Agent shall not be required to execute any such document on terms which, in such Appointed Agents opinion, would expose such Appointed Agent to liability or create any obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Obligors in respect of) all interests
retained by the Obligors, including the proceeds of any sale, all of which shall continue to constitute part of such Collateral. (c) The
Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agents
Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to
continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event
related thereto, the Collateral Agent may act with the consent or at the direction of the Required Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing. 13.11 Restrictions on Actions by Lenders; Sharing of Payments. (a) Each of the Lenders agrees that it shall not, without the express consent of the Required Lenders, and that it shall, to the extent it is
lawfully and contractually entitled to do so, upon the request of the Required Lenders, set off against the Obligations, any amounts owing by such Lender to any Obligor or any accounts of any Obligor now or hereafter maintained with such Lender.
Each of the Lenders further agrees that it shall not, unless specifically requested to do so by any Appointed Agent, take or cause to be taken any action to enforce its rights under this Agreement or against any Obligor, including the commencement
of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the applicable Collateral. -156-
(b) Except as may be expressly permitted by this Agreement, if at any time or times any
Lender shall receive (i) by payment, foreclosure, setoff or otherwise, any proceeds of Collateral or any payments with respect to the Obligations of any Obligor to such Lender arising under, or relating to, this Agreement or the other Loan
Documents, except for any such proceeds or payments received by such Lender from the Agent pursuant to the terms of this Agreement or to which such Lender is otherwise entitled to receive directly pursuant to the terms of this Agreement, or
(ii) payments from the Agent in excess of such Lenders ratable portion of all such distributions by the Agent, such Lender shall promptly (A) turn the same over to the Agent, in kind, and with such endorsements as may be required to
negotiate the same to the Agent, or in same day funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase, without recourse
or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Term Loan Commitments; provided,
however, that (A) if all or part of such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion
of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment and (B) the
provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower or any other Obligor pursuant to and in accordance with the express terms of this Agreement and the other Loan Documents, (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Term Loans or Term Loan Commitments to any Assignee or Participant or (z) any disproportionate payment obtained by a Lender of any Class as a
result of the extension by Lenders of the maturity date or expiration date of some but not all Term Loans or Term Loan Commitments of that Class or any increase in the Applicable Margin (or other pricing term, including any fee, discount or premium)
in respect of Term Loans or Term Loan Commitments of Lenders that have consented to any such extension to the extent such transaction is permitted hereunder. 13.12 Agency for Perfection. Each Lender hereby appoints each other Lender as agent for the purpose of perfecting the
Lenders security interest in assets which, in accordance with the UCC or under other applicable law, as applicable may be perfected by possession. Should any Lender (other than the Collateral Agent) obtain possession of any such Collateral,
such Lender shall notify the Collateral Agent thereof and, promptly upon the Collateral Agents request therefor, shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agents instructions. 13.13 Payments by Agent to Lenders. All payments to be made by the Agent to the applicable Lenders shall be made by bank wire
transfer or internal transfer of immediately available funds to each such Lender pursuant to wire transfer instructions delivered in writing to the Agent on or prior to the Agreement Date (or if such Lender is an Assignee, on the applicable
Assignment and Acceptance), or pursuant to such other wire transfer instructions as each party may designate for itself by written notice to the Agent. Concurrently with each such payment, the Agent shall identify whether such payment (or any
portion thereof) represents principal, interest or fees on the Term Loans or otherwise. Unless the Agent receives notice from the Borrower prior to the date on which any payment is due to the Lenders that the Borrower will not make such payment in
full as and when required, the Agent may assume that the Borrower have made such payment in full to the Agent on such date in immediately available funds and the Agent may (but shall not be so required), in reliance upon such assumption, distribute
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 has not made such payment in full to the Agent, each applicable Lender shall repay to the Agent on demand such amount
distributed to such Lender, together with interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to such Lender until the date repaid. -157-
13.14 Intercreditor Agreements. The Agents are hereby authorized to enter into
the ABL Intercreditor Agreement and [**] and any other usual and
customary intercreditor or subordination agreements or arrangements approved in writing by the Required Lenders (for purposes of this paragraph, the Intercreditor Agreements) to the extent contemplated by the terms hereof, and the
parties hereto acknowledge that each such Intercreditor Agreement is binding upon them. Each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of each Intercreditor Agreement at any time
existing and (b) hereby authorizes and instructs the Agents to enter into the Intercreditor Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof, as the case may be. In addition, but in
conformance with the terms hereof, each Lender hereby authorizes the Agents to enter into (i) any amendments to the Intercreditor Agreements and (ii) any other intercreditor arrangements, in the case of clauses (i) and
(ii) to the extent approved in writing by the Required Lenders and required to give effect to the establishment of intercreditor rights and privileges as contemplated and required by Section 8.16 of this Agreement. Each
Lender waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against the Agent or any of its Affiliates any claims, causes of action, damages or liabilities of whatever kind or
nature relating thereto. Each Lender hereby acknowledges and agrees that the provisions of Section 13.4 of this Agreement shall apply with equal effect to any such Intercreditor Agreement. 13.15 Concerning the Collateral and the Related Loan Documents. Each Lender authorizes and directs each Appointed Agent to enter
into the other Loan Documents, including any Intercreditor Agreement, for the ratable benefit and obligation of the Appointed Agents and the Lenders. Each Lender agrees that any action taken by any Appointed Agent or the Required Lenders, as
applicable, in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by any Appointed Agent or the Required Lenders, as applicable, of their respective powers set forth therein or herein, together with such other
powers that are reasonably incidental thereto, shall be binding upon all of the Lenders. The Lenders acknowledge that the Term Loans, applicable Secured Hedge Agreements, Secured Cash Management Agreements, and all interest, fees and expenses
hereunder constitute one Debt, secured equally by all of the applicable Collateral, subject to the order of distribution set forth in Section 10.3. 13.16 Relation Among Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or
omissions of, or (except as otherwise set forth herein in the case of the Appointed Agents) authorized to act for, any other Lender. 13.17 Arrangers. Each of the parties to this Agreement acknowledges that, other than any rights and duties explicitly assigned to
the Arrangers under this Agreement, no Arranger has any obligations hereunder and shall not be responsible or accountable to any other party hereto for any action or failure to act hereunder. Without limiting the foregoing, no Arranger shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on the Arrangers in deciding to enter into this Agreement or in taking or not taking action hereunder. 13.18 The Register. (a) The Agent shall maintain a register (each, a Register), which shall include a master account and a subsidiary account
for each applicable Lender and in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of each Term Loan comprising such Borrowing and any Interest Period applicable thereto,
(ii) the effective date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties thereto, (iii) the amount of -158-
any principal or stated interest due and payable or to become due and payable from the Borrower to each Lender hereunder or under the notes payable by the Borrower to such Lender, and
(iv) the amount of any sum received by the Agent from the Borrower or any other Obligor and each Lenders ratable share thereof. Each Register shall be available for inspection by the Borrower or any applicable Lender (with respect to its
own Term Loans and Term Loan Commitments only) at one of the offices of the Agent referred to in Section 14.8 at any reasonable time and from time to time upon reasonable prior written notice. Any failure of the Agent to record in the
applicable Register, or any error in doing so, shall not limit or otherwise affect the obligation of the Borrower hereunder (or under any Loan Document) to pay any amount owing with respect to the Term Loans or provide the basis for any claim
against the Agent. The Term Loans are registered obligations and the right, title and interest of any Lender and their assignees in and to such Term Loans as the case may be, shall be transferable only upon notation of such transfer in the
applicable Register. Upon the request of any Lender, the Borrower shall execute and deliver to such Lender a Note payable to such Lender, which shall evidence such Lenders Term 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 Term Loans and payments with respect thereto. Solely for purposes of this Section 13.18, the Agent shall be the Borrowers
agent for purposes of maintaining the applicable Register (but the Agent shall have no liability whatsoever to the Borrower or any other Person on account of any inaccuracies contained in the applicable Register). The Obligors and the Agent intend
that the Term Loans will be treated as at all times maintained in registered form within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code and any related regulations (and any other relevant or successor provisions of
the Code or such regulations). (b) In the event that any Lender sells participations in any Term Loan, Term Loan Commitment or other
interest of such Lender hereunder or under any other Loan Document, such Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name of all Participants in the Term Loans
held by it and the principal amount (and related stated interest thereon) of the portion of the Term Loans or Term Loan Commitments which are the subject of the participation (the Participant Register). A Term Loan or Term Loan
Commitment may be participated in whole or in part only by registration of such participation on the Participant Register (and each note shall expressly so provide). Any participation of such Term Loans or Term Loan Commitments may be effected only
by the registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information
relating to a Participants interest in any Term Loan Commitments, Term Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Term Loan Commitment, Term Loan 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. (c) Each Register shall be maintained by the Agent as a non-fiduciary agent of the Borrower. Each Register shall be conclusive absent manifest
error. 13.19 Secured Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set forth herein
or in the Guarantee Agreement or any Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guaranty or any Collateral by virtue of the provisions hereof or of the Guarantee Agreement or any Security 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) 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 XIII to the contrary, the 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 unless the Agent has received written notice of such Obligations, together with such supporting
documentation as the Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. -159-
13.20 Withholding Taxes. To the extent required by any applicable Law, the
Agent may deduct or withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to
such Lender (but only to the extent that an Obligor has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of any Obligor to do so), (ii) any Taxes attributable to such Lenders failure to
comply with the provisions of Section 13.18(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set-off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan
Document against any amount due the Agent under this Section 13.20. The agreements in this Section 13.20 shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a Lender, the
termination of this Agreement and the repayment, satisfaction or discharge of all other obligations. For the avoidance of doubt, this Section 13.20 shall not limit or expand the obligations of the Borrower or any Guarantor under
Section 5.1 or any other provision of this Agreement. 13.21 Certain ERISA Matters. (a) 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 Agent, each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Obligor, that at least one of the following is and will be true: (i) such Lender is not using
plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Term Loans or the Term Loan Commitments, (ii) 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 Lenders entrance into, participation in, administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement, (iii) (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 Term Loans, the Term Loan Commitments and this
Agreement, (C) the entrance into, participation in, administration of -160-
and performance of the Term Loans, the Term Loan Commitments and this 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 Lenders entrance into, participation in, administration of and performance of the Term Loans, the Term Loan
Commitments and this Agreement, or (iv) such other representation, warranty and covenant as may be agreed in writing
between the Agent, in its sole discretion, and such Lender. (b) In addition, unless sub-clause (i) in the immediately
preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in 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 Agent, each Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Obligor, that: (i) none of the Agent, any Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such
Lender (including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in,
administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other
person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in,
administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies
(including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the Term Loans, the Term Loan Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Term Loans, the Term Loan
Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any Arranger or any their respective Affiliates for
investment advice (as opposed to other services) in connection with the Term Loans, the Term Loan Commitments or this Agreement. -161-
(c) The Agent and each Arranger hereby informs the Lenders that each such Person is not
undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that
such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Term Loans, the Term Loan Commitments and this Agreement, (ii) may recognize a gain if it extended the Term Loans or the Term Loan
Commitments for an amount less than the amount being paid for an interest in the Term Loans or the Term Loan Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the
Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage
fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankers acceptance fees, breakage or other early termination fees or fees similar to the foregoing. 13.22 Erroneous Payments. (a) Each Lender (and each Participant of any of the foregoing, by its acceptance of a Participation) hereby acknowledges and agrees that if the
Agent notifies such Lender that the Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender (any of the foregoing, a Recipient) from the Agent (or any of its Affiliates) were
erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Recipient (whether or not known to such Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and
collectively, a Payment) and demands the return of such Payment, such Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Agent the amount of any such Payment as to which such a demand
was made. A notice of the Agent to any Recipient under this Section shall be conclusive, absent manifest error. (b) Without limitation of
clause (a) above, each Recipient further acknowledges and agrees that if such Recipient receives a Payment from the Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in
a notice of payment sent by the Agent (or any of its Affiliates) with respect to such Payment (a Payment Notice), (y) that was not preceded or accompanied by a Payment Notice, or (z) that such Recipient otherwise becomes
aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with
respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Agent of such occurrence and, upon demand from the Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the
Agent the amount of any such Payment (or portion thereof) as to which such a demand was made. (c) Any Payment required to be returned by a
Recipient under this Section shall be made in same day funds in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Recipient to the date
such amount is repaid to the Agent at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby agrees that it
shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Agent for the
return of any Payment received, including without limitation any defense based on discharge for value or any similar doctrine. (d) The Borrower and each other Obligor hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered
from any Lender that has received such Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge
or otherwise satisfy any Obligations owed by the Borrower or any other Obligor except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any
other Obligor. -162-
(e) Each partys obligations, agreements and waivers under this
Section 13.22 shall survive the resignation or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Term Loan Commitments and/or the repayment, satisfaction or
discharge of all Obligations (or any portion thereof) under any Loan Document. ARTICLE XIV MISCELLANEOUS 14.1 No Waivers; Cumulative Remedies. No failure by any Appointed Agent or any Lender to exercise any right, remedy, or option
under this Agreement or any present or future supplement hereto, or in any other Loan Documents, or delay by any Appointed Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by any Appointed Agent or any Lender
will be effective unless it is in writing, and then only to the extent specifically stated. No waiver by any Appointed Agent or the Lenders on any occasion shall affect or diminish any Appointed Agents and each Lenders rights thereafter
to require strict performance by the Obligors of any provision of this Agreement and the other Loan Documents. Each Appointed Agents and each Lenders rights under this Agreement and the other Loan Documents will be cumulative and not
exclusive of any other right or remedy which the Appointed Agent or any Lender may have. 14.2 Severability. The illegality
or unenforceability of any provision of this Agreement or any Loan Document or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder. 14.3 Governing Law; Choice of Forum; Service of Process. (a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA LOCATED IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY LOAN DOCUMENT. NOTWITHSTANDING THE FOREGOING: (i) THE AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER, ANY GUARANTOR OR ANY
COLLATERAL IN THE COURTS OF ANY OTHER JURISDICTION THE AGENT DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (ii) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE
COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS. -163-
(c) EACH OF THE PARTIES HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT
AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE APPLICABLE ADDRESS SET FORTH IN SECTION 14.8 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER
THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE MAILS POSTAGE PREPAID. 14.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. 14.5 Survival of
Representations and Warranties. All of the Borrowers and other Obligors representations and warranties contained in this Agreement and the other Loan Documents shall survive the execution, delivery, and acceptance thereof by the
parties, notwithstanding any investigation by the Agent or the Lenders or their respective agents. 14.6 Other Security and
Guarantees. The Agent may, without notice or demand and without affecting the Borrowers or any Obligors obligations hereunder, from time to time: (a) take from any Person (to the extent permitted by such Person) and hold
collateral (other than the Collateral) for the payment of all or any part of the Obligations and exchange, enforce or release such collateral or any part thereof; and (b) accept and hold any endorsement or guaranty of payment of all or any part
of the Obligations and release or substitute any such endorser or guarantor, or any Person who has given any Lien in any other collateral as security for the payment of all or any part of the Obligations, or any other Person in any way obligated to
pay all or any part of the Obligations. 14.7 Fees and Expenses. The Borrower agrees (a) to pay or reimburse the Agent,
the Collateral Agent, the Arrangers (without duplication) and, in the case of clause (ii) following the Closing Date, the Required Lenders for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with
(i) the syndication of the Closing Date Term Loan Facility and the Term Loan Facility and (ii) the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of this Agreement and the other Loan
Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), such costs and expenses to be limited in the case of legal costs and
expenses to the Attorney Costs and (b) to pay or -164-
reimburse the Agent, the Collateral Agent and the Required Lenders for all reasonable and documented or invoiced out-of-pocket costs and expenses incurred in connection with the enforcement of
any rights or remedies under this Agreement or the other Loan Documents (such costs and expenses to be limited in the case of legal costs and expenses to the Attorney Costs) (but including, for the avoidance of doubt, any costs and expenses of the
Agent and the Collateral Agent arising from the administration and maintenance of the pledge of titled collateral to the Collateral Agent, including, but not limited to, the retention of a sub-agent engaged by the Collateral Agent in connection
therewith). Subject to the limitations above, the foregoing costs and expenses shall include all reasonable and documented or invoiced search, filing, recording and title insurance charges and fees related thereto. The agreements in this
Section 14.7 shall survive the Termination Date and repayment of all other Obligations. All amounts due under this Section 14.7 shall be paid within twenty (20) Business Days of receipt by the Borrower of an invoice
relating thereto setting forth such expenses in reasonable detail. 14.8 Notices. Except as otherwise provided herein, all
notices, demands and requests that any party is required or elects to give to any other shall be in writing, or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon personal
delivery thereof, including, but not limited to, delivery by overnight mail and courier service, (b) four (4) days after it shall have been mailed by United States mail, first class, certified or registered, with postage prepaid, or
(c) in the case of notice by such a telecommunications device, when properly transmitted, in each case addressed to the party to be notified as follows: 1251 Avenue of the Americas, 6th Floor New York, NY 10020 Email: Amrit.Agrawal@psc.com; piperjaffrayagency@alterdomus.com Attention: Michael M. Mezzacappa Email:
MMezzacappa@proskauer.com Facsimile No.: (212) 969-2900 333 Shops Boulevard, Suite 301 Willow Park,
Texas 76087 Attention: Matt Wilks Email: matt.wilks@profrac.com Facsimile No.:
(254) 442-8042 One Financial Center Boston, Massachusetts
02111 Attention: Andreas P. Andromalos, Esq. Email:
aandromalos@brownrudnick.com Facsimile No.: (617) 289-0495 -165-
or to such other address as each party may designate for itself by like notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other communication to the persons designated above to receive copies shall not adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or
other communication. 14.9 Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of
the respective representatives, successors, and assigns of the parties hereto. The rights and benefits of the Agent and the Lenders hereunder shall, if such Persons so agree, inure to any party acquiring any interest in the Obligations or any part
thereof to the extent permitted hereunder. 14.10 Indemnity of the Agent, the Collateral Agent, the Arrangers and the
Lenders. (a) Subject to the provisions of Sections 14.10(b) and (c), the Borrower agrees to defend, indemnify and hold
all Agent-Related Persons, each Arranger and each Lender (without duplication) and each of their respective Affiliates, officers, directors, employees, agents, controlling persons, advisors and other representatives, successors and permitted assigns
of the foregoing (each, an Indemnified Person) harmless from and against any and all losses, claims, costs, damages and liabilities (collectively, Losses) of any kind or nature that arises out of or relates to
(i) the Transactions, including the financing contemplated hereby and the use of proceeds hereof; (ii) breach or non-compliance with the covenants in Article VIII of this Agreement; (iii) any actual or alleged Release or threat of
Release of any Contaminant at any facility or location currently or formerly owned, used or operated by Holdings or the Borrower; or (iv) any liability under Environmental Laws relating in any way to Holdings or the Borrower (including any
inquiry or investigation of the foregoing) (regardless of whether such Indemnified Person is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders, affiliates or creditors or
any other third Person). (b) Under this Section 14.10, Indemnified Persons shall be entitled to the reasonable and documented
or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to or defending any of the Losses foregoing (such expenses, in the case of legal expenses, to be limited to the reasonable fees, disbursements and
other charges of a single firm of counsel for all Indemnified Persons, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple
jurisdictions) for all Indemnified Persons taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnified Person(s) affected by such conflict notifies the Borrower of the existence of such conflict and
thereafter retains its own counsel, by such other firm of counsel for such affected Indemnified Person)) of any such Indemnified Person. (c) No Indemnified Person will be indemnified for any Loss or related expense under this Section 14.10 to the extent it has
resulted from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of its Affiliates or any of the officers, directors, employees, agents, controlling persons, advisors or other representatives, successors
or permitted assigns of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations under this Agreement or the other Loan Documents of such
Indemnified Person or any of such Indemnified Persons Affiliates or any of the officers, directors, employees, agents, controlling persons, advisors or other representatives, successors or permitted assigns of any of the foregoing (as
determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any claim, litigation, investigation or other proceeding that does not arise from any act or omission by the
-166-
Borrower or any of its Affiliates and that is brought by any Indemnified Person against any other Indemnified Person; provided that the Agent, the Collateral Agent and the Arrangers to the extent
fulfilling their respective roles as an agent, co-manager or arranger under this Agreement and the other Loan Documents and in their capacities as such, shall remain indemnified in respect of such proceedings to the extent that none of the
exceptions set forth in any of clauses (i) and (ii) of the immediately preceding proviso applies to such person at such time. (d) The agreements in this Section 14.10 shall survive payment of all other Obligations. For the avoidance of doubt, this
Section 14.10 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses or damages, with respect to a non-Tax claim. 14.11 Limitation of Liability. Notwithstanding any other provision of this Agreement to the contrary, (i) no Indemnified
Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have
resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Persons affiliates or any of its or their respective officers, directors, employees, agents, controlling persons,
advisors or other representatives, successors or permitted assigns (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of the Borrower, the other Obligors or any of their respective
Subsidiaries or Affiliates, or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this
Agreement, the other Loan Documents, the Transactions (including the use of proceeds hereof), or with respect to any activities related to this Agreement and the other Loan Documents, including the preparation of this Agreement and the other Loan
Documents; provided that nothing in this Section 14.11 shall limit the Borrowers indemnity and reimbursement obligations set forth in Section 14.10 to the extent that such indirect, special, punitive or
consequential damages are included in any claim by a third party unaffiliated with the applicable Indemnified Person with respect to which the applicable Indemnified Person is entitled to indemnification as set forth in Section 14.10.
14.12 Final Agreement. This Agreement and the other Loan Documents are intended by the parties hereto to be the final,
complete, and exclusive expression of the agreement between them with respect to the subject matter hereof and thereof. This Agreement supersedes any and all prior oral or written agreements relating to the subject matter hereof. 14.13 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, and by the Agent, the
Collateral Agent, each Lender and the Borrower in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from multiple separate counterparts
and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement and the other Loan Documents may be executed by facsimile or other electronic communication and the effectiveness of this
Agreement and the other Loan Documents and signatures thereon shall have the same force and effect as manually signed originals and shall be binding on all parties thereto. The Agent may require that any such documents and signatures be confirmed by
a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile signature or signature delivered electronically. -167-
14.14 Captions. The captions contained in this Agreement are for convenience
of reference only, are without substantive meaning and should not be construed to modify, enlarge, or restrict any provision. 14.15
Right of Setoff. In addition to any rights and remedies of the Lenders provided by Law, if an Event of Default is then continuing or the Term Loans have been accelerated prior to the Stated Termination Date, each Lender is authorized at any time and from time to time, without prior notice to the Borrower or any Guarantor, any such notice
being waived by each Obligor to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender
or any Affiliate of such Lender to or for the credit or the account of the Borrower or any Guarantor against any and all Obligations then due and owing by an Obligor under this Agreement or any other Loan Document to such Lender, now or hereafter
existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement or any Loan Document. Each Lender agrees promptly to notify the Borrower and the Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY RIGHT OF SET-OFF, BANKERS LIEN, OR THE
LIKE AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE BORROWER OR ANY GUARANTOR HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS. 14.16 Confidentiality. Each Lender and the Agent severally agrees to treat confidentially and not publish, disclose or otherwise
divulge any non-public information provided to any of them or any of their Affiliates by or on behalf of Holdings, the Borrower or any of their respective Subsidiaries or in connection with this Agreement, the other Loan Documents or the
Transactions; provided that nothing herein shall prevent such Person from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or
otherwise as required by applicable law, rule or regulation, or compulsory legal process based on the reasonable advice of counsel (in which case such Person agrees (except with respect to any audit or examination conducted by bank accountants or
any self-regulatory authority or Governmental Authority exercising examination or regulatory authority), to the extent practicable and permitted by applicable Law, rule or regulation, to inform you promptly thereof prior to disclosure),
(b) upon the request or demand of any regulatory authority having jurisdiction or purporting to have jurisdiction over such Person or any of its Affiliates (in which case such Person agrees (except with respect to any audit or examination
conducted by bank accountants or any regulatory authority exercising examination or regulatory authority), to the extent practicable and permitted by applicable Law, rule or regulation, to inform you promptly thereof prior to disclosure),
(c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Person or any of its Affiliates or any related parties thereto (including any of the persons referred to in clause
(f) below) in violation of any confidentiality obligations owing to the Borrower or any of its Subsidiaries or Affiliates, (d) to the extent that such information is or was received by such Person from a third party that is not, to
such Persons knowledge, subject to contractual or fiduciary confidentiality obligations owing to the Borrower, any of its Subsidiaries or Affiliates, (e) to the extent that such information is independently developed by such Person or its
Affiliates without the use of any confidential information and without violating the terms of this Agreement, (f) to such Persons Affiliates and to its and their respective directors, officers, employees, legal counsel, independent
auditors, professionals and other experts or agents who need to know such information in connection with this Agreement and -168-
who are informed of the confidential nature of such information or who are subject to customary confidentiality obligations of professional practice (with such Person, to the extent within its
control, responsible for such persons compliance with this Section 14.16), (g) for purposes of establishing a due diligence defense, (h) to potential or prospective Lenders, Participants or Assignees and to
any direct or indirect contractual counterparty to any swap or derivative transaction relating to the Borrower or any of its Subsidiaries, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this
paragraph); provided that, for purposes of this clause (h), (i) the disclosure of any such information to any Lenders, hedge providers, Participants or Assignees, or prospective Lenders, hedge providers, Participants or Assignees
referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider, Participant or Assignee, or prospective Lender, hedge provider, Participant or Assignee that such information is being disseminated on a
confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to the Borrower and such Person) in accordance with the standard syndication processes of the Agent or customary market standards for
dissemination of such type of information, which shall in any event require click through or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall be made by such Person to
any person that is at such time a Disqualified Lender and (i) any rating agency to the extent that Borrower is given five (5) Business Days prior written notice prior to any such communication and/or disclosure. Notwithstanding
anything herein or in any other Loan Document to the contrary, the Agent shall not (i) be responsible for, have any liability with respect to, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of
this Agreement relating to Disqualified Lenders or have any liability with respect to or arising out of any assignment or participation of Term Loans or Term Loan Commitments to any Disqualified Lender and (ii) have any liability with respect
to any disclosure of confidential information to any Disqualified Lenders, except in each case of foregoing clauses (i) and (ii), to the extent any such liability results directly from the Agents gross negligence, bad faith or willful
misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). 14.17 Conflicts with
Other Loan Documents. Unless otherwise expressly provided in this Agreement (or in another Loan Document by specific reference to the applicable provision contained in this Agreement), if any provision contained in this Agreement conflicts with
any provision of any other Loan Document (other than any Intercreditor Agreement), the provision contained in this Agreement shall govern and control. 14.18 No Fiduciary Relationship. Each Obligor acknowledges and agrees that, (i) in connection with all aspects of each
transaction contemplated by this Agreement, the Obligors, on the one hand, and the Appointed Agents, the Arrangers, the Lenders and each of their Affiliates through which they may be acting (collectively, the Applicable Entities),
on the other hand, have an arms-length business relationship that creates no fiduciary duty on the part of any Applicable Entity, and each Obligor expressly disclaims any fiduciary relationship, (ii) the Applicable Entities may be engaged in a
broad range of transactions that involve interests that differ from those of such Obligor, and no Applicable Entity has any obligation to disclose any of such interests to such Obligor and (iii) such Obligor has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each Obligor further acknowledges and agrees that such Obligor is responsible for making its own independent judgment with respect to the transactions contemplated by
this Agreement and the process leading thereto, and agrees that it will not claim that the Applicable Entities have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to such Obligor or its affiliates, in
connection with such transactions or the process leading thereto. -169-
14.19 Judgment Currency. If for the purpose of obtaining judgment in any court
it is necessary to convert an amount due hereunder in the currency in which it is due (the Original Currency) into another currency (the Second Currency), the rate of exchange applied shall be that at which, in
accordance with normal banking procedures, the Agent could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two (2) Business Days preceding that on which judgment is given. Each
Obligor agrees that its obligation in respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the
Agent receives payment of any sum so adjudged to be due hereunder in the Second Currency, the Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the
Second Currency so paid; and if the amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, each Obligor agrees as a separate obligation and notwithstanding any
such payment or judgment to indemnify the Agent against such loss. The term rate of exchange in this Section 14.19 means the spot rate at which the Agent, in accordance with normal practices, is able on the relevant date to
purchase the Original Currency with the Second Currency, and includes any premium and costs of exchange payable in connection with such purchase. 14.20 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not on
behalf of any Lender) hereby notifies each Obligor that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Act), it is required to obtain, verify and
record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will allow such Lender or the Agent, as applicable, to identify each Obligor in accordance with the Act. Each
Obligor shall, promptly following a request by the Agent or any Lender, provide all documentation and other information that the Agent or such Lender requests in order to comply with its ongoing obligations under applicable know your
customer an anti-money laundering rules and regulations, including the Act. 14.21 Acknowledgement and Consent to Bail-In
of Affected Financial Institutions. (a) 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 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: (A) a reduction in full or in part or
cancellation of any such liability; (B) 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 -170-
(C) 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. 14.22 Acknowledgement Regarding Any
Supported QFCs. 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): (a) 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. (b) As used in this Section 14.22, the following terms have the following meanings: 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. Covered Entity means any of the following: (i) a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b);
or (iii) a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b). -171-
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. 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). [Remainder of Page Left Blank] -172-
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date first above
written [Signature Page to Term
Loan Credit Agreement]
[Signature Page to Term
Loan Credit Agreement]
[Signature Page to Term
Loan Credit Agreement]
[Signature Page to Term
Loan Credit Agreement]
[Signature Page to Term
Loan Credit Agreement]
EXHIBIT B Schedule 8.11 PERMITTED
INVESTMENTS Equity Ownership: Owner Issuer Type of Organization No. of Shares or Interests Owned 21,195.924 Series B-1 Preferred Units
Owner Issuer Type of Organization No. of Shares or Interests Owned U.S. Well Services Holdings, LLC* (successor by
conversion to U.S. Well Services, Inc.) Effective immediately upon consummation of the U.S. Well Merger
EXHIBIT C Schedule 8.29 CERTAIN
POST-CLOSING OBLIGATIONS 1. Within three (3) Business Days following the Closing Date (or such longer period as may be agreed to
by the Agent, with the consent or at the direction of the Required Lenders, which extension and consent shall be in writing and may be delivered by email), the Borrower shall deliver a certificate of a Responsible Officer of the Borrower, certifying
to the Agent that the FTS Distribution and Contribution Transaction has been consummated and attaching all related documents. 2. Within
five (5) Business Days following the Closing Date (or such longer period as may be agreed to by the Agent, with the consent or at the direction of the Required Lenders, which extension and consent shall be in writing and may be delivered by
email), the Borrower shall deliver the following to the Agent (provided that upon the consummation of the FTS Distribution and Contribution Transaction, items (b), (c), and (d) of this paragraph shall no longer be required to be
delivered to the Agent): a. an original Intercompany Subordinated Note, together with an instrument of transfer endorsed
in blank. b. original Irrevocable Proxies and Registration Pages as required under each of the FTS Pledge Agreements. c. an original Uncertificated Stock Control Agreement, dated as of March 4, 2022, by and among Farris Wilks, as grantor,
the Collateral Agent and FTS International, Inc. d. an original Uncertificated Stock Control Agreement, dated as of
March 4, 2022, by and among THRC Holdings, LP, as grantor, the Collateral Agent and FTS International, Inc. 3. Each Obligor shall
enter into, as soon as possible after the Closing Date and in any event, within forty-five (45) Business Days after the Closing Date (or such longer period as may be agreed to by the Agent, with the consent or at the direction of the Required
Lenders, which extension and consent shall be in writing and may be delivered by email), effective Control Agreements, in form and substance reasonably satisfactory to the Agent, with respect to each deposit account, securities account, and
commodity account of the Obligors existing on the Closing Date (other than Excluded Accounts), as required under Section 3 of the Security Agreement, including such deposit accounts, securities accounts, and commodity accounts of the Obligors
listed on Schedule V of each of the Perfection Certificates delivered to the Agent on the Closing Date, provided for the avoidance of doubt, no Control Agreement shall be required to be entered into or delivered for any Excluded Accounts.
4. Within forty-five (45) days following the Closing Date (or such longer period as may be agreed to by the Agent, with the consent
or at the direction of the Required Lenders, which extension and consent shall be in writing and may be delivered by email), the Obligors shall deliver or cause to be delivered to the Agent the certificates of insurance and endorsements to their
insurance policies, required under Section 8.5, in form and substance reasonably satisfactory to the Agent. 5. Within ninety
(90) days following the Closing Date (or such longer period as may be agreed to by the Agent, with the consent or at the direction of the Required Lenders, which extension and consent shall be in writing and may be delivered by email), the
Borrower shall deliver to the Agent the Mortgages and all other documents and agreements, as required under the Collateral and Guarantee Requirement definition set forth in the Credit Agreement, in connection with the Real Estate listed under
Schedule 7.2 of the Credit Agreement, provided that for the avoidance of doubt, Mortgages shall not be required to be entered into or delivered for any Excluded Real Property or Real Estate constituting Excluded Assets.
6. Within ninety (90) days following the Closing Date (or such longer period as may be
agreed to by the Agent, with the consent or at the direction of the Required Lenders, which extension and consent shall be in writing and may be delivered by email), the Borrower and each Guarantor, as applicable, shall: a. cause all Titled Goods listed on Schedule VI of the Security Agreement to be properly titled in the name of the Borrower or
Guarantor, as applicable, with the Collateral Agents Lien noted thereon; and b. deliver or cause to be delivered to
the Collateral Agent originals of all such Certificates of Title for such Titled Goods with the Collateral Agents Lien noted thereon. 7. Within ninety (90) days after the Second Amendment Effective Date (or such later date as the Agent reasonably agrees to in writing):
a. the Agent shall have received all due diligence information regarding the New Obligors insurance coverage, including
insurance endorsements, to the extent required to be carried pursuant to Section 8.5 of this Agreement b. the New
Obligors, as applicable, shall deliver or cause to be delivered to the Agent originals of such Certificates of Title for such Titled Goods acquired pursuant to the U.S. Well Merger, with the Agents Lien noted thereon, to the extent required to
be delivered pursuant to the Collateral and Guarantee Requirement; and c. the New Obligors, as applicable, shall enter
into effective Control Agreements, in form and substance reasonably satisfactory to the Agent, with respect to each deposit account, securities account, and commodity accounts of the New Obligors existing on the Second Amendment Effective Date
(other than such deposit accounts, securities accounts, and commodity accounts that constitute Excluded Accounts) to the extent required under the Security Agreement (other than such deposit accounts, securities accounts, and commodity accounts that
constitute Excluded Accounts).
Apportionment, Application and Reversal of Payments
9092
Indemnity for Returned Payments
9193
Agents and Lenders Books and Records
9193
ARTICLE V
TAXES, YIELD PROTECTION AND ILLEGALITY
Taxes
9194
Illegality
9497
Increased Costs and Reduction of Return
9597
Funding Losses
9698
Inability to Determine Rates
9698
Certificates of Agent
98100
Survival
98100
Assignment of Term Loan Commitments Under Certain Circumstances
98100
ARTICLE VI
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
Books and Records
99101
Financial Information
99101
Notices to the Agent
102104
ARTICLE VII
GENERAL WARRANTIES AND REPRESENTATIONS
Authorization, Validity, and Enforceability of this Agreement and the Loan Documents
103105
Validity and Priority of Security Interest
104106
Organization and Qualification
104106
Subsidiaries; Stock
104107
Financial Statements
105107
Solvency
105107
Property
105107
Intellectual Property
106108
Litigation
106108
Labor Disputes
106108
Environmental Laws
106108
No Violation of Law
107109
No Default
107109
ERISA Compliance
107109
Taxes
107109
Investment Company Act
107109
Use of Proceeds
108109
Margin Regulations
108110
No Material Adverse Change
108110
Full Disclosure
108110
Government Authorization
108110
Anti-Terrorism Laws
109111
FCPA
109111
Sanctioned Persons
109111
Designation of Senior Debt
109111
Insurance
109111
FTS Assets
109111
ARTICLE VIII
AFFIRMATIVE AND NEGATIVE COVENANTS
Taxes
110112
Legal Existence and Good Standing
110112
Compliance with Law; Maintenance of Licenses
110112
Maintenance of Property, Inspection
110112
Insurance
111113
Environmental Laws
112114
Compliance with ERISA
112114
Dispositions
112114
Mergers, Consolidations, etc.
112114
Distributions
113116
Investments
117119
Debt
117119
Prepayments of Debt
120122
Transactions with Affiliates
121123
Business Conducted
124126
Liens
124126
Restrictive Agreements
124126
Restrictions on FTS Acquisition Transactions
126128
Fiscal Year; Accounting
126129
Financial Covenants
126129
Information Regarding Collateral
127130
Ratings
127130
Additional Obligors; Covenant to Give Security
128130
Use of Proceeds
129132
Further Assurances
129132
Designation of Subsidiaries
; [**]
130132
Passive Holding Company; Etc.
131134
Amendments to Certain Documents
133137
Certain Post-Closing Obligations
134137
134137
Conditions Precedent to Effectiveness of Agreement and Making of Term Loans on the Closing Date
Governing Law; Choice of Forum; Service of Process
161163
WAIVER OF JURY TRIAL
161164
Survival of Representations and Warranties
162164
Other Security and Guarantees
162164
Fees and Expenses
162164
Notices
162165
Binding Effect
163166
Indemnity of the Agent, the Collateral Agent, the Arrangers and the Lenders
163166
Limitation of Liability
164167
Final Agreement
165167
Counterparts; Facsimile Signatures
165167
Captions
165168
Right of Setoff
165168
Confidentiality
166168
Conflicts with Other Loan Documents
167169
No Fiduciary Relationship
167169
Judgment Currency
167170
USA PATRIOT Act
168170
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
168170
Acknowledgement Regarding Any Supported QFCs
168171
EXHIBITS AND SCHEDULES
EXHIBIT A
FORM OF NOTICE OF BORROWING
EXHIBIT B
FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT E
PERFECTION CERTIFICATE
EXHIBIT F
FORM OF SOLVENCY CERTIFICATE
EXHIBIT G
FORM OF CLOSING CERTIFICATE
EXHIBIT H
FORM OF INTERCOMPANY SUBORDINATED NOTE
EXHIBIT I-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT I-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT J
FORM OF TERM LOAN NOTE
EXHIBIT K
FORM OF ABL INTERCREDITOR AGREEMENT
EXHIBIT L
FORM OF MONTHLY REPORT
EXHIBIT M
FORM OF SHARED SERVICES AGREEMENT
EXHIBIT N
FORM OF HOLDINGS LLC AGREEMENT
SCHEDULE 1.1
LENDERS TERM LOAN COMMITMENTS
SCHEDULE 1.2
GUARANTORS
SCHEDULE 1.3
IMMATERIAL SUBSIDIARIES
SCHEDULE 1.4
UNRESTRICTED SUBSIDIARIES
SCHEDULE 1.5
CLOSING DATE SECURITY DOCUMENTS
SCHEDULE 7.2
REAL PROPERTY
SCHEDULE 7.4
SUBSIDIARIES; STOCK
SCHEDULE 7.17
USE OF PROCEEDS
SCHEDULE 8.11
PERMITTED INVESTMENTS
SCHEDULE 8.12
DEBT
SCHEDULE 8.14
AFFILIATE TRANSACTIONS
SCHEDULE 8.15
BUSINESSES CONDUCTED
SCHEDULE 8.16
LIENS
SCHEDULE 8.17
RESTRICTIVE AGREEMENTS
SCHEDULE 8.23
DEPOSIT ACCOUNTS
SCHEDULE 8.27
HOLDINGS OPERATIONS
SCHEDULE 8.29
CERTAIN POST-CLOSING OBLIGATIONS
SCHEDULE 9.1
EXISTING DEBT
I
≥ 2.00:1.00
8.00%
7.00%
II
< 2.00:1.00
7.25%
6.25%
, ; provided that, any such security interests in the Collateral shall be subject
to the terms of the ABL Intercreditor Agreement
subject, in each of ; clauses (i) and (ii), to the terms of the ABL Intercreditor Agreement
and
(ix(ix) all of U.S. Well Services Holdings, LLCs interests under the Enterprise Equipment Lease
Agreement and all of the vehicles at any time leased thereunder, to the extent the outstanding obligations of U.S. Well Services Holdings, LLC does not exceed $10,000,000 at any time, (x) to the extent that the U.S. Well Direct Loans remain
outstanding, certain equipment described therein and accessions thereto, having an aggregate Fair Market Value of not more than $15,000,000, pledged to secure such U.S. Well Direct Loans pursuant to the documentation evidencing the U.S. Well Direct
Loans, provided that any inflationary increases in value shall not cause the violation of this cap and (xi) the assets of an Excluded Subsidiary (the assets excluded pursuant to this
clause (c), collectively, the Excluded Assets; provided that notwithstanding anything herein to the contrary, Excluded Assets shall not include any proceeds, replacements or substitutions of Collateral (unless such
proceeds, replacements or substitutions otherwise constitute Excluded Assets)), (d) the original Flotek Notes shall not be required to be delivered to the Agent until June 30, 2022 (to the extent that the Flotek Notes have not been
converted into Flotek Stock by such date), (e) share certificates of Immaterial Subsidiaries and Unrestricted Subsidiaries (other than Specified Unrestricted Subsidiaries) shall not be required to be delivered, (f) no perfection actions
shall be required (i) with respect to letter of credit rights, except to the extent perfection is accomplished solely by the filing of a UCC financing statement (it being understood that no actions shall be required to perfect a security
interest in letter of credit rights, other than the filing of a UCC financing statement) and (ii) no perfection actions will be required in regards to any Commercial Tort Claim (in addition to filing the financing statements (which cover
commercial tort claims) filed on the Closing Date and/or in connection with the joinder of Obligors after the Closing Date), unless such Commercial Tort Claim has an individual value of at least $5,000,000, and (g) other than with
(10)
(d)
and (d) each other Person, who, in a writing accepted by the Agent, guarantees payment or performance in whole
or in part of the Obligations and (e) immediately after giving effect to the U.S. Well Merger, the U.S.
Well Entities. As of the Agreement Date, the Guarantors, in addition to the Borrower to the extent set forth in clause (a), are Holdings, Services, Manufacturing, Best Pump, Alpine and,
upon FTS Manufacturing and FTS Services being contributed to Holdings pursuant to the FTS Distribution and Contribution Transaction, FTS Manufacturing and FTS Services.
FirstSecond
Amendment Effective Date and identified in Schedule 8.11 to this Agreement; and (ii) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any Investment
permitted by clause (b)(i) existing on the
FirstSecond
Amendment Effective Date; provided that the aggregate amount of the Investments permitted pursuant to this clause (b) is not increased from the aggregate amount of such Investments
on the
FirstSecond
Amendment Effective Date except pursuant to the terms of such Investment as of the FirstSecond Amendment Effective Date or as otherwise permitted by
Section 8.11;
and
and
Percentage
0.11448
%
0.26161
%
0.42826
%
0.71513
%
(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (wy) above.
or, (ii) any Junior Debt (any such payment in
respect of Junior Debt, a Junior Debt Payment), except, in the case of this clause (ii), (A) regularly scheduled repayments, purchases or redemptions of Junior Debt and regularly scheduled payments of interest, fees,
expenses and premiums on any such Junior Debt, provided that such prepayment is expressly permitted under the terms of the ABL Intercreditor Agreement, or another customary intercreditor agreement or arrangements reasonably satisfactory to
the Agent, the Required Lenders and the Borrower, or other applicable subordination agreement reasonably satisfactory to the Agent, the Required Lenders and the Borrower; (B) any prepayments, redemptions, purchases, defeasances or other
satisfactions of any Junior Debt in connection with any Refinancing thereof expressly permitted under this Agreement; (C) any prepayments, redemptions, purchases, defeasances or other satisfactions of any Junior Debt required as a result of any
Permitted Disposition of any property securing such Junior Debt to the extent that such security is expressly permitted under this Agreement and such prepayment is permitted under the terms of the ABL Intercreditor Agreement, or another customary
intercreditor agreement or arrangements reasonably satisfactory to the Agent, the Required Lenders and the Borrower, or other applicable subordination agreement reasonably acceptable to the Agent, the Required Lenders and the Borrower, as the case
may be; (D) the conversion of any Junior Debt to Stock (other than Disqualified Stock) of Holdings, the Borrower or any Parent Entity; (E) so long as (1) no Default or Event of Default shall have occurred and be continuing or would
result therefrom and (2) the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to such Junior Debt Payment, does not exceed 0.75:1.00, then prepayments, redemptions,
purchases, defeasances and other satisfactions of any Junior Debt in an aggregate amount not to exceed the Available Amount at such time; and (F) prepayments, redemptions, purchases, defeasances and other satisfactions of Junior Debt in an
aggregate amount not to exceed, in the aggregate
$2,000,000.2,000,000
or (iii) [**]. Notwithstanding anything to the contrary contained in this Agreement, Section 8.13 shall not apply to the Debt incurred in connection with the First Financial Loan
Documents.
and
and (t) restrictions and conditions imposed by any extension, renewal, amendment, restatement, modification, increase, supplement, refunding, refinancing or replacement of the contracts, instruments or obligations
referred to in clauses (a) through (su) above; provided that such extension, renewal,
amendment, restatement, modification, increase, supplement, refunding, refinancing or replacement is, in the good faith judgment of the Borrower, not materially more restrictive with respect to such restriction or condition taken as a whole than
those prior to such extension, renewal, amendment, restatement, modification, increase, supplement, refunding, refinancing or replacement.
Test Period End Date
Maximum Total Net Leverage Ratio
June 30, 2022
2.00:1.00
September 30, 2022
1.55:1.00
December 31, 2022
1.55:1.00
March 31, 2023 and thereafter
1.25:1.00
(d) Notwithstanding anything to the contrary contained herein,
the Shared Services Agreement, the Tax Receivable Agreement, [**] or any documentation governing Junior Debt or (B) the
Lenders any term or condition of any Charter Document of Holdings, the Borrower or any Subsidiary that is a Guarantor (it being understood and agreed that, in the case of each of clauses (A) and (B), any amendment, modification or change to any
such documentation that has the effect of (x) increasing the amount, rate or frequency of any payment, reimbursement, repurchase, dividend or distribution payable thereunder, (y) changing any right of redemption, retirement or put option
set forth therein or (z) changing the terms of Section 4.6(b)(ii)(B) or (C) of the Holdings LLC Agreement (including, for the avoidance of doubt, in the case of each of clauses (x), (y) and (z), any Distribution resulting
therefrom), shall, in each case, be deemed to be materially adverse to the interests of the Lenders); provided that, in the case of any Charter Document of Holdings (other than with respect to clause (z) above), such amendment, modification
or change shall be permitted to the extent that Holdings and its Restricted Subsidiaries shall not be required to take any action, or otherwise be required to make any payment, reimbursement, repurchase, dividend or distribution or exercise any
redemption, retirement or put option, based on such amendment, modification or change that would not be prohibited under this Agreement (including, for the avoidance of doubt, any amendment to the Charter Document for Holdings contemplated by the
IPO Transactions) (notwithstanding any other provisions set forth herein, it being understood and agreed that any amendments, modifications, restatements or supplements to the Holdings LLC Agreement occurring after the date hereof in accordance with
the provisions set forth in the definition of Holdings LLC Agreement set forth herein shall not be prohibited by this Agreement).
is and [**] are not then in effect, to the applicable Obligor. Promptly upon consummation of the FTS Distribution and Contribution Transaction, solely to the extent true, Borrower shall send a certificate to Agent confirming
that FTS does not own any assets other than the Stock of Holdings, net operating losses with immaterial value and/or other property and assets with immaterial value (FTS Distribution and Contribution Certificate). Notwithstanding any
other provisions set forth herein, upon the full and complete consummation of the FTS Distribution and Contribution Transaction and Agents receipt of the FTS Distribution and Contribution Certificate, (i) each of the FTS Pledge Agreements
and the FTS Control Agreements shall be deemed terminated and released (automatically and through no further action of any Person), (ii) FTS shall no longer be deemed to be party to the Security Agreement or any other Loan Document
(automatically and through no further action of any Person), (iii) the Collateral Agents Liens on the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be
If to the Agent:
Piper Sandler Finance LLC
Attention: Amrit Agrawal
With a copy
(which shall not constitute notice) to:
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036-8299
If to the Borrower:
ProFrac Holdings II, LLC
With a copy
(which shall not constitute notice) to:
Brown Rudnick LLP
If to a Lender:
To the address of such Lender set forth on the signature page hereto or on the Assignment and Acceptance for such Lender, as applicable
PROFRAC HOLDINGS, LLC, as Holdings
By:
Name:
Title:
PROFRAC HOLDINGS II, LLC, as the Borrower
By:
Name:
Title:
PROFRAC SERVICES, LLC
By:
Name:
Title:
PROFRAC MANUFACTURING, LLC
By:
Name:
Title:
BEST PUMP AND FLOW, LLC
By:
Name:
Title:
ALPINE SILICA, LLC
By:
Name:
Title:
Effective upon the consummation of the FTS Acquisition:
FTS INTERNATIONAL, INC.
By:
Name:
Title:
FTS INTERNATIONAL SERVICES, LLC
By:
Name:
Title:
FTS INTERNATIONAL MANUFACTURING, LLC
By:
Name:
Title:
PIPER SANDLER FINANCE LLC,
as the Agent and the Collateral Agent
By:
Name:
Title:
[LENDER SIGNATURE PAGES TO BE ADDED]
Percentage
Ownership
ProFrac Holdings, LLC
ProFrac Holdings II, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
IOT-eq, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Alpine Silica, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Best Pump and Flow LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
EKU Power Drives GmbH
Limited Liability Company
Membership Interests
75%
EKU Power Drives GmbH
EKU Power Drives, Inc.
Corporation
Stock
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
120,000 Series A-1 Preferred Units
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
100%
ProFrac Holdings II, LLC
FTS International Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
FTS International Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica of Monahans, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica Sales, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
AG PSC Funding LLC
Limited Liability Company
Membership Interests
100%
Percentage
Ownership
ProFrac Holdings II, LLC*
U.S. Well Services Holdings, LLC (successor by conversion to U.S. Well Services, Inc.)
Corporation
Membership Interests
100%
USWS Holdings LLC
Limited Liability Company
Membership Interests
100%
USWS Holdings LLC*
U.S. Well Services, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 10, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 11, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Transportation, LLC
Limited Liability Company
Membership Interests
100%
*
EXHIBIT 10.2
CERTAIN INFORMATION, IDENTIFIED BY, AND REPLACED WITH, A MARK OF [**] HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE AND CONFIDENTIAL.
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this Amendment), dated as of November 1, 2022, relating to the Credit Agreement referred to below, is made by and among PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the Borrower), PROFRAC HOLDINGS, LLC, a Texas limited liability company (Holdings), the Guarantors party hereto (including the New Obligors referred to below), each of the Lenders party hereto (including the New Lender referred to below), the Swingline Lender, the Letter of Credit Issuers and JPMORGAN CHASE BANK, N.A., as the Agent and the Collateral Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, Holdings and the other Obligors from time to time party thereto, the Lenders from time to time party thereto, the Letter of Credit Issuers from time to time party thereto, the Swingline Lender, the Agent and the Collateral Agent have entered into the Credit Agreement dated as of March 4, 2022 (as amended by that certain First Amendment to Credit Agreement dated as of July 25, 2022 and as further amended, supplemented, waived or otherwise modified from time to time immediately prior to the effectiveness of this Amendment, the Existing Credit Agreement, and, as amended by this Amendment, and as further amended, restated, supplemented or otherwise modified from time to time after the effectiveness of this Amendment, the Credit Agreement);
WHEREAS, the Borrower, Holdings, the other obligors from time to time party thereto, the lenders from time to time party thereto (the Term Lenders) and Piper Sandler Finance LLC, as administrative agent and collateral agent for the Term Lenders (in such capacity, the Term Loan Agent), have entered into that Term Loan Credit Agreement dated as of March 4, 2022 (as amended by that certain First Amendment to Term Loan Credit Agreement dated as of July 25, 2022 and as further amended, restated, amended and restated, extended, supplemented, waived or otherwise modified from time to time immediately prior to the date hereof, the Existing Term Loan Credit Agreement);
WHEREAS, the Borrower has notified the Agent, the Lenders, the Term Loan Agent and the Term Lenders that it is seeking, on or substantially concurrently with the Second Amendment Effective Date (as defined below), an amendment to the Term Loan Credit Agreement to, among other things, permit (a) U.S. Well Services Holdings, LLC (successor by conversion to U.S. Well Services, Inc.) and its Subsidiaries to become Restricted Subsidiaries of Holdings immediately prior to the payment in full of the Existing U.S. Well Debt and the termination and release of the Existing U.S. Well Liens and (b) [**] (the Second Amendment to Term Loan Credit Agreement);
WHEREAS, the Borrower has requested that BOKF, National Association (the New Lender) become a Lender under the Credit Agreement with a Revolving Credit Commitment in the amount shown on Schedule 1.1 to the Credit Agreement;
WHEREAS, in connection with this Amendment, upon consummation of the U.S. Well Merger on the Second Amendment Effective Date, each of the entities set forth on Annex I hereto (each, a New Obligor and collectively, the New Obligors), will be added as an Obligor under the Credit Agreement and will become a party to (by joinder or otherwise) the Guarantee Agreement and the Security Agreement;
WHEREAS, [**];
WHEREAS, [**];
WHEREAS, the Borrower has advised the Agent and the Lenders that, substantially contemporaneously with the consummation of the U.S. Well Merger in accordance with the U.S. Well Merger Documents on the Second Amendment Effective Date, U.S. Well Services Holdings, LLC, a Delaware limited liability company, as successor by conversion to U.S. Well Services, Inc., a Delaware corporation (U.S. Well) and its Subsidiaries (including U.S. Well Services, LLC, a Delaware limited liability company (USWS LLC)), will become Restricted Subsidiaries of the Borrower and will (a) prepay in full all Debt under (i) that certain ABL Credit Agreement dated as of May 7, 2019, by and among USWS LLC, as borrower, U.S. Well and the other guarantors from time to time party thereto, the lenders from time to time party thereto, and Bank of America, N.A., as administrative agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the U.S. Well ABL Credit Agreement), (ii) that certain Senior Secured Term Loan Credit Agreement, by and among USWS LLC, as borrower, U.S. Well and the other guarantors from time to time party thereto, the lenders from time to time party thereto, and CLMG Corp., as administrative agent and collateral agent (as amended, restated, supplemented or otherwise modified prior to the date hereof, the U.S. Well Senior Secured Term Loan Agreement), and (iii) that certain Business Loan Agreement, dated November 12, 2020, among U.S. Well, U.S. Well Services, LLC, and USWS Holdings LLC as borrower, and Greater Nevada Credit Union as lender (as amended, restated, supplemented and/or modified prior to the date hereof, the Business Loan Agreement; together with the U.S. Well ABL Credit Agreement
2
and the U.S. Well Senior Secured Term Loan Agreement, the U.S. Well Debt Documents) (such Debt referenced in clauses (i), (ii) and (iii), collectively, the Existing U.S. Well Debt) and (b) cause the Liens on all or substantially all of the assets of U.S. Well and its Subsidiaries securing the Existing U.S. Well Debt pursuant to the U.S. Well Debt Documents to be terminated and released (such Liens, collectively, the Existing U.S. Well Liens);
WHEREAS, the Borrower and the other Obligors have requested that the Lenders parties hereto hereby (a) consent to U.S. Well and its Subsidiaries becoming Restricted Subsidiaries of Holdings immediately prior the payment in full of the Existing U.S. Well Debt and the termination and release of the Existing U.S. Well Liens, which payment, termination and release thereof will happen after U.S. Well and its Subsidiaries become Restricted Subsidiaries but substantially contemporaneously with the closing of the U.S. Well Merger on the Second Amendment Effective Date, (b) agree to permit [**] to the extent permitted by the Credit Agreement and (c) agree to the increase in the Maximum Revolving Amount to $280,000,000 and agree to the other amendments to the Existing Credit Agreement provided for herein, in each case, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto hereby covenant and agree as follows:
SECTION 1. Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Amendment, shall have the meaning ascribed to such term in the Credit Agreement. Unless otherwise indicated, all section references in this Amendment refer to the Existing Credit Agreement.
SECTION 2. Limited Consent and Waiver. Notwithstanding the limitations of the Existing Credit Agreement and subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, the Agent and Lenders party hereto hereby (a) consent to U.S. Well and its Subsidiaries becoming Restricted Subsidiaries of Holdings immediately prior the payment in full of the Existing U.S. Well Debt and the termination and release of the Existing U.S. Well Liens (and agree that the existence of the Existing U.S. Well Debt, the Existing U.S. Well Liens and any restrictions in the U.S. Well Debt Documents will not trigger a Default or Event of Default under the Credit Agreement) and (b) waive any Defaults and/or Events of Default under the Existing Credit Agreement and the other Loan Documents solely relating to or arising from (i) U.S. Well and its Subsidiaries becoming Restricted Subsidiaries of Holdings immediately prior the payment in full of the Existing U.S. Well Debt and the termination and release of the Existing U.S. Well Liens and (ii) any defaults and/or events of default existing under the U.S. Well Debt Documents, including without limitation, as a result of the consummation of the U.S. Well Merger, so long as, in each case, (A) substantially contemporaneously with the effectiveness of this Amendment and the consummation of the U.S. Well Merger, (x) the U.S. Well Debt Documents and all commitments thereunder shall be terminated, (y) all of the Existing U.S. Well Debt shall have been paid in full and (z) all of the Existing U.S. Well Liens securing the Existing U.S. Well Debt shall have been released, in each case, in accordance with the terms of the U.S. Well Payoff Documents (as defined below) (the foregoing clause (A), the U.S. Well Payoff) and (B) no Event of Default exists on the Second Amendment Effective Date immediately after giving effect to this Amendment, the Second Amendment to Term Loan Credit Agreement and the U.S. Well Payoff. Notwithstanding the limitations of the Existing Credit Agreement and subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, the Agent and Lenders party hereto hereby consent to the Second Amendment to the Term Loan Credit Agreement to be dated as of the date hereof.
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Notwithstanding the foregoing, upon the failure to timely satisfy the U.S. Well Payoff, the limited consent and waiver granted in this Section 2 shall terminate, be void ab initio and be of no further force or effect.
Except as expressly set forth herein, nothing contained herein shall constitute or be deemed to constitute a consent to, or waiver of, any action or inaction of any Obligor which constitutes (or would constitute) a violation of any provision of the Credit Agreement or any other Loan Document, or which results (or would result) in a Default or Event of Default under the Credit Agreement or any other Loan Document, nor shall this limited consent and waiver constitute a course of conduct or dealing among the parties. The Agent, the Collateral Agent and the Lenders shall have no obligation to grant any future waivers, consents or amendments with respect to the Credit Agreement or any other Loan Document, and the parties hereto agree that this limited consent and waiver shall not waive, affect or diminish any right of the Agent, the Collateral Agent and the Lenders to hereafter demand strict compliance with the Credit Agreement and the other Loan Documents.
SECTION 3. Amendments. Subject to the satisfaction of the conditions precedent set forth in Section 5 hereof, the Existing Credit Agreement shall be amended effective as of the Second Amendment Effective Date in the manner provided in this Section 3.
(a) Amendments to the Existing Credit Agreement. Effective as of the Second Amendment Effective Date, the Existing Credit Agreement
(other than the signature pages, Annexes, Exhibits and the Schedules thereto and the heading on the cover page thereto) is hereby amended to (i) delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken
text) and (ii) add the double-underlined text (indicated textually in the same manner as the following example: double-underlined
text or double-underlined text) as set forth in the
marked pages of the Credit Agreement attached as Exhibit A hereto:
(b) Replacement of Schedule 1.1 to the Existing Credit Agreement. Schedule 1.1 of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 1.1 attached hereto, and Schedule 1.1 attached hereto shall be deemed to be attached as Schedule 1.1 to the Credit Agreement. After giving effect to this Amendment and any Borrowings made on the Second Amendment Effective Date, (a) each Lender (including the New Lender) who holds Loans in an aggregate amount less than its Pro Rata Share of all Loans shall advance new Loans which shall be disbursed to the Agent and used to repay Loans outstanding to each Lender who holds Loans in an aggregate amount greater than its Applicable Percentage of all Loans, (b) each Lenders (including the New Lenders) participation in each Letter of Credit, if any, shall be automatically adjusted to equal its Pro Rata Share of the Aggregate Revolving Outstandings and (c) such other adjustments shall be made as the Agent shall specify so that the Aggregate Revolving Outstandings applicable to each Lender (including the New Lender) equals its Pro Rata Share of the Aggregate Revolving Outstandings. Notwithstanding anything to the contrary in Section 5.4 of the Credit Agreement, the Lenders hereby waive, and the Borrower shall not be required to make, any break funding payments owing to such Lender solely as a result of the reallocation of Loans and adjustments described in this Section 3(b).
4
(c) New Schedule 1.1(c) to the Credit Agreement. Schedule 1.1(c) attached hereto as Schedule 1.1(c) shall be deemed to be attached as Schedule 1.1(c) to the Credit Agreement as of the Second Amendment Effective Date.
(d) Replacement of Schedule 7.4 to the Existing Credit Agreement. Schedule 7.4 of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 7.4 attached hereto, and Schedule 7.4 attached hereto shall be deemed to be attached as Schedule 7.4 to the Credit Agreement
(e) Replacement of Schedule 8.11 to the Existing Credit Agreement. Schedule 8.11 of the Existing Credit Agreement is hereby replaced in its entirety with Schedule 8.11 attached hereto, and Schedule 8.11 attached hereto shall be deemed to be attached as Schedule 8.11 to the Credit Agreement.
(f) Replacement of Exhibit D to the Existing Credit Agreement. Exhibit D of the Existing Credit Agreement is hereby replaced in its entirety with Exhibit D attached hereto, and Exhibit D attached hereto shall be deemed to be attached as Exhibit D to the Credit Agreement.
SECTION 4. New Lender. The New Lender hereby joins in, becomes a party to, and agrees to comply with and be bound by the terms and conditions of the Credit Agreement as a Lender thereunder to the same extent as if the New Lender were an original signatory thereto. The New Lender (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to become a Lender, (iii) from and after the Second Amendment Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its Pro Rata Share, shall have the obligations of a Lender thereunder, and (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.2 of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement on the basis of which it has made such analysis and decision independently and without reliance on the Agent, the Collateral Agent or any Lender; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Collateral Agent or any 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 the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. The New Lender hereby appoints and authorizes the Agent and the Collateral Agent to take such action as the Agent or the Collateral Agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent and the Collateral Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto.
5
SECTION 5. Conditions to Effectiveness. This Amendment shall become effective on the first date when, and only when, each of the conditions set forth below shall have been satisfied or waived in accordance with the terms herein (such date, the Second Amendment Effective Date):
(a) the Agent shall have received duly executed counterparts of this Amendment by the Borrower, Holdings, the Guarantors (including the New Obligors provided that the New Obligors signature pages shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date) and the Lenders (including the New Lender) as required hereby and pursuant to the Credit Agreement;
(b) the Agent shall have received all fees and amounts due and payable on or prior to the Second Amendment Effective Date to the extent invoiced at least two (2) Business Days prior to the Second Amendment Effective Date, including reimbursement or payment of all reasonable and documented or invoiced out-of-pocket costs and expenses associated with this Amendment, with such costs and expenses to be limited to the Attorney Costs;
(c) the Agent shall have received, such other fees as set forth in that certain letter agreement dated as of September 21, 2022, between Agent and the Borrower;
(d) the Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base as of September 30, 2022, along with customary supporting documentation requested by the Agent consistent with the documentation required pursuant to Section 6.4 of the Credit Agreement;
(e) the representations and warranties set forth in this Amendment or any other Loan Document shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date;
(f) no Default or Event of Default shall have occurred and be continuing or shall result, in each case, immediately after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement;
(g) contemporaneously with the execution of this Amendment, the Agent shall have received a copy of an executed Second Amendment to Term Loan Credit Agreement in form and substance reasonably satisfactory to the Agent;
(h) substantially contemporaneously with the effectiveness of this Amendment, the U.S. Well Merger shall be consummated in accordance with the terms of the U.S. Well Merger Documents;
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(i) the Agent shall have received a copy of an executed amendment to the Initial Intercreditor Agreement dated as of the Second Amendment Effective Date by and among the Agent, the Term Loan Agent, and the Obligors (provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date), in form and substance reasonably satisfactory to the Agent and the Required Lenders (Amendment to Intercreditor);
(j) the Agent shall have received appropriate UCC search results reflecting no prior Liens encumbering the New Obligors for the State of Delaware and any other jurisdiction reasonably requested by the Agent, other than the Existing U.S. Well Liens and any Permitted Liens;
(k) the Agent shall have received a UCC financing statement as the Agent may request with respect to each New Obligor to perfect the Liens granted pursuant to the Security Documents that may be perfected by the filing of a UCC financing statement;
(l) the Agent shall have received a Perfection Certificate in form and substance reasonably satisfactory to the Agent, duly executed and delivered by the New Obligors (provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date);
(m) the Collateral Agent shall have received a Security Agreement Supplement referred to in the Security Agreement and any required Intellectual Property security agreements as required by Section 8.22 of the Credit Agreement in form and substance reasonably satisfactory to the Collateral Agent, in each case duly executed and delivered by the New Obligors (provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date);
(n) the Agent shall have received a Guaranty Agreement Supplement referred to in the Guarantee Agreement as required by Section 8.22 of the Credit Agreement in form and substance reasonably satisfactory to the Agent, duly executed and delivered by the New Obligors (provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date);
(o) the Administrative Agent shall have received a certificate of insurance coverage and endorsements of each New Obligor evidencing that, effective upon the consummation of the U.S. Well Merger, the New Obligors are carrying insurance in accordance with Section 8.5 of the Credit Agreement;
(p) the Agent and the Lenders shall have received, and be reasonably satisfied in form and substance with, all documentation and other information required by bank regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including but not restricted to the USA PATRIOT Act, to the extent that Agent and/or the Lender have requested such documentation or other information at least five (5) Business Days prior to the Second Amendment Effective Date;
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(q) the Agent shall have received duly executed payoff letters dated on or prior to the Second Amendment Effective Date with respect to the U.S. Well Debt Documents that are reasonably satisfactory to the Agent and evidence reasonably satisfactory to the Agent (including UCC-3 financing statement terminations and any other release instrument) evidencing that the U.S. Well Debt Documents will be paid in full and terminated and the Existing U.S. Well Liens will be released substantially contemporaneously with the effectiveness of this Amendment and the consummation of the U.S. Well Merger (and in any event on the Second Amendment Effective Date) (collectively, the U.S. Well Payoff Documents);
(r) the Agent shall have received a certificate of a Responsible Officer of each of the Obligors (including the New Obligors provided that the signature pages of the New Obligors shall not become effective until the U.S. Well Merger has been consummated on the Second Amendment Effective Date), dated as of the Second Amendment Effective Date, in form and substance reasonably satisfactory to the Agent, certifying: (a) that attached to such certificate are a true and complete copy of the certificate of incorporation or formation and the limited liability company agreement or other organizational document of each Obligor, as in full force and effect on the Second Amendment Effective Date; (b) that attached to such certificate is a true and complete copy of resolutions duly adopted by the members or managers (or equivalent governing body) of each Obligor authorizing the transactions contemplated by this Amendment and the execution, delivery and performance of each Loan Document to be executed on the Second Amendment Effective Date (including this Amendment) to which such Obligor is a party; and (c) as to the incumbency and specimen signature of each officer and/or authorized signatory of the Obligors executing any Loan Document on the Second Amendment Effective Date;
(s) the Agent shall have received certificates of the appropriate state agencies with respect to the existence, qualification and good standing of each Obligor (including each New Obligor) from its state of formation, each dated as of a recent date prior to the Second Amendment Effective Date;
(t) the Agent shall have received an opinion from Brown Rudnick LLP and an opinion from The Whitten Law Firm, PC, counsel to the Obligors (including the New Obligors), in form and substance reasonably satisfactory to the Agent, addressed to the Agent and the Lenders as of the Second Amendment Effective Date;
(u) the Agent shall have received duly executed Notes (or any amendment or restatement thereof, as the case may be) payable to each Lender (including the New Lender) requesting a Note (or any amendment or restatement thereof, as the case may be), to the extent requested by any applicable Lender at least three (3) Business Days prior to the Second Amendment Effective Date in a principal amount equal to its Revolving Credit Commitment (as amended hereby) dated as of the Second Amendment Effective Date; and
(v) the Agent shall have received such other documents as the Agent or counsel to the Agent has reasonably requested at least three (3) Business Days prior to the Second Amendment Effective Date.
By executing and delivering its signature page to this Amendment, each Lender acknowledges and agrees that the conditions precedent set forth in this Section 5 have been satisfied.
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SECTION 6. Post-Closing Obligations. As promptly as practicable, and in any event within the time periods after the Second Amendment Effective Date specified in Schedule 6 attached hereto or such later date as the Agent reasonably agrees to in writing in its sole discretion, the Borrower and each other Obligor shall deliver the documents or take the actions specified in Schedule 6 attached hereto.
SECTION 7. Representations and Warranties of the Obligors. To induce the Agent and the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Agent and each Lender that as of the Second Amendment Effective Date:
(a) Holdings and each Obligor party to this Amendment has the power and authority to execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its shareholders, if necessary) to authorize the execution, delivery and performance of this Amendment. This Amendment has been duly executed and delivered by Holdings and each Obligor party hereto and constitutes the legal, valid and binding obligations of Holdings and each such Obligor, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors rights generally and general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing. Holdings and each Obligors execution, delivery and performance of this Amendment does not, after giving effect to this Amendment, the Amendment to Intercreditor and the Second Amendment to Term Loan Credit Agreement, (i) conflict with, or constitute a violation or breach of, the terms of (A) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
9
(d) after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date.
SECTION 8. Expenses. The Borrower hereby reconfirms the obligations of the Borrower to pay all reasonable and documented or invoiced out- of-pocket costs and expenses incurred by the Agent in connection with this Amendment, in each case, pursuant to Section 14.7 of the Credit Agreement.
SECTION 9. No Other Amendments or Waivers; Reaffirmation of the Obligors.
(a) Except as expressly provided herein and the Amendment to Intercreditor (i) the Credit Agreement and the other Loan Documents shall be unmodified and shall continue to be in full force and effect in accordance with their terms, (ii) the consents and agreements of the Agent and the Lenders set forth herein shall be limited strictly as written and shall not constitute a consent or agreement to any transaction not specifically described in connection with any such consent and/or agreement, and (iii) this Amendment shall not be deemed a waiver of any term or condition of any Loan Document and shall not be deemed to prejudice any right or rights which the Agent or any Lender may now have or may have in the future under or in connection with any Loan Document or any of the instruments or agreements referred to therein, as the same may be amended from time to time.
(b) This Amendment shall constitute a Loan Document.
(c) Each of the Borrower, Holdings and the other Obligors hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment, each Loan Document to which such Obligor is a party is, and the obligations of such Obligor contained in the Credit Agreement (as amended by this Amendment) or in any other Loan Document to which it is a party are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects, in each case as modified by this Amendment. For greater certainty and without limiting the foregoing, each of the Borrower, Holdings and the other Obligors hereby confirms that the existing security interests granted by such Obligor in favor of the Secured Parties pursuant to the Loan Documents in the Collateral described therein shall continue to secure the Obligations as and to the extent provided in the Loan Documents.
SECTION 10. Authorization and Consent to Intercreditor Agreement Amendment. By executing this Amendment, each Lender party hereto hereby authorizes and directs the Agent and Collateral Agent to execute and deliver the Amendment to Intercreditor and [**].
SECTION 11. No Reliance, Etc. For the avoidance of doubt, and without limitation of any other provisions of the Credit Agreement or the other Loan Documents, JPMorgan Chase Bank, N.A., in its capacity as Agent, shall be entitled to the benefits of Sections 13.3, 13.4 and 14.18 of the Credit Agreement as if such provisions were set forth in full herein mutatis mutandis.
SECTION 12. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except in accordance with Section 12.1 of the Credit Agreement.
10
SECTION 13. Integration; Effect of Modifications. This Amendment represents the entire agreement of the Borrower, the other Obligors, the Agent and the Lenders party hereto with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement, nor alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. It is understood and agreed that each reference in each Loan Document to the Credit Agreement, whether direct or indirect, shall hereafter be deemed to be a reference to the Credit Agreement as modified hereby and that this Amendment is a Loan Document.
SECTION 14. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; PROCESS AGENTS. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 14.3 OF THE CREDIT AGREEMENT IS HEREBY INCORPORATED BY REFERENCE INTO THIS AMENDMENT AS IF SUCH PROVISION WERE SET FORTH IN FULL HEREIN MUTATIS MUTANDIS AND SHALL APPLY HERETO.
SECTION 15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AMENDMENT.
SECTION 16. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment, the Credit Agreement, or any instrument or agreement required hereunder.
SECTION 17. Counterparts. This Amendment may be executed in any number of counterparts, and by each party hereto in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be
11
detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or other electronic transmission (e.g., a pdf, tif or similar format by electronic mail) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. The Agent may require that any such documents and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile or other electronic signature.
[Remainder of Page Intentionally Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first written above.
PROFRAC HOLDINGS II, LLC, | ||
as the Borrower | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
PROFRAC HOLDINGS, LLC, as Holdings | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
PROFRAC SERVICES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary | |
PROFRAC MANUFACTURING, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
BEST PUMP AND FLOW, LLC, | ||
as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary | |
ALPINE SILICA, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary | |
FTS INTERNATIONAL SERVICES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary | |
FTS INTERNATIONAL MANUFACTURING, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
SP SILICA OF MONAHANS, LLC, | ||
as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary | |
SP SILICA SALES, LLC, as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
AG PSC FUNDING LLC, | ||
as a Guarantor | ||
By: | /s/ Robert Willette | |
Name: | Robert Willette | |
Title: | Secretary |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
With respect to the New Obligors, effective immediately upon consummation of the U.S. Well Merger: | ||
U.S. WELL SERVICES HOLDINGS, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
U.S. WELL SERVICES, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
USWS HOLDINGS LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
USWS FLEET 10, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer | |
USWS FLEET 11, LLC, as a Guarantor | ||
By: | /s/ Lance Turner | |
Name: | Lance Turner | |
Title: | Chief Financial Officer |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
JPMORGAN CHASE BANK, N.A., | ||
as the Agent, the Swingline Lender, a Letter of Credit Issuer and a Lender | ||
By: | /s/ Dalton Harris | |
Name: | Dalton Harris | |
Title: | Authorized Officer |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
BANK OF AMERICA, N.A., | ||
as a Letter of Credit Issuer and a Lender | ||
By: | /s/ Tanner J. Pump | |
Name: | Tanner J. Pump | |
Title: | Senior Vice President |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
FIFTH THIRD BANK, NATIONAL ASSOCIATION, | ||
as a Letter of Credit Issuer and a Lender | ||
By: | /s/ James G. Zamborsky | |
Name: | James G. Zamborsky | |
Title: | Vice President |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
WEBSTER BUSINESS CREDIT A DIVISION OF WEBSTER BANK, N.A., | ||
as a Lender | ||
By: | /s/ Thanwantie Somar | |
Name: | Thanwantie Somar | |
Title: | Vice President |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
BOKF, NATIONAL ASSOCIATION, | ||
as the New Lender | ||
By: | /s/ Ryan P. Birnel | |
Name: | Ryan P. Birnel | |
Title: | Senior Vice President, Director, ACL |
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT PROFRAC HOLDINGS II, LLC]
ANNEX I
NEW OBLIGORS
1. U.S. Well Services Holdings, LLC, a Delaware limited liability company
2. U.S. Well Services, LLC, a Delaware limited liability company
3. USWS Holdings LLC, a Delaware limited liability company
4. USWS Fleet 10, LLC, a Delaware limited liability company
5. USWS Fleet 11, LLC, a Delaware limited liability company
EXHIBIT A
Conformed Credit Agreement
(see attached)
CREDIT AGREEMENT
Dated as of March 4, 2022
among
PROFRAC HOLDINGS, LLC,
as Holdings,
PROFRAC HOLDINGS II, LLC,
as the Borrower,
THE OTHER GUARANTORS
FROM TIME TO TIME PARTY HERETO,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as the Agent, the Collateral Agent, a Letter of Credit Issuer and the Swingline Lender,
and
JPMORGAN CHASE BANK, N.A.,
BANK OF AMERICA, N.A.
and
FIFTH THIRD BANK, NATIONAL ASSOCIATION
as the Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
i
ii
7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7.16 7.17 7.18 7.19 7.20 7.21 7.22 7.23 7.24 7.25 7.26 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 8.11 8.12 8.13 8.14 8.15 8.16 8.17 8.18 8.19 8.20 8.21 8.22 iii
iv
13.5 13.6 13.7 13.8 13.9 13.10 13.11 13.12 13.13 13.14 13.15 13.16 13.17 13.18 13.19 13.20 13.21 13.22 13.23 13.24 13.25 13.26 14.1 14.2 14.3 14.4 14.5 14.6 14.7 14.8 14.9 14.10 14.11 14.12 14.13 14.14 14.15 14.16 14.17 14.18 14.19 v
14.20 14.21 14.22 vi
EXHIBITS AND SCHEDULES vii
CREDIT AGREEMENT CREDIT AGREEMENT, dated as of March 4, 2022, among PROFRAC HOLDINGS, LLC, a Texas limited liability company
(Holdings, as hereinafter further defined), PROFRAC HOLDINGS II, LLC, a Texas limited liability company (the Borrower), the other Guarantors (as hereinafter defined) party hereto, the Lenders (as
hereinafter defined) and Letter of Credit Issuers (as hereinafter defined) from time to time party hereto and JPMORGAN CHASE BANK, N.A., as the Agent, the Collateral Agent and the Swingline Lender. RECITALS: WHEREAS, capitalized terms used and not defined herein shall have the respective meanings set forth for such terms in Section 1.1
hereof; WHEREAS, the Borrower has requested that, immediately upon the satisfaction in full (or waiver) of the applicable conditions
precedent set forth in Section 9.1 below, the Lenders and Letter of Credit Issuers extend credit to the Borrower in the form of an asset-based revolving credit facility in an initial aggregate principal amount of $100,000,000 of
Revolving Credit Commitments (the Revolving Credit Facility); WHEREAS, the Lenders have indicated their willingness to
extend such credit and the Letter of Credit Issuers have indicated their willingness to issue Letters of Credit, in each case on the terms and subject to the conditions set forth below; WHEREAS, in connection with the foregoing and as an inducement for the Lenders and the Letter of Credit Issuers to extend the credit
contemplated hereunder, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority lien (such priority subject to certain Liens permitted hereunder and the WHEREAS, in connection with the foregoing and as an inducement for the Lenders and the Letter
of Credit Issuers to extend the credit contemplated hereunder, each Guarantor has agreed to guarantee all of its Obligations and to secure its guarantees by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority
lien (such priority subject to certain Liens permitted hereunder and the AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties
hereto agree as follows: 9
ARTICLE I DEFINITIONS 1.1
Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below unless the context otherwise requires: Account Debtor means each Person obligated in any way on or in connection with an Account. Accounts means, with respect to each Obligor, all of such Obligors now owned or hereafter acquired or arising
accounts, as defined in the UCC, including any rights to payment of a monetary obligation for the sale or lease of goods or rendition of services, whether or not they have been earned by performance. Acquired EBITDA means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any
period, the amount for such period of Consolidated EBITDA of such Acquired Entity or Business or any Converted Restricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of the term
Consolidated EBITDA were references to such Acquired Entity or Business or any Converted Restricted Subsidiary and its subsidiaries that will become Restricted Subsidiaries), all as determined on a consolidated basis for such Acquired
Entity or Business or any Converted Restricted Subsidiary in accordance with GAAP. Acquired Entity or Business has the
meaning specified in the definition of the term Consolidated EBITDA. Additional Lender has the meaning
specified in Section 2.6(d). Adjusted Daily Simple SOFR means, with respect to any RFR Borrowing, an
interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for
purposes of this Agreement. Adjusted Term SOFR means, with respect to any Term Benchmark Borrowing for any Interest
Period, an interest rate per annum equal to (a) the Term SOFR for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to
the Floor for the purposes of this Agreement. Adjustment Date means the first day of each April, July, October and
January, as applicable. Affected Financial Institution means (a) any EEA Financial Institution or (b) any UK
Financial Institution. Affiliated Insurance Entity means an Affiliate of the Borrower that (a) is domiciled in
the State of Texas, (b) is a captive insurance company, (c) is registered and licensed by all applicable federal, state and local insurance agencies or regulators, including the Texas Department of Insurance and (d) provides insurance
policies to Holdings, the Borrower and its Restricted Subsidiaries at or below market rates. 10
Affiliate means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction
of the management and policies of the other Person, whether through the ownership of voting securities, by contract, or otherwise. The terms controlling and controlled shall have meanings correlative thereto. Agent means JPMorgan, in its capacity as the administrative agent for the Lenders under this Agreement, or any successor
agent appointed in accordance with this Agreement and the other Loan Documents. Agent Advances has the meaning
specified in Section 2.4(g). Agent-Related Persons means the Agent and the Collateral Agent, together with
their respective Affiliates, and the respective officers, directors, employees, agents, controlling persons, advisors and other representatives, successors and permitted assigns of the Agent and the Collateral Agent and their respective Affiliates.
Aggregate Revolver Outstandings means, at any date of determination and without duplication, the sum of (a) the
unpaid principal balance of Revolving Loans, (b) one hundred percent (100%) of the aggregate undrawn face amount of all outstanding Letters of Credit and (c) the aggregate amount of any Unpaid Drawings in respect of Letters of Credit.
Agreement means this Credit Agreement. Agreement Date means the date of this Agreement. Alpine means Alpine Silica, LLC, a Texas limited liability company. Alpine Acquisition means the acquisition by Holdings and/or its Affiliate(s) of 100% of the Stock of Alpine. Anti-Terrorism Laws means the USA PATRIOT Act and any Executive Order administered by the U.S. Treasury Department Office
of Foreign Assets Control (OFAC), and other laws and regulations relating to anti-money laundering, anti-corruption or economic sanctions, including without limitation all published economic sanctions imposed, administered or enforced from time to
time by the U.S. Department of State and OFAC. Applicable Entities has the meaning specified in
Section 14.18. Applicable Margin means a percentage per annum equal to (a) until the end of the first
full Fiscal Quarter completed after the Closing Date, (i) for Term Benchmark Loans or RFR Loans (to the extent applicable), 1.75%, and (ii) for Base Rate Loans, 0.75% and (b) thereafter, the following percentages per annum, based upon
Average Historical Availability as of the most recent Adjustment Date: 11
Average Historical Availability > 66.66% ≤ 66.66% but ≥ 33.33% < 33.33% The Applicable Margin shall be adjusted quarterly in accordance with the table above on each Adjustment Date
for the period beginning on such Adjustment Date based upon the Average Historical Availability as the Agent shall determine in good faith within ten (10) Business Days after such Adjustment Date (with any such change, for the avoidance of
doubt, being given retroactive effect to the Adjustment Date) and the Agent shall notify the Borrower promptly after such determination. Any increase or decrease in the Applicable Margin resulting from a change in the Average Historical Availability
shall become effective on the Adjustment Date. Applicable Unused Line Fee Margin means, for any day, a percentage per
annum equal to (a) initially, 0.375% per annum and (b) following the end of the first Fiscal Quarter ending after the Closing Date, the following percentages per annum, based upon Average Revolving Loan Utilization as of the most
recent Adjustment Date: Average Revolving Loan Utilization ≤ 50% > 50% Appointed Agents has the meaning specified in Section 13.1.
Appraisal has the meaning specified in Section 8.4. Approved Account Bank means a
financial institution at which any Obligor maintains an Approved Deposit Account. Approved Deposit Account means each
Deposit Account (other than any Designated Account) in respect of which an Obligor shall have entered into a Control Agreement. Approved Fund means any Person (other than a natural person) that is engaged in making, holding or investing in extensions
of credit in its ordinary course of business and is administered or managed by a Lender, an entity that administers or manages a Lender, or an Affiliate of either. Arrangers means (a) JPMorgan, Bank of America, N.A. and Fifth Third Bank National Association, each in their capacity
as a joint lead arranger of the Revolving Credit Facility and (b) JPMorgan, Bank of America, N.A. and Fifth Third Bank, National Association, each in their capacity as a joint bookrunner of the Revolving Credit Facility. 12
Assignee has the meaning specified in Section 12.2(a). Assignment and Acceptance means an assignment and acceptance agreement entered into by one or more Lenders and Eligible
Assignees (with the consent of any party whose consent is required by Section 12.2(a)), and accepted by the Agent, in substantially the form of Exhibit E or any other form approved by the Agent. Attorney Costs means and includes all reasonable and documented or invoiced fees, expenses and other charges of
(a) Vinson & Elkins L.L.P., as counsel to the Agent, (b) after the Closing Date, one additional counsel selected by, and as counsel for, the Required Lenders and their Affiliates, taken as a whole, and (c) if necessary, a
single firm of local counsel in each relevant jurisdiction, or any other counsel selected by the Agent (in addition to Vinson & Elkins L.L.P. as counsel for the Agent and any additional counsel for the Required Lenders and their Affiliates,
taken as a whole) otherwise retained with the Borrowers consent (such consent not to be unreasonably withheld, conditioned or delayed). Attributable Indebtedness when used with respect to any Sale Leaseback Transaction, as at the date of determination, the
present value (discounted at a rate equivalent to the Borrowers then-current weighted average cost of funds for borrowed money as at such date of determination, compounded on a semi-annual basis) of the total obligations of Holdings and each
of its Restricted Subsidiaries that is the lessee under the applicable lease for payments of base or fixed rent under such lease for the then remaining term thereof (excluding any renewal terms, except to the extent Holdings and each of its
Restricted Subsidiaries has exercised its right to renew such lease term for any such renewal term). Available Tenor
means, as of any date of determination and with respect to the then- current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component
thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and
not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of Interest Period pursuant to Section 5.5(c)(iv). Availability means, at any time (a) the lesser of (i) the Maximum Revolver Amount and (ii) the Borrowing Base,
minus (b) the sum of the Aggregate Revolver Outstandings. Available Equity Amount means, at any time (the
Available Equity Amount Reference Time), an amount equal to, without duplication, the sum of the following (but only to the extent Not Otherwise Applied) (a) the amount of any capital contributions or proceeds from equity
issuances received as cash equity by the Borrower (from issuance of Stock of Holdings or Parent Entity) and applied for usage as Available Equity Amount no later than 270 days after receipt of such amounts in cash, but excluding all proceeds from
the issuance of Disqualified Stock, Cure Amounts and the IPO, plus (b) the aggregate amount of all dividends, returns, interests, profits, 13
distributions, income and similar amounts (in each case, to the extent paid in cash or Cash Equivalents) received by the Borrower or any Restricted Subsidiary on Investments made using the
Available Equity Amount during the period from and including the Business Day immediately following the Closing Date through and including the Available Equity Amount Reference Time and applied for usage as Available Equity Amount no later than 270
days after receipt of such amounts in cash, minus (c) the sum, without duplication, and, without taking into account the proposed portion of the Available Equity Amount calculated above to be used at the applicable Available Equity
Amount Reference Time, of: (i) the aggregate amount of any Investments made by the Borrower or any Restricted Subsidiary
using the Available Equity Amount after the Closing Date and prior to the Available Equity Amount Reference Time; (ii)
the aggregate amount of any Distributions made by the Borrower using the Available Equity Amount after the Closing Date and prior to the Available Equity Amount Reference Time; and (iii) the aggregate amount expended on prepayments, purchases, redemptions, defeasements and satisfaction in respect of Junior
Debt made by the Borrower or any Restricted Subsidiary using the Available Equity Amount after the Closing Date and prior to the Available Equity Amount Reference Time; provided that during a Cash Dominion Period (or if a Cash Dominion Period would result after giving effect such usage of the Available Equity Amount)
(i)(A) the Available Equity Amount shall not be available to be used and (B) the period of time for use set forth in clause (a) above shall be tolled until after such Cash Dominion Period (or, in the event that the Available Equity
Amount is not available for usage because it would cause a Cash Dominion Period to occur, until after such Available Equity Amount is available for such usage without causing the occurrence of a Cash Dominion Period); provided further that
the proceeds from the equity issuance in connection with the Alpine Acquisition and Best Pump Acquisition shall, in each case, not increase the Available Equity Amount. Available Equity Amount Reference Time has the meaning specified in the definition of Available Equity Amount.
Average Historical Availability means, at any Adjustment Date, the average daily Availability for the three-month
period immediately preceding such Adjustment Date, divided by the Maximum Credit at such time. Average Liquidity
means, for any period, the sum of the aggregate amount of Liquidity for each day in such period divided by the number of days in such period. Average Revolving Loan Utilization means, at any Adjustment Date, the average daily Aggregate Revolver Outstandings
(excluding any Aggregate Revolver Outstandings resulting from any outstanding Swingline Loans) for the three-month period immediately preceding such Adjustment Date (or, if less, the period from the Closing Date to such Adjustment Date), divided by
the Maximum Revolver Amount at such time. 14
Back Stop Note means that certain unsecured subordinated promissory note
dated as of the Agreement Date, issued by Holdings to THRC Holdings, LP and/or its Affiliates (other than any Obligor) in the aggregate principal amount of $27,070,000. Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect
of any liability of an Affected Financial Institution. Bail-In Legislation means (a) with respect to any EEA
Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). Bank Product Reserve means a reserve equal to the aggregate amount of Obligations in respect of any Noticed Hedge, up to
the Swap Termination Value thereunder, as specified by the applicable Hedge Bank in writing to the Agent (with a copy to the Borrower), which amount may be increased with respect to any existing Secured Hedge Agreement at any time by further written
notice from such Hedge Bank to the Agent (with a copy to the Borrower) (which shall at all times include a reserve for the aggregate Swap Termination Values for all Noticed Hedges outstanding at that time). Bankruptcy Code means Title 11 of the United State Code, as amended, or any similar federal or state law for the relief of
debtors. Base Rate means for any day a fluctuating rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2% of 1% and (c) the Adjusted Term SOFR for a one month Interest Period as published two (2) U.S. Government Securities Business Days prior to such day (or if such
day is not a Business Day, the immediately preceding Business Day), plus 1.0%; provided that, for the purpose of this definition, the Adjusted Term SOFR for any day shall be based on the Term SOFR Reference Rate at approximately 6:00
a.m. New York City time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). If the Base Rate is being used as an alternate rate
of interest pursuant to Section 5.5 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 5.5(c)), then the Base Rate shall be the greater of clause (a) and
(b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for
purposes of this Agreement. Base Rate Loan means any Loan during any period for which it bears interest based on the
Base Rate, and all Agent Advances and Swingline Loans. Base Rate Term SOFR Determination Day has the meaning specified
in the definition of Term SOFR. 15
Basel III means, collectively, those certain agreements on capital
requirements, leverage ratios and liquidity standards contained in Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems, Basel III: International Framework for Liquidity Risk Measurement, Standards
and Monitoring, and Guidance for National Authorities Operating the Countercyclical Capital Buffer, each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented
by a Lenders primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory authority, as applicable. Basin Purchase and Sale Agreement mean a Purchase and Sale Agreement dated as of February 9, 2022 by and among CSP IV
Connect Acquisition, LLC, a Delaware limited liability company, Basin Special Situations LLC, a Delaware limited liability company, Basin Holdings LLC, a Delaware limited liability company, Basin Production and Completion LLC, a Delaware limited
liability company, and Holdings, as amended, restated, supplemented and/or modified from time to time. Basin Units
Acquisition means the acquisition by Holdings of the Purchased BPC Units pursuant to the Basin Purchase and Sale Agreement. Benchmark means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event and the
related Benchmark Replacement Date have occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then Benchmark means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has
replaced such prior benchmark rate pursuant to Section 5.5(c)(i). Benchmark Replacement means, for any
Available Tenor, the first alternative set forth in the order below that can be determined by the Agent for the applicable Benchmark Replacement Date: (a) the Adjusted Daily Simple SOFR; or (b) the sum of (i) the alternate benchmark rate that has been selected by the Agent and the Borrower as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body
or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time in the United States and (ii) the
related Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as determined pursuant to clause (a) or
(b) above would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. Benchmark Replacement Adjustment means, with respect to any replacement of the then-current Benchmark with an Unadjusted
Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may
16
be a positive or negative value or zero), that has been selected by the Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (a) any selection or
recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the appliable
Benchmark Replacement Date and/or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time. Benchmark
Replacement Conforming Changes means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of Base Rate, the
definition of Business Day, the definition of U.S. Government Securities Business Day, the definition of Interest Period or any similar or analogous definition (or the addition of a concept 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 Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Agent in a manner
substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of any such
Benchmark exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). Benchmark Replacement Date means, with respect to any Benchmark, the earliest to occur of the following events with respect
to such then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of
Benchmark Transition Event, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in
the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of Benchmark Transition Event, the first date on which
such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative;
provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof)
continues to be provided on such date. For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date
occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (B) the Benchmark
Replacement Date will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current
Available Tenors of such Benchmark (or the published component used in the calculation thereof). 17
Benchmark Transition Event means, with respect to any Benchmark, the
occurrence of one or more of the following events with respect to such then-current Benchmark: (a) a public statement or
publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such
Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such
component thereof); (b) a public statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark
(or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such
component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided
that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or
the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative. For the avoidance of doubt, a Benchmark Transition Event will be deemed to have occurred with respect to any Benchmark if a public
statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). Benchmark Unavailability Period means, with respect to any Benchmark, the period (if any) (a) beginning at the time
that a Benchmark Replacement Date pursuant to clause (a) or (b) of the definition thereof has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under
any Loan Document in accordance with Section 5.5(c) and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with
Section 5.5(c). 18
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. Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA)
that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or
Section 4975 of the Code) the assets of any such employee benefit plan or plan. Best Pump
means Best Pump & Flow, LLC, a Texas limited liability company. Best Pump Acquisition means the acquisition
by Holdings and/or its Affiliate(s) of 100% of the Stock of Best Pump. Board of Directors means, with respect to any
Person, (a) in the case of any corporation, the board of directors of such Person, (b) in the case of any limited liability company, the sole manager or the board of managers or managing member, of such Person, (c) in the case of any
partnership, the board of directors of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing. Book Value means book value as determined in accordance with GAAP. Borrower has the meaning set forth in the preamble of this Agreement. Borrowing means a borrowing hereunder consisting of Loans of one Type and Class made on the same day by Lenders to the
Borrower (or by the Swingline Lender, in the case of a Borrowing consisting of Swingline Loans, or by the Agent, in the case of a Borrowing consisting of an Agent Advance, by a Letter of Credit Issuer, in the case of the issuance of a Letter of
Credit hereunder). Borrowing Base means, at any time, an amount in Dollars equal to: (a) 85% of the Book Value of all Eligible Accounts (other than Eligible Unbilled Accounts) of the Obligors; plus (b) the lesser of (i) 80% of the Book Value of all Eligible Unbilled Accounts of the Obligors and (ii) 20% of the
Maximum Credit; plus (c) the least of (i) 70% of Eligible Inventory of the Obligors, valued at the lower of cost or
market value, determined on a first-in, first-out basis, (ii) 85% of the Net Orderly Liquidation Value of Eligible Inventory of the Obligors and (iii) 10% of the Maximum Credit; provided, that Inventory will not
be included in the Borrowing Base unless an Appraisal of Inventory satisfactory to Agent in its reasonable discretion has been completed in the prior twelve months, except (A) as otherwise provided in clause (q) of the definition of
Eligible Inventory set forth herein and (B) that, in the case of all other Inventory not included in the immediately preceding clause (i), Agent may, acting in its reasonable discretion, elect to include Inventory in the Borrowing Base prior to
completion of such an Appraisal up to the lesser of (x) 50% of Eligible Inventory of the Obligors, valued at the lower of cost or market value, determined on a first-in, first-out basis and (y) 10% of the Maximum Credit; minus 19
(d) the amount of all Reserves from time to time established by the Agent in
accordance with Section 2.5 or as otherwise permitted under this Agreement. Subject to the last paragraph in this definition,
the initial Borrowing Base shall be as set forth in the Borrowing Base Certificate delivered on the Closing Date. The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Agent
pursuant to Section 6.4, as adjusted to give effect to Reserves following such delivery established pursuant to Section 2.5. Notwithstanding anything to the contrary herein, no Accounts (subject to clause (r) of the definition of Eligible Accounts)
or Inventory (other than any Eligible Inventory to extent set forth in the proviso in clause (c) above and clause (q) of the definition of Eligible Inventory) acquired in connection with a Permitted Acquisition (including the
Permitted FTS Acquisition) will be included in the determination of the Borrowing Base until the Agent shall have conducted an Appraisal and/or Field Examination of such Accounts or Inventory, as the case may be, the results of which shall be
satisfactory to the Agent in its Reasonable Credit Judgment; provided that, any Accounts acquired by the Obligors directly or indirectly pursuant to the Permitted FTS Acquisition on the Closing Date (and any Accounts of the FTS Subsidiaries
subsequently arising) may be included in the Borrowing Base regardless of whether a Field Examination reasonably satisfactory to the Agent has been conducted with respect thereto until such time as such Field Examination is required to be delivered
pursuant to Section 8.29 (it being understood that during such period prior to the Agents receipt of such Field Examination, such Accounts may only be included in the calculation of the Borrowing Base to the extent such Accounts
satisfy all of the criteria set forth in the definition of Eligible Accounts other than the requirement for such Accounts to be subject to a Field Examination reasonably satisfactory to the Agent). Borrowing Base Certificate means a certificate by a Responsible Officer of the Borrower, substantially in the form of
Exhibit A (or another form reasonably acceptable to the Agent) setting forth the calculation of the Borrowing Base, including a calculation of each component thereof, all in such detail as shall be reasonably satisfactory to the Agent, as
adjusted pursuant to Section 2.5. All calculations of the Borrowing Base in connection with the preparation of any Borrowing Base Certificate shall originally be made by the Borrower and certified to the Agent; provided,
that the Agent shall have the right to review and adjust, in the exercise of its Reasonable Credit Judgment, any such calculation to the extent that such calculation is not in accordance with this Agreement and to adjust for Reserves in
accordance with Section 2.5; provided, further, that the Agent shall provide the Borrower prior written notice of any such adjustment. BPC means Basin Production and Completion LLC, a Delaware limited liability company. Business Day means any day (other than a Saturday or a Sunday) on which banks are open for business in New York City;
provided that, in relation to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings of such RFR Loan, any such day that is only an U.S. Government Securities
Business Day. 20
Capital Adequacy Regulation means any guideline, request or directive of
any central bank or other Governmental Authority, or any other Law, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank. Capital Expenditures means, with respect to Holdings and its Restricted Subsidiaries for any period, the aggregate of all
expenditures incurred by Holdings and its Restricted Subsidiaries during such period for purchases of property, plant and equipment or similar items which, in accordance with GAAP (other than repairs in the ordinary course), are or should be
included in the statement of cash flows of Holdings and its Restricted Subsidiaries during such period; provided that the term Capital Expenditures shall not include: (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed
from insurance proceeds or awards of compensation arising from the taking by eminent domain or condemnation of the assets paid on account of a Casualty Event, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent
that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of property, plant or equipment to the extent financed with the proceeds of Disposition of assets outside
the ordinary course of business, (iv) expenditures that constitute any part of consolidated lease expense to the extent
relating to operating leases, (v) any expenditures made as payments of the consideration for a Permitted Acquisition (or
other acquisitions constituting Permitted Investments) and expenditures made in connection with the Transactions, (vi)
expenditures to the extent Holdings or any of its Restricted Subsidiaries has received reimbursement in cash from a Person that is not an Affiliate of any of the Obligors and for which neither Holdings nor any of its Restricted Subsidiaries has
provided or is required to provide or incur, directly or indirectly, any consideration or obligation (other than rent) to such Person or any other Person (whether before, during or after such period); and (vii) the book value of any asset owned by Holdings or any Restricted Subsidiary prior to or during such period to the extent
that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period,
provided that (x) any expenditure necessary in order to permit such asset to be reused shall be included as a capital expenditure during the period in which such expenditure actually is made and (y) such book value shall have been
included in capital expenditures when such asset was originally acquired. 21
(viii) expenditures relating to the construction, acquisition, replacement,
reconstruction, development, refurbishment, renovation or improvement of any property which has been transferred to a Person other than the Borrower or a Restricted Subsidiary during the same fiscal year in which such expenditures were made pursuant
to a Sale Leaseback Transaction permitted under this Agreement to the extent to the cash proceeds received by the Borrower or such Restricted Subsidiary pursuant to such Sale Leaseback Transaction. Capital Lease means, as applied to any Person, all leases of property that have been or should be, in accordance with GAAP,
recorded as capitalized leases on the balance sheet of such Person. Capital Lease Obligation means, with respect to
any Capital Lease of any Person, the amount of the obligation of the lessee thereunder that, in accordance with GAAP, would appear on a balance sheet of such lessee in respect of such Capital Lease. Cash Dominion Period means (a) any period commencing upon the date that Availability shall have been less than the
greater of (i) 12.5% of the Maximum Credit and ( Cash
Equivalents means: (1) United States dollars or Canadian dollars; (2) (a) euro, pounds sterling or any national currency of any participating member state of the EMU or (b) other
currencies held by Holdings and its Restricted Subsidiaries from time to time in the ordinary course of business; (3)
securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. federal government or any country that is a member state of the EMU or any agency or instrumentality thereof the securities of which are unconditionally
guaranteed as a full faith and credit obligation of such government with maturities of 12 months or less from the date of acquisition; (4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $100.0 million in the case of U.S. banks or other U.S.
financial institutions and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks or other non-U.S. financial institutions; 22
(5) repurchase obligations for underlying securities of the types described
in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above; (6) commercial paper rated at least P-2 by Moodys or at least A-2 by S&P and in each case maturing within 12 months
after the date of creation thereof; (7) marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moodys or S&P, respectively and in each case maturing within 12 months after the date of creation thereof; (8) investment funds (including, without limitation, mutual funds) investing 90% of their assets in securities of the types
described in clauses (1) through (7) above and (9) through (12) below; (9) securities
issued or directly and fully and unconditionally guaranteed by any state, commonwealth or territory of the United States or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality
thereof or any political subdivision or taxing authority of any such state, commonwealth or territory or any public instrumentality thereof having maturities of not more than 12 months from the date of acquisition thereof and, at the time of
acquisition; (10) readily marketable direct obligations issued or directly and fully and unconditionally guaranteed by
any foreign government or any political subdivision or public instrumentality thereof, in each case (other than in the case of such securities issued or guaranteed by any participating member state of the EMU) having a rating equal to or higher than
Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P with maturities of 12 months or less from the date of acquisition; (11) Debt or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or
higher from Moodys with maturities of 12 months or less from the date of acquisition; and (12) Investments with
average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moodys. Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses
(1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the
receipt of such amounts. Cash Management Bank means (x) any Person that is a Lender, the Agent, an Arranger or
any Affiliate of the foregoing at the time it provided or incurred any Cash Management Obligations or (y) any Person that shall have become a Lender, the Agent, an Arranger or an Affiliate of the foregoing at any time after it has provided or
incurred any Cash Management Obligations. 23
Cash Management Document means any certificate, agreement or other
document executed by any Obligor or any of its Restricted Subsidiaries in respect of the Cash Management Obligations of any such Person. Cash Management Obligation means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of
such Person in respect of cash management or related services (including treasury, depository, return item, overdraft, controlled disbursement, credit, merchant store value or debit card, purchase card, e-payables services, electronic funds
transfer, interstate depository network, automatic clearing house transfer (including the ACH processing of electronic funds transfers through the Federal Reserve Fedline system) and other cash management arrangements) provided by any Cash
Management Bank, including obligations for the payment of fees, interest, charges, expenses, attorneys fees and disbursements in connection therewith. Cash Receipts has the meaning specified in Section 8.23(c). Casualty Event means any event that gives rise to the receipt by Holdings, the Borrower or any Restricted Subsidiary of any
insurance proceeds or any condemnation awards in respect of any Property (other than Stock). CFC means a
controlled foreign corporation within the meaning of Section 957 of the Code. Change in Law means the
occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration or interpretation thereof by any Governmental
Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith (but solely to the extent the relevant increased costs would have been included if they had been
imposed under applicable increased cost provisions) and (y) Basel III and all requests, rules, guidelines or directives thereunder or issued in connection therewith (but solely to the extent the relevant increased costs would have been included
if they had been imposed under applicable increased cost provisions), shall in each case be deemed to be a Change in Law, regardless of the date enacted, adopted or issued. Change of Control means and will be deemed to have occurred if: (a) any time prior to the consummation of the IPO Transactions, the Permitted Holders, taken as a whole, shall cease to
beneficially own (or of record own) and Control, directly or indirectly, at least 51% on a fully diluted basis of the economic and voting interest in the Stock of Holdings; and/or (b) at any time after the consummation of the IPO Transactions, any Person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act), other than the Permitted Holders, shall at any time have acquired beneficially or of record, direct or indirect ownership (as defined in SEC Rules 13(d)-3 and 13(d)-5 under the Exchange Act) of Stock
representing 35% or more of the economic and/or voting interest in the Stock of Holdings; and/or 24
(c) Holdings shall fail to directly own beneficially and of record, all of
the Stock of the Borrower; and/or (d) the Borrower shall fail to directly or indirectly, through Wholly Owned
Subsidiaries, own, beneficially and of record, all of the Stock of each other Obligor (other than in connection with any Disposition of all of the Stock thereof permitted under Section 8.8 or Section 8.9); and/or (e) Continuing Directors shall not constitute at least a majority of the Board of Directors of Holdings; and/or (f) a change of control or any comparable term under any document governing any Material Indebtedness consisting
of Debt for Borrowed Money shall have occurred. Charter Documents means, with respect to any Person, the certificate
or articles of incorporation or organization, memoranda of association, by-laws or operating agreement, and other organizational or governing documents of such Person. Chattel Paper means all of the Obligors now owned or hereafter acquired chattel paper, as defined in the UCC,
including electronic chattel paper. Class when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans, Extended Revolving Loans (of the same Extension Series and any related swing line loans thereunder) or Swingline Loans, and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment, an Extended Revolving Credit Commitment (of the same Extension Series and any related swing line commitment thereunder) or a Swingline Commitment and when used in reference to any Lender,
refers to whether such Lender has a Loan or Commitment of such Class. A FILO Tranche may be treated as a separate Class of Loans or Commitments under this Agreement. Closing Date means the date on which all of the applicable conditions set forth in Section 9.1 have been
fulfilled (or waived in writing by the Agent and the Arrangers). Closing Date Note means that certain unsecured
subordinated promissory note, dated as of the Agreement Date, issued by Holdings to THRC Holdings LP and/or its Affiliates (other than any Obligor) in the aggregate principal amount of $23,441,859.92. CME Term SOFR Administrator means CME Group Benchmark Administration Limited as administrator of the forward-looking term
SOFR (or a successor administrator). Code means the Internal Revenue Code of 1986, as amended. 25
Collateral means all assets and interests in assets and proceeds thereof
now owned or hereafter acquired by any Obligor or its Subsidiaries in or upon which a Lien is granted by such Person in favor of Collateral Agent under any of the Loan Documents; provided, however, that at no time shall the term
Collateral include any Excluded Assets; provided, further, that for avoidance of doubt, Collateral shall include the Purchased BPC Units so long as one or more of the Obligors own the Purchased BPC Units. Collateral Access Agreement means a landlord waiver or other agreement, in a form as shall be reasonably satisfactory to
the Collateral Agent, between the Collateral Agent and any third party (including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of any premises where any Collateral is located, as
such landlord waiver or other agreement may be amended, restated, or otherwise modified from time to time. Collateral
Agent means JPMorgan, in its capacity as the collateral agent for the Secured Parties, or any successor collateral agent appointed in accordance with this Agreement and the other Loan Documents. Collateral Agents Liens means the Liens on the Collateral granted to the Collateral Agent, for the benefit of the
Secured Parties, pursuant to the Security Documents and securing the Obligations. Collateral and Guarantee Requirement
means, at any time, the requirement that (in each case, as applicable, subject to the ABL Intercreditor Agreement, [**]
and any other Intercreditor Agreement): (a) the Collateral
Agent shall have received each Security Document required to be delivered on the Closing Date pursuant to Section 9.1(a)(ii) or, after the Closing Date, pursuant to Sections 8.22, 8.23 and 8.29 at such time required
by such Security Documents or such section to be delivered in each case, duly executed by each Obligor thereto; (b) all
Obligations shall have been unconditionally guaranteed by Holdings and each Restricted Subsidiary (other than any Excluded Subsidiary) including as of the Closing Date those that are listed on Schedule 1.2; (c) the Obligations and the Guarantees shall have been secured pursuant to the Security Agreement by a security interest in
(i) all the Stock issued by the Borrower and (ii) all Stock (other than Excluded Stock) held directly by the Borrower or any Guarantor in any Subsidiary (and, in each case, the Term Loan Agent or any applicable agent with respect to the Debt
incurred pursuant to Section 8.12(q) or (r), as applicable, shall have received all such certificates or other instruments representing all such Stock (if any), together with undated stock powers or other instruments of transfer
with respect thereto endorsed in blank, if applicable); (d) except to the extent otherwise provided hereunder or under
any Security Document, the Obligations and the Guarantees shall have been secured by a perfected security interest (to the extent such security interest may be perfected by (1) delivering certificated securities or instruments, (2) filing
personal property financing statements (including without limitation, UCC financing statements), (3) making any necessary filings 26
with the United States Patent and Trademark Office or United States Copyright Office), and (4) control as defined under the applicable UCC (to the extent required by
Section 8.23)), in (i) all Current Asset Collateral of the Borrower and each Guarantor and (ii) in addition, upon and after the incurrence of Debt pursuant to Section 8.12(q) or (r), as applicable (and solely to
the extent that such Debt is still outstanding), substantially all other tangible and intangible personal property of the Borrower and each Guarantor not covered in clause (i) above (including, without limitation, accounts receivable,
inventory, equipment, investment property, Intellectual Property, intercompany notes, contracts, instruments, chattel paper and documents, letter of credit rights, Commercial Tort Claims, cash, deposit accounts, securities and commodity accounts,
other General Intangibles, books and records related to the foregoing and, in each case, proceeds of the foregoing), in each case with the priority, required by the Security Documents provided that, (A) any such security interests in the
Collateral shall be subject to the terms of the Intercreditor Agreement, if any, (B) the Obligations and the Guarantees shall be secured by second-priority liens on the Fixed Assets Collateral, junior to the liens securing such Debt under
Section 8.12(q)(x) or (r), as applicable (as set forth in more detail in the Intercreditor Agreement) and (C) the Collateral Agents Liens shall only attach to the Fixed Assets Collateral (to the same extent (but not
priority) and subject to the same exceptions) that is subject to the liens securing the Debt incurred under Section 8.12(q)(x) or (r), as applicable; (e) none of the Collateral shall be subject to any Liens other than Permitted Liens; (f) [reserved]; (g) (i) with respect to intercompany Debt, if any, Debt for Borrowed Money that is owing to any Obligor and such Debt is
evidenced by a promissory note, the Collateral Agent shall have received such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (ii) with respect to intercompany Debt, all Debt of
Holdings, the Borrower and each of its Restricted Subsidiaries that is owing to any Obligor (or Person required to become an Obligor) shall be evidenced by the Subordinated Intercompany Note, and the Collateral Agent shall have received such
Subordinated Intercompany Note duly executed by Holdings, the Borrower, each such Restricted Subsidiary and each such other Obligor, together with undated instruments of transfer with respect thereto endorsed in blank, subject, in each of clauses
(i) and (ii), to the terms of the Intercreditor Agreement; (h) subject to the Intercreditor Agreement,
the Borrower and each Guarantor shall also have (i) caused all Titled Goods with a Fair Market Value in excess of $120,000 individually to be properly titled in the name of such Person with the Collateral Agents Lien noted thereon and
shall have delivered to the Collateral Agent (or its custodian) originals of all Certificates of Title (as defined in the UCC) or certificates of ownership for such Titled Goods with the Collateral Agents Lien noted thereon and (ii) upon
the acquisition or manufacture by any such Person of any Titled Goods (other than Equipment that is subject to a purchase money security interest that constitutes a Permitted Lien) with a Fair Market Value in excess of $120,000 individually,
promptly notified the Collateral Agent of such acquisition, setting forth a description of such Titled Goods acquired or 27
manufactured and a good faith estimate of the current value of such Titled Goods and promptly delivered to the Collateral Agent (or its custodian) originals of the Certificates of Title (as
defined in the UCC) or certificates of ownership for such Titled Goods, together with the manufacturers statement of origin, and an application duly executed by the appropriate Person to evidence the Collateral Agents Lien thereon. The
Borrower and each Guarantor hereby appoints the Collateral Agent as its attorney-in-fact, effective the date hereof and terminating upon the termination of this Agreement, for the purpose of (A) executing on behalf of such Person title or ownership
applications for filing with the appropriate Governmental Authority to enable Titled Goods now owned or hereafter acquired by such Person to be amended to reflect the Collateral Agent listed as lienholder thereof, (B) filing such applications
with such Governmental Authority, and (C) executing such other documents and instruments on behalf of, and taking such other action in the name of, such Person as the Collateral Agent may reasonably deem necessary to accomplish the purposes of
this clause (h) (including, without limitation, for the purpose of creating in favor of the Collateral Agent a perfected Lien on such Titled Goods and exercising the rights and remedies of the Collateral Agent hereunder). This
appointment as attorney-in-fact is coupled with an interest and is irrevocable until the Termination Date; (i) in the
case of any of the foregoing with respect to any Person joining as an Obligor after the Closing Date, (i) the Agent shall have received documents, Organization Documents, certificates, resolutions and opinions of the type referred to in
Section 9.1(a)(iii) with respect to each such Person and its Guarantee and/or provision and perfection of Collateral and (ii) Lenders shall have received all information and documents requested by Lenders to complete KYC and
background diligence on such proposed new Obligor and no such new Obligor shall join any Loan Document unless and until each all Lenders have confirmed to Agent that they have completed their diligence on such proposed Obligor satisfactorily; (j) in connection with any of the foregoing with respect to any Person joining as an Obligor after the Closing Date, the
Collateral Agent shall have been provided (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Obligor and each jurisdiction where a filing (including a fixture filing) would need to be made in order
to perfect the Collateral Agents security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens, (ii) tax lien, judgment and bankruptcy
searches or other evidence reasonably satisfactory to it that all taxes, filing fees, recording fees related to the perfection of the Liens on the Collateral have been paid and (iii) to the extent required pursuant to the loan and/or bond
documents and/or other Debt documents evidencing the Debt incurred under Section 8.12(q)(x) or (r) as applicable hereof, searches of ownership of Intellectual Property in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the Collateral Agent in order to perfect the Collateral Agents security interest in the Intellectual Property; (k) the Agent shall have received copies of insurance policies, declaration pages, certificates, and endorsements of insurance
or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Security Documents; and 28
(l) the Borrower and each Guarantor shall have, subject to
Section 8.23, (i) delivered to the Collateral Agent with respect to each deposit account, securities account, and commodity account (other than any Excluded Account), in each case, a Control Agreement with respect to such deposit account,
securities account, and commodity account and (ii) not maintained, and not permitted any of its Restricted Subsidiaries to have maintained, cash, Cash Equivalents or other amounts in any deposit account, securities account, or commodity
account, unless the Collateral Agent shall have received a Control Agreement in respect of such deposit account, securities account, and commodity account (in each case, other than any Excluded Account). The foregoing definition shall not require the creation or perfection of pledges of, or security interests in, or the obtaining of opinions
with respect to, particular assets if and for so long as the Agent and the Borrower agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such legal opinions or other deliverables in
respect of such assets, or providing such guarantees, in respect of such assets (in each case, taking into account any material adverse tax consequences to Holdings and its Subsidiaries) shall be excessive in view of the benefits to be obtained by
the Secured Parties therefrom. The Agent may grant extensions of time for the provision or perfection of security interests in particular
assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Obligors on such date) where it reasonably determines, in consultation with the Borrower, that provision or perfection cannot be
accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary,
(a) with respect to leases of Real Estate entered into by any Obligor, such Obligor shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases (including requirements to
deliver landlord lien waivers, estoppel and collateral access letters), (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the
Security Documents, (c) the Collateral and Guarantee Requirement shall not apply to any of the following assets (and the following assets shall not constitute Collateral for any purpose hereunder and the other Loan Documents): (i) any
fee-owned Real Estate and any leasehold interests in Real Estate; provided that no Equipment attached or affixed to or located on such Real Estate to the extent such Equipment constitutes a fixture shall be excluded from Collateral, unless
such Equipment otherwise constitutes an Excluded Asset under any other subclause of this clause (c), (ii) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such
licenses, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction) after giving effect to the applicable anti-assignment clauses of the UCC and applicable Laws, other
than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the UCC or any similar applicable laws notwithstanding such prohibition, (iii) assets and personal property for which a pledge thereof or a
security interest therein is prohibited by applicable Laws (including any legally effective requirement to obtain the consent of any Governmental Authority), rule, regulation or contractual obligation with an unaffiliated third party (in each case,
(y) only so long as such contractual obligation was not 29
entered into in contemplation of the acquisition thereof and (z) except to the extent such prohibition is unenforceable or ineffective after giving effect to the applicable provisions of the
Uniform Commercial Code or other applicable law), (iv) Excluded Stock (other than Stock that is Excluded Stock solely as a result of having been issued by Immaterial Subsidiaries), (v) to the extent that the obligations of Holdings, the
Borrower and certain Subsidiaries of Holdings under the First Financial Loan Documents remain outstanding, certain tractors identified on Exhibit A to the First Financial 2021 Loan Agreement, as in effect on the date hereof, and any
replacement tractors therefor and accessions thereto, having an aggregate Fair Market Value of not more than $30,000,000, pledged to First Financial Bank, N.A. pursuant to the First Financial Loan Documents provided that any inflationary
increases in value shall not cause the violation of this cap, (vi) any intent-to-use trademark application prior to the filing and acceptance of a Statement of Use or Amendment to Allege Use with respect thereto, to the
extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law, it being agreed that
for purposes of this Agreement and the Loan Documents, no Lien granted to Collateral Agent on any intent-to-use United States trademark applications is intended to be a present assignment thereof, (vii) any lease, license, contract
or other agreements or any property (including personal property) subject to a purchase money security interest, Capital Lease Obligation or similar arrangements, in each case to the extent permitted under the Loan Documents, to the extent that a
pledge thereof or a security interest therein would violate or invalidate such lease, license, contract or agreement, purchase money, Capital Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other
than the Borrower or a Guarantor) after giving effect to the applicable anti-assignment clauses of the UCC and applicable Laws, other than the proceeds and receivables thereof the assignment of which is expressly deemed effective under the UCC or
any similar applicable Laws notwithstanding such prohibition, (viii) any assets as to which the Agent and the Borrower reasonably agree in writing that the cost or other consequence of obtaining a security interest or perfection thereof is
excessive in relation to the benefit to the Lenders of the security to be afforded thereby, 30
Section 8.12(q) or (r), as applicable, and such Commercial Tort Claim has an individual value of at least $5,000,000 or (y) such Commercial Tort Claim expressly
constitutes Current Asset Collateral and such Commercial Tort Claim has an individual value of at least $5,000,000, and (g) other than with respect to Stock, no actions in any jurisdiction other than the United States and Canada or required by the
Laws of any jurisdiction other than the United States and Canada shall be required to be taken to create any security interests in assets located or titled outside of the United States and Canada or to perfect or make enforceable any security
interests in any such assets (it being understood that there shall be no Security Document (or other security agreements or pledge agreements) governed under the laws of any jurisdiction other than the United States and Canada) provided that
no such actions under or in accordance with the Laws of Canada (and no Security Document (or other security agreements) shall be required to be governed by the laws of the Canada, other than pledge agreements in respect of Stock of any Restricted
Subsidiary of Holdings organized under the laws of Canada (other than Excluded Stock)) shall be required to be taken, in each case, unless (i) the Fair Market Value of the property and assets of the Obligors located in Canada exceeds
$50,000,000 at such time, (ii) the contribution to Consolidated EBITDA of Holdings and its Subsidiaries by such property and assets exceeds $17,500,000 for any Test Period (calculated on a Pro Forma Basis), or (iii) material books and
records of the Obligors are exclusively located at such locations (for the avoidance of doubt, nothing herein, including this clause (g), shall obligate any Foreign Subsidiary to grant or perfect any Liens on its assets, wherever such assets
may be located). Collateral Reporting Period means (a) any period commencing from the date that Availability
shall have been less than the greater of (i) 20.0% of the
Maximum Credit and (
Commercial Tort Claims has the meaning specified in the Security Agreement. Commitment means, (a) with respect to each Lender (to the extent applicable), such Lenders Revolving Credit
Commitment, Extended Revolving Credit Commitment or a Revolving Credit Commitment Increase or any combination thereof (as the context requires), (b) with respect to the applicable Swingline Lender, or swingline lender under any Extended
Revolving Credit Commitments, its Swingline Commitment or swingline commitment, as applicable and (c) with respect to each Letter of Credit Issuer, such Letter of Credit Issuers L/C Commitment. 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. Compliance Certificate means a certificate substantially in the form of Exhibit D or
in such other form as may be reasonably satisfactory to the Agent and Borrower. Concentration Account has the meaning
specified in Section 8.23(c). 31
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 Depreciation
and Amortization Expense means, with respect to Holdings and its Restricted Subsidiaries for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees or costs, debt
issuance costs, commissions, fees and expenses, capitalized expenditures, customer acquisition costs and incentive payments, conversion costs and contract acquisition costs, of Holdings and its Restricted Subsidiaries for such period on a
consolidated basis and otherwise determined in accordance with GAAP. Consolidated EBITDA means, with respect to
Holdings and its Restricted Subsidiaries for any period, the Consolidated Net Income of Holdings and its Restricted Subsidiaries for such period; plus (a) the following in each case to the extent deducted (and not added back) in computing Consolidated Net Income (other than
clause (a)(10) and (a)(13) below), but without duplication: (1) Distributions made by Holdings and its Restricted
Subsidiaries pursuant to Section 8.10(g)(i) during such period and provision for taxes based on income or profits or capital gains, including, without limitation, foreign, federal, state, provincial, franchise, excise, value added and
similar taxes and foreign withholding taxes of Holdings and its Restricted Subsidiaries paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax examinations and any payments to any
Parent Entity in respect of such taxes; plus (2) total interest expense and other financing expense (including breakage costs,
premiums or consent fees and including the amortization of original issue discount); plus (3) Consolidated Depreciation and
Amortization Expense of Holdings and its Restricted Subsidiaries for such period; plus (4) any fees, expenses or charges incurred
in connection with any issuance of debt or equity securities, any refinancing transaction or any amendment or other modification of any debt instrument to the extent consummated in accordance with the terms of the Loan Documents including
(i) such fees, expenses or charges related to the IPO Transactions and related to the other Transactions (other than the FTS Acquisition Transactions ), in each case, whether or not consummated, and (ii) any amendment, modification or
waiver in connection with this Agreement or any instrument governing any other Debt; plus (5) any fees (including legal and
investment banking fees), transfer or mortgage recording Taxes and other out-of-pocket costs and expenses of Holdings and its Restricted Subsidiaries (including expenses of third parties paid or reimbursed Holdings and its Restricted Subsidiaries)
incurred as a result of the transactions contemplated by the Loan Documents or any Disposition of Property permitted hereunder; plus 32
(6) any fees and expenses incurred by Holdings and any of its Restricted Subsidiaries
solely in connection with any Permitted Acquisition or any other acquisition constituting a Permitted Investment (in each case, whether or not consummated); plus (7) any impairment charge or asset write-off pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP; plus (8) [reserved]; plus (9) any losses from the early extinguishment of Debt (including Hedge Agreements or other derivative instruments); plus (10) the amount of run rate cost savings, operating expense reductions and other synergies achieved in connection with a
Permitted Acquisition or any other acquisition constituting a Permitted Investment projected by the Borrower in good faith to be realized as a result of specified actions taken, actions with respect to which substantial steps have been taken or
actions that are expected to be taken (which cost savings, operating expense reductions or synergies shall be calculated on a Pro Forma Basis as though such cost savings, operating expense reductions or synergies had been realized on the first day
of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions or synergies are reasonably identifiable and factually
supportable, (B) such cost savings, operating expense reductions or synergies do not exceed, when combined with the amount of any Pro Forma Adjustment made pursuant to clause (d) below), 20% of Consolidated EBITDA for such Test
Period, prior to giving effect to any increase in Consolidated EBITDA pursuant to this clause (10), clause (14) below or clause (d) below), and (C) such actions have been taken, such actions with respect to which
substantial steps have been taken or such actions are expected to be taken within twelve (12) months after the date of determination to take such action; provided, further, that the adjustments pursuant to this clause
(10) and clause (14) below may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause (d) below; or (y) to the extent that no Debt, or commitments with respect thereto, are
outstanding under Section 8.12(r) hereof, that would be permitted to be included in pro forma financial statements prepared in accordance with Regulation S-X under the Security Act of 1933; plus (11) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other
rights to officers, directors or employees; plus (12) any non-cash losses or charges, including any write offs, write downs,
expenses, losses or items for such period decreasing Consolidated Net Income for such period; provided, that to the extent any non-cash item added back to Consolidated EBITDA in any period results in a cash payment in such period or a
subsequent period such cash payment shall result in a reduction of Consolidated EBITDA in the period when such payment is made; plus (13) proceeds from property or business interruption insurance received or reasonably expected to be received (to the extent not reflected as
revenue or income in Consolidated Net Income and to the extent that the related loss was deducted in the determination of Consolidated Net Income); plus 33
(14) all Restructuring Costs and any other extraordinary, unusual or non-recurring
expenses, losses or charges incurred; provided that such adjustments do not exceed 15% of Consolidated EBITDA for such Test Period calculated prior to giving effect to any increase to Consolidated EBITDA pursuant to this clause
(14) or clause (d) below; provided, further, that the adjustments pursuant to this clause (14) above may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause
(d) below; plus (15) any non-cash loss attributable to the mark-to-market movement in the valuation of Hedge Agreements
(to the extent the cash impact resulting from such loss has not been realized) or other derivative instruments pursuant to GAAP; minus (b) the sum of the amounts for such period, solely to the extent included in Consolidated Net Income, without duplication,
(1) any non-cash gain increasing Consolidated Net Income of such Person for such period, other than the accrual of revenues in the
ordinary course of business; (2) any non-cash gain attributable to the mark-to-market movement in the valuation of Hedge Agreements (to
the extent the cash impact resulting from such gain has not been realized) or other derivate instruments pursuant to GAAP; (3) any gains
from the early extinguishment of Debt (including Hedge Agreements or other derivative instruments); and (4) any extraordinary, unusual
or non-recurring gains increasing Consolidated Net Income for such period; provided that, to the extent non-cash gains are
deducted pursuant to this clause (b) for any previous period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced
cash expenses) in respect of such non-cash gains received in subsequent periods to the extent not already included therein; plus or
minus, as applicable, without duplication (c) any net gain or loss resulting in such period from currency translation
gains or losses related to currency remeasurements of Debt, intercompany balances and other balance sheet items, plus or minus, as the case may be; and plus 34
(d) in accordance with the definition of Pro Forma Basis, an
adjustment equal to the amount, without duplication of any amount otherwise included in any other clause of the definition of Consolidated EBITDA, of the Pro Forma Adjustment shall be added to (or subtracted from) Consolidated EBITDA
(including the portion thereof occurring prior to the relevant Specified Transaction and/or Specified Restructuring) as specified in a certificate from a Responsible Officer of the Borrower delivered to the Agent (for further delivery to the
Lenders), in each case, as determined on a consolidated basis for Holdings and its Restricted Subsidiaries in accordance with GAAP; provided that,
(i) there shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired EBITDA of any Person,
property, business or asset acquired by Holdings or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) to the extent not subsequently sold, transferred or otherwise Disposed of during such period (but not including
the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a transaction consummated prior to
the Closing Date, and not subsequently so Disposed of, an Acquired Entity or Business), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each, a
Converted Restricted Subsidiary), in each case based on the Acquired EBITDA of such Acquired Entity or Business or any Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such
acquisition or conversion) determined on a historical Pro Forma Basis; and (ii) there shall be excluded in determining Consolidated
EBITDA for any period the Disposed EBITDA of any Person, property, business or asset sold, transferred or otherwise Disposed of, closed or classified as discontinued operations by Holdings, the Borrower or any Restricted Subsidiary to the extent not
subsequently reacquired, reclassified or continued, in each case, during such period (each such Person (other than an Unrestricted Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a
Sold Entity or Business), and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a Converted Unrestricted Subsidiary), in each case based
on the Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, disposition, closure, classification or conversion) determined on a
historical Pro Forma Basis. Notwithstanding anything to the contrary contained herein and subject to adjustments as provided in
clauses (i) and (ii) of the immediately preceding proviso with respect to acquisitions and dispositions occurring prior to, on and following the Closing Date and other adjustments as contemplated in the definitions of
Pro Forma Basis and Pro Forma Effect, including as provided under clause (a)(10) above or clause (d) above or in the definition of Pro Forma Adjustment, Consolidated EBITDA shall be deemed to
be, $19,768,888, $37,675,374, $38,449,657 and $52,600,000, respectively, for the Fiscal Quarters ended March 31, 2021, June 30, 2021, September 30, 2021 and December 31, 2021. Notwithstanding any other provisions set
forth herein, (x) for purposes of the measurement of the Total Net Leverage Ratio 35
and the Senior Secured Net Leverage Ratio, unrealized gains shall be excluded from Consolidated EBITDA and (y) for purposes of calculating Consolidated EBITDA, the Non-Wholly Owned Subs
shall not be included in such calculation; provided that without duplication, any cash Distributions by any Non-Wholly Owned Sub to a Restricted Subsidiary during a Test Period shall constitute Consolidated Net Income of such Restricted Subsidiary
(receiving such cash Distribution) during such Test Period for purposes of measuring Consolidated EBITDA. Consolidated Interest
Expense means cash interest expense (including that attributable to Capital Leases), net of cash interest income of Holdings and its Restricted Subsidiaries with respect to all outstanding Debt of Holdings and its Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers acceptance financing and net cash costs (less net cash payments) under Hedge Agreements, but excluding, for the avoidance of
doubt: (a) capitalized interest whether paid or accrued and the amortization of original issue discount resulting from
the issuance of Debt at less than par; (b) amortization of deferred financing costs, debt issuance costs, commissions,
fees and expenses; (c) any expenses resulting from discounting of Debt in connection with the application of
recapitalization accounting or purchase accounting; (d) penalties or interest related to taxes and any other amounts of
non-cash interest resulting from the effects of acquisition method accounting or pushdown accounting; (e) the accretion
or accrual of, or accrued interest on, discounted liabilities during such period; (f) non-cash interest expense
attributable to the movement of the mark-to- market valuation of obligations under Hedge Agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging; (g) any one-time cash costs associated with breakage in respect of Hedge Agreements for interest rates; (h) all non-recurring interest expense consisting of liquidated damages for failure to timely comply with registration rights
obligations; (i) expensing of bridge, arrangement, structuring, commitment or other financing fees; and (j) any other non-cash interest expense, all calculated on a consolidated basis in accordance with GAAP. 36
Consolidated Net Income means, with respect to any Person for any period,
without duplication, the aggregate of (a) the Net Income, attributable to such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP (adjusted to exclude the equity
interests in any Unrestricted Subsidiary owned by such Person or any of its Restricted Subsidiaries); plus (b) the amount of distributions received in cash by such Person or any of its Restricted Subsidiaries from any Subsidiary
(including any Unrestricted Subsidiary) for such period, to the extent not already included in clause (a) above minus (c) (i) the cumulative effect of a change in accounting principles and changes as a result of the
adoption or modification of accounting policies during such period, (ii) the income (or loss) of any Person (other than a Restricted Subsidiary of such Person) in which any other Person (other than such Person or any of its Restricted
Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or any of its Restricted Subsidiaries by such Person during such period, (iii) the income (or loss) of any
Person accrued prior to the date it becomes a Restricted Subsidiary of such Person or is merged into or consolidated with such Person or any of its Restricted Subsidiaries or that Persons assets are acquired by such Person or any of its
Restricted Subsidiaries (except as may be required in connection with the calculation of a covenant or test on a pro forma basis), (iv) the income of any Restricted Subsidiary of such Person to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary, (v) any after-Tax gains or losses attributable to Dispositions of Property permitted under this Agreement, in each case other than in the ordinary course of business (as determined in good faith by the
Borrower) or returned surplus assets of any Pension Plan, (vi) any net after-Tax gains or losses from disposed, abandoned, transferred, closed or discontinued operations and any net after-Tax gains or losses on disposal of disposed, abandoned,
transferred, closed or discontinued operations, (vii) any losses and expenses with respect to liability or casualty events to the extent covered by insurance or indemnification and actually reimbursed or so long as the Borrower has made a
determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in
writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days) and (viii) (to the extent not included in
sub-clauses (i) through (vii) above) any net extraordinary gains or net extraordinary losses. In addition, to the
extent not already accounted for in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (without duplication) (i) the
amount of proceeds received during such period from business interruption insurance in respect of insured claims for such period, (ii) the amount of proceeds as to which the Borrower has determined there is reasonable evidence it will be
reimbursed by the insurer in respect of such period from business interruption insurance (with a deduction for any amounts so added back to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within 365 days)
and (iii) reimbursements received of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets
permitted hereunder. 37
Consolidated Parties means Holdings and each of its Subsidiaries whose
financial statements are consolidated with Holdings financial statements in accordance with GAAP. Consolidated Total
Assets means, as of any date of determination, the total book value of all assets of Holdings, the Borrower and the Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP as of such date. Consolidated Total Debt means, as of any date of determination, (a) the aggregate principal amount of indebtedness of
Holdings and its Restricted Subsidiaries outstanding on such date, determined on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of indebtedness resulting from the application of purchase accounting in
connection with the Transactions, any Permitted Acquisition or other acquisition constituting a Permitted Investment), consisting of Debt for Borrowed Money, Unpaid Drawings, Capital Lease Obligations and third party debt obligations evidenced by
promissory notes or similar instruments, minus (b) the least of (i) the amount of Unrestricted Cash on the balance sheet of Holdings, the Borrower, and its Restricted Subsidiaries as of such date minus the amount of Revolving Loans
then outstanding as of such date and (ii) $30,000,000. It is understood that to the extent Holdings or any Restricted Subsidiary incurs any Debt and receives the proceeds of such Debt, for purposes of determining any incurrence test under this
Agreement and whether the Borrower is in compliance on a Pro Forma Basis with any such test, the proceeds of such incurrence shall not be considered cash or Cash Equivalents for purposes of any netting pursuant to clause
(b) of this definition. Contaminant means any (i) chemical, material, compound, waste, pollutant,
substance, toxic or hazardous substance, hazardous waste, special waste, or any other substance, waste or material regulated or subject to rules of liability under Environmental Law including any material, substance, compound, chemical or waste that
is listed, classified, defined or regulated in relevant form, quantity or concentration as hazardous or toxic (or words of similar import) pursuant to any Environmental Law, and (ii) any petroleum or petroleum products or their refined or
derived products, polychlorinated biphenyls, radioactive materials, per-and polyfluoroalkyl substances, aqueous film forming foam, or other emerging contaminants, urea formaldehyde or asbestos or asbestos containing materials. Continuation/Conversion Date means the date on which a Loan is converted into or continued as a Term Benchmark Loan. Continuing Director means, at any date, (x) the individual directors of ProFrac Holding Corp., a Delaware corporation
as of the Closing Date or (y) an individual (a) who is a member of the Board of Directors of Holdings (or any Parent Entity) on the Closing Date, (b) who, as at such date, has been a member of such Board of Directors for at least the
12 preceding months, (c) who has been nominated or designated to be a member of such Board of Directors, directly or indirectly, by the Permitted Holders or Persons nominated or designated by the Permitted Holders or (d) who has been
nominated or designated to be, or designated as, a member of such Board of Directors by a majority of the other Continuing Directors then in office. 38
Control shall mean 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 ownership of voting securities, by contract or otherwise, and the terms Controlling and Controlled shall have meanings
correlative thereto. Control Agreement has the meaning specified in Section 8.23(a). Converted Restricted Subsidiary has the meaning specified in the definition of Consolidated EBITDA. Converted Unrestricted Subsidiary has the meaning specified in the definition of Consolidated EBITDA. Corrective Extension Agreement has the meaning specified in Section 2.7(e). Corresponding Tenor with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an
interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. Covenant Trigger Period means any period (a) commencing on the date upon which Availability is less than the greater
of (i) 12.5% of the Maximum Credit and ( Credit Card Accounts Receivables means each payment intangible (as defined in the UCC) together with all
income, payments and proceeds thereof, owed by a Credit Card Issuer or Credit Card Processor to an Obligor resulting from charges by a customer of an Obligor on credit or debit cards issued by such Credit Card Issuer in connection with the sale of
Inventory by an Obligor, or services performed by an Obligor, in each case in the ordinary course of its business. Credit Card
Issuer shall mean any person who issues or whose members issue credit or debit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International,
Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel
Related Services Company, Inc., and Novus Services, Inc. and other issuers approved by the Collateral Agent. Credit Card
Processor shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any
Obligors sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer. Cure Amount has the meaning specified in Section 10.4(a). Cure Deadline has the meaning specified in
Section 10.4(a). Cure Right has the meaning specified in Section 10.4(a). 39
Current Asset Collateral means the ABL Priority Collateral
(as defined in the Initial Intercreditor Agreement on the Closing Date). Daily Simple SOFR means, for any day (a
SOFR Day), a rate per annum equal to SOFR for the day (such day SOFR Determination Date) that is five (5) U.S. Government Securities Business Days prior to (a) if such SOFR Day is a U.S. Government
Securities Business Day, such SOFR Day or (b) if such SOFR Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Day, in each case, as such SOFR is published by the
SOFR Administrator on the SOFR Administrators Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower. Debt means, without duplication, all (a) indebtedness for borrowed money (excluding any obligations arising from warranties as to inventory in the ordinary course
of business) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b)
the deferred purchase price of property or services (other than trade accounts payable, liabilities or accrued expenses in the ordinary course of business) to the extent the same would be required to be shown as a long-term liability on a balance
sheet prepared in accordance with GAAP; (c) all obligations and liabilities of any Person secured by any Lien on an
Obligors or any of its Restricted Subsidiaries property, even if such Obligor or Restricted Subsidiary shall not have assumed or become liable for the payment thereof; provided, however, that all such obligations and
liabilities which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be shown on a balance sheet of the Consolidated Parties prepared in accordance with GAAP or, if
higher, the Fair Market Value of such property; (d) all obligations or liabilities created or arising under any Capital
Lease or conditional sale or other title retention agreement with respect to property used or acquired by Holdings or any of its Restricted Subsidiaries, even if the rights and remedies of the lessor, seller or lender thereunder are limited to
repossession of such property; provided, however, that all such obligations and liabilities which are limited in recourse to such property shall be included in Debt only to the extent of the book value of such property as would be
shown on a balance sheet of the Consolidated Parties prepared in accordance with GAAP or, if higher, the Fair Market Value of such property; (e) the present value (discounted at the Base Rate) of lease payments due under synthetic leases; (f) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters
of credit (including standby and commercial), bankers acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person; 40
(g) all net obligations of any Person in respect of Hedge Agreements; (h) all obligations of such Person in respect of Disqualified Stock; and (i) all obligations and liabilities under Guaranties in respect of obligations of the type described in any of clauses
(a) through (h) above; provided that Debt shall not include (i) prepaid or deferred revenue arising in the ordinary
course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry, (ii) purchase price holdbacks in respect of Permitted Acquisitions (or any other acquisitions constituting Permitted
Investments) arising in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry in respect of a portion of the purchase prices of an asset to satisfy unperformed
obligations of the seller of such asset, (iii) earn out obligations in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment) unless such obligations become a liability on the balance sheet of
such Person in accordance with GAAP and are not paid after becoming due and payable and (iv) Guaranties incurred (other than with respect to Debt) in the ordinary course of business or in the ordinary course of business for similarly situated
businesses in the Borrowers industry. For all purposes hereof, the Debt of any Person shall include (A) the Debt 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, except to the extent such Persons liability for such Debt is
otherwise limited and only to the extent such Debt would be included in the calculation of Consolidated Total Debt and (B) in the case of Holdings and its Restricted Subsidiaries, exclude all intercompany Debt having a term not exceeding 364
days (inclusive of any roll over or extensions of terms) and made in the ordinary course of business consistent with past practice. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Swap Termination
Value thereof as of such date. For the avoidance of doubt, Debt of Flotek and BPC shall not constitute Debt of Holdings and/or its Subsidiaries hereunder unless and until (x) Flotek or BPC become Restricted Subsidiaries of Holdings (and are not
otherwise designated as Unrestricted Subsidiaries in accordance with Section 8.26), in which case, the Debt of such Restricted Subsidiaries shall be consolidated with Holdings and its Subsidiaries at such time or (y) such Debt for
Borrowed Money is guaranteed by Holdings or any of its Restricted Subsidiaries or Holdings or any of its Subsidiaries otherwise have recourse to such Debt for Borrowed Money (including, without limitation, by means of pledging any collateral with
respect thereof). Debt for Borrowed Money of any Person at any time means, on a consolidated basis, the sum of all
debt for borrowed money of such Person at such time. Default means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured, waived, or otherwise remedied during such time) constitute an Event of Default. 41
Default Rate means a fluctuating per annum interest rate at all times
equal to the sum of (a) the otherwise applicable Interest Rate plus (b) two percent (2.00%) per annum. Each Default Rate shall be adjusted simultaneously with any change in the applicable Interest Rate. Defaulting Lender means any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part
of the definition of Lender Default. Failure of the Agent to conclude that a Lender is a Defaulting Lender shall not limit the rights and remedies of the Obligors in regards to any Lender that constitutes a Defaulting Lender. Deposit Accounts means all deposit accounts as such term is defined in the UCC and all accounts with a deposit
function maintained at a financial institution, now or hereafter held in the name of the Borrower or any Guarantor. Designated
Account has the meaning specified in Section 2.4(b). Designated Non-Cash Consideration means the
Fair Market Value of non-cash consideration received by Holdings or its Restricted Subsidiaries in connection with a Disposition pursuant to clause (t) of the definition of Permitted Disposition that is designated as
Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower delivered to the Agent, setting forth the basis of such valuation (which amount will be reduced by (i) the Fair Market Value of the
portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition and (ii) the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash
Consideration). Disposed EBITDA means, with respect to any Sold Entity or Business or any Converted Unrestricted
Subsidiary for any period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or such Converted Unrestricted Subsidiary (determined as if references to Holdings and the Restricted Subsidiaries in the definition of the
term Consolidated EBITDA (and in the component financial definitions used therein) were references to such Sold Entity or Business and its Subsidiaries or to such Converted Unrestricted Subsidiary and its Subsidiaries), all as determined
on a consolidated basis for such Sold Entity or Business or such Converted Unrestricted Subsidiary. Disposition or
Dispose means the sale, lease, Sale Leaseback Transaction, assignment, transfer or other disposition (including any transaction contemplated by Section 8.18, Section 1.5, and any sale of Stock) of any
property by any Person; provided that Disposition and Dispose shall not be deemed to include any Casualty Event or any issuance by Holdings or any of its respective Subsidiaries of any of its Stock to another Person.
Disqualified Lenders means, as of any date of determination, (a) such Persons that have been specified in writing
to the Agent and the Arrangers after the Closing Date with the consent of the Agent as being Disqualified Lenders and in any event specified in writing by the Borrower from time to time to the Agent not less than 2 Business Days prior to
any such date of determination, (b) those Persons who are competitors of Holdings, the Borrower and their respective Subsidiaries that are separately identified in writing by the Borrower from time to time to the Agent and in any event not less
than 2 Business Days prior to any such date of determination 42
and (c) in the case of each of clauses (a) and (b), any of their Affiliates (which, for the avoidance of doubt, shall not include any bona fide debt investment funds that
are affiliates of the Persons referenced in clause (b) above to the extent that such fund is not controlled by any Person referenced in clause (b) above) that are either (i) identified in writing to the Agent by the
Borrower from time to time and in any event not less than 2 Business Days prior to any such date of determination or (ii) readily identifiable solely on the basis of such Affiliates name; provided that no such updates to the list
shall be deemed to retroactively disqualify any parties that have previously acquired an assignment or participation interest in respect of Loans from continuing to hold or vote such previously acquired assignments and participations on the terms
set forth herein for Lenders that are not Disqualified Lenders. Notwithstanding anything to the contrary contained in this Agreement, (x) the Agent 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 Lenders and (y) the Borrower (on behalf of itself Holdings and each of the Restricted Subsidiaries of Holdings) and the Lenders acknowledge and agree that the
Agent shall have no responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and that the Agent shall have no liability with respect to any assignment or participation made to a Disqualified Lender.
Disqualified Stock means that portion of any Stock which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change of Control or as a result of a Disposition of assets or Casualty Event),
matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in
each case, upon the occurrence of a Change of Control or as a result of a Disposition of assets or Casualty Event) on or prior to the six-month anniversary of the Stated Termination Date; provided that, (a) if such Stock is issued
pursuant to any plan for the benefit of employees of Holdings (or any Parent Entity thereof) or any of its Subsidiaries or by any such plan to such employees, such Stock shall not constitute Disqualified Stock solely because it may be required to be
repurchased by Holdings (or any Parent Entity thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations and (b) no Stock of Holdings shall constitute Disqualified Stock solely because of the
Redemption Right or the Call Right (each as described in the Section of the Registration Statement for the IPO Transactions entitled Corporate reorganization) to be included in the Holdings LLC Agreement upon the
effectiveness of the IPO Transactions. Distressed Person has the meaning specified in the definition of
Lender-Related Distress Event. Distribution means (a) the payment or making of any dividend or other
distribution of property in respect of Stock or other Stock (or any options or warrants for, or other rights with respect to, such stock or other Stock) of any Person, other than distributions in Stock or other Stock (or any options or warrants for
such stock or other Stock) of any class other than Disqualified Stock, or (b) the direct or indirect redemption or other acquisition by any Person of any Stock or other Stock (or any options or warrants for such stock or other Stock) of such
Person or any direct or indirect shareholder or other equity holder of such Person. 43
Documents means all documents as such term is defined in the
UCC, including bills of lading, warehouse receipts or other documents of title, now owned or hereafter acquired by any Obligor. DOL means the United States Department of Labor or any successor department or agency. Dollar and $ mean dollars in the lawful currency of the United States. Unless otherwise specified, all
payments under this Agreement shall be made in Dollars. Domestic Subsidiary means any Subsidiary of Holdings that is
organized under the laws of the United States, any State of the United States or the District of Columbia. [**]. 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 member state 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 degree) having responsibility for the resolution of any EEA Financial Institution. EKU Debt means that certain Debt (i) owed by EKU Power Drives GmbH to Volksbank in der Ortenau eG, in an aggregate
principal amount not to exceed $500,000, and (ii) owed by EKU Power Drives Inc. to Bank of America, N.A. in an aggregate principal amount not to exceed $50,000. Eligible Accounts means, as of any date of determination, the aggregate amount of all Accounts created by the Obligors in
the ordinary course of the Obligors business, and in any event including rights to payment, that arise out of each Obligors sale of goods or rendition of services or the lease or rental of goods by such Obligor, that comply with each of
the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below. In determining the amount to be included,
Eligible Accounts shall be calculated net of customer deposits, finance charges, and unapplied cash. Eligible Accounts shall not include the following: 44
(a) Accounts that are past due for more than 60 days or that the Account
Debtor has failed to pay within 90 days of original invoice date; provided, however, that up to $7,500,000 in the aggregate of Accounts that are not past due for more than 60 days but that the Account Debtor has failed to pay for
greater than 90 days but less than 120 days since invoice date shall be permitted as Eligible Accounts notwithstanding the limitations otherwise set forth in this clause (a), (b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or
its Affiliates) are deemed ineligible under clause (a) above, (c) Accounts with respect to which the Account
Debtor is an Affiliate of an Obligor or an employee or agent of Borrower or any Affiliate of Borrower or any Obligor, (d)
Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may
be conditional, (e) Accounts that are not payable in Dollars, (f) Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office in the
United States, or (ii) is not organized under the laws of the United States or any state or territory thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other
political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (A) the Account is supported by an irrevocable letter of credit reasonably satisfactory to the Agent (as to form,
substance, and issuer or domestic confirming bank) that has been delivered to the Agent and is directly drawable by the Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably
satisfactory to the Agent, (g) Accounts with respect to which the Account Debtor is (i) the United States or any
department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which the Obligors have complied, to the reasonable satisfaction of the Agent, with the Assignment of Claims Act, 31 USC §3727) or
(ii) any State (or political subdivision) of the United States, (h) Accounts with respect to which the Account Debtor
is a creditor of any Obligor, has or has asserted a right of setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of setoff, or dispute, (i) Accounts with respect to (x) an Account Debtor (other than an Investment Grade Account Debtor or a Specified Account
Debtor) whose total outstanding Accounts owing to Obligors exceed 20% (such percentage, as applied to a particular Account Debtor, being subject to reduction by the Agent in its Reasonable Credit Judgment if the creditworthiness of such Account
Debtor deteriorates), (y) a Specified Account Debtor whose total outstanding Accounts owing to Obligors exceed 25% (such percentage, as applied to a particular Account Debtor, being subject to reduction by the Agent in its Reasonable Credit
Judgment if the creditworthiness of such Account Debtor deteriorates), 45
or (z) an Investment Grade Account Debtor whose total outstanding Accounts owing to Obligors exceed 35% (such percentage, as applied to a particular Account Debtor, being subject to
reduction by the Agent in its Reasonable Credit Judgment if the creditworthiness of such Account Debtor deteriorates), in each case, of all Eligible Accounts, solely to the extent of the obligations owing by such Account Debtor in excess of such
percentage, (j) Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding, is not Solvent,
has gone out of business, or as to which any Obligor has received notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account Debtor; provided that the Agent may (but shall not be obligated
to), in its sole discretion, include Accounts from Account Debtors subject to such proceedings (including under circumstances where such Accounts are determined by the Agent in its sole discretion not to pose a risk of non-collectability), (k) Accounts, the collection of which, the Agent, in its Reasonable Credit Judgment, believes to be doubtful by reason of the
Account Debtors financial condition, (l) Accounts that are not subject to a first priority perfected Collateral
Agents Lien, (m) Accounts that are subject to a Lien other than the Lien of the Collateral Agent (except for
Permitted Liens that do not have priority over the Lien in favor of the Collateral Agent), (n) Accounts with respect to
which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor, (o) Accounts with respect to which the Account Debtor is a Sanctioned Person or Sanctioned Entity, (p) Accounts that represent the right to receive progress payments or other advance billings that are due prior to the
completion of performance by any Obligor of the subject contract for goods or services, (q) Accounts with respect to which
the Account Debtors obligation does not constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting creditors rights generally, or (r) Accounts
owned or generated by Best Pump, Alpine, or any Person or business which is acquired by an Obligor in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment), until such time as either (i) the
Agent and the Required Lenders have completed a customary due diligence investigation as to such Accounts and such Person, which investigation may, at the discretion of the Agent (or at direction of the Required Lenders), include a Field Examination
(and Agent hereby agrees to use commercially reasonable efforts to commence such Field Examination 46
no later than 15 days after a request by the Borrower is made to so undertake such investigation to the Agent and to use commercially reasonable efforts to complete such Field Examination within
30 days after such commencement), and the Agent and the Required Lenders are reasonably satisfied with the results thereof or (ii) the Agent and the Required Lenders determine that such a due diligence investigation is not necessary;
provided, however, that for a period not to exceed 90 days following (A) in the case of Accounts owned or generated by Best Pump or Alpine, the Closing Date, or (B) in the case of Accounts owned or generated by any Person or
business which is acquired by an Obligor in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment), the date of such Permitted Acquisition (or such Permitted Investment) is consummated, Accounts that
would otherwise be excluded pursuant to this clause (r) that are otherwise Eligible Accounts may be considered Eligible Accounts if the total amount included in the Borrowing Base in respect of such Accounts, together with the total
amount included in the Borrowing Base in respect of Inventory considered to be Eligible Inventory in reliance on the proviso to clause (q) of the definition of Eligible Inventory, does not exceed 20.0% of the Borrowing Base
(calculated after giving effect to the inclusion thereof (up to such aggregate 20% cap), it being understood that after the expiration of such 90 day period any Accounts included in any Borrowing Base calculation pursuant to this proviso shall
thereafter be excluded from such Borrowing Base calculation to the extent such Accounts fail to otherwise comply with the requirements of this clause (r). Eligible Assignee means (a) a commercial bank, commercial finance company or other asset based lender, having total
assets in excess of $2,000,000,000 and that extends credit or buys commercial loans in the ordinary course of business; (b) any Lender; (c) any Affiliate of any Lender and (d) any Approved Fund; provided, that, in any
event, Eligible Assignee shall not include (i) any natural Person, (ii) any Permitted Holder, Holdings, any Guarantor, or the Borrower or any Affiliate of any of the foregoing, or (iii) so long as the list of Disqualified
Lenders (including any updates thereto) has been made available by the Borrower to all Lenders, any Disqualified Lender (other than any Disqualified Lender otherwise agreed to by the Borrower in a writing delivered to the Agent). Eligible Inventory means, as of any date of determination, the aggregate amount of Inventory owned by an Obligor valued at
cost or market (whichever is lower), as determined in accordance with GAAP on a basis consistent with the Obligors historical accounting practices (and shall exclude any intercompany markup or profit reflected when Inventory is transferred
from one Obligor to another Obligor); provided, that no Inventory shall be Eligible Inventory if: (a) (i) it
is not subject to a valid and perfected first priority Collateral Agents Lien or (ii) it is subject to a Lien other than (x) the Collateral Agents Lien, or (y) a Lien permitted under Section 8.16 so long as
such Lien is junior in priority to the Lien in favor of the Collateral Agent; (b) it is slow moving, obsolete,
unmerchantable, defective, used or unfit for sale; 47
(c) it is held on consignment, subject to any deposit, down payment,
guaranteed sale, sale-or-return, sale-on-approval, bill and hold, or repurchase arrangement; (d) it does not meet all
legal requirements imposed by any Governmental Authority which has regulatory authority over such goods or the use or sale thereof; (e) it does not conform in all material respects to the representations and warranties contained in this Agreement or the
Security Agreement which are applicable to such Inventory; (f) an Obligor does not have good, valid, and marketable title
thereto; (g) it is work-in-process, packaging and shipping material, samples, prototypes, displays or display items, goods
that are returned or marked for return (but not held for resale) or repossessed, or goods which are not of a type held for sale or use by an Obligor in the ordinary course of business; (h) it is not situated at a location owned by an Obligor unless: (i) it is situated at a location leased by an Obligor and the landlord of such location has executed in favor of the Collateral Agent a
Collateral Access Agreement; (ii) such location (other than a customer location) is subject to a Reserve with respect to rent, charges,
and other amounts due or to become due for such location (it being understood that in no event shall such Reserve for leased locations exceed (i) the equivalent of two (2) months of future rent plus the amount of all other fixed, overdue,
and/or non-contingent charges for the applicable location or (ii) the value of the Inventory located at such location); (iii) it is
situated in any third-party warehouse or is in the possession of a bailee (other than a third-party processor) and is not evidenced by a Document (as defined in Article 9 of the UCC), unless (x) the ware-houseman or bailee has delivered to the
Collateral Agent a Collateral Access Agreement as to such location or (y) an appropriate Reserve (including for rent, charges and other amounts due or to become due with respect to such location) has been established by the Agent in its
Reasonable Credit Judgment; (i) it is not located at a Permitted Inventory Location; (j) it is being processed or repaired offsite at a third party location or outside processor, or is in-transit to or from said
third party location or outside processor; (k) it is the subject of a consignment by any Obligor as consignor; (l) it contains or bears any intellectual property rights licensed to any Obligor by any Person other than a Obligor unless the
Collateral Agent is reasonably satisfied that while an Event of Default is continuing it may sell or otherwise dispose of such Inventory without (a) infringing the rights of such licensor, (b) violating any contract with such licensor, or
(c) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement relating thereto; 48
(m) it is perishable; (n) it is not reflected in a current perpetual inventory report of an Obligor; (o) it is stored at locations holding less than $100,000 of the aggregate value of the Obligors Inventory; (p) it is the subject of a bill of lading or other document of title; (q) it is Inventory owned or generated by Best Pump, Alpine, or any Person or business which is acquired by an Obligor in
connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment), until such time as either (i) the Agent and the Required Lenders have completed a customary due diligence investigation as to such Inventory
and such Person, which investigation may, at the discretion of the Agent (or at the direction of the Required Lenders), include a Field Examination and an Appraisal (and Agent hereby agrees to use commercially reasonable efforts to commence such
Field Examination and Appraisal no later than 15 days after a request by the Borrower is made to so undertake such investigation to the Agent and to use commercially reasonable efforts to complete such Field Examination and Appraisal within 30 days
after such commencement), and the Agent and the Required Lenders are reasonably satisfied with the results thereof or (ii) the Agent and the Required Lenders have determined that such a due diligence investigation is not necessary;
provided, however, that for a period not to exceed 90 days from (A) in the case of Inventory owned or generated by Best Pump or Alpine, the Closing Date, or (B) in the case of Inventory owned or generated by any Person or
business which is acquired by an Obligor in connection with a Permitted Acquisition (or any other acquisition constituting a Permitted Investment), the date of such Permitted Acquisition (or any other acquisition constituting a Permitted Investment)
is consummated, Inventory that would otherwise be excluded pursuant to this clause (q) that is otherwise Eligible Inventory may be considered Eligible Inventory if the total amount included in the Borrowing Base in respect of such
Inventory, together with the total amount included in the Borrowing Base in respect of Accounts considered to be Eligible Accounts in reliance on the proviso to clause (r) of the definition of Eligible Accounts, does not
exceed 20.0% of the Borrowing Base (calculated after giving effect to the inclusion thereof (up to such aggregate 20% cap), it being understood that after the expiration of such 90 day period any Inventory included in any Borrowing Base calculation
pursuant to this proviso shall thereafter be excluded from such Borrowing Base calculation to the extent such Inventory fails to otherwise comply with the requirements of this clause (q); or (r) it is otherwise determined by the Agent in its Reasonable Credit Judgment to be ineligible; provided that the Agent
shall have given the Borrower not less than five (5) Business Days prior notice thereof prior to such Inventory (or a category of eligibility applicable to such Inventory) becoming ineligible. 49
Eligible Unbilled Accounts means Accounts of the Obligors that does not
qualify as an Eligible Account solely because (a) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (b) the services giving rise to such Account have not been performed and billed to the
Account Debtor and, in either case, so long as such Accounts have not been unbilled for more than thirty (30) days. For the avoidance of doubt, at such time as an Account is billed to the Account Debtor it shall no longer be an Eligible
Unbilled Account. EMU means economic and monetary union as contemplated in the Treaty on European Union. Enterprise
Equipment Lease Agreement means that certain Master Equity Lease Agreement dated October 30, 2020, between U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.),
as lessee, and Enterprise FM Trust, a Delaware statutory trust, as lessor. Environment shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface, sediments, and
subsurface strata and natural resources such as wetlands, flora and fauna. Environmental Laws means all applicable
Laws in connection with pollution, protection of the Environment (including Releases, threats of Releases) or to health and safety (to the extent which health and safety laws relate to exposure to Contaminants). Equify Bridge Financing Note means that certain unsecured subordinated promissory note dated as of the Agreement Date,
issued by the Borrower to Equify Financial LLC in the aggregate principal amount of $45,799,986.48. Equify Four Party
Agreement means that certain Payment Agreement dated as of the Agreement Date, by and among Equify Financial LLC, Best Pump, Alpine and the Borrower. Equipment means all of each Obligors now owned or hereafter acquired machinery, equipment, furniture, furnishings,
fixtures, and other tangible personal property (except Inventory), including embedded software, service and delivery vehicles with respect to which a certificate of title has been issued, aircraft, dies, tools, jigs, molds and office equipment, as
well as all of such types of property leased by any Obligor, and all of each Obligors rights and interests with respect thereto under such leases (including, without limitation, options to purchase); together with all present and future
additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or to be used in connection therewith, and all substitutes for any of the foregoing, and all manuals, drawings, instructions, warranties and
rights with respect thereto; wherever any of the foregoing is located. ERISA means the Employee Retirement Income
Security Act of 1974, as the same may be amended from time to time and any regulations promulgated and the rulings issued thereunder. ERISA Affiliate means any trade or business (whether or not incorporated) which is a member of a group of trades or
businesses under common control with Holdings or the Borrower within the meaning of Section 414(c) of the Code (or any member of an affiliated service group within the meaning of Sections 414(m) and (o) of the Code of which the Borrower is
a member). 50
ERISA Event means (a) a Reportable Event with respect to a Pension
Plan; (b) any failure by a Pension Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case whether or not waived; (c) the
filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to a Pension Plan; (d) a determination that a Pension Plan is in
at-risk status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) a withdrawal by Holdings, the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA; (f) a complete withdrawal, within
the meaning of Section 4203 of ERISA, or a partial withdrawal, within the meaning of Section 4205 of ERISA, by Holdings, the Borrower or any ERISA Affiliate from a Multi-employer Plan or notification that a Multi-employer Plan is
insolvent (within the meaning of Section 4245 of ERISA) or in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (g) the filing with the PGBC
of a notice of intent to terminate under Section 4041(c) or ERISA, the receipt by Holdings, Borrower, or ERISA Affiliate, as applicable, of any notice from any Multi-Employer Plan that it intends to terminate or has terminated under
Section 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multi-employer Plan but only if the PBGC has notified Holdings, Borrower, or ERISA Affiliate, as applicable, the same; (h) the receipt by
Holdings, Borrower, or ERISA Affiliate, as applicable, from the PBGC or a plan administer of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA;
(i) Holdings, the Borrower or any of its Subsidiaries engages in a non-exempt prohibited transaction (i.e., a prohibited transaction for which a statutory, regulatory, or administrative exemption does not exist) with respect
to which the Borrower or any of its Subsidiaries is a disqualified person (within the meaning of Section 4975 of the Code), or with respect to which the Borrower or any such Subsidiary could otherwise be liable; or (j) the
imposition of any Lien under Section 430(k) of the Code or pursuant to Section 303(k) or Section 4068 of ERISA with respect to any Pension Plan, or any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Holdings, the Borrower or any ERISA Affiliate. EU Bail-In Legislation
Schedule means the document described as such and 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 10.1. Exchange Act means the Securities Exchange Act of 1934, as amended, and regulations promulgated thereunder. Excluded Accounts means (a) deposit accounts specifically and exclusively used for payroll, payroll taxes and other
employee wage and benefit payments to or for the benefit of any Persons employees and (b) deposit accounts with deposits at any time in an aggregate amount not in excess of $2,000,000 for all such accounts. Excluded Assets has the meaning specified in the definition of Collateral and Guarantee Requirement. 51
Excluded Stock means: (a) any Stock with respect to which the Agent and the Borrower agree, in writing (each acting reasonably), that the cost of
pledging such Stock shall be excessive in view of the benefits to be obtained by the Secured Parties therefrom, (b)
solely in the case of any pledge of Stock of any CFC or FSHCO to secure the Obligations of a U.S. Person, any Stock that is Voting Stock of such CFC or FSHCO in excess of 65% of the outstanding Stock that is Voting Stock of such CFC or FSHCO, (c) any Stock to the extent, and for so long as, the pledge thereof would be prohibited by any applicable Law (including any
legally effective requirement to obtain the consent of any Governmental Authority unless such consent has been obtained), (d) any Margin Stock and Stock of any Person (other than any Restricted Subsidiary) to the extent, and for so long as, the
pledge of such Stock would be prohibited by, or create an enforceable right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Restricted Subsidiary of the Borrower) under, the terms of any Organization
Document, joint venture agreement or shareholders agreement applicable to such Person after giving effect to the applicable anti-assignment clauses of the UCC and applicable law, (e) the Stock issued by any Immaterial Subsidiary or Unrestricted Subsidiary, (f) any Stock of a Foreign Subsidiary that is a Subsidiary of a Foreign Subsidiary; and (g) any Stock of a Person acquired by Holdings or any of its Restricted Subsidiaries in accordance with the provisions set
forth herein so long as (i) substantially simultaneously with such acquisition, all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity)
are contributed to the Borrower or a Guarantor (other than Holdings, other than to the extent that Holdings substantially contemporaneously therewith contributes such property and assets to one of its Subsidiaries that is a Guarantor) and such
Obligor complies with the requirements set forth in this definition with respect to such property and assets (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity), (ii) such Person, after giving effect
to subclause (i) above, individually has assets with a Fair Market Value of less than $2,000,000, and in the aggregate for all such transactions during the term of the Agreement, such Persons, in each case after giving effect to
subclause (i) above, collectively have assets with a Fair Market Value of less than $5,000,000 (it being understood and agreed that such caps shall not include any assets held by any such Person after the Stock of such Person has been
distributed pursuant to subclause (iii) below) and (iii) as soon as possible, and in any event within fifteen (15) days after such acquisition, the Stock of such Person (all or substantially all of the property and assets of
which (including any Stock owned by such Person) have been contributed to one or more Obligors in accordance with subclause (i) of this clause (g)) shall have been distributed by Holdings to a Parent Entity pursuant to
52
Section 8.10(m) or such Person is liquidated or merged out of existence provided that, in each case, substantially simultaneous with such acquisition, all or substantially all
of the property and assets of such Person (including any Stock owned by such Person) shall be contributed to one or more Obligors in accordance with subclause (i) above in this clause (g). Excluded Subsidiary means: (a) upon Flotek initially becoming a Subsidiary, Flotek and its Subsidiaries but only until such time as Holdings owns,
directly or indirectly, more than 66 2/3% of the Stock of Flotek (unless Flotek otherwise qualifies as an Excluded Subsidiary pursuant to clauses (b) through (g) below), (b) any Subsidiary that is restricted or prohibited by (x) subject to clause (g) below, applicable Law or
(y) contractual obligation from guaranteeing the Obligations (and for so long as such restriction or prohibition is in effect); provided that in the case of clause (y), such contractual obligation existed on the Closing Date or,
with respect to any Subsidiary acquired by the Borrower or a Restricted Subsidiary after the Closing Date (and so long as such contractual obligation was not incurred in contemplation of such acquisition), on the date such Subsidiary is so acquired,
(c) (i) any Foreign Subsidiary or (ii) any Domestic Subsidiary that is (A) a FSHCO or (B) a direct or
indirect Subsidiary of a Foreign Subsidiary that is a CFC, (d) any Immaterial Subsidiary (provided that the
Borrower shall not be permitted to exclude Immaterial Subsidiaries from guaranteeing the Obligations to the extent that (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries excluded by this clause (d) exceeds
(A) to the extent that no Debt, or commitments with respect thereto, are outstanding under Section 8.12(r) hereof, 7.5% of the consolidated gross revenues of Holdings and its Restricted Subsidiaries, or (B) at all other times,
5% of the consolidated gross revenues of Holdings and its Restricted Subsidiaries, in each case, that are not otherwise Excluded Subsidiaries by virtue of any other clauses of this definition except for this clause (d) as of the last day
of the Test Period most recently ended on or prior to the date of determination or (ii) the aggregate amount of total assets for all Immaterial Subsidiaries excluded by this clause (d) exceeds (A) to the extent that no Debt, or
commitments with respect thereto, are outstanding under Section 8.12(r) hereof, 7.5% of the aggregate amount of Consolidated Total Assets of Holdings and its Restricted Subsidiaries, or (B) at all other times, 5% of the aggregate
amount of Consolidated Total Assets of Holdings and its Restricted Subsidiaries, in each case, that are not otherwise Excluded Subsidiaries by virtue of any other clauses of this definition except for this clause (d) as of the last day
of the Test Period most recently ended on or prior to the date of determination). (e) any other Subsidiary with respect
to which, in the reasonable judgment of the Agent and the Borrower, the cost of providing a Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom, 53
(f) each Unrestricted Subsidiary, and (g) any Subsidiary that would require any consent, approval, license or authorization from any Governmental Authority to
provide a Guaranty unless such consent, approval, license or authorization has been received, or is received after commercially reasonable efforts (including if requested by the Agent to do so) by the Borrower and/or such Subsidiary to obtain the
same. As of the Closing Date, IOT-eq, LLC, EKU Power Drives GmbH and EKU Power Drives Inc. are the only Excluded
Subsidiaries of Holdings. Excluded Swap Obligation means, with respect to any Obligor or Holdings, (a) any
obligation (a Swap 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 the guarantee of such Obligor of, or the grant by such Obligor or Holdings 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) (i) by virtue of such Obligors or Holdings failure to constitute an eligible contract
participant, as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to any applicable keep well, support, or other agreement for the benefit of such Obligor or Holdings and any and all
applicable guarantees of such Obligors Swap Obligations by other Obligors), at the time the guarantee of (or grant of such security interest by, as applicable) such Obligor or Holdings becomes or would become effective with respect to such
Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Obligor or Holdings is a financial entity, as defined in section
2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Obligor or Holdings becomes or would become effective with respect to such Swap Obligation or (b) any other Swap
Obligation designated as an Excluded Swap Obligation of such Obligor or Holdings as specified in any agreement between the relevant Obligors and Hedge Bank applicable to such Swap Obligations. 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 the swap for which such guarantee or security interest is or becomes excluded in accordance with the first
sentence of this definition. Excluded Taxes means any of the following Taxes imposed on or with respect to a Recipient
or required to be withheld or deducted from a payment to a Recipient under any Loan Document, (a) Taxes imposed on (or measured by) the Recipients net income (however denominated), franchise Taxes imposed in lieu of net income 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, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in
effect on the date on which (i) such Lender acquired its interest in the applicable Commitment or, in the case of an applicable interest in a Loan not funded pursuant to a prior Commitment, such Lender acquires such interest
54
in such Loan (provided that this clause (b)(i) shall not apply to an assignee pursuant to an assignment request by the Borrower under Section 5.8 or the acquisition of a
participation pursuant to Section 13.11) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.1, amounts with respect to such Taxes were payable either to such
Lenders assignor immediately before such Lender acquired its interest in the applicable Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipients failure to
comply with Section 5.1(d), and (d) any Taxes imposed under FATCA. Existing ABL Facility means that
certain Credit Agreement, dated as of March 14, 2018, by and among ProFrac Services, Holdings, the guarantors party thereto, the lenders party thereto and Barclays Bank PLC, as the administrative agent and collateral agent (as amended, amended
and restated, supplemented and otherwise modified from time to time, and together with the guarantee and security documentation executed in connection therewith). Existing Debt Refinancing means the repayment in full of all principal, accrued and unpaid interest, fees, premium, if any,
and other amounts outstanding under the Existing ABL Facility, the Existing Term Loan Facility, and the other Debt of Holdings, the Borrower and the Restricted Subsidiaries set forth on Schedule 9.1, in each case, other than contingent
obligations not then due and payable and that by their terms survive the termination of such loan documents, the termination of all commitments to extend credit thereunder and the termination and/or release of any security interests and guarantees
in connection therewith. Existing Letters of Credit means those letters of credit described on Schedule 1.1(a)
to this Agreement. Existing Revolving Credit Class has the meaning specified in Section 2.7(a). Existing Revolving Credit Commitments has the meaning specified in Section 2.7(a). Existing Revolving Loans has the meaning specified in Section 2.7(a). Existing Term Loan Facility means that certain Term Loan Credit Agreement, dated as of September 7, 2018, by and among
the ProFrac Services, Holdings, the guarantors party thereto, the lenders party thereto and Barclays Bank PLC, as the administrative agent and collateral agent (as amended, amended and restated, supplemented and otherwise modified from time to time,
and together with the guarantee and security documentation executed in connection therewith). Extended Revolving Credit
Commitments has the meaning specified in Section 2.7(a). Extended Revolving Credit Facility
means each Class of Extended Revolving Credit Commitments established pursuant to Section 2.7. Extended Revolving
Loans has the meaning specified in Section 2.7(a). Extending Lender has the meaning specified in
Section 2.7(b). Extension Agreement has the meaning specified in Section 2.7(c). 55
Extension Date has the meaning specified in Section 2.7(d).
Extension Election has the meaning specified in Section 2.7(b). Extension Request has the meaning specified in Section 2.7(a). Extension Series means all Extended Revolving Credit Commitments that are established pursuant to the same Extension
Agreement (or any subsequent Extension Agreement to the extent such Extension Agreement expressly provides that the Extended Revolving Credit Commitments provided for therein are intended to be a part of any previously established Extension Series)
and that provide for the same interest margins, extension fees, if any, and amortization schedule. Fair Market Value
means, with respect to any asset or group of assets on any date of determination, the value of the consideration obtainable in a sale of such asset at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at
arms length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, as determined in good faith by the Borrower. Family Member means, with respect to any individual, any other individual that is recognized as a family member (to the
second degree of consanguinity) by the laws of the residence of such individual. Family Trust mean, with respect to
Dan Wilks, trusts, family limited partnerships or other estate planning vehicles established for the benefit of Dan Wilks or his Family Members and in respect of which Dan Wilks or one or more of his Family Members serves as trustee or in a similar
capacity. Farris Family Trust mean, with respect to Farris Wilks, trusts, family limited partnerships or other estate
planning vehicles established for the benefit of Farris Wilks or his Family Members and in respect of which Farris Wilks or one or more of his Family Members serves as trustee or in a similar capacity. 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 current Section 1471(b)(1) of the Code and any
fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. Federal Funds Effective Rate means, for any day, the rate calculated by the NYFRB based on such days federal funds
transactions by depositary institutions (as determined in such manner as shall be set forth on the NYFRBs Website from time to time) and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate,
provided that, if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement. 56
Federal Reserve Board means the Board of Governors of the Federal Reserve
System or any successor thereto. Fee Letters means (a) the Fee Letter, dated as of February 21, 2022,
between JPMorgan and the Borrower, as the same may be further amended, restated, supplemented or otherwise modified from time to time and (b) any other letter agreements entered into from time to time between the Borrower and JPMorgan,
providing for the payments of fees to the Agent, the Collateral Agent and/or any Arranger in connection with this Agreement or any transactions contemplated hereunder. Field Examination has the meaning specified in Section 8.4(b). FILO Tranche has the meaning specified in Section 2.6(c). Financed Capital Expenditures means, with respect to any Person and for any period, Capital Expenditures made by such
Person during such period that are financed with the net proceeds of any incurrence of Debt (other than Loans) or received from any disposition of assets, from any Casualty Event or from any issuance of Stock (other than Disqualified Stock or any
other issuance of Stock which increases any available basket hereunder). Financial Covenant means the covenant set
forth in Section 8.20. Financial Statements means, according to the context in which it is used, the
financial statements referred to in Section 6.2 and Section 7.5. First Amendment means that
certain First Amendment to Credit Agreement dated as of the First Amendment Effective Date, by and among Holdings, the Borrower, the other Obligors party thereto, the Lenders party thereto, the Agent and the Collateral Agent. First Amendment Effective Date means July 25, 2022. First Financial Loan Documents means, collectively, the Loan Agreement, dated as of December 22, 2021 (the
First Financial 2021 Loan Agreement), by and among First Financial Bank, N.A., as lender, and ProFrac Holdings II, LLC, as borrower, and ProFrac Manufacturing, LLC and ProFrac Services, LLC, as guarantors, together with all
security agreements, guarantees, pledge agreements and other agreements, certificates or instruments executed in connection therewith, in each case, as amended, restated, modified and/or supplemented to the extent not materially adverse to the
Lenders. Fiscal Quarter means the period commencing on January 1 in any Fiscal Year and ending on the next
succeeding March 31, the period commencing on April 1 in any Fiscal Year and ending on the next succeeding June 30, the period commencing on July 1 in any Fiscal Year and ending on the next succeeding September 30, or the
period commencing on October 1 in any Fiscal Year and ending on the next succeeding December 31, as the context may require. Fiscal Year means Holdings, the Borrowers, the Guarantors and/or their Subsidiaries fiscal year for
financial accounting purposes. As of the Closing Date, the current Fiscal Year of the Consolidated Parties will end on December 31, 2022. 57
Fixed Asset Collateral means the Fixed Asset Priority
Collateral (as defined in the Initial Intercreditor Agreement on the Closing Date). Fixed Asset Priority Proceeds
Account means the Fixed Asset Priority Proceeds Account (as defined in the Initial Intercreditor Agreement on the Closing Date). Fixed Charge Coverage Ratio means, as of any date of determination, the ratio of (a) (i) Consolidated EBITDA of Holdings
and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination minus (ii) Unfinanced Capital Expenditures made by Holdings, the Borrower and its Restricted Subsidiaries during such Test
Period, to (b) the Fixed Charges of Holdings and its Restricted Subsidiaries for such Test Period; provided that, for purposes of calculating the Fixed Charge Coverage Ratio for any period ending prior to the first anniversary of the
Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest Expense from the Closing Date through the date of determination multiplied by a fraction the numerator of which is 365 and the denominator of which
is the number of days from the Closing Date through the date of determination. In calculating the Fixed Charge Coverage Ratio for
purposes of determining whether the Fixed Charge Coverage Ratio test described in clause (b) of the definition of Specified Conditions has been satisfied, as of such date, the amount of Fixed Charges included in clause
(b) above shall include, without duplication of any payments already constituting Fixed Charges, the amount of any Specified Payment actually made on such date of determination. Fixed Charges means, as of any date of determination, the sum, determined on a consolidated basis, of (a) the
Consolidated Interest Expense of Holdings and its Restricted Subsidiaries paid in the Test Period most recently ended on or prior to such date of determination, plus
(b) scheduled payments of principal (including any scheduled
payment of principal resulting from the requirement to make a payment as a result of the accumulation of excess cash flow, but excluding, for the avoidance of doubt, any IPO Prepayment (as defined in the Term Loan Credit Agreement)) on Debt for
Borrowed Money of Holdings and its Restricted Subsidiaries (other than payments by Holdings or any of its Restricted Subsidiaries to Holdings or to any of such Restricted Subsidiaries) paid in cash during such Test Period and the principal component
of Debt attributable to Capital Leases paid in cash during such Test Period, plus (c) cash Taxes actually paid in such Test Period, plus
(d) solely for purposes of calculating Specified
Conditions, any Distribution made in cash pursuant to Section 8.10(i)(i) during such Test Period, plus
(e) [**]. Flood Insurance Laws means, collectively,
(i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the
National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) Biggert-Waters
Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto. 58
Floor means, at any time, the benchmark rate floor, if any, provided in
this Agreement (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR or the Adjusted Daily Simple SOFR, as applicable. As of the Closing Date, the
initial Floor for each of the Adjusted Term SOFR or the Adjusted Daily Simple SOFR shall be 0.00%. Flotek means Flotek
Industries, Inc., a Delaware corporation. Flotek Notes means (i) the 10% Convertible PIK Notes dated
February 2, 2022 issued and sold to Holdings by Flotek and later contributed by Holdings to the Borrower on or before the date hereof, (ii) the 10% Convertible PIK Notes dated February 2, 2022 issued to Holdings by Flotek and later
contributed by Holdings to the Borrower on or about the Closing Date and (iii) the Convertible Notes issued to the Borrower or another Obligor by Flotek, from time to time, in connection with that certain Chemical Products Supply Agreement
dated February 2, 2022, as amended, restated, modified, supplement, extended or replaced from time to time, (the Flotek Supply Agreement) by and between Flotek Chemistry, LLC, and ProFrac Services, LLC, and the Flotek
Securities Purchase Agreement provided that such Convertible Notes in this clause (iii) are issued for no separate cash consideration. For the avoidance of doubt, payments made by or on behalf of ProFrac Services, LLC for the
product sold in accordance with the Flotek Supply Agreement shall not be deemed to be separate cash consideration for purposes of the Flotek Notes. Flotek Note Purchase Agreement means that certain Note Purchase Agreement dated as of February 2, 2022 among Flotek
and each of the purchasers party thereto from time to time, as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments, express waivers or express consents
thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders. Flotek
Securities Purchase Agreement means that certain Securities Purchase Agreement dated as of February 16, 2022, by and between Flotek and Holdings, as amended, restated, supplemented or otherwise modified from time to time but without
giving effect to any modifications, amendments, express waivers or express consents thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders. Flotek Stock means the Stock issued to the Borrower or another Obligor by Flotek, from time to time, in connection with
(i) the Flotek Supply Agreement and the Flotek Securities Purchase Agreement, provided that such Stock is issued for no separate cash consideration. For the avoidance of doubt, payments made by or on behalf of ProFrac Services, LLC for
the product sold in accordance with the Flotek Supply Agreement shall not be deemed to be separate cash consideration for purposes of the Flotek Stock and/or (ii) the conversion of the Flotek Notes into Stock issued by Flotek. Foreign Subsidiary means any Subsidiary of Holdings (other than Borrower) that is formed under the laws of a jurisdiction
other than the United States, a state of the United States or the District of Columbia. Fracturing Equipment Parts has
the meaning specified therefor in the Initial Intercreditor Agreement on the Closing Date. 59
FSHCO means any direct or indirect Subsidiary that has no material assets
other than Stock of one or more direct or indirect Foreign Subsidiaries that are CFCs. FTS means FTS International
Inc., a Delaware corporation. FTS Acquisition means the transactions contemplated pursuant to that certain FTS
Acquisition Agreement, together with the FTS Acquisition Documents. FTS Acquisition Agreement means that certain
Agreement and Plan of Merger, dated as of October 21, 2021, by and among Holdings, FTS International, Inc., and ProFrac Acquisition, Inc. (as amended, restated, supplemented or otherwise modified from time to time but without giving effect to
any modifications, amendments, express waivers or express consents thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders). FTS Acquisition Documents means the FTS Acquisition Agreement and all other agreements, instruments and other documents
related thereto or executed in connection therewith (as amended, restated, supplemented or otherwise modified from time to time but without giving effect hereunder to any modifications, amendments, express waivers or express consents thereunder
after the date hereof that are materially adverse to the Lenders without the consent of the Required Lenders). FTS Acquisition
Transactions means, collectively, (i) the Permitted FTS Acquisition, (ii) the Permitted Sale Leaseback Transaction and (iii) the FTS Distribution and Contribution Transaction. FTS Control Agreements means (i) that certain Uncertificated Stock Control Agreement, dated as of the Agreement Date,
among Farris Wilks and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time and (ii) that certain Uncertificated Stock Control
Agreement, dated as of the Agreement Date, among THRC Holdings, LP, and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time. FTS Distribution and Contribution Transaction means (a) the distribution by Holdings of the Stock of FTS to ProFrac
Holding Corp or other members of Holdings (and the redemption of Stock in Holdings) followed (substantially simultaneously) by (b) the contribution (automatically and through no further action of any Person) of all or substantially all of the
property and assets of FTS and the FTS Subsidiaries (including any Stock owned by FTS or any of the FTS Subsidiaries, but for the avoidance of doubt, not including the Stock issued by FTS or any Stock issued by Holdings) to Holdings, followed
(substantially simultaneously) by (c) the contribution (automatically and through no further action of any Person) of such property and assets of FTS and the FTS Subsidiaries (including any Stock owned by FTS or any of the FTS Subsidiaries, but
excluding any cash contributed and/or transferred to Holdings which may be utilized to prepay the Closing Date Note to the extent not prohibited pursuant to Section 8.13(b)) by Holdings to the Borrower which may be contributed further by
the Borrower to a Guarantor (other than Holdings) followed (substantially simultaneously) by (d) the distribution by FTS International Services, LLC of the Stock of FTS International Manufacturing, LLC to the Borrower. 60
FTS Subsidiaries means FTS International Services, LLC and FTS
International Manufacturing, LLC. Full Payment or Full Payment of the Obligations means, with
respect to any Obligations (other than contingent indemnification obligations or other contingent obligation for which no claim has been made or asserted, Hedge Obligations not then due and payable and Cash Management Obligations not then due and
payable), (a) the full cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in the proceeding), (b) if such Obligations arise from Letters of Credit or if
such Obligations consist of indemnification or similar obligations for which a claim has been made or asserted, the cash collateralization thereof as provided herein or otherwise acceptable to the Agent (or delivery of a standby letter of credit
reasonably acceptable to the Agent, in the amount of required cash collateral) and (c) the termination or expiration of all Commitments. Funding Date means the date on which a Borrowing occurs. GAAP means generally accepted accounting principles and practices 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 U.S. accounting profession), which are applicable to the circumstances from time to time. General
Intangibles means all of each Obligors now owned or hereafter acquired general intangibles as defined in the UCC, choses in action and causes of action and all other intangible personal property of each Obligor of
every kind and nature (other than Accounts), including, without limitation, all contract rights, payment intangibles, Intellectual Property, corporate or other business records, blueprints, plans, specifications, registrations, licenses, franchises,
Tax refund claims, any funds which may become due to any Obligor in connection with the termination of any Plan or other employee benefit plan or any rights thereto and any other amounts payable to any Obligor from any Plan or other employee benefit
plan, rights and claims against carriers and shippers, rights to indemnification, business interruption insurance and proceeds thereof, property, casualty or any similar type of insurance and any proceeds thereof, proceeds of insurance covering the
lives of key employees on which any Obligor is beneficiary, rights to receive dividends, distributions, cash, Instruments and other property in respect of or in exchange for pledged Stock or Investment Property and any letter of credit, guarantee,
claim, security interest or other security held by or granted to any Obligor. Governmental Authority means any nation
or government, any state, territorial or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof and any governmental entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government. 61
Guarantee Agreement means the Guarantee Agreement, dated as of the
Closing Date, among the Guarantors for the benefit of the Secured Parties. Guarantors means (a) the Borrower,
other than with respect to its own Obligations, (b) each Restricted Subsidiary, whether now existing or hereafter created or acquired (other than any Excluded Subsidiary) that is a party to the Guarantee Agreement, (c) Holdings, and
(d) each other Person, who, in a writing accepted by the Agent, guarantees payment or performance in whole or in part of the Obligations. As of the Guaranty or Guarantees means,
with respect to any Person, all obligations of such Person which in any manner directly or indirectly guarantee or assure, or in effect guarantee or assure, the payment or performance of any indebtedness, dividend or other monetary obligations of
any other Person (the guaranteed monetary obligations), or assure or in effect assure the holder of the guaranteed monetary obligations against loss in respect thereof, including any such obligations incurred through an agreement,
contingent or otherwise: (a) to purchase the guaranteed monetary obligations or any property constituting security therefor; (b) to advance or supply funds for the purchase or payment of the guaranteed monetary obligations or to maintain a
working capital or other balance sheet condition; or (c) to lease property or to purchase any debt or equity securities or other property or services; provided that the term Guaranty shall not include endorsements for
collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under
this Agreement (other than such obligations with respect to Debt). The amount of any Guaranty 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
Guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person acting reasonably and in good faith. Hedge Agreement 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. 62
Hedge Bank means any Person that that is a counterparty to a Secured
Hedge Agreement with an Obligor or one of its Restricted Subsidiaries, in its capacity as such, and that either (i) is a Lender, the Agent, an Arranger or an Affiliate of the foregoing at the time it enters into such a Secured Hedge Agreement,
or on the Closing Date is party to a Hedge Agreement with an Obligor or any Restricted Subsidiary permitted under Section 8.12 on the Closing Date, in its capacity as a party thereto or (ii) becomes a Lender, the Agent or an
Affiliate of a Lender or the Agent after it has entered into a Hedge Agreement permitted by Section 8.12 with any Obligor or any Restricted Subsidiary; provided, that any such Person that ceases to be a Lender, the Agent,
an Arranger or an Affiliate of the foregoing shall not be a Hedge Bank with respect to any Hedge Agreement that it thereafter enters into (or that is assigned or transferred to it) while it is not a Lender, the Agent, an Arranger or an Affiliate of
the foregoing. Hedge Obligations means, with respect to any Person, the obligations of such Person under Hedge
Agreements. Historical Financial Statements means (i) audited consolidated balance sheets of Holdings and its
consolidated subsidiaries as at the end of, and related statements of income and cash flows of Holdings and its consolidated subsidiaries for, the three most recently completed Fiscal Years ended December 31, 2020, and (ii) unaudited
consolidated balance sheets of Holdings and its consolidated subsidiaries as at the end of, and related statements of income and cash flows of Holdings and its consolidated subsidiaries, (a) for the fiscal quarter ended September 30, 2021
and (b) thereafter for each fiscal month ended at least 30 days prior to the Closing Date. Holdings means
Holdings (as defined in the preamble to this Agreement) or any Successor Holdings, to the extent the requirements set forth in Section 8.27 are satisfied. Holdings LLC Agreement means that certain Second Amended and Restated Limited Liability Company Agreement of ProFrac
Holdings, LLC, dated as of March 14, 2018, as amended and/or amended and restated in the form of that certain Third Amended and Restated Limited Liability Company Agreement attached hereto at Exhibit N, as further amended restated and/or
modified prior to being executed to the extent that such amendments, restatements and/or modifications are not materially adverse to the Lenders. Immaterial Subsidiary means, at any date of determination, any Restricted Subsidiary of the Borrower (a) that does not
own any Intellectual Property related to the electrification of the Borrowers fleets of hydraulic fracturing equipment and (b)(i) whose total assets (when combined with the assets of such Restricted Subsidiarys Subsidiaries, after
eliminating intercompany obligations) at the last day of the Test Period most recently ended on or prior to such determination date were an amount equal to or less than (A) to the extent that no Debt, or commitments with respect thereto, are
outstanding under Section 8.12(r) hereof, 5.0% of Consolidated Total Assets at such date or (B) at all other times, 2.5% of Consolidated Total Assets at such date and (ii) whose gross revenues (when combined with the revenues
of such Restricted Subsidiarys Subsidiaries, after eliminating intercompany obligations) for such Test Period were an amount equal to or less 63
than (A) to the extent that no Debt, or commitments with respect thereto, are outstanding under Section 8.12(r) hereof, 5.0% of the consolidated gross revenues of Holdings and
its Restricted Subsidiaries for such Test Period, or (B) at all other times, 2.5% of the consolidated gross revenues of Holdings and its Restricted Subsidiaries for such Test Period, in each case determined in accordance with GAAP. As of the
Closing Date, the Immaterial Subsidiaries are set forth on Schedule 1.3. Incremental Agreement has the meaning
specified in Section 2.6(e). Incremental Facility Closing Date has the meaning specified in
Section 2.6(e). Incremental Revolving Credit Commitment Increase Lender has the meaning specified in
Section 2.6(f)(ii). Indemnified Person has the meaning specified in Section 14.10. Indemnified Taxes means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or
on account of any Obligor under any Loan Document and (b) to the extent not otherwise described in clause (a) above, all Other Taxes. Initial Intercreditor Agreement means that certain Intercreditor Agreement dated as of the Agreement Date, by and among the
Collateral Agent, Piper Sandler Finance LLC, as the Initial Fixed Asset Collateral Agent (as defined therein), the other agents party thereto (if any) and the Obligors, as may be amended, restated, amended and restated, supplemented, waived or
otherwise modified from time to time in accordance with the terms hereof and the provisions of such Intercreditor Agreement. Insolvency Proceeding means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or
under any other state, federal or foreign bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with all or substantially all creditors, or proceedings seeking
reorganization, arrangement, or other similar relief. Instruments means all instruments as such term is defined in
Article 9 of the UCC, now owned or hereafter acquired by any Obligor. Intellectual Property has the meaning specified
in the Security Agreement. Intercreditor Agreement means, as applicable, (a) the Initial Intercreditor Agreement,
(b)
[**] and (c) any other intercreditor agreement in form and substance
satisfactory to Agent, Collateral Agent, the Required Lenders, and Borrower. Intercreditor Arrangement has the
meaning specified in Section 13.25. Interest Period means, as to any Term Benchmark Loan, the period
commencing on the Funding Date of such Term Benchmark Loan or on the Continuation/Conversion Date on which a Loan is converted into or continued as a Term Benchmark Loan, and ending on the date one, three or six months thereafter (in each case,
subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), as selected by the Borrower in its Notice of Borrowing or Notice of Continuation/Conversion, provided that: 64
(a) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding
Business Day; (b) any Interest Period pertaining to a Term Benchmark Loan 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; (c) no Interest Period shall extend beyond the Stated Termination Date; and (d) no tenor that has been removed from this definition pursuant to Section 5.5(c)(iv) shall be available for
specification in any Notice of Borrowing or Notice of Continuation/Conversion. Interest Rate means each or any of the
interest rates, including the Default Rate, set forth in Section 3.1. Inventory means all of each
Obligors now owned or hereafter acquired Inventory as defined in the UCC, and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or
lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, (iv) consist of raw materials, work in process, or materials used or consumed in a business, or (v) constitute
Fracturing Equipment Parts; (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising and shipping materials related to any of the foregoing.
Investment in any Person means (a) the acquisition (whether for cash, property, services, assumption of Debt,
securities or otherwise, but exclusive of the acquisition of inventory, supplies, equipment and other assets used or consumed in the ordinary course of business of Holdings or its applicable Subsidiary and Capital Expenditures) of assets, shares of
Stock, bonds, notes, debentures, partnerships, joint ventures or other ownership interests or other securities of such Person, (b) any advance, loan or other extension of credit (other than in connection with leases of Equipment or leases or
sales of Inventory on credit in the ordinary course of business and excluding, in the case of Holdings and its Restricted Subsidiaries, intercompany accounts receivable and loans, advances, or Debt having a term not exceeding 364 days (inclusive of
any roll-over or extensions of terms) and made in the ordinary course of business) to such Person, or (c) any other capital contribution to, or investment in, such Person, including, without limitation, any obligation incurred for the benefit of
such Person, but excluding (i) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (ii) bona fide Accounts arising in the ordinary course of business. It is further
understood and agreed that for purposes of determining the value of any Investment outstanding for purposes hereof, such amount shall be deemed to be the amount of such Investment when made, purchased or acquired less all dividends, returns,
interests, profits, distributions, income and similar amounts received in respect of such Investment (not to exceed the original amount invested). 65
Investment Grade Account Debtor means an Account Debtor with a long term
issuer rating of no less than Baa3 from Moodys or BBB- from S&P. Investment Property means all of each
Obligors now owned or hereafter acquired investment property as defined in the UCC, and includes all right, title and interest of each Obligor in and to any and all: (a) securities whether certificated or
uncertificated; (b) securities entitlements; (c) securities accounts; (d) commodity contracts; or (e) commodity accounts. For purposes of this definition, capitalized terms used in this definition but not defined elsewhere in
this Agreement shall have the meanings set forth in Articles 8 or 9 of the UCC. IO-TEQ Debt means that certain Debt
evidenced pursuant to that certain (x) promissory note dated February 3, 2021 issued by IOT-eq, LLC to Third Coast Bank, SSB in the original principal amount of $168,865.00 and (y) promissory note dated 2020 issued by IOT-eq, LLC to
Spirit of Texas Bank, SSB in the original principal amount of $601,676.00. IPO means the initial public offering and
sale of common stock of ProFrac Holding Corp. pursuant to an effective registration statement (Registration No. 333-261255) filed by ProFrac Holding Corp. with the SEC (the Registration Statement) under the Securities Act.
IPO Transactions means the IPO and the transactions described in the Registration Statement, including (i) the
conversion of all of the membership interests in Holdings held by the owners of Holdings into a single class of common units in Holdings, the transfer by certain of such owners of their common units in Holdings to ProFrac Holding Corp. in exchange
for shares of Class A common stock of ProFrac Holding Corp. or cash, the issuance by ProFrac Holding Corp. of shares of Class B common stock of ProFrac Holding Corp. to certain of such owners and the direct or indirect contribution of the Net
Equity Proceeds of the IPO Transactions by ProFrac Holding Corp. to Holdings and by Holdings to the Borrower, (ii) the use of the Net Equity Proceeds from the IPO Transactions by the Borrower to invest in Cash Equivalents pending their
application for any purpose not prohibited hereunder, and (iii) the execution, delivery and performance by Holdings of its obligations under the amended and restated Holdings LLC Agreement, the Tax Receivable Agreement and the Shared Services
Agreement, in each case, subject to the terms of this Agreement. IRS means the Internal Revenue Service and any
Governmental Authority succeeding to any of its principal functions under the Code. JPMorgan means JPMorgan Chase
Bank, N.A. and its successors. Junior Debt means any Debt for Borrowed Money (i) secured by a junior Lien (other
than, for the avoidance of doubt, any secured indebtedness incurred pursuant to Section 8.12(q)(x) or (r) which has (a) a Lien on Fixed Asset Collateral that is senior to Agents Lien on Fixed Asset Collateral
securing the Obligations and (b) a Lien on Current Asset Collateral that is junior to Agents Lien on Current Asset Collateral securing the Obligations), (ii) any unsecured Debt for Borrowed Money incurred pursuant to
Section 8.12(q)(y), and (iii) any subordinated Debt for Borrowed Money, in each case incurred by an Obligor and owing to a Person that is not Holdings, 66
an Obligor or any Restricted Subsidiary thereof. For the avoidance of doubt, the EKU Debt, the IO-TEQ Debt, the U.S. Well Services Debt, [**] and Debt evidenced by the First Financial Loan Documents , the Paccar Equipment Loan Documents and the Enterprise Equipment Lease Agreement shall not constitute Junior Debt. Laws means, collectively, all
international, foreign, federal, state, territorial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the common law, and the interpretation or
administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of laws. L/C Commitment means, with respect to any Letter of
Credit Issuer at any time, (i) the amount set forth opposite such Letter of Credit Issuers name on Schedule 1.1 hereto under the caption L/C Commitment or (ii) such other amount agreed from time to time between
such Letter of Credit Issuer and the Borrower. Lender means (a) the Persons listed on Schedule 1.1,
(b) any other Person that shall become a party hereto as a lender pursuant to Section 12.2 and (c) each Person that becomes a party hereto as a lender pursuant to the terms of Section 2.6, in
each case other than a Person who ceases to hold any outstanding Loans, participations in Letters of Credit or Swingline Loans or any Commitment and shall include the Agent to the extent of any Agent Advance outstanding and the Swingline Lender to
the extent of any Swingline Loan outstanding. Lender Default means (a) the failure to fund all or any portion of
its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Borrower in writing that such failure is the result of such Lenders 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, (b) the failure of any Lender to pay over to the Agent, any
Letter of Credit Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (c) a Lender has notified the Borrower or the Agent that it does not intend or
expect to comply with one or more of its funding obligations or has made a public statement to that effect with respect to its funding obligations under this Agreement (unless such writing or public statement relates to such Lenders obligation
to fund a Loan hereunder and states that such position is based on such Lenders good faith 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), (d) the failure by a Lender to confirm in a manner reasonably satisfactory to the Agent that it will comply with its obligations under this Agreement, (e) any Lender or a direct or
indirect parent company of each Lender becoming subject to a Bail-In Action or (f) a Distressed Person has admitted in writing that it is insolvent or such Distressed Person becomes subject to a Lender- Related Distress Event. 67
Lender-Related Distress Event means, with respect to any Lender, that
such Lender or any Person that directly or indirectly controls such Lender (each, a Distressed Person), as the case may be, is or becomes subject to a voluntary or involuntary case with respect to such Distressed Person under any
debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Persons assets, or such Distressed Person or any person that directly or indirectly
controls such Distressed Person is subject to a forced liquidation or winding up, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having
regulatory authority over such Distressed Person or its assets to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any Stock in
any Lender or any Person that directly or indirectly controls such Lender by a governmental authority or an instrumentality thereof; provided, further, that such ownership interest does not result in or provide such person 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 person (or such governmental authority or instrumentality) to reject, repudiate, disavow or
disaffirm any contract or agreements made by such person or its parent entity. Letter of Credit has the meaning
specified in Section 2.3(a). Letter of Credit Fee has the meaning specified in Section 3.6.
Letter of Credit Issuer means (a) JPMorgan or any of its Subsidiaries or Affiliates, (b) Bank of America,
N.A. or any of its Subsidiaries or Affiliates and (c) any other Lender (or any of its Subsidiaries or Affiliates) that becomes a Letter of Credit Issuer in accordance with Section 2.3(h); in the case of each of clause (a),
(b) or (c), above, in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder. In the event that there is more than one Letter of Credit Issuer at any time, references
herein and in the other Loan Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires. Letter of Credit Subfacility means
$ Lien means: (a) 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 including a security interest, charge, claim, priority or lien arising from a mortgage,
deed of trust, encumbrance, pledge, hypothecation, deemed trust, assignment, deposit arrangement, security agreement, conditional sale or trust receipt or the interest of a vendor or lessor under a capital lease, consignment or title retention
agreement; and (b) to the extent not included under clause (a), any reservation, exception, encroachment, easement, servitude right-of- way, restriction, lease or other title exception or encumbrance affecting property (and for clarity,
including exclusive licenses (but not non-exclusive licenses) granted in Intellectual Property). Liquidity means, as
of any date of determination, the sum of (i) the aggregate amount of Unrestricted Cash of the Obligors at such time plus (ii) Availability at such time. 68
Loan Documents means this Agreement, the First Amendment, the Second Amendment, the Guarantee Agreement, the Security
Documents, the Notes, the Fee Letters, the Transactions with Affiliates Letter Agreement, any Intercreditor Agreement and any other agreements, instruments, and documents heretofore, now or hereafter evidencing, securing or guaranteeing any of the
Obligations or any of the Collateral, in each case to which one or more Obligors is a party. For the avoidance doubt, Hedge Agreement and Cash Management Documents shall not constitute Loan Documents. Loans means, collectively, all loans and advances provided for in Article II, including any Revolving Loans, or
Extended Revolving Loans, as applicable. Losses has the meaning specified in Section 14.10. Manufacturing means ProFrac Manufacturing, LLC, a Texas limited liability company. Margin Stock means margin stock as such term is defined in Regulation T, U or X of the Federal Reserve Board.
Master Agreement has the meaning specified in the definition of Hedge Agreement. Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the operations,
business or financial condition of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability of the Borrower and the other Obligors (taken as a whole) to perform their payment obligations
under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Obligor of any Loan Document to which it is a party. Material Indebtedness means any Debt (other than the Obligations) of any one or more of Holdings, the Borrower and the
Restricted Subsidiaries in an aggregate principal amount exceeding $22,500,000. For purposes of determining Material Indebtedness, the principal amount of the obligations in respect of any Hedge Agreement at any time shall be the Swap
Termination Value thereof. Maximum Credit means, at any time, the lesser of (a) the Maximum Revolver Amount in
effect at such time and (b) the Borrowing Base at such time. Maximum Rate has the meaning specified in
Section 3.3. Maximum Revolver Amount means, at any time, the aggregate Revolving Credit Commitments at such
time, as the same may be increased from time to time in accordance with Section 2.6 or reduced from time to time in accordance with Section 4.4(b); provided that the Maximum Revolver Amount shall not at any time exceed $ [**]. 69
[**].
[**].
[**].
[**].
[**].
[**].
[**].
70
[**].
[**].
Moodys means Moodys Investors Service, Inc., or any
successor thereto. Multi-employer Plan means a multi-employer plan as defined in Section 4001(a)(3)
of ERISA which is or was at any time during the current year or the immediately preceding six (6) years contributed to by Holdings, the Borrower or any ERISA Affiliate or with respect to which Holdings, the Borrower or any ERISA Affiliate has
any ongoing obligation with respect to withdrawal liability (within the meaning of Title IV of ERISA). Net Equity
Proceeds means, with respect to any issuance of Stock, the gross amount of cash proceeds paid to or received by the Borrower or any of its Restricted Subsidiaries in respect thereto, less the sum of underwriting discounts and commissions
or placement fees, investment banking fees, legal fees, consulting fees, accounting fees and other customary fees and expenses incurred, and actually paid in cash by, the ProFrac PubCo, Holdings, the Borrower or any of its Restricted Subsidiaries in
connection therewith. Net Income means the net income (loss) attributable to Holdings and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends. Net
Orderly Liquidation Value means, with respect to Eligible Inventory, the orderly liquidation value thereof (expressed as a percentage), net of all costs, fees, and expenses of such liquidation, as determined from time to time pursuant to
an Appraisal. Non-Consenting Lender has the meaning specified in Section 12.1(b). Non-Wholly Owned Subs means the Subsidiaries of Holdings that are not Wholly Owned Subsidiaries of Holdings. Non-Extension Notice Date has the meaning specified in Section 2.3(b). Not Otherwise Applied means, with reference to any amount otherwise eligible for inclusion in the Available Equity Amount
and/or Section 8.10(o) as set forth herein, that such amount (a) was not previously applied to prepay the Obligations, (b) was not previously utilized (meaning such funds remain available for application as Available Equity
Amount and/or Section 8.10(o) as set forth herein) for some other purpose, and (c) that such amount was not committed to be applied, provided that such commitment remains outstanding or has not otherwise terminated or
expired, for some other purpose. Note means a promissory note of the Borrower payable to any Lender or its registered
assigns, in substantially the form of Exhibit K hereto, evidencing the aggregate Debt of the Borrower to such Lender resulting from the Loans made by such Lender. Notice of Borrowing has the meaning specified in Section 2.4(a). 71
Notice of Continuation/Conversion has the meaning specified in
Section 3.2(b). Noticed Hedge means Secured Hedge Obligations in respect of which the notice delivered to the
Agent by the applicable Hedge Bank (and acknowledged by the applicable Obligor) confirms that such Secured Hedge Agreement shall be deemed a Noticed Hedge hereunder for all purposes, including the application of Bank Product Reserves and
Section 10.3, so long as the establishment of a Bank Product Reserve with respect to such Secured Hedge Obligation would not result in the Borrower exceeding the Maximum Credit; provided that such designation shall be made within
ten (10) Business Days of (i) the Closing Date if such Secured Hedge Agreement is in place on the Closing Date or (ii) the date such Secured Hedge Agreement is entered into if such Secured Hedge Agreement is not in place on the
Closing Date; provided, further, that, if the amount of Secured Hedge Obligations arising under such Secured Hedge Agreement is increased in accordance with the definition of Secured Hedge Obligation, then such Secured
Hedge Obligations shall only constitute a Noticed Hedge to the extent that a Bank Product Reserve can be established with respect to such Secured Hedge Agreement without exceeding the then-current Availability. NYFRB means the Federal Reserve Bank of New York. NYFRB Rate means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and
(b) the Overnight Bank Funding Rate in effect on such day(or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the
term NYFRB Rate means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the
aforesaid rates as so determined would be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement. NYFRBs Website means the website of the NYFRB at http://www.newyorkfed.org, or any successor source. Obligations means all present and future loans, advances, liabilities, obligations, covenants, duties, and debts owing by
the Obligors or Restricted Subsidiaries, or any of them, to the Agent, any Letter of Credit Issuer, any Lender, any Secured Party and/or any Indemnified Person, arising under or pursuant to this Agreement, any of the other Loan Documents, Secured
Cash Management Agreements and Secured Hedge Agreements (subject to the last sentence in this definition), whether or not evidenced by any note, or other instrument or document, whether arising from an extension of credit, opening of a letter of
credit, acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect, absolute or contingent, due or to become due, primary or secondary, as principal or guarantor, and including all principal, interest, charges, expenses,
fees, attorneys fees, Attorney Costs, filing fees and any other sums chargeable to any of the Borrower or any other Obligor hereunder or under any of the other Loan Documents. Obligations include, without limitation, (a) all
debts, liabilities, and obligations now or hereafter arising from or in connection with the Letters of Credit, (b) all Secured Hedge Obligations (other than with respect to any Obligors Hedge Obligations that constitute its Excluded Swap
Obligations), but excluding any obligations with respect to additional transactions or confirmations entered into (i) after such Hedge Bank ceases to be a Lender, the Agent, an Arranger or any 72
Affiliate of the foregoing or (ii) after assignment of such transactions or confirmations by a Hedge
Bank to another Person that is not a Lender, the Agent, an Arranger or any Affiliate of the foregoing, (c) all Cash Management Obligations, but excluding any obligations with respect to any Cash Management Document entered into after such
applicable Cash Management Bank ceases to be a Lender, the Agent, an Arranger or any Affiliate of the foregoing and (d) all interest, fees and other amounts that accrue or would accrue after commencement of any Insolvency Proceeding against any
Obligor, whether or not allowed in such proceeding. Obligors means, collectively, the Borrower, each Guarantor, and
any other Person that now or hereafter is primarily or secondarily liable for any of the Obligations and/or grants the Collateral Agent a Lien in any Collateral as security for any of the Obligations; provided that OFAC has the meaning specified in Section 7.24(a). 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. Original Currency has the meaning specified in Section 14.19. Originating Lender has the meaning specified in Section 12.2(e). 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). 73
Other Taxes means all present or future stamp, court, documentary,
intangible, recording, filing, charges or similar levies or Taxes that arise from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under or
otherwise with respect to, this Agreement or any other Loan Documents, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 5.8(c)). Out-of-Formula Condition has the meaning specified in Section 4.2. Overnight Bank Funding Rate means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar
transactions denominated in Dollars by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on the NYFRBs Website from time to time) and published on the next succeeding
Business Day by the NYFRB as an overnight bank funding rate. Paccar
Equipment Loan Documents means, collectively, that certain (a) Direct Loan Security Agreement dated as of March 30, 2020, between U.S. Well Services LLC, as borrower in the original principal amount of $4,074,309.73 and Paccar
Financial Corp., (b) Direct Loan Security Agreement dated as of March 30, 2020, between U.S. Well Services LLC, as borrower in the original principal amount of $3,684,119.85 and Paccar Financial Corp., (c) Direct Loan Security
Agreement dated as of March 30, 2020, between U.S. Well Services LLC, as borrower in the original principal amount of $4,040,700.70 and Paccar Financial Corp., and (d) Direct Loan Security Agreement dated as of March 30, 2020, between
U.S. Well Services LLC, as borrower in the original principal amount of $2,930,111.78 and Paccar Financial Corp. Parent Entity means any Person that is or becomes a direct or indirect parent company (which may be organized as, among
other things, a partnership) of Holdings. For the avoidance of doubt, (i) ProFrac Holding Corp., a Delaware corporation and (ii) any other Person that is formed to effect a public offering of common Stock that is the managing member of or
that directly or indirectly owns a majority of the voting Stock of Holdings, in each case, shall be deemed to constitute a Parent Entity of Holdings. Participant means any Person who shall have been granted the right by any Lender to participate in the financing provided
by such Lender under this Agreement, and who shall have entered into a participation agreement in form and substance satisfactory to such Lender. Participant Register has the meaning specified in Section 13.20(b). Payment has the meaning assigned to such term in Section 13.24(a). Payment Notice has the meaning assigned to such term in Section 13.24(b). Payment Recipient has the meaning assigned to such term in Section 13.24(a). PBGC means the Pension Benefit Guaranty Corporation, or any Governmental Authority succeeding to the functions thereof.
74
Pension Plan means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA or Section 412 of the Code, other than a Multi-employer Plan, which Holdings, the Borrower or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions,
or has made contributions at any time during the immediately preceding six (6) plan years. Perfection
Certificates means, collectively, the Perfection Certificates substantially in the forms attached hereto as Exhibit F. Periodic Term SOFR Determination Day has the meaning specified in the definition of Term SOFR. Permitted Acquisition means (x) the Permitted West Munger Acquisition, (y) the Permitted FTS Acquisition and
(z) any other acquisition, by merger, consolidation, amalgamation or otherwise, by Holdings (or indirectly by a Parent Entity) or any of its Restricted Subsidiaries of (a) all or substantially all of the property and assets or business of any
Person or of assets constituting a business unit, a line of business or division of such Person, or (b) all or a majority of the Stock in a Person, in the case of each of clauses (a) and (b), that, (i) upon the
consummation thereof, will be a Subsidiary that is owned directly by the Borrower or one or more of its Wholly Owned Restricted Subsidiaries (including, without limitation, as a result of a merger, amalgamation or consolidation) or (ii) all or
substantially all of the property and assets of which (including any Stock owned by such Person other than the Stock of Holdings or any Parent Entity) are substantially contemporaneously therewith contributed to the Borrower or one or more
Guarantors (other than Holdings, other than to the extent that Holdings substantially contemporaneously therewith contributes such property and assets to one of its Subsidiaries that is a Guarantor) (and all of which Stock shall thereafter
constitute Excluded Stock pursuant to clause (g) of the definition thereof), in each case, so long as, (A) such acquisition and all transactions related thereto shall be consummated in all material respects in accordance with all
applicable Laws, (B) if such acquisition involves the acquisition of Stock of a Person that upon such acquisition would become a Subsidiary of the Borrower, such acquisition shall result in the issuer of such Stock becoming a Restricted
Subsidiary (unless otherwise designated as an Unrestricted Subsidiary pursuant to Section 8.26) and, to the extent required by the Collateral and Guarantee Requirement, a Guarantor, (C) to the extent required by the Collateral and
Guarantee Requirement, such acquisition shall result in the Collateral Agent, for the benefit of the Secured Parties, being granted a security interest in any Stock or any assets so acquired, (D) [reserved], (E) both immediately prior to and
after giving effect to such acquisition, no Event of Default under Section 10.1(a), (e), (f) or (g) shall have occurred and be continuing, and (F) immediately after giving effect to such acquisition,
Holdings and its Restricted Subsidiaries shall be in compliance with Section 8.15. Permitted Acquisition
Consideration means, in connection with any Permitted Acquisition or any other acquisition constituting a Permitted Investment, the aggregate amount (as valued at the Fair Market Value of such Permitted Acquisition and/or Permitted
Investment at the time such Permitted Acquisition and/or Permitted Investment is made) of, without duplication: (a) the purchase consideration for such Permitted Acquisition and/or Permitted Investment, whether payable at or prior to the
consummation of such Permitted Acquisition and/or Permitted Investment or deferred for payment at any future time, whether or not any such future payment is 75
subject to the occurrence of any contingency, and including any and all payments representing the purchase price and any assumptions of Debt and/or Guaranties, earn-outs and other
agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and (b) the aggregate
amount of Debt assumed in connection with such Permitted Acquisition and/or Permitted Investment; provided in each case, that any such future payment that is subject to a contingency shall be considered Permitted Acquisition Consideration only to
the extent of the reserve, if any, required under GAAP (as determined at the time of the consummation of such Permitted Acquisition and/or Permitted Investment) to be established in respect thereof by Holdings or its Restricted Subsidiaries. Permitted Debt has the meaning specified in Section 8.12. Permitted Disposition means: (a) [reserved]; (b) Dispositions of obsolete, surplus, damaged or worn-out property or property that is no longer necessary, used or useful in
the business of Holdings and its Restricted Subsidiaries; (c) Dispositions of property to the extent that (i) such
property is exchanged for credit against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property (which
replacement property is actually promptly purchased); (d) the use, transfer or Disposition of cash and Cash Equivalents
pursuant to any transaction not prohibited by the terms of the Loan Documents; (e) sales (other than sales of Eligible
Accounts), discounting or forgiveness of Accounts in connection with the collection, settlement or compromise thereof; (f) any Disposition, license, sublicense, abandonment or lapse of Intellectual Property which does not materially interfere
with the business of Holdings or any of its Restricted Subsidiaries, taken as a whole; (g) Dispositions constituting
Permitted Distributions, Permitted Investments (other than pursuant to clause (p) of the definition of Permitted
Investments, but including without limitation [**] to the extent set forth in clause (jj) of the definition of
Permitted Investments), transactions permitted by Section 8.9 or Permitted Liens; (h) any sale or issuance of Stock by (i) a direct Restricted Subsidiary of Holdings to Holdings, (ii) the Borrower
to Holdings, or (iii) any Restricted Subsidiary of Borrower to Borrower, Holdings or another Restricted Subsidiary of Borrower or Holdings; 76
(i) Dispositions of property for aggregate consideration of less than
$1,000,000 with respect to any individual transaction; provided that the aggregate amount of such Dispositions permitted by this clause (i) shall not exceed $5,000,000 during any Fiscal Year; (j) the leasing or subleasing of assets of Holdings or any of its Restricted Subsidiaries not materially interfering with the
business of Holdings and its Restricted Subsidiaries, taken as a whole; (k) [reserved]; (l) Dispositions of non-core assets acquired in connection with Permitted Acquisitions, any other acquisitions permitted
hereunder or similar Investments that are not used or useful in the business of Holdings and its Restricted Subsidiaries; (m) leases, subleases, licenses or sublicenses, in each case in the ordinary course of business or in the ordinary course of
business for similarly situated businesses in the Borrowers industry and which do not materially interfere with the business of Holdings and its Restricted Subsidiaries, taken as a whole; (n) transfers of property subject to Casualty Events upon receipt of the net proceeds of such Casualty Event; (o) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell
arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (p) the unwinding of any Hedge Agreement pursuant to its terms; (q) the Disposition of the Stock in, Debt of, or other securities issued by, and/or assets of an Unrestricted Subsidiary; (r) Dispositions of property or assets to Holdings, the Borrower or to any other Restricted Subsidiary; provided that,
if the transferor of such property is an Obligor (i) the transferee thereof must either be an Obligor or (ii) such transaction must constitute a Permitted Investment; (s) the settlement, release or surrender of litigation claims in the ordinary course of business or to the extent that the
Borrower determines, in the good faith business judgment, that such settlement, release or surrender of litigation claims is beneficial to Holdings and its Restricted Subsidiaries, taken as a whole; (t) any Disposition for Fair Market Value; provided that (i) with respect to any Disposition (or series of related
Dispositions) pursuant to this clause (t) for a purchase price in excess of $5,000,000, Holdings, the Borrower or any other Restricted Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash
Equivalents; provided, further, that, with respect to Dispositions of Fixed Asset Collateral (but not Current Asset Collateral), for purposes of determining what constitutes cash and Cash
77
Equivalents under this clause (t), any Designated Non-Cash Consideration received by Holdings, the Borrower or such other Restricted Subsidiary in respect of the applicable Disposition of
property that is not Current Asset Collateral having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (t) that is outstanding at the time such Designated
Non-Cash Consideration is received, not in excess of the greater of (x) $15,000,000 and (y) 1.5% of Consolidated Total Assets (measured as of the date such Disposition is made based upon the Section 6.2 Financials most recently
delivered on or prior to such date) at the time of the receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value, shall be deemed to be cash, and (ii) the Borrower shall deliver an updated Borrowing Base Certificate if the assets being disposed of pursuant to this clause (t) represent 5.0% or more of the value of
the assets included in the most recent calculation of the Borrowing Base; provided further that, after giving effect to such Disposition, any such Disposition shall not cause the aggregate amount of the Aggregate Revolver Outstandings to
exceed the then-current Availability; (u) Dispositions to any Restricted Subsidiary that is not an Obligor, provided
that the aggregate Fair Market Value of all such Dispositions made pursuant to this clause (u) shall not exceed $7,500,000; (v) Dispositions constituting the Permitted Sale Leaseback Transaction (so long as such Disposition does not involve Current
Asset Collateral) for cash consideration in the aggregate not in excess of $50,000,000; and (w) Dispositions, rentals or
other disposals of Equipment and Inventory and other assets (including allowing any registrations or any applications for registration of any immaterial Intellectual Property to lapse or go abandoned (i) in the ordinary course of business or in
the ordinary course of business for similarly situated businesses in the Borrowers industry or (ii) so long as such abandonment or lapse would not adversely affect the right of the Agent or Lenders to exercise their rights of remedies
hereunder or under any other Loan Document, to the extent that the Borrower determines, in the good faith business judgment, that abandoning or letting such Intellectual Property lapse is beneficial to the Borrower and the Restricted Subsidiaries,
taken as a whole) in the ordinary course of business and sales of Equipment and Inventory to buyers in the ordinary course of business. For purposes of this definition, capitalized terms used in this definition but not defined elsewhere in this Agreement shall
have the meanings set forth in Articles 8 or 9 of the UCC, as the case may be. [**]. 78
Permitted Distributions has the meaning specified in
Section 8.10. Permitted FTS Acquisition means the FTS Acquisition; provided that, (a) both
immediately prior to and after giving effect to the initial Borrowings on the Closing Date, the issuance of any Letters of Credit issued on the Closing Date and the consummation of the FTS Acquisition and the FTS Distribution and Contribution
Transaction, (i) Liquidity shall not be less than $50,000,000 and (ii) Availability shall not be less than $20,000,000, (b) prior to or substantially concurrent with the consummation of the FTS Acquisition, Borrower shall have
delivered to the Agent complete and correct copies of the FTS Acquisition Documents (other than the FTS Acquisition Agreement and all amendments thereto which are then all on file with the SEC prior to the date hereof), including all schedules and
exhibits thereto, (c) the FTS Acquisition shall have been or, contemporaneous with the borrowing of the Term Loans (as defined in the Term Loan Credit Agreement) on the Closing Date shall be, consummated in all material respects in accordance
with the terms of the FTS Acquisition Documents, without giving effect to any modifications, amendments, express waivers or express consents thereunder by the Borrower that are materially adverse to the Lenders without the consent of the Required
Lenders, and (d) the Collateral Agent shall have a valid and perfected Lien pursuant to the Security Agreement, the Pledge Agreements and the FTS Control Agreements, as applicable, in respect of the Stock of FTS and substantially all of the
property and assets of FTS and the FTS Subsidiaries subject to the Collateral and Guarantee Requirements, the provisions set forth in the Security Agreement and Section 8.29; provided that, upon the consummation of the FTS
Distribution and Contribution Transaction, notwithstanding any other provisions set forth herein, (i) each of the Pledge Agreements and FTS Control Agreements shall be deemed terminated and released (automatically and through no further action
of any Person), (ii) FTS shall no longer be deemed to be party to this Agreement, the Security Agreement, the Guaranty Agreement or any other Loan Document (in each case, automatically and through no further action of any Person),
(iii) the Collateral Agents liens upon the Stock and assets of FTS (but not the Stock issued by or the assets of the FTS Subsidiaries) shall be deemed terminated and released (automatically and through no further action of any Person),
and (iv) the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents) irrevocably authorize the Collateral Agent to (A) release its Liens on the Stock of FTS and the assets of FTS (but not the Stock
issued by or the assets of the FTS Subsidiaries), and (B) if reasonably requested by the Borrower, promptly execute, as applicable, and deliver to the Borrower any such additional instruments, terminations, lien releases, discharges of security
interests, pledges and other similar discharge or release documents or other writings to effect or evidence such release and termination. Permitted Holders means each of Farris Wilks, his Family Members, Farris Family Trusts, FARJO Holdings, LP, Dan Wilks, his
Family Members, Family Trusts, THRC Management, LLC and THRC Holdings, LP (provided that THRC Holdings, LP shall only constitute a Permitted Holder so long as THRC Management, LLC, Dan Wilks, his Family Members, and/or the Family Trusts
Control THRC Holdings, LP and own and control, directly or indirectly, at least 51% on a fully diluted basis of the economic and voting interest in the Stock of THRC Holdings, LP). Permitted Inventory Locations means each location listed on Schedule 1.1(b), and from time to time each other
location within the United States which the Borrower has notified the Agent is a location at which Inventory of Obligors is maintained. 79
Permitted Investments means: (a) Investments by Holdings, the Borrower or any other Restricted Subsidiary in assets constituting cash or Cash Equivalents
at the time such Investment was made; (b) (i) (A) Investments by Holdings and its Restricted Subsidiaries in
Holdings and its Restricted Subsidiaries existing on the Agreement Date and (B) Investments existing on the (c) Investments by any Obligor in any other Obligor; (d) Investments by any Restricted Subsidiary which is not an Obligor in the Borrower or any other Restricted Subsidiary; (e) Investments by any Obligor in any Restricted Subsidiary which is not an Obligor; provided that the aggregate amount
of Investments made and then-outstanding pursuant to this clause (e), shall not exceed, at the time of the making of such Investment and after giving Pro Forma Effect thereto, the greater of (x) $22,500,000 and (y) 1.75% of
Consolidated Total Assets as of the last day of the Test Period most recently ended on or prior to the date such Investments was made; (f) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the
ordinary course of business; (g) Deposit Accounts maintained in the ordinary course of business; (h) Investments constituting Hedge Agreements entered into in the ordinary course of business and for non-speculative
purposes; (i) Investments (including debt obligations and Stock) received in connection with the bankruptcy or
reorganization of Account Debtors, suppliers and customers or in settlement of delinquent obligations of, or other disputes with, Account Debtors, customers and suppliers or upon the foreclosure with respect to any secured Investment or other
transfer of title with respect to any secured Investment; (j) loans or advances to officers, directors, partners, members
and employees of Holdings (or any Parent Entity) or its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such
Persons purchase of Stock of Holdings (or Stock of any Parent Entity or the Borrower) (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity (or any other form
80
of Qualified Stock reasonably satisfactory to the Agent or used to satisfy Tax obligations relating to proceeds received by such Person in connection with the Transactions, which proceeds are
used for the purchase of such Stock), (iii) relating to indemnification of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity, and any reimbursement of any such officer, director or
employee of expenses relating to the claims giving rise to such indemnification and (iv) for purposes not described in the foregoing clauses (i), (ii) and (iii), in an aggregate principal amount not to exceed
$10,000,000 in any Fiscal Year and (y) $30,000,000 during the term of the Agreement; (k) Permitted Acquisitions or
any other acquisition constituting a Permitted Investment so long as, the Specified Conditions shall have been satisfied with respect thereto at the time of (and after giving effect to) such Permitted Acquisition or Permitted Investment;
provided, the aggregate amount of Permitted Acquisition Consideration relating to all such Permitted Acquisitions or any other acquisition constituting a Permitted Investment made or provided and then-outstanding by the Borrower or any
Guarantor to acquire any Restricted Subsidiary that does not become a Guarantor or merge, consolidate or amalgamate into the Borrower or a Guarantor or any assets that shall not, immediately after giving effect to such Permitted Acquisition or
Permitted Investment, be owned by the Borrower or a Guarantor, shall not exceed, at the time of consummating such Permitted Acquisition or making of such Permitted Investment and after giving Pro Forma Effect thereto, the greater of
(x) $25,000,000 and (y) 2.5% of Consolidated Total Assets as of the last day of the Test Period most recently ended on or prior to the date such Permitted Acquisition was consummated or Permitted Investment was made; (l) any Investment to the extent that the consideration therefor is Stock (other than Disqualified Stock) of Holdings (or any
Parent Entity); (m) Guaranties of Holdings, the Borrower or any other Restricted Subsidiary in respect of leases (other
than Capital Leases) or of other obligations that do not constitute Debt, in each case entered into in the ordinary course of business; (n) Investments in the ordinary course of business or in the ordinary course of business for similarly situated businesses in
the Borrowers industry consisting of endorsements for collection or deposit and customary trade arrangements with customers in the ordinary course of business; (o) Investments 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, and Investments received in satisfaction or partial satisfaction thereof from financially troubled Account Debtors and other credits to suppliers in the ordinary course of business or in the
ordinary course of business for similarly situated businesses in the Borrowers industry; (p) Investments consisting
of Liens, Debt, fundamental changes, Dispositions (other than pursuant to clause (g) of the definition of Permitted Disposition) and Distributions, in each case, permitted under this Agreement; 81
(q) Investments in cash, and in negotiable instruments deposited or to be
deposited for collection in the ordinary course of business; (r) promissory notes and other non-cash consideration
received in connection with Permitted Dispositions; (s) advances of payroll payments to employees, directors,
consultants, independent contractors or other service providers or other advances of salaries or compensation to employees, directors, partners, members, consultants, independent contractors or other service providers, in each case in the ordinary
course of business; (t) Investments made to acquire, purchase, repurchase or retire Stock of Holdings (or Stock of any
Parent Entity), or the Borrower owned by any employee stock ownership plan or similar plan of Holdings (or any Parent Entity), the Borrower, or any Subsidiary, in an aggregate amount not to exceed (A) $10,000,000 in any Fiscal Year and (B)
$20,000,000 during the term of the Agreement; (u) contributions to a rabbi trust for the benefit of
employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of Holdings (or any Parent Entity thereof); (v) Investments held by any Person acquired by Holdings, the Borrower or a Restricted Subsidiary after the Closing Date or of
any Person merged into the Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with Section 8.9 after the Closing Date to the extent that such Investments were not made in contemplation of or in
connection with such acquisition, merger, amalgamate or consolidation and were in existence on the date of such acquisition, amalgamation, merger or consolidation; (w) Restricted Subsidiaries of Holdings may be established or created if Holdings, the Borrower and such Restricted Subsidiary
comply with the requirements of Section 8.22, if applicable; provided that in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition
permitted by this Agreement, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary
shall not be required to take the actions set forth in Section 8.22 until the respective acquisition is consummated (at which time the surviving entity of the respective transaction shall be required to so comply in accordance with the
provisions thereof); (x) to the extent that they constitute Investments, purchases and acquisitions of inventory,
supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, Intellectual Property, or other rights, in each case in the ordinary course of business or in the ordinary course of business for similarly situated
businesses in the Borrowers industry; 82
(y) Investments by Restricted Subsidiaries that are not Obligors in
Restricted Subsidiaries that are not Obligors; (z) intercompany Investments, reorganizations and related activities in
connection with tax planning and reorganization activities, in each case, among Holdings and its Subsidiaries (or Restricted Subsidiaries in the case of any intercompany Investments) so long as (i) after giving effect to any such activities,
the Collateral Agents Liens on any material Collateral would not be impaired, (ii) immediately prior and after giving effect to any such activities, no Out-of-Formula Condition has occurred and is continuing or would result therefrom, and
(iii) immediately prior and after giving effect to any such activities, the Borrower would have Availability of not less than $25,000,000; (aa) asset purchases (including purchases of Inventory, supplies, materials and other assets), in each case in the ordinary
course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry; (bb) any Investment in a non-Obligor to the extent such Investment is substantially contemporaneously repaid in full with a
dividend or other distribution in like kind as such Investment from such Person that is not an Obligor; (cc) any
Investments (including Investments in minority investments, Investments in Unrestricted Subsidiaries and Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries); provided that the aggregate amount of
such Investments made and then-outstanding pursuant to this clause (cc) measured at the time of the making of such Investment and after giving Pro Forma Effect thereto shall not exceed the greater of (x) $30,000,000 and (y) 2.5% of
Consolidated Total Assets as of the last day of the Test Period most recently ended on or prior to the date such Investment was made; provided, further that the aggregate amount of such Investments made and then- outstanding pursuant to this
clause (cc) measured at the time of the making of such Investment shall not exceed $100,000,000 to the extent that the Total Net Leverage Ratio as of the last day of the most recently completed Test Period, after giving Pro Forma Effect to
such Investment, exceeds 1.10 to 1.00; (dd) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, any Investments in an amount not to exceed the Available Equity Amount at such time; (ee) any other Investments, so long as the Specified Conditions shall have been satisfied before and after giving effect
thereto; (ff) the (i) Permitted FTS Acquisition, and (ii) Permitted West Munger Acquisition; (gg) Investments with respect to the Basin Units Acquisition made on or prior to the Closing Date; 83
(hh) (i) the issuance of the Flotek Notes or Flotek Stock to Holdings,
the Borrower or any other Obligor and/or contributed to the Borrower or another Obligor by Holdings, in each case to the extent constituting Investments and (ii) Investments made after the Closing Date with respect to the acquisition and
ownership of Flotek Stock received (x) in connection with a conversion of all or a portion of the outstanding principal and accrued and unpaid interest under the Flotek Notes into Flotek Stock solely to the extent on a non-cash basis and
(y) in connection with the Flotek Supply Agreement (solely to the extent that such Stock is issued on a non-cash basis); (ii) the (x) Signal Peak Acquisition consummated in accordance with the
terms of the Signal Peak Acquisition Documents and (y) U.S. Well Merger consummated in accordance with the terms of the U.S. Well Merger Documents, in each case, so long as the Collateral and Guarantee Requirement is satisfied pursuant to
Section 8.22 in connection therewith (it being understood and agreed that no Person acquired or formed in connection with either the Signal Peak Acquisition or the U.S. Well Merger shall be designated as an Excluded Subsidiary or an
Unrestricted Subsidiary, provided, that Thunderclap Merger Sub I, Inc., a Delaware corporation, shall constitute an Excluded Subsidiary so long as it remains an Immaterial Subsidiary and is merged into another Obligor (or a Person that becomes an
Obligor in accordance with Section 8.22) upon the consummation of the U.S. Well Merger).; and (jj)
[**]. For purposes of determining compliance with this definition, in the
event that any Investment meets the criteria of more than one of the types of Permitted Investments described in the above clauses, the Borrower, in its sole discretion, may classify and reclassify such Investment and only be required to include the
amount and type of such Investment in one of such clauses provided that Investments may be allocated among more than one clause to the extent that such Investment meets the criteria of such clauses. [**]. 84
Permitted Liens means, with respect to Holdings, the Borrower and the
Restricted Subsidiaries, the Liens listed below: (a) Liens for Taxes that (i) are not delinquent or the nonpayment
of which in the aggregate would not reasonably be expected to have a Material Adverse Effect, or (ii) are being contested in good faith and by the appropriate proceedings and for which adequate reserves have been established in accordance with GAAP
(or other applicable accounting principles); (b) the Collateral Agents Liens pursuant to the Loan Documents; (c) (i) Liens consisting of deposits or pledges of cash (or letters of credit issued) made in the ordinary course of business
in connection with, or to secure payment of, obligations under workers compensation, unemployment insurance, social security and other similar laws, (ii) Liens consisting of pledges and deposits of cash in the ordinary course of business
securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the
Borrower, Holdings or any Restricted Subsidiary, (iii) Liens consisting of deposits of cash made to secure the performance of bids, tenders, trade contracts, governmental contracts, leases or purchase, supply or other contracts (other than for
the repayment of Debt for Borrowed Money) or to secure indemnity, performance or other similar bonds for the performance of bids, tenders or contracts (other than for the repayment of Debt for Borrowed Money) or to secure statutory or regulatory
obligations (other than Liens arising under ERISA or Code Section 430), surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations)
incurred in the ordinary course of business; (d) statutory or common law Liens securing the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords and other like Persons arising in the ordinary course of business which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30) days
overdue, are unfiled and no other action has been taken to enforce such Lien or which are being Properly Contested, in each case, if adequate reserves in accordance with GAAP (or other applicable accounting principles) with respect thereto are
maintained on the books of the applicable Person, provided that if any such Lien arises from the nonpayment of any such claims or demands when due, such claims or demands are being Properly Contested or such nonpayment would not reasonably be
expected to cause a Material Adverse Effect; (e) Liens securing Capital Leases and purchase money Debt to the extent such
Capital Leases or purchase money Debt are permitted in Section 8.12; provided that (i) such Liens attach concurrently with or within two hundred and seventy (270) days after the acquisition, construction, repair, replacement,
lease or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property other than the property financed by such Debt, replacements thereof and additions and accessions to such
property and the proceeds and the products thereof and customary security deposits, and (iii) with respect to Capital Leases, such Liens do not at any time 85
extend to or cover any assets (except for additions and accessions to such assets, replacements and products thereof and customary security deposits) other than the assets subject to such Capital
Leases; provided that individual financings of equipment provided by one creditor may be cross-collateralized to other financings of equipment provided by such creditor;
provided, further that this clause (e) shall include Liens securing any Debt evidenced by the Enterprise
Equipment Lease Agreement to the extent such Debt is permitted pursuant to Section 8.12; (f) (i) Liens constituting encumbrances in the nature of reservations, exceptions, encroachments, easements, zoning, rights of
way, covenants running with the land, affidavits of heirship, and other similar title ordinary course exceptions or encumbrances affecting any Real Estate; provided that they do not, in the aggregate, materially interfere with its use in the
ordinary conduct of the Borrowers and its Restricted Subsidiaries business taken as a whole, (ii) mortgages, Liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any
developer, landlord or other third party on Real Estate over which the Borrower or any Restricted Subsidiary has easement rights (but does not own) or on any leased Real Estate and subordination or similar agreements relating thereto, and
(iii) any condemnation or eminent domain proceedings affecting any Real Estate; (g) Liens arising from any judgment,
decree or order of any court or other Governmental Authority or any attachments in connection with court proceedings; provided that the attachment or enforcement of such Liens do not constitute an Event of Default hereunder; (h) licenses, sublicenses, leases or subleases on the property covered thereby (including Intellectual Property) granted to
other Persons and not materially interfering with the ordinary conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; (i) any interest or title of a lessor, sublessor, licensee or licensor under any lease, sublease, sublicense or license
agreement not prohibited by this Agreement; (j) Liens (i) that are contractual rights of set-off, (ii) relating
to purchase orders and other agreements entered into with customers or suppliers of the Borrower or any Restricted Subsidiary in the ordinary course of business, or (iii) in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of goods in the ordinary course of business; (k)
Liens (i) of a collection bank (including those arising under Section 4-210 of the UCC) on the items in the course of collection, (ii) in favor of a banking or other financial institution arising as a matter of law encumbering
deposits or other funds maintained with a financial institution (including the right of set-off) and which are within the general parameters customary in the banking industry and (iii) in favor of the commodities broker or intermediary
attaching to commodity trading accounts, or other commodity brokerage accounts, incurred in the ordinary course of business and not for speculative purposes; 86
(l) Liens attaching solely to cash earnest money deposits in connection with
any letter of intent or purchase agreement in connection with a Permitted Acquisition or other Permitted Investment; (m)
Liens arising from precautionary UCC filings; (n) Liens on insurance proceeds or unearned premiums incurred in the
ordinary course of business in connection with the financing of insurance premiums; (o) Liens identified on Schedule
8.16; provided that (i) such Lien does not extend to any other property or asset of the Borrower or any Restricted Subsidiary other than (A) after acquired property that is affixed or incorporated into the property covered by
such Lien or financed by Permitted Debt and (B) the proceeds and products thereof and (ii) such Lien shall secure only those obligations or Permitted Debt that it secures on the Agreement Date and any Refinancing Debt incurred to Refinance such
Permitted Debt; (p) Liens securing Refinancing Debt to the extent such Liens are permitted in the definition of
Refinancing Debt; (q) Liens existing on property at the time of its acquisition or existing on the property
of any Person at the time such Person becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 8.26), in each case after the Closing Date; provided that (i) such Lien was not
created in contemplation of such acquisition or such Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to or cover any other assets or property (other than the proceeds or products thereof and other than after-acquired
property subjected to a Lien securing Debt and other obligations incurred prior to such time and which Debt and other obligations are permitted hereunder that require, pursuant to their terms at such time, a pledge of after-acquired property, it
being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition) and (iii) the Debt is Permitted Debt and is not incurred in contemplation of such
acquisition or in connection with such Person becoming a Restricted Subsidiary; provided, further, that if such Liens are consensual and are on the Collateral (other than cash and Cash Equivalents), the holders of the Debt or other
obligations secured thereby (or a representative or trustee on their behalf) shall have entered into the Intercreditor Agreement or another intercreditor agreement reasonably acceptable to the Borrower and the Collateral Agent providing that the
Liens on the Current Asset Collateral securing such Debt or other obligations shall rank junior to the Liens on the assets of the Obligors in favor of the Secured Parties; (r) Liens securing Debt permitted under Section 8.12(q)(x) or (r), as applicable, in each case so long as
the holder of any such Debt (or an agent or representative in respect thereof) shall have entered into the Intercreditor Agreement or another customary intercreditor agreement in form and substance reasonably satisfactory to the Collateral Agent and
the Borrower providing, among other things, that the Liens on the Current Asset Collateral securing such Debt or other obligations shall rank junior to the Collateral Agents Liens on the Current Asset Collateral, the liens on the Fixed Assets
Collateral securing such Debt may rank senior to the Collateral Agents Liens on the Fixed Assets Collateral and shall otherwise be in compliance with the parameters of Section 8.12(q) or (r), as applicable; 87
(s) Liens on property of a Restricted Subsidiary of Holdings that is not an
Obligor securing Debt of such Restricted Subsidiary that is not an Obligor pursuant to Section 8.12(o); (t)
deposits in the ordinary course of business to secure liabilities to insurance carriers, lessors, utilities and other service providers or any seller of goods; (u) restrictions on transfers under applicable securities laws; (v) any encumbrance or restriction (including pursuant to put and call agreements or buy/sell arrangements) with respect to
the Stock of any joint venture or similar arrangements pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement; (w) Liens (i) on cash advances in favor of the seller of any property to be acquired in a Permitted Investment to be
applied against the purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Permitted Disposition, in each case, solely to the extent such Investment or Disposition, as the case may be, would have
been permitted on the date of the creation of such Lien; (x) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods, entered into by the Borrower or any of the other Restricted Subsidiaries in the ordinary course of business; (y) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks or
other financial institutions not given in connection with the incurrence of Debt, or (ii) related to pooled deposit or sweep accounts of Holdings or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business, or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any other Restricted Subsidiary in the ordinary course of business; (z) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of
any real property that does not materially interfere with the ordinary conduct of the business of the Borrower or any other Restricted Subsidiary; (aa) Liens on specific items of inventory or other goods and the proceeds thereof securing such Persons obligations in
respect of documentary letters of credit issued for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods; (bb) ground leases in respect of real property on which facilities owned or leased by any of Holdings Restricted
Subsidiaries are located; 88
(cc) (i) Liens securing Debt or other obligations of the Borrower or a
Restricted Subsidiary in favor of the Borrower or any Guarantor provided that (x) such Liens are on the Collateral and junior to the Collateral Agents Lien and (y) such Debt is subject to a subordination agreement in form and
substance reasonably satisfactory to the Agent and (ii) Liens securing Debt or other obligations of any Restricted Subsidiary that is not an Obligor in favor of any Restricted Subsidiary that is not an Obligor; (dd) Liens on securities that are the subject of repurchase agreements constituting Cash Equivalents permitted as Permitted
Investments; (ee) Liens on Stock in joint ventures (other than Restricted Subsidiaries); provided that any such
Lien is in favor of a creditor or partner of such joint venture; (ff) Liens on cash and Cash Equivalents used to satisfy
or discharge Debt; provided such satisfaction or discharge is permitted hereunder; (gg) Liens given to a public
utility or any municipality or governmental or other public authority when required by such utility or other authority; provided that such Liens do not materially interfere with the ordinary conduct of the business of the Borrower or any Restricted
Subsidiary, taken as whole; (hh) servicing agreements, development agreements, site plan agreements, subdivision
agreements and other agreements with Governmental Authorities pertaining to the use or development of any of the real property of the Borrower or any Restricted Subsidiary; provided same do not materially interfere with the ordinary conduct of the
business of the Borrower or any Restricted Subsidiary, taken as whole, including, without limitation, any obligations to deliver letters of credit and other security as required; (ii) the right reserved to or vested in any Governmental Authority by any statutory provision or by the terms of any lease,
license, franchise, grant or permit of Holdings, Borrower or any Restricted Subsidiary, to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof; (jj) Liens on the assets of U.S. Well
Services Holdings, (kk) Liens to secure transactions permitted by Section 8.18 so long as (i) such Lien attaches only to the
assets sold in connection with such transaction and the proceeds thereof (but not any proceeds arising from the rental, leasing or subleasing of such assets by Holdings or its Restricted Subsidiaries), and (ii) such Lien only secures the Debt
that was incurred to acquire the assets leased in connection therewith or any Refinancing Debt in respect thereof; (ll)
Liens on the Excluded Assets described in clause (v) of the definition thereof securing Debt incurred pursuant to Section 8.12(o); provided, that, such Liens shall not attach to any Current Asset Collateral; 89
(mm) Liens on the Specified FTS Real Estate securing Debt incurred pursuant
to Section 8.12(v); (nn) (i) Customary Liens set forth in Organizational Documents of Persons other than
the Obligors and (ii) Liens set forth in Flotek Note Purchase Agreement and the Flotek Securities Purchase Agreement to the extent such Liens do not secure Debt for Borrowed Money; provided that such Liens shall not encumber any Current Asset
Collateral unless they do not secure Debt for Borrowed Money; (oo) Liens securing the IO-TEQ Debt incurred pursuant to
Section 8.12(u); (pp) other Liens; provided that at the time of the incurrence thereof and after giving Pro Forma Effect thereto and the
use of proceeds thereof, the aggregate outstanding amount of Debt and other obligations secured by Liens incurred under this clause (pp) and then-outstanding shall not exceed the greater of (x) $30,000,000 and (y) 6.0% of
Consolidated Total Assets (measured as of the date such Lien was incurred based upon the Section 6.2 Financials most recently delivered on or prior to such date); provided, further, that if such Liens are consensual and are on the
Collateral (other than cash and Cash Equivalents), the holders of the Debt or other obligations secured thereby (or a representative or trustee on their behalf) shall have entered into the Intercreditor Agreement or another intercreditor agreement
reasonably acceptable to the Borrower and the Collateral Agent providing that the Liens on the Current Asset Collateral securing such Debt or other obligations shall rank junior to the Liens on the Current Asset Collateral of the Obligors in favor
of the Secured Parties and the liens on the Fixed Assets Collateral securing such Debt may rank senior to the Collateral Agents Liens on the Fixed Assets Collateral; (qq)
[**]; and (rr) Liens securing Debt permitted pursuant to Section 8.12(aa); provided that such Liens do not at any time
encumber any property other than the property financed by such Debt, replacements thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits,; provided further that
individual financings of equipment provided by Paccar Financial Corp. (or any of its Affiliates) may be cross-collateralized to other financings of equipment provided by Paccar Financial Corp. (or any of its Affiliates). 90
For purposes of determining compliance with this definition, in the event that any Lien
meets the criteria of more than one of the types of Permitted Liens described in the above clauses, the Borrower, in its sole discretion, may classify and reclassify such Lien and only be required to include the amount and type of such Lien in one
of such clauses provided that the Permitted Lien(s) may be allocated among more than one clause to the extent that such Permitted Lien(s) meets the criteria of such clauses. Permitted Sale Leaseback Transaction means any Sale Leaseback Transaction consummated after or contemporaneously with the
consummation of the Permitted FTS Acquisition with respect to the Specified FTS Real Estate; provided that (a) the Specified Conditions have been satisfied before and after giving effect thereto, (b) the lease with respect to such
Sale Leaseback Transaction shall be on arms length commercially reasonable terms (as determined by the Borrower in good faith), (c) the lease with respect to such Sale Leaseback Transaction shall be on arms length commercially
reasonable terms (as determined by the Borrower in good faith), (d) the lease with respect to such Sale Leaseback Transaction shall not have a capitalization rate in excess of 10.00% per annum, (e) the applicable purchaser and lessor
with respect to such Sale Leaseback Transaction shall be an Affiliate of Wilks Brothers LLC, (f) Holdings or any of its Restricted Subsidiaries consummating such Sale-Leaseback Transaction shall receive in connection with the sale or transfer of the
property subject thereto, cash consideration in amount that (i) is at least equal to the Fair Market Value (as evidenced by an appraisal delivered to the Agent on or within 30 days following the closing date of such Sale Leaseback Transaction)
of such property and (ii) does not in the aggregate exceed $50,000,000 (not including any reasonable and documented out-of-pocket fees, costs and expenses incurred and/or assessed in connection with such Sale Leaseback Transaction) and
(g) substantially concurrent with the consummation of such Sale Leaseback Transaction, the landlord of the Specified FTS Real Estate shall execute and deliver a Collateral Access Agreement in favor of the Collateral Agent solely to the extent
that at least $1,000,000 of Collateral is located at the applicable Specified FTS Real Estate. Permitted Tax
Distributions means (a) with respect to any taxable period (or portion thereof) for which Holdings and any of its Subsidiaries (including Borrower) are members of a consolidated, combined, affiliated, unitary or similar income tax
group for U.S. federal and/or applicable foreign, state or local income tax purposes (each, a Tax Group) of which a direct or indirect parent of Holdings is the common parent, or for which Holdings is a partnership or disregarded
entity for U.S. federal or applicable foreign, state or local income tax purposes that is Wholly-Owned (directly or indirectly) by an entity that is taxable as a corporation for such income tax purposes, distributions by Holdings or an applicable
Subsidiary (including Borrower), as may be relevant, to any direct or indirect parent of Holdings in an amount not to exceed the sum of (i) the lesser of (x) the amount of any U.S. federal, foreign, state and/or local income taxes that Holdings
and/or its Subsidiaries that are members of the relevant Tax Group, as applicable, would have paid for such taxable period had Holdings and/or such Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group,
and (y) the actual income tax liability of the common parent of the Tax Group and (ii) such amounts as are needed to pay any amounts owed by a direct or indirect parent of Holdings under the Tax Receivable Agreement; or (b) with respect to
any taxable period or portion thereof during which Holdings is a pass-through entity (including a partnership or disregarded entity) and is not Wholly-Owned (directly or indirectly) by an entity that is taxable as a corporation for U.S. federal
income tax purposes, distributions by Holdings to any member or partner of Holdings, on or prior to each estimated tax payment date as well as each other applicable due date, on a pro rata basis, such that each such
91
member or partner (or its direct or indirect members or partners, if applicable) receives, in the aggregate for such period, payments or distributions sufficient to equal the sum of (i) such
member or partners U.S. federal, state and/or local income taxes (as applicable) attributable to its direct or indirect ownership of Holdings and its pass-through Subsidiaries with respect to such taxable period (assuming that such member or
partner is subject to tax at the highest combined marginal U.S. federal, state, and/or local income tax rates applicable during the relevant taxable period to a corporation that is resident in the state in which Holdings has its headquarters (for
avoidance of doubt, regardless of the actual rate applicable to such member or partner)), determined by taking into account (A) any U.S. federal, state and/or local (as applicable) loss carryforwards available to such member or partner during
the relevant taxable period from losses allocated to such member or partner by Holdings in prior taxable periods to the extent not taken into account in prior taxable periods and taking into account any applicable limitations on the use of such
losses, (B) the deductibility of state and local income taxes for U.S. federal income tax purposes (disregarding any deduction that is subject to a dollar limitation), (C) the corporate alternative minimum tax, (D) any basis adjustment
pursuant to Sections 734 and 743 of the Code that gives rise to a payment under the Tax Receivable Agreement or otherwise, (E) any allocations of reverse Section 704(c) income, and (F) any adjustment to such member or
partners taxable income attributable to its direct or indirect ownership of Holdings and its Subsidiaries as a result of any tax examination, audit or adjustment with respect to any period or portion thereof, but not taking into account any
allocations of regular Section 704(c) income, (provided that for purposes of this clause (b)(i), (I) any Parent Entity and any of the subsidiaries of such Parent Entity that are part of any affiliated group within
the meaning of Section 1504 of the Code electing to file consolidated U.S. federal income tax returns of which such Parent Entity is the common parent shall be accounted for as a single direct member of Holdings (such aggregated deemed member,
the Public Member) and (II) the amount of U.S. federal, state and/or local income taxes of the Public Member with respect to the relevant taxable period used in the calculation in clause (b)(i) shall in no event be less
than the aggregate amount of U.S. federal, state and local tax liabilities of the Public Member for such taxable period), and (ii) in the case of such member or partner that is a direct or indirect parent of Holdings with an obligation under
the Tax Receivable Agreement, such amounts as are needed by it during the relevant period to pay amounts owed by it under such Tax Receivable Agreement; provided that (1) it is understood and agreed, for the avoidance of doubt, that
Permitted Tax Distributions shall not include distributions by any domestic Subsidiary that is treated as a corporation for U.S. federal income tax purposes); (2) any Permitted Tax Distributions made with respect to estimated income taxes
pursuant to clauses (a)(i) or (b)(i) shall be made no earlier than ten (10) days prior to the due date of such estimated income taxes; (3) to the extent that Permitted Tax Distributions for estimated income taxes made with
respect to any taxable year in accordance with the preceding clause (2) exceed the income tax liability of Holdings direct or indirect equity holders for such taxable year in respect of Holdings net taxable income determined
in accordance with the terms hereof (including as a result of the estimates of Holdings net taxable income during such year exceeding Holdings actual net taxable income for such taxable year), any such excess shall be carried forward for
purposes of determining distributions payable pursuant to clauses (a)(i) or (b)(i), as applicable, and reduce Permitted Tax Distributions for income taxes made for later years; and (4) Permitted Tax Distributions shall not exceed
the amount of distributions for taxes and Tax Receivable Agreement payments permitted under the Holdings LLC Agreement. 92
Permitted West Munger Acquisition means the West Munger Acquisition;
provided that, (a) both immediately prior to and after giving effect to the West Munger Acquisition, no Event of Default shall have occurred and be continuing, (b) no more than $30,000,000 of the purchase price shall be paid in cash, and
the purchase consideration shall other-wise consist solely of Stock (other than Disqualified Stock) in Holdings, and (c) the West Munger Acquisition complies with the provisions set forth in clauses (A), (B), and
(C) of the definition of Permitted Acquisition. Person means any individual, sole
proprietorship, partnership, limited liability company, unlimited liability company, joint venture, trust, unincorporated organization, association, corporation, Governmental Authority, or any other entity. Plan means any employee benefit plan (as defined in Section 3(3) of ERISA) which Holdings, the Borrower sponsors or
maintains or to which Holdings, the Borrower or a Subsidiary of the Borrower makes, is making, or is obligated to make contributions. Pledge Agreements means, collectively, (i) that certain Pledge Agreement, dated as of the Agreement Date, among Farris
Wilks and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time and (ii) that certain Pledge Agreement, dated as of the Agreement
Date, among THRC Holdings, LP and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time. Pledgors means, as of the Agreement Date, Farris Wilks and THRC Holdings, LP. Post-Transaction Period
means, with respect to any Specified Transaction, the period beginning on the date on which such Specified Transaction is consummated and ending on the last day of the twelfth month immediately following the date on which such Specified Transaction
is consummated. Preferred Stock means, as applied to the Stock of any Person, the Stock of any class or classes
(however designated) that is preferred with respect to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Stock of any other class of such Person.
Prime Rate means the rate of interest last quoted by The Wall Street Journal as the Prime Rate in the U.S.
or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the bank prime loan rate
or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Agent) or any similar release by the Federal Reserve Board (as determined by the Agent). Each change in the Prime Rate shall be effective from and
including the date such change is publicly announced or quoted as being effective. Pro Forma Adjustment means, for any
Test Period that includes all or any part of a Fiscal Quarter included in any Post-Transaction Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of
Holdings and its Subsidiaries, (a) the pro forma increase or decrease (for the avoidance of doubt net of any such increase or decrease actually realized) in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, projected by the
Borrower in good faith as a result of (b) actions taken, actions with respect to which substantial steps have been taken or actions that 93
are expected to be taken prior to or during such Post-Transaction Period, for the purposes of realizing reasonably identifiable cost savings, operating expense reductions or costs or other
synergies or (c) any additional costs, expenses or charges, accruals or reserves incurred prior to or during such Post-Transaction Period with the combination of the operations of such Acquired Entity or Business or Converted Restricted
Subsidiary with the operations of Holdings and its Restricted Subsidiaries or otherwise in connection with, as a result of or related to such Specified Transaction or Specified Restructuring; provided that (i) so long as such actions are
taken or expected to be taken prior to or during such Post-Transaction Period or such costs are incurred prior to or during such Post-Transaction Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired
EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings, operating expense reductions or costs or other synergies will be realizable during the entirety of such Test Period, or such additional costs, as
applicable, will be incurred during the entirety of such Test Period and (ii) such Pro Forma Adjustments, when aggregated with any addbacks made pursuant to clause (a)(10) of the definition of Consolidated EBITDA, shall not
be in excess of 20% of Consolidated EBITDA for such Test Period and (to the extent that no Debt, or commitments with respect thereto, are outstanding under Section 8.12(r) hereof, that such cap will not apply to any amounts relating to
amounts that would be permitted to be included in pro forma financial statements prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended prior to giving effect to any increase in Consolidated EBITDA pursuant to this
definition or clause (a)(10) of the definition of Consolidated EBITDA) in any Test Period. Pro Forma
Basis and Pro Forma Effect mean, with respect to compliance with any test, financial ratio or covenant hereunder for an applicable period of measurement, for any Specified Transactions or Specified Restructurings that
have been made during any applicable Test Period or, if applicable, subsequent to such Test Period and prior to or simultaneously with the events for which any such calculation is made, shall be calculated on a pro forma basis assuming that
(A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable
period of measurement (as of the last date in the case of a balance sheet item) in such test or covenant: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction,
(i) in the case of a Disposition of all or substantially all Stock in any Subsidiary of Holdings or any division, product line, or facility used for operations of Holdings or any of its Subsidiaries, shall be excluded, and (ii) in the case
of a Permitted Acquisition or Investment described in the definition of Specified Transaction, shall be included, (b) Refinancing of Debt, and (c) any Debt incurred by Holdings or any of its Restricted Subsidiaries in
connection therewith and if such Debt has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to
such Debt as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to (A) above, the foregoing pro forma adjustments may be applied to any such test, ratio or covenant
solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as reasonably determined by the Borrower in good faith) (i)
(x) directly attributable to such transaction, (y) expected to have a continuing impact on Holdings and its Restricted Subsidiaries and (z) reasonably identifiable or (ii) otherwise consistent with the definition of Pro Forma
Adjustment. 94
Pro Rata Share means, with respect to a Lender, a fraction (expressed as
a percentage), the numerator of which is the aggregate amount of such Lenders Revolving Credit Commitments and the denominator of which is the sum of the amounts of all of the Lenders Revolving Credit Commitments, or if no Revolving
Credit Commitments are outstanding, a fraction (expressed as a percentage), (x) the numerator of which is the sum (without duplication) of the aggregate amount of the Revolving Loans owed to such Lender plus such Lenders
participation in the aggregate undrawn face amount of all outstanding Letters of Credit, plus such Lenders participation in the aggregate amount of any Unpaid Drawings in respect of Letters of Credit and (y) the denominator of
which is the sum (without duplication) of the aggregate amount of the Revolving Loans owed to the Lenders, plus the aggregate undrawn face amount of all outstanding Letters of Credit, plus the aggregate amount of any Unpaid Drawings in
respect of Letters of Credit, in each case giving effect to a Lenders participation in Swingline Loans and Agent Advances. ProFrac Services means ProFrac Services, LLC, a Texas limited liability company. Properly Contested means, in the case of any Debt or other obligation of Holdings, the Borrower, or any Restricted
Subsidiary that is not paid as and when due or payable by reason of such Persons bona fide dispute concerning its liability to pay the same or concerning the amount thereof, (a) such Debt or other obligation is being properly contested in
good faith by appropriate proceedings promptly instituted and diligently conducted; (b) such Person has established appropriate reserves for the contested Debt or other obligation in conformity with GAAP; and (c) will not result in any
impairment of the enforceability, validity or priority of the Collateral Agents Liens. Property shall mean any
right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, equipment, Stock and Real Estate. Proposed Change has the meaning specified in Section 12.1(b). 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. Purchased BPC Units means the following Stock acquired by Holdings in accordance with the
Basin Units Acquisition: (i) 120,000 Series A-1 Preferred Units in BPC, (ii) 11,000 Series B-1 Preferred Units in BPC and (iii) the Additional Purchased Units (as defined in the Basin Purchase and Sale Agreement). Qualified Stock means any Stock that is not Disqualified Stock. Real Estate means all of each Obligors and each of its Restricted Subsidiaries now or hereafter owned or leased
estates in real property, including, without limitation, all fees, leaseholds and future interests, together with all of each Obligors and each of its Restricted Subsidiaries now or hereafter owned or leased interests in the improvements
thereon, the fixtures attached thereto and the easements appurtenant thereto. 95
Reasonable Credit Judgment means the Agents reasonable credit
judgment (from the perspective of an asset-based lender), exercised in good faith in accordance with customary business practices for similar asset based lending facilities, (i) to reflect the impediments to the Collateral Agents ability
to realize upon the Current Asset Collateral included in the Borrowing Base, (ii) to reflect claims and liabilities that will need to be satisfied in connection with the realization upon the Current Asset Collateral included in the Borrowing
Base or (iii) to reflect criteria, events, conditions, contingencies or risks which adversely affect, or are reasonably likely to adversely affect, any component of the Borrowing Base, the Current Asset Collateral or the validity or
enforceability of this Agreement or the other Loan Documents or any material remedies of the Secured Parties hereunder or thereunder. Any Reserve established or modified by the Agent shall have a reasonable relationship to circumstances, conditions,
events or contingencies which are the basis for such Reserve, as reasonably determined, without duplication, by the Agent in good faith; provided that circumstances, conditions, events or contingencies existing or arising prior to the Closing Date
and, in each case, disclosed in writing in any Field Examination or any Appraisal delivered to the Agent in connection herewith or otherwise known to the Agent prior to the Closing Date, shall not be the basis for any establishment of any Reserves
after the Closing Date, unless such circumstances, conditions, events or contingencies shall have changed in a material respect since the Closing Date. Recipient means (a) the Agent, (b) any Lender and (c) any other recipient of any payment made by or on
behalf of the Obligors under this Agreement or any of the Loan Documents, as applicable. Reference Time with respect
to any setting of the then-current Benchmark means (a) if such Benchmark is the Term SOFR, 6:00 a.m. (New York City time) on the day that is two (2) Business Days preceding the date of such setting, (b) if the RFR for such Benchmark
is Daily Simple SOFR, then four (4) Business Days prior to such setting or (c) if such Benchmark is none of the Term SOFR or Daily Simple SOFR, the time determined by the Agent in its reasonable discretion Refinance, Refinanced and Refinancing each has the meaning specified in the
definition of the term Refinancing Debt. Refinanced Debt has the meaning specified in the definition of
the term Refinancing Debt. Refinancing Debt means with respect to any Debt (the Refinanced
Debt), any Debt incurred in exchange for or as a replacement of (including by entering into alternative financing arrangements in respect of such exchange or replacement (in whole or in part), by adding or replacing lenders, creditors,
agents, the Borrower and/or guarantors, or, after the original instrument giving rise to such Debt has been terminated, by entering into any credit agreement, loan agreement, note purchase agreement, indenture or other agreement), or the net
proceeds of which are to be used for the purpose of modifying, extending, refinancing, renewing, replacing, redeeming, repurchasing, defeasing, amending, supplementing, restructuring, repaying or refunding (collectively to
Refinance or a Refinancing or Refinanced), such Refinanced Debt (or previous refinancing thereof constituting Refinancing Debt); provided that (a) the principal amount (or accreted
value, if applicable) of such Refinancing Debt does not exceed the principal amount (or accreted value, if applicable) of the Refinanced Debt except by an amount equal to unpaid accrued interest and premium (including applicable prepayment
penalties) thereof plus fees 96
and expenses reasonably incurred in connection therewith plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (b) any Liens securing
such Refinancing Debt shall have the same collateral priority as the Liens securing the Refinanced Debt, (c) no Obligor that was not previously liable for the repayment of such Refinanced Debt is or is required to become liable for the Refinancing
Debt (except that any Obligor may be added as an additional direct or contingent obligor in respect of such Refinancing Debt), (d) such extension, refinancing, refunding, replacement or renewal does not result in the Refinancing Debt having a
shorter Weighted Average Life to Maturity than the Refinanced Debt, (e) if the Refinanced Debt was subordinated in right of payment to any of the Obligations, then the terms and conditions of the Refinancing Debt shall include subordination
terms and conditions that are no less favorable to the Lenders in all material respects as those that were applicable to the Refinanced Debt and (f) if the Refinanced Debt was subject to an Intercreditor Agreement, then the Refinancing Debt shall be
subject to an Intercreditor Agreement. Register has the meaning specified in Section 13.20(a). Registration Statement has the meaning set forth in the definition of IPO set forth herein. Release means a release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of a Contaminant on, in, under, from, to, into or through the Environment or within, from or into any building, structure, facility or fixture. Relevant Governmental Body means the Federal Reserve Board, the NYFRB or the CME SOFR Administrator, as applicable, or a
committee officially endorsed or convened by the Federal Reserve Board or the NYFRB, or, in each case, any successor thereto. Relevant Rate means (a) with respect to any Term Benchmark Borrowing, the Report and Reports each has the meaning specified in Section 13.17(a). Reportable Event means any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement under ERISA has been waived in accordance with regulations issued by the PBGC or by the Lender. Required Lenders means, at any time, Lenders having Commitments representing at least 50.1% of the aggregate Commitments at
such time; provided, however, that if any Lender shall remain a Defaulting Lender, the term Required Lenders means Lenders having Commitments representing at least 50.1% of the aggregate Commitments at such time
(excluding the Commitment of any such Lender that is a Defaulting Lender); provided further, however, that if the Commitments have been terminated, the term Required Lenders means Lenders holding Loans (including
Swingline Loans) representing at least 50.1% of the aggregate principal amount of Loans (including Swingline Loans) outstanding at such time (excluding Loans of any such Lender that is a Defaulting Lender); provided, further, that to
the extent there are two (2) or more unaffiliated Lenders, Required Lenders shall include at least two (2) unaffiliated Lenders (treating each Lender that is an Affiliate or an Approved Fund of another Lender and such Lender as
one Lender for this purpose). 97
Required Reimbursement Date has the meaning specified in
Section 2.3(e). Requirement of Law means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in each case applicable to or binding upon the Person or any of its property or to which the Person or any of its property is subject. Reserves means reserves that limit the availability of credit hereunder, consisting of reserves against Availability, the
Borrowing Base, Eligible Accounts, and Eligible Inventory and any other reserves permitted under this Agreement, in each case, established by the Agent, without duplication, from time to time in the Agents Reasonable Credit Judgment in
accordance with Section 2.5 of this Agreement and any Bank Product Reserves. Resolution Authority means an
EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. Responsible
Officer means the President, any Vice President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, legal counsel, or, with respect to compliance with financial covenants and
the preparation of the Borrowing Base Certificate or the Compliance Certificate, the president, chief financial officer or the treasurer or assistant treasurer of the Borrower. Restricted Subsidiary means (a) as to Holdings, the Borrower and each Subsidiary of the Borrower, and (b) as to
the Borrower, each Subsidiary of the Borrower, in the case of each of clauses (a) and (b), other than an Unrestricted Subsidiary. Restructuring Costs means any non-recurring, unusual and other one-time costs (including but not limited to legal and
consulting fees) incurred by Holdings or any of its Restricted Subsidiaries in connection with its business, operations and structure in respect of plant closures, facility shutdowns, plant moth-balling or consolidation of assets located
at any leased or fee- owned facilities, relocation or elimination of facilities, offices or operations, information technology integration, headcount reductions, salary continuation, termination, relocation and training of employees, severance
costs, retention payments, bonuses, benefits and payroll taxes and other costs incurred in connection with the foregoing. Revolving Credit Borrowing means a Borrowing comprised of Revolving Loans. Revolving Credit Commitment means, at any date for any Lender, the obligation of such Lender to make Revolving Loans and to
purchase participations in Letters of Credit pursuant to the terms and conditions of this Agreement, which shall not exceed the aggregate principal amount set forth on Schedule 1.1 under the heading Revolving Credit Commitment or
on the signature page of the Assignment and Acceptance, Incremental Agreement or Extension Agreement, as applicable, by which it became a Lender, as modified from time to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance, Incremental Agreement or Extension Agreement; and Revolving Credit Commitments means the aggregate principal amount of the Revolving Credit Commitments of all Lenders, the maximum amount of
which shall be the Maximum Revolver Amount. 98
Revolving Credit Commitment Increase has the meaning specified in
Section 2.6(a). Revolving Credit Facility has the meaning specified in the recitals to this Agreement.
Revolving Credit Lender means a Lender with a Revolving Credit Commitment or an outstanding Revolving Loan. Revolving Loans means the revolving loans made pursuant to Section 2.2, each Agent Advance and Swingline Loan.
RFR Borrowing means, as to any Borrowing, the RFR Loans comprising such Borrowing. RFR Loan means a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR. S&P means Standard & Poors Ratings Service, a Standard & Poors Financial Services LLC
business, or any successor thereto. Sale Leaseback Transaction means any transaction or series of transactions
pursuant to which (a) Holdings or any of its Restricted Subsidiaries shall sell or otherwise transfer any Real Estate (together with any personal property related to or used in connection with such Real Estate so long as such personal property
is immaterial and incidental to such Real Estate) to any Person and (b) Holdings or any of its Restricted Subsidiaries shall lease back from such Person all or any portion of such property. Sanctioned Country means, at any time, a country, region or territory which is itself the subject or target of any
Sanctions. As of the Agreement Date, Sanctioned Countries include the so-called Donetsk Peoples Republic, the so-called Luhansk Peoples Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria. Sanctioned Entity means (a) any Sanctioned Country or (b)(i) a country or territory or a government of a country or
territory, (ii) an agency of the government of a country or territory, (iii) an organization directly or indirectly controlled by a country or territory or its government or (iv) a Person resident in or determined to be resident in a country or
territory, in each case of clause (b)(i) through (b)(iv), that is subject to a country or territory sanctions program administered and enforced by OFAC. Sanctioned Person means (a) a person or entity named or a person or entity owned 50% or more by a person or entity on
any of the lists of designated sanctioned persons maintained by OFAC or the United States Department of State, including the list of Specially Designated Nationals or any other Sanctions-related list maintained by any Governmental Authority,
(b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or
acting on behalf of any such Person or Persons described in clauses (a) through (c) above. 99
Sanctions means individually and collectively, respectively, any and all
economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to
time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council,
(c) the European Union or any European Union member state, (d) Her Majestys Treasury of the United Kingdom, or (e) any other Governmental Authority with jurisdiction over any Lender or Holdings, Borrower or any of their
respective Subsidiaries or Affiliates. SEC means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions. Second
Amendment means that certain Second Amendment to Credit Agreement dated as of the Second Amendment Effective Date, by and among Holdings, the Borrower, the other Obligors party thereto, the Lenders party thereto, the Agent and the Collateral
Agent. Second Amendment Effective Date means November 1, 2022.
Second Currency has the meaning specified in Section 14.19. Section 6.2 Financials means the Financial Statements delivered, or required to be delivered, pursuant to
Section
6.2(a) Secured Cash Management Agreement means any Cash Management Document that is entered into by and between Holdings, the
Borrower or any Restricted Subsidiary and a Cash Management Bank and designated in writing by the Cash Management Bank and such Person to the Agent as a Secured Cash Management Agreement. Secured Hedge Agreement means any Hedge Agreement permitted under Section 8.12 that is entered into by and
between any Obligor or any Restricted Subsidiary and any Hedge Bank and designated in writing by the Hedge Bank and such Obligor to the Agent as a Secured Hedge Agreement. Such designation in writing by the Hedge Bank and the applicable
Obligor (or any subsequent written notice by the Hedge Bank to the Agent) may further designate with the consent of the Borrower any Secured Hedge Agreement as being a Noticed Hedge as defined under this Agreement. Secured Hedge Obligations means (a) obligations under any Secured Hedge Agreement up to the maximum amount reasonably
specified by such Hedge Bank and any Obligor or any Restricted Subsidiary in writing to the Agent, which amount may be established or increased (by further written notice to the Agent from time to time) as long as Aggregate Revolver Outstandings
would not exceed the Maximum Revolver Amount as a result of the establishment of a Bank Product Reserve for such amount and (b) obligations under any Secured Hedge Agreement where JPMorgan or any of its Affiliates is the Hedge Bank up to the
maximum amount reasonably specified by such Hedge Bank in writing to the Agent, which amount may be established or increased (by further written notice to the Agent from time to time) as long as Aggregate Revolver Outstandings would not exceed the
Maximum Revolver Amount as a result of the establishment of a Bank Product Reserve for such amount. 100
Secured Parties means, collectively, the Agent, the Collateral Agent, the
Lenders, each Letter of Credit Issuer, the Indemnified Persons, the Cash Management Banks and the Hedge Banks. Securities
Accounts means all securities accounts as such term is defined in the UCC. Securities Act means
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Security Agreement means
the Security Agreement, dated as of the Agreement Date, among Holdings, the Borrower, each of the Guarantors from time to time party thereto, and the Collateral Agent, for the benefit of the Secured Parties, as may be amended, restated, amended and
restated, supplemented or otherwise modified from time to time. Security Documents means the Security Agreement, the
Pledge Agreements, the FTS Control Agreements, any Intellectual Property security agreement, and any other agreements, instruments, and documents heretofore, now or hereafter securing any of the Obligations. Senior Secured Net Leverage Ratio means, as of any date of determination, the ratio of (a) Consolidated Total Debt that is
secured by a Lien on any assets or property of Holdings, the Borrower or any Restricted Subsidiary as of the last day of the Test Period most recently ended on or prior to the date of determination to (b) Consolidated EBITDA of Holdings and its
Restricted Subsidiaries for such Test Period. Settlement and Settlement Date have the meanings
specified in Section 13.14(a)(i). Shared Services Agreement means that certain shared services agreement
to be entered into by and between Wilks Brothers, LLC and Holdings pursuant to the IPO Transactions in substantially the form attached hereto as Exhibit M (as such form may be amended, modified or changed prior to the execution and delivery
thereof by the parties thereto to the extent that such amendment, modification or change is not in any manner materially adverse to the interests of the Lenders). Signal Peak Acquisition has the meaning given to such term in the First Amendment. Signal Peak Acquisition Documents has the meaning given to such term in the First Amendment. Signal Peak Closing Date means the date on which the Signal Peak Acquisition has been consummated. 101
Significant Subsidiary means, at any date of determination, (a) any
Restricted Subsidiary whose total assets (when combined with the assets of such Restricted Subsidiarys Subsidiaries after eliminating intercompany obligations) at the last day of the Test Period most recently ended on or prior to such date of
determination were equal to or greater than ten percent (10%) of the Consolidated Total Assets at such date, (b) any Restricted Subsidiary whose gross revenues (when combined with the gross revenues of such Restricted Subsidiarys
Subsidiaries after eliminating intercompany obligations) for such Test Period were equal to or greater than ten percent (10%) of the consolidated gross revenues of Holdings and its Restricted Subsidiaries for such Test Period, in each case
determined in accordance with GAAP or (c) each other Restricted Subsidiary that, when such Restricted Subsidiarys total assets or gross revenues (when combined with the total assets or gross revenues of such Restricted Subsidiarys
Subsidiaries after eliminating intercompany obligations) are aggregated with each other Restricted Subsidiary (when combined with the total assets or gross revenues of such Restricted Subsidiarys Subsidiaries after eliminating intercompany
obligations) that would constitute a Significant Subsidiary under clause (a) or (b) above. Sold Entity or Business has the meaning specified in the definition of the term Consolidated EBITDA. SOFR means a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator. SOFR Administrator means the NYFRB (or a successor administrator of the secured overnight financing rate). SOFR Administrators Website means the NYFRBs website, currently at http://www.newyorkfed.org, or any successor
source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. SOFR
Day has the meaning specified in the definition of Daily Simple SOFR. SOFR Determination Date
has the meaning specified in the definition of Daily Simple SOFR. SOFR Interest Payment Date means
(a) with respect to any RFR Loan, (i) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such RFR Loan (or, if there is no such numerically corresponding day in such
month, then the last day of such month) and (ii) the Termination Date and (b) with respect to any Term Benchmark Loan, (i) the last day of each Interest Period applicable to the Borrowing of which such Term Benchmark Loan is a part
(and, in the case of a Term Benchmark Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three months duration after the first day of
such Interest Period) and (ii) the Termination Date. Solvent or Solvency means, at the time of
determination: (a) each of the Fair Market Value and the Present Fair Saleable Value of the assets of a Person and its
Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; and 102
(b) such Person and its Subsidiaries taken as whole do not have Unreasonably
Small Capital; and (c) such Person and its Subsidiaries taken as whole can pay their Stated Liabilities and Identified
Contingent Liabilities as they mature. Defined terms used in the foregoing definition shall have the meanings set forth in the solvency
certificate delivered on the Closing Date pursuant to Section 9.1(a)(v). Specified Account Debtor certain
Account Debtors (other than Investment Grade Account Debtors) from time to time agreed to in writing by Agent. As of the Closing date, Rockcliff Energy Management and its Subsidiaries shall be Specified Account Debtors. Specified Conditions means, at any time of determination, that (a) no Event of Default exists or would arise as a
result of the making of the subject Specified Payment,
(b) after giving Pro Forma Effect to such Specified Payment,
the Fixed Charge Coverage Ratio as of the end of the most recently ended Test Period (regardless of whether a Covenant Trigger Period is then in effect) shall be greater than or equal to 1.0 to 1.0 calculated as if such Specified Payment (if
applicable to such calculation) had been made as of the first day of such Test Period, (c) Availability after giving Pro Forma Effect to such Specified Payment is as of the date of such Specified Transaction, and for each date during the thirty (30) calendar day period prior to such
Specified Payment would have been, in excess of the greater of (x) 15.0% of the Maximum Credit and (y) $ Specified Event of Default means the occurrence of and continuance of any Event of Default under
(a) Section 10.1(b), to the extent related to the inaccuracy of any Borrowing Base Certificate delivered under this Agreement, (b) any of Sections 10.1(a), (e), (f) or (g), (c) Section 10.1(c)(ii),
(d) Section 10.1(c)(iii) or (e) Section 10.1(c)(i) (as a result of a breach of Section 8.23 or Section 8.21 only). Specified FTS Real Estate means the Real Estate acquired in connection with the FTS Acquisition and located at the below
locations, together with (x) all rights, privileges, interests, tenements, hereditaments, easements and appurtenances in any way now or hereafter pertaining to such Specified FTS Real Estate; (y) all buildings and other improvements of
every kind and description now or hereafter placed on such Specified FTS Real Estate, together with all fixtures, machinery and other articles of personal property now or hereafter attached to or regularly used in connection with the Specified FTS
Real Estate, and all replacements thereof, and (z) all extensions, improvements, betterments, substitutes, replacements, renewals, additions and appurtenances of or to the easements or improvements: 906 S. Eastern, Elk City, OK 73644; 1432 Route 519, Eighty Four, PA 15330; Lot 1, Aledo, TX 76008; 103
117 Nu Energy Rd., Aledo, TX 76008; 119 Nu Energy Rd., Aledo, TX 76008; 2459 FM 190, Asherton, TX, 78827; 4608 Fairlane, Fort Worth, TX 76119; 4651 S. Edgewood Terrace, Fort Worth, TX 76119; 4700 S. Edgewood Terrace, Fort Worth, TX 76119; 1704 E. Whaley St., Longview TX 75601; 3201 W. Murphy, Odessa, TX 79763; 986 S. Maurice Rd., Odessa, TX, 79763 ; 602 S. Hwy 163, Ozona, TX 76943; and 3195 Coughran Rd., Pleasanton, TX 78064. Specified Payment means (a) any Permitted Acquisition or Permitted Investment made pursuant to clause (k) of the
definition of Permitted Investments,
(b) Distributions made pursuant to
Section 8.10(i)(i), (c) Investments made
pursuant to clause (ee) of the definition of Permitted Investments, (d) Sale Leaseback Transactions consummated pursuant to Section 8.18,
(e) payments in respect of Junior Debt made pursuant
to Section 8.13(a)(ii)(F), (f) any payments in respect of the Closing Date Note, the Back Stop Note and the Equify Bridge Financing Note made pursuant to Section 8.13(b) Specified Restructuring means any restructuring or other strategic initiative (including cost saving initiative) of
Holdings or any of its Restricted Subsidiaries after the Closing Date and not in the ordinary course and described in reasonable detail in a certificate of a Responsible Officer delivered by Holdings or the Borrower to the Agent. Specified Transaction means, with respect to any period, any Investment, Disposition (including the Permitted Sale
Leaseback Transaction), incurrence of Debt, Refinancing of Debt, Distribution, Subsidiary designation, Revolving Credit Commitment Increase, creation of Extended Revolving Credit Commitments or other event that by the terms of the Loan Documents
requires compliance on a Pro Forma Basis with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis or after giving Pro Forma Effect thereto. Stated Termination Date means, with respect to the Revolving Credit Facility, March 4, 2027 and, with respect to any
Extended Revolving Credit Facility, the maturity date set forth in the Extension Agreement related thereto. 104
Stock means all shares, options, warrants, general or limited partnership
interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company, unlimited liability company or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other equity security (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act). Subordinated Debt means any Debt subordinated in right of payment to, or required under the Loan Documents to be
subordinated in right of payment to, any Debt under the Loan Documents, except any Debt that is subject to Lien subordination but not payment subordination. For the avoidance of doubt, (i) the Back Stop Note, the Closing Date Note and the
Equify Bridge Financing Note shall be deemed to constitute Subordinated Debt and (ii) the EKU Debt, the IO- TEQ Debt, the U.S. Well Services Debt
, [**] and the Debt evidenced by the First Financial Loan
Documents , the Paccar Equipment Loan Documents and the Enterprise Equipment Lease Agreement shall not be deemed to constitute Subordinated Debt. Subordinated
Intercompany Note means the Intercompany Subordinated Note, dated as of the Agreement Date, by and among Holdings, the Borrower and each Restricted Subsidiary of Holdings from time to time party thereto. Subsidiary of a Person means any corporation, association, partnership, limited liability company, unlimited liability
company, joint venture or other business entity of which more than fifty percent (50%) of the voting stock or other Stock (in the case of Persons other than corporations), is owned or controlled directly or indirectly by the Person, or one or
more of the Subsidiaries of the Person, or a combination thereof. Unless the context otherwise clearly requires, references herein to a Subsidiary refer to a Subsidiary of Holdings. Supermajority Lenders means, at any time, Lenders having Commitments representing at least
662⁄3% of the aggregate Commitments at such time; provided, however, that if any Lender shall remain a Defaulting Lender, the term Supermajority
Lenders means Lenders having Commitments representing at least 662⁄3% of the aggregate Commitments at such time (excluding the Commitment of any such Lender
that is a Defaulting Lender); provided further, however, that if the Commitments have been terminated, the term Supermajority Lenders means Lenders holding Loans (including Swingline Loans) representing at least 662⁄3% of the aggregate principal amount of Loans (including Swingline Loans) outstanding at such time (excluding Loans of any such Lender that is a Defaulting Lender).
Supporting Letter of Credit has the meaning specified in Section 2.3(g). Swap Termination Value means, in respect of any one or more Hedge Agreements, after taking into account the effect of any
legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements 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 Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender). 105
Swingline Commitment means the Commitment of the Swingline Lender to make
loans pursuant to Section 2.4(f). Swingline Lender means JPMorgan or any successor financial institution
agreed to by the Agent, in its capacity as provider of Swingline Loans. Swingline Loan and Swingline
Loans have the meanings specified in Section 2.4(f). Swingline Sublimit has the meaning
specified in Section 2.4(f). Tax Distributions has the meaning specified in
Section 8.10(g)(i). Taxes means all present or future taxes, levies, imposts, duties, deductions,
assessments, fees, charges or withholdings (including backup withholdings) imposed by any Governmental Authority, including interest, penalties and additions to tax with respect thereto. Tax Group has the meaning specified in the definition of Permitted Tax Distributions. Tax Receivable Agreement means that certain Tax Receivable Agreement to be entered into in connection with the IPO
Transactions, as further described in the Registration Statement. Term Benchmark when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR. Termination Date means the earliest to occur of (a) the Stated Termination Date, (b) the date that is 91 days prior to the stated maturity of any
Material Indebtedness; (c) the date the Commitments
are terminated either by the Borrower pursuant to Section 4.4 or by the Required Lenders pursuant to Section 10.2 hereof or automatically pursuant to Section 10.2, and (d) the date this Agreement is otherwise terminated for any reason
whatsoever pursuant to the terms of this Agreement. It being understood and agreed that (x) the Debt incurred pursuant to the First Financial 2021 Loan Agreement Term
Facility Indebtedness means the Obligations (as defined in the Term Loan Credit Agreement) or any equivalent term under any Additional Fixed Asset Credit Agreement (as defined in the Intercreditor Agreement). Term Lenders means the Lenders under and as defined in the Term Loan Credit Agreement. Term Loan Agent means Piper Sandler Finance LLC as Agent and Collateral Agent under the Term Loan
Credit Agreement and the other Term Loan Documents. 106
Term Loan Credit Agreement means the Term Loan Credit Agreement, dated as
of the Agreement Date, by and among the Borrower, Holdings, the Term Loan Agent, the lenders party thereto and the other parties party thereto (except as otherwise stated herein, as in effect on the Closing Date and as the same may be subsequently
amended, restated, amended and restated, refinanced, replaced, extended, renewed or restructured in accordance with the provisions of the Term Loan Credit Agreement and the terms of the Intercreditor Agreement, including, in each case, by means of
any Additional Fixed Asset Credit Agreement (as defined in the Intercreditor Agreement)). Term Loan Documents has the
same meaning as Loan Documents set forth in the Term Loan Credit Agreement. Term Loan Facility means the
term loan credit facility made available to the Borrower and certain of its Subsidiaries pursuant to the Term Loan Credit Agreement. Term SOFR means, with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest
Period, the Term SOFR Reference Rate at approximately 6:00 a.m., New York City time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is
published by the CME Term SOFR Administrator. Term SOFR Determination Day has the meaning assigned to it under the
definition of Term SOFR Reference Rate. Term SOFR Reference Rate means, for any day and time (such day, the
Term SOFR Determination Day), and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such
Term SOFR Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR has not occurred, then the Term
SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME
Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day. Test Period means, at any date of determination, the most recently completed four consecutive Fiscal Quarters of Holdings
ending on or prior to such date for which financial statements have been (or were required to have been) delivered pursuant to Section 6.2(a) or 6.2(b); provided that prior to the first date financial statements have been
delivered pursuant to Section 6.2(a) or 6.2(b), the Test Period in effect shall be the period of four consecutive Fiscal Quarters of Holdings ended September 30, 2021. Titled Goods means vehicles and similar items that are (a) subject to certificate-of-title statutes or regulations
under which a security interest in such items are perfected by an indication on the certificates of title of such items (in lieu of filing of financing statements under the UCC) or (b) evidenced by certificates of ownership or other
registration certificates issued or required to be issued under the laws of any jurisdiction. 107
Total Net Leverage Ratio means, as of any date of determination, the
ratio of (a) Consolidated Total Debt as of the last day of the Test Period most recently ended on or prior to the date of determination to (b) Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such Test Period. Notwithstanding
anything to the contrary herein, solely for purposes of calculating the Total Net Leverage Ratio, the Debt of any Non-Wholly Owned Sub shall not be included in such calculation unless and until (x) such Non-Wholly Owned Sub becomes a Wholly
Owned Restricted Subsidiary of Holdings or (y) such Debt of such Non-Wholly Owned Sub is guaranteed by Holdings or any of its Wholly Owned Restricted Subsidiaries or the creditors with respect to such Debt have recourse to Holdings or any of
its Wholly Owned Subsidiaries with respect to such Debt (including, without limitation, by means of pledging any collateral with respect thereof). Transactions means, collectively, (a) the entering into of the Loan Documents and funding of the Loans on the Closing
Date and the consummation of the other transactions contemplated by this Agreement and the other Loan Documents (including without limitation, upon the consummation thereof, the IPO Transactions and FTS Acquisition Transactions), (b) the
Existing Debt Refinancing, (c) the entering into the Term Loan Documents governing the Term Loan Facility, and (d) the payment of fees and expenses in connection with the foregoing. Transactions with Affiliates Letter Agreement has the meaning set forth in Section 8.14(u). Type means any type of a Loan determined with respect to the interest option applicable thereto, which shall be a Term
Benchmark Loan, a Base Rate Loan or, if then applicable, an RFR Loan. U.S. Government Securities Business Day means
any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of
trading in United States government securities. U.S.
Well Entities means U.S. Well Services Holdings, LLC (formerly known as U.S. Well Services, Inc.), USWS Holdings LLC, U.S. Well Services LLC, USWS Fleet 10, LLC and USWS Fleet 11, LLC.
U.S. Well Merger has the meaning given to such term in the First Amendment. U.S. Well Merger Closing Date means the date on which the U.S. Well Merger has been consummated. U.S. Well Merger Documents has the meaning given to such term in the First Amendment. 108
U.S. Well Services Debt means that certain Debt evidenced by that certain
Promissory Note dated as of July 18, 2022, reflecting that certain Debt owed by U.S. Well Services
Holdings,
LLC (formerly known as U.S. Well Services, Inc. )
and/or its Subsidiaries to Equify Financial LLC in an aggregate principle amount not to exceed $30,000,000, and any Refinancing Debt incurred to Refinance such debt. 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 5.1(d)(ii)(C). UCC means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the
laws of which are required as a result thereof to be applied in connection with the issue of perfection of security interests. 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. Unadjusted Benchmark Replacement means the applicable Benchmark Replacement excluding the related Benchmark Replacement
Adjustment. Unfinanced Capital Expenditures means, with respect to any Person and for any period, Capital Expenditures
made by such Person during such period that are not Financed Capital Expenditures. United States and
U.S. mean the United States of America. Unpaid Drawings has the meaning specified in
Section 2.3(e). Unrestricted Cash shall mean, at any time, the aggregate amount of unrestricted cash and Cash
Equivalents of the Borrower and the other Obligors that is both (a) is free and clear of all Liens other than (i) any nonconsensual Lien that is permitted under the Loan Documents, (ii) Liens of the Collateral Agent and (iii) the
Liens permitted under clauses (k), (r), (y)(i) and (y)(ii) of the definition of Permitted Liens herein and (b) held in a Deposit Account in the United States that is not subject to the Control (as defined
in the UCC) of any secured creditor (to secure borrowed money) other than the Collateral Agent (to the extent Collateral Agent is permitted to have Control over such Deposit Account pursuant to the provisions of this Agreement and the Security
Documents) unless, in the case of the secured creditors who have Control of certain Deposit Accounts of Holdings and its Restricted Subsidiaries pursuant to clause (r) of the definition of Permitted Liens, the Collateral
Agent also has Control (as defined in the UCC) of such Deposit Account. For the avoidance of doubt, this definition of Unrestricted Cash shall not include any cash or Cash Equivalents used to cash collateralize undrawn face amounts of
outstanding Letters of Credit and any Unpaid Drawings in respect of Letters of Credit. 109
Unrestricted Subsidiary means (i) each Subsidiary of the Borrower
listed on Schedule 1.4, (ii) any Subsidiary of the Borrower designated by the Board of Directors of Holdings or the Borrower as an Unrestricted Subsidiary pursuant to Section 8.26 subsequent to the Closing Date and
(iii) any Subsidiary of an Unrestricted Subsidiary. Unused Letter of Credit Subfacility means an amount equal to
the Letter of Credit Subfacility minus the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit plus, without duplication, (b) the aggregate Unpaid Drawings obligations with respect to a Letters of
Credit. Unused Line Fee has the meaning specified in Section 3.5. USA PATRIOT Act means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time. Voting Stock means, with respect to any Person, shares of such Persons Stock having the right to vote for the
election of members of the Board of Directors of such Person under ordinary circumstances. Weighted Average Life to
Maturity means, when applied to any Debt at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by
(ii) the then-outstanding principal amount of such Debt. West Munger Acquisition means the acquisition by
Holdings of certain real property interests, including the sand reserves beneath such real estate, for an aggregate purchase price of $30,000,000 pursuant to the terms of the West Munger Acquisition Documents. West Munger Acquisition Agreement means that certain Purchase and Sale Agreement, dated as of November 17, 2021 (as
amended, restated, supplemented or otherwise modified from time to time but without giving effect to any modifications, amendments, express waivers or express consents thereunder after the date hereof that are materially adverse to the Lenders
without the consent of the Lenders), by and among Holdings, as buyer, and certain Persons, collectively, as sellers. West Munger
Acquisition Documents means the West Munger Acquisition Agreement and all other agreements, instruments and other documents related thereto or executed in connection therewith (as amended, restated, supplemented or otherwise modified from
time to time but without giving effect to any modifications, amendments, express waivers or express consents thereunder after the date hereof that are materially adverse to the Lenders without the consent of the Lenders). 110
Wholly Owned means, with respect to a Subsidiary of a Person, a
Subsidiary of such Person all of the outstanding Stock of which (other than (x) directors qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or
more wholly owned Subsidiaries of such Person. Withholding Agent means any Obligor, the Agent, the Collateral Agent
and, in the case of any U.S. federal withholding tax, any other withholding agent. 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.
1.2 Accounting Terms. (a) 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 in a manner consistent with that used in preparing the Historical
Financial Statements, except as otherwise specifically prescribed herein; provided, however, that if the Borrower notifies the Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith. (b) Notwithstanding
anything to the contrary herein, for purposes of determining compliance with any test or covenant contained in this Agreement with respect to any period during which any Specified Transaction or Specified Restructuring occurs, the Fixed Charge
Coverage Ratio, the Total Net Leverage Ratio and the Senior Secured Net Leverage Ratio shall be calculated with respect to such period and such Specified Transaction or Specified Restructuring on a Pro Forma Basis. (c) Where reference is made to Holdings and its Restricted Subsidiaries, on a consolidated basis or similar
language, such consolidation shall not include any Subsidiaries of Holdings other than Restricted Subsidiaries. 111
(d) Notwithstanding any other provision contained herein, (i) all terms
of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under the Financial Accounting Standards Boards Accounting
Standards Codification No. 825-Financial Instruments, or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Debt of Holdings, the Borrower or any Subsidiary at fair value as defined
therein and (ii) all leases and obligations under any leases of any Person that are or would be characterized as operating leases and/or operating lease obligations in accordance with GAAP as of December 31, 2017 (whether or not such
operating leases and/or operating lease obligations were in effect on such date) shall continue to be accounted for as operating leases and/or operating lease obligations (and not as Capital Leases and/or Capital Lease Obligations) for purposes of
this Agreement regardless of any change in GAAP following the date that would otherwise require such obligations to be characterized as Capital Leases and/or Capital Lease Obligations. (e) For the avoidance of doubt, notwithstanding any classification under GAAP of any Person or business in respect of which a
definitive agreement for the Disposition thereof has been entered into as discontinued operations, the Net Income of such Person or business shall not be excluded from the calculation of Consolidated Net Income until such Disposition shall have been
consummated. 1.3 Interpretive Provisions. (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. (b) The words hereof, herein, hereunder and similar words refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Subsection, Section, Schedule and Exhibit references are to this Agreement unless otherwise specified. (c) The term documents includes any and all instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced. (i) The term including is not limiting and means including
without limitation. (ii) 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. (iii) The word or is not exclusive. (iv) Any reference to any Person shall be constructed to include such Persons successors or assigns (subject to any
restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all of the functions thereof. 112
(v) Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. (vi) The word will shall be construed to have the same
meaning as the word shall. (vii) 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. (d) Unless otherwise expressly provided herein, (a) references to Organization Documents, Charter Documents, agreements
(including the Loan Documents) and other contractual obligations shall be deemed to include all subsequent amendments, restatements, amendment and restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, amendment and restatements, extensions, supplements and other modifications are not prohibited by this Agreement; and (b) references to any applicable Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such applicable Law. (e) The captions and headings of
this Agreement and other Loan Documents are for convenience of reference only and shall not affect the interpretation of this Agreement. (f) This Agreement and other Loan Documents may use several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms. 1.4 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a Revolving Loan) or by Type (e.g., a Term Benchmark Loan) or by Class and Type (e.g., a Revolving Term Benchmark Loan). Borrowings also may be classified and referred to by Class
(e.g., a Revolving Borrowing) or by Type (e.g., a Term Benchmark Borrowing) or by Class and Type (e.g., a Revolving Term Benchmark Borrowing). 1.5 Divisions. Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or
transfer, or similar term involving a Delaware limited liability company, shall also be deemed to apply to a division of or by a Delaware limited liability company under Delaware law or an allocation of assets to a series of a Delaware limited
liability company under Delaware law (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale or transfer, or similar term, as applicable, to, of or with a
separate Person. Any division of a Delaware limited liability company under Delaware law shall constitute a separate Person hereunder (and each division of any Delaware limited liability company under Delaware law that is a Subsidiary, Excluded
Subsidiary, joint venture or any other like term shall also constitute such a Person or entity). 113
1.6 Rounding. Any financial ratios required to be maintained or complied with by the
Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under 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). 1.7 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City (daylight or
standard, as applicable). 1.8 Timing of Payment or Performance. When the payment of any obligation or the performance of any
covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the
immediately succeeding Business Day. 1.9 Currency Equivalents Generally. (a) For purposes of any determination under any provision of this Agreement requiring the use of a current exchange rate, all
amounts incurred or proposed to be incurred in currencies other than Dollars shall be translated into Dollars at currency exchange rates then in effect on the date of such determination; provided, however, that (x) for purposes of
determining compliance with respect to the amount of any Debt, Investment, Disposition, Distribution or payment of Junior Debt in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of
changes in rates of exchange occurring after the time such Debt or Investment is incurred or Disposition, Distribution of payment of Junior Debt is made, (y) for purposes of determining compliance with any Dollar-denominated restriction on the
incurrence of Debt, if such Debt is incurred to Refinance other Debt denominated in a foreign currency, and such Refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such Refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinanced Debt does not exceed the principal amount of such Debt being Refinanced,
except by an amount equal to the accrued interest and premium thereon plus other amounts paid and fees and expenses incurred in connection with such Refinancing plus an amount equal to any existing commitment unutilized and letters of credit undrawn
thereunder and (z) for the avoidance of doubt, the foregoing provisions of this Section 1.9 shall otherwise apply to such Sections, including with respect to determining whether any Debt or Investment may be incurred or Disposition,
Distribution or payment of Junior Debt may be made at any time under such Sections. For purposes of the Financial Covenant and testing the Total Net Leverage Ratio, amounts in currencies other than Dollars shall be translated into Dollars at the
applicable exchange rates used in preparing the most recently delivered Section 6.2 Financials. (b) Each
provision of this Agreement shall be subject to such reasonable changes of construction as the Agent may from time to time specify with the Borrowers consent (such consent not to be unreasonably withheld) to appropriately reflect a change in
currency of any country and any relevant market conventions or practices relating to such change in currency. 114
1.10 Interest Rates; Benchmark Notifications. The interest rate on a Loan denominated
in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 5.5(c) provides a
mechanism for determining an alternative rate of interest. The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any
interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including, without limitation, whether the composition or characteristics of any such alternative, successor or
replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or
unavailability. The Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark
Replacement) and/or any relevant adjustments thereto, in each case, in a manner that may have an indirect adverse impact on the Borrower. The Agent may select information sources or services in its reasonable discretion to ascertain any interest
rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for
damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such
rate (or component thereof) provided by any such information source or service. 1.11 Letters of Credit. 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 available to be drawn at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of
any letter of credit agreement related thereto, provides for one or more automatic increases in the available amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of such Letter of Credit after giving effect
to all such increases, whether or not such maximum amount is available to be drawn at such time. 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 Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the applicable time)
or Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time) or similar terms of the Letter of Credit itself,
or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be outstanding and undrawn in the amount so remaining available to be paid, and the obligations of the Borrower and
each Lender shall remain in full force and effect until the applicable Letter of Credit Issuer and the Lenders shall have no further obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit 115
ARTICLE II LOANS AND LETTERS OF CREDIT 2.1 Credit Facilities. Subject to all of the terms and conditions of this Agreement, (i) the Lenders agree to make Revolving Loans to
the Borrower on the Closing Date and at any time and from time to time prior to the Termination Date, in an aggregate principal amount outstanding not in excess of the Availability, (ii) the Swingline Lender agrees to extend credit to the
Borrower, at any time and from time to time prior to the Termination Date, in the form of Swingline Loans, in an aggregate principal amount at any time outstanding not in excess of the lesser of the Swingline Sublimit and the then applicable
Availability, and (iii) the Letter of Credit Issuers agree to issue Letters of Credit on behalf of the Borrower, in an aggregate face amount at any time outstanding not in excess of the lesser of the Letter of Credit Subfacility and the then
applicable Availability. The proceeds of the Revolving Loans and the Swingline Loans are to be used solely to finance ongoing working capital needs and for other general corporate purposes (including Permitted Acquisitions and other Permitted
Investments, Permitted Distributions and the repayment or prepayment of Debt and any fees, costs, expenses and other liabilities related to the foregoing, in each case to the extent not prohibited pursuant to the terms hereof) of Holdings and its
Restricted Subsidiaries. Each Loan made pursuant to this Agreement shall be made in Dollars. 2.2 Revolving Loans. Subject to all
of the terms and conditions of this Agreement, each Lender severally, but not jointly or jointly and severally, agrees, upon the Borrowers request from time to time on any Business Day during the period from the Closing Date to the Termination
Date, to make Revolving Loans in Dollars to the Borrower in an amount equal to such Lenders Pro Rata Share of the Borrowing requested by Borrower in accordance with the provisions hereof, but not to exceed the then-current Availability. The
Lenders, however, in their unanimous discretion, may elect to make Revolving Loans or issue or arrange to have issued Letters of Credit in excess of the Borrowing Base on one or more occasions, but if they do so, neither the Agent nor the Lenders
shall be deemed thereby to have changed the limits of the Borrowing Base or to be obligated to exceed such limits on any other occasion. If any such Borrowing would exceed Availability, the Lenders may refuse to make or may otherwise restrict the
making of Revolving Loans as the Lenders determine until such excess has been eliminated, subject to the Agents authority, in its sole discretion, to make Agent Advances pursuant to the terms of Section 2.4(g). 2.3 Letters of Credit. (a) Agreement to Issue. Subject to all of the terms and conditions of this Agreement, the Letter of Credit Issuers
agree to issue for the account of the Borrower, Manufacturing and ProFrac Services one or more standby letters of credit denominated in Dollars (each, a Letter of Credit and, collectively, the Letters of Credit)
and to amend, renew or extend Letters of Credit previously issued by such Letter of Credit Issuer (unless otherwise provided below); provided that the Borrower shall be the applicant, and be jointly and severally liable, with respect to any
Letter of Credit issued for the account of Manufacturing and/or ProFrac Services. 116
(b) Amounts; Outside Expiration Date. The Letter of Credit Issuers
shall not have any obligation to issue any Letter of Credit at any time if (i) the maximum aggregate amount of the requested Letter of Credit for the term of such Letter of Credit (including any increases in amount referenced therein) is
greater than the Unused Letter of Credit Subfacility at such time; (ii) the maximum undrawn amount of the requested Letter of Credit would exceed the then-current Availability; or (iii) such Letter of Credit has an expiration date later
than 12 months after the date of issuance (subject to customary evergreen or automatic renewal provisions reasonably acceptable to such Letter of Credit Issuer, which may provide for renewal for additional period of up to 12 months); provided
that in no event shall any Letter of Credit have an expiration date later than the date that is five (5) Business Days prior to the Stated Termination Date or such later date to the extent such Letter of Credit has been cash collateralized
in an amount to be agreed with the applicable Letter of Credit Issuer or backstopped with another letter of credit for such period after the Termination Date in a manner mutually and reasonably agreed between the applicable Letter of Credit Issuer
and the Borrower. Notwithstanding the foregoing, no Letter of Credit Issuer shall be required to issue any Letter of Credit if the aggregate maximum amount of all Letters of Credit issued by such Letter of Credit Issuer would exceed its L/C
Commitment. With respect to any Letter of Credit which contains any evergreen or automatic renewal or extension provision, if such Letter of Credit permits the applicable Letter of Credit Issuer to prevent any extension by giving notice
to the beneficiary thereof no later than a date (the Non-Extension Notice Date), once any such Letter of Credit has been issued, the Lenders shall be deemed to have authorized such Letter of Credit Issuer to permit extensions of
such Letter of Credit to an expiry date not later than the date that is five (5) Business Days prior to the Stated Termination Date, unless the Agent shall have received written notice from the Required Lenders declining to consent to any such
extension at least thirty (30) days prior to the Non-Extension Notice Date; provided that no Lender may decline to consent to any such extension if all of the requirements of this Section 2.3 are met and no Default or Event
of Default has occurred and is continuing. (c) Other Conditions. In addition to the conditions precedent contained
in Article IX, the obligation of the Letter of Credit Issuers to issue any applicable Letter of Credit is subject to the following conditions precedent having been satisfied: (i) the Borrower shall have delivered to the applicable Letter of Credit Issuer, at least three (3) Business Days (or
such shorter period as the applicable Letter of Credit Issuer may agree) in advance of the proposed date of issuance of any Letter of Credit, an application in form and substance reasonably satisfactory to such Letter of Credit Issuer for the
issuance of the Letter of Credit and such other documents as may be reasonably required pursuant to the terms thereof, and the form of the proposed Letter of Credit shall be reasonably satisfactory to the applicable Letter of Credit Issuer; (ii) as of the date of issuance, no order of any court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain the applicable Letter of Credit Issuer from issuing letters of credit of the type and in the amount of the proposed Letter of Credit, and no Law applicable to the applicable 117
Letter of Credit Issuer and no request or directive (whether or not having the force of Law) from any Governmental Authority with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that the proposed Letter of Credit Issuer refrain from, the issuance of letters of credit generally or the issuance of such Letters of Credit, and (iii) as of the date of issuance, such requested Letter of Credit shall not violate any internal policy or guideline of the
applicable Letter of Credit Issuer. (d) Issuance of Letters of Credit. (i) Request for Issuance. The Borrower shall deliver an application signed by a Responsible Officer of the Borrower in
form and substance reasonably satisfactory to the Letter of Credit Issuer to the Agent and the applicable Letter of Credit Issuer of a requested Letter of Credit at least three (3) Business Days (or such shorter period as the applicable Letter
of Credit Issuer may agree) prior to the proposed issuance date. Such application shall specify the original face amount of the Letter of Credit requested, the Business Day of issuance of such requested Letter of Credit, whether such Letter of
Credit may be drawn in a single or in partial draws, the Business Day on which the requested Letter of Credit is to expire, the purpose for which such Letter of Credit is to be issued, and the beneficiary of the requested Letter of Credit. The
Borrower shall attach to such application the proposed draw conditions to be included in the form of the Letter of Credit. (ii) Responsibilities of the Agent; Issuance. As of the Business Day immediately preceding the requested issuance date
of each Letter of Credit, the Agent shall determine the amount of the Unused Letter of Credit Subfacility and the then-current Availability as of such date. If (A) the aggregate amount of the requested Letter of Credit for the term of such
Letter of Credit (including any increases in amount referenced therein) is less than the Unused Letter of Credit Subfacility and (B) the amount of such requested Letter of Credit would not exceed the then-current Availability, the Agent shall
inform the applicable Letter of Credit Issuer that it may issue the requested Letter of Credit on the requested issuance date so long as the other conditions to such issuance set forth in this Agreement are met. (iii) No Extensions or Amendment. Except in the case of Letters of Credit subject to evergreen or automatic renewal
provisions, no Letter of Credit Issuer shall be required to extend, renew or amend any Letter of Credit issued pursuant hereto unless the requirements of this Section 2.3 are met as though a new Letter of Credit were being requested and
issued. (e) Payments Pursuant to Letters of Credit. The Borrower hereby agrees to reimburse the applicable Letter
of Credit Issuer in Dollars with respect to any drawing or disbursement by such Letter of Credit Issuer under any Letter of Credit, by making payment, whether with its own funds, with the proceeds of Revolving Loans or any other source, to the Agent
for the account of the applicable Letter of Credit Issuer in immediately available funds, (with respect to each such amount so paid under a Letter of Credit until 118
reimbursed, an Unpaid Drawing) (i) within one Business Day of the date of such drawing or disbursement if the applicable Letter of Credit Issuer provides notice to the
Borrower of such drawing or disbursement prior to 11:00 a.m. (New York City time) on such prior Business Day after the date of such drawing or disbursement or (ii) if such notice is received after such time, on the next Business Day following
the date of receipt of such notice (such required date for reimbursement under clause (i) or (ii), as applicable (the Required Reimbursement Date), with interest on the amount so paid or disbursed by such
applicable Letter of Credit Issuer, from and including the date of such drawing or disbursement to but excluding the Required Reimbursement Date, at the per annum rate for each day equal to the applicable rate described in
Section 3.1(a)(i); provided that, notwithstanding anything contained in this Agreement to the contrary, with respect to any Letter of Credit, unless the Borrower shall have notified the Agent and the applicable Letter of Credit
Issuer prior to 11:00 a.m. (New York City time) on the Required Reimbursement Date that the Borrower intends to reimburse such Letter of Credit Issuer for the amount of such drawing or disbursement with funds other than the proceeds of Revolving
Loans, each drawing under any Letter of Credit shall constitute a request by the Borrower to the Agent for a Borrowing of a Base Rate Loan in the amount of such drawing and, to the extent such Base Rate Loan is made, the Borrowers obligation
to make such payment shall be discharged and replaced by the resulting Base Rate Loan. (f) Indemnification;
Exoneration; Power of Attorney. (i) Indemnification. In addition to amounts payable as elsewhere provided in
this Section 2.3, the Borrower agrees to protect, indemnify, pay and save the applicable Letter of Credit Issuer harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and reasonable and
documented or invoiced out-of-pocket expenses (including reasonable Attorney Costs) which such Letter of Credit Issuer may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, except that the
foregoing indemnity shall not apply to such Letter of Credit Issuer to the extent of acts or omissions arises out of gross negligence, bad faith or willful misconduct of such Letter of Credit Issuer (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The Borrowers obligations under this Section shall survive payment of all other Obligations and termination of this Agreement. (ii) Assumption of Risk by the Borrower. As among the Borrower, the Revolving Credit Lenders, the applicable Letter of
Credit Issuer and the Agent, the Borrower assumes all risks of the acts and omissions of, or misuse of any of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing,
the Lenders, the applicable Letter of Credit Issuer and the Agent shall not be responsible for (except in the case of any such Person (but not with respect to any other Person), to the extent arising out of the gross negligence, bad faith or willful
misconduct of such Person (as determined by a court of competent jurisdiction in a final and non-appealable decision) in connection with any of the following): (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by 119
any Person in connection with the application for and issuance of and presentation of drafts with respect to any of the Letters of Credit, even if it should prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any 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; (C) the failure of the beneficiary of any Letter of Credit to comply duly with conditions set forth in any separate agreement with the Borrower that are
required in order to draw upon such Letter of Credit; (D) errors, omissions, interruptions, or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (E) errors
in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit or of the proceeds thereof; (G) the misapplication by the
beneficiary of any Letter of Credit of the proceeds of any drawing under such Letter of Credit; (H) any consequences arising from causes beyond the control of the Revolving Credit Lenders, the applicable Letter of Credit Issuer or the Agent,
including any act or omission, whether rightful or wrongful, of any present or future de jure or de facto Governmental Authority; or (I) the applicable Letter of Credit Issuers honor of a draw for which the draw or any certificate fails
to comply in any material respect with the terms of the Letter of Credit; provided that this assumption is not intended to, and shall not, preclude the Borrowers pursuing such rights and remedies as it may have against the beneficiary
or transferee at Law or under any other agreement. None of the foregoing shall affect, impair or prevent the vesting of any rights or powers of the Agent or any Revolving Credit Lender under this Section 2.3(f). (iii) Exoneration. Without limiting the foregoing, no action or omission whatsoever by the Agent, a Letter of Credit
Issuer or any Revolving Credit Lender shall result in any liability of the Agent, such Letter of Credit Issuer or any Revolving Credit Lender to the Borrower (except as provided in the immediately succeeding clause (iv)), or relieve the
Borrower of any of its obligations hereunder to any such Person. (iv) Rights Against Letter of Credit Issuer.
Nothing contained in this Agreement is intended to limit the Borrowers rights or claims, if any, under Law or otherwise, against any Letter of Credit Issuer which arise as a result of the letter of credit application and related documents
executed by such Letter of Credit Issuer or which arise as a result of such Letter of Credit Issuers willful misconduct, gross negligence or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable decision).
(v) Account Party. The Borrower hereby authorizes and directs any Letter of Credit Issuer to name the Borrower as
the Account Party in the Letters of Credit and to deliver to the Agent all instruments, documents and other writings and property received by the applicable Letter of Credit Issuer pursuant to the Letters of Credit, and to accept and
rely upon the Agents instructions and agreements with respect to all matters arising in connection with the Letters of Credit or the applications therefor. 120
(g) Supporting Letter of Credit. If, notwithstanding the provisions
of Section 2.3(b) and Section 11.1, any Letter of Credit is outstanding upon the termination of this Agreement, then upon such termination the Borrower shall (i) deposit with the Agent, for the ratable benefit of the
Agent, the applicable Letter of Credit Issuer and the Revolving Credit Lenders, with respect to each Letter of Credit then outstanding, a standby letter of credit (a Supporting Letter of Credit) in form and substance reasonably
satisfactory to the Agent, issued by an issuer reasonably satisfactory to the Agent, in an amount equal to 103% (or such lesser amount as the Agent and such Letter of Credit Issuer shall agree but not less than 100%) of the sum of the greatest
amount for which such Letter of Credit may be drawn plus any fees and expenses then due and owing with such Letter of Credit, under which Supporting Letter of Credit the Agent is entitled to draw amounts necessary to reimburse the Agent, such
Letter of Credit Issuer and the Revolving Credit Lenders for payments to be made by the Agent, such Letter of Credit Issuer and such Revolving Credit Lenders under such Letter of Credit and any fees and expenses then due and owing or to become due
and owing with such Letter of Credit, or (ii) cash collateralize each Letter of Credit then outstanding, in an amount equal to 103% (or such lesser amount as the Agent and such Letter of Credit Issuer shall agree) of the sum of the greatest
amount for which such Letter of Credit may be drawn plus any fees and expenses then due and owing with such Letter of Credit, in a manner reasonably satisfactory to the Agent. Such Supporting Letter of Credit or cash collateral shall be held
by the Agent, for the ratable benefit of the Agent, the applicable Letter of Credit Issuer and the Revolving Credit Lenders, as security for, and to provide for the payment of, the aggregate undrawn amount of such Letters of Credit remaining
outstanding. (h) Addition of a Letter of Credit Issuer. A Lender (or any of its Subsidiaries or affiliates) may
become an additional Letter of Credit Issuer hereunder pursuant to a written agreement among the Borrower, the Agent and such Lender. The Agent shall notify the Revolving Credit Lenders of any such additional Letter of Credit Issuer. Any Letter of
Credit Issuer may resign as Letter of Credit Issuer hereunder at any time upon notice to Agent and Borrower, which notice shall be delivered (i) ten (10) Business Days in advance of any permitted assignment of all of such Letter of Credit
Issuers interests hereunder as a Lender, or (ii) otherwise, 30 days in advance of the resignation date. From and after the effective date of resignation, the retiring Letter of Credit Issuer shall continue to have all rights and
obligations of a Letter of Credit Issuer under the Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but shall not be required to extend, amend, or issue new Letters of Credit. (i) Letter of Credit Issuer Reports to the Agent. Unless otherwise agreed by the Agent, each Letter of Credit Issuer
shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Agent) in respect of Letters of
Credit issued by such Letter of Credit Issuer, including all issuances, extensions, and amendments, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Letter of Credit Issuer
issues, amends or extends 121
any Letter of Credit, the date of such issuance, amendment or extension, and the stated amount of the Letters of Credit issued, amended or extended by it and outstanding after giving effect to
such issuance, amendment or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Letter of Credit Issuer makes any payment with respect to a Letter of Credit, the date and amount of such
payment, (iv) on any Business Day on which the Borrower fails to reimburse Unpaid Drawings required to be reimbursed to such Letter of Credit Issuer on such day, the date of such failure and the amount of such Unpaid Drawings, and (v) on any
other Business Day, such other information as the Agent shall reasonably request as to the Letters of Credit issued by such Letter of Credit Issuer. 2.4 Loan Administration. (a) Procedure for Borrowing. (i) Each Borrowing by the Borrower shall be made upon the Borrowers written notice delivered to the Agent in the form of
a notice of borrowing substantially in the form of Exhibit B (Notice of Borrowing), which must be received by the Agent prior to (w) 1:00 p.m. (New York City time) three (3) Business Days prior to the requested Funding
Date, in the case of Term Benchmark Loans, (x) 1:00 p.m. (New York City time) one (1) Business Day prior to the requested Funding Date, in the case of Base Rate Loans, (y) 1:00 p.m. (New York City time) on the Funding Date, in the
case of Swingline Loans, and (z) 1:00 p.m. (New York City time) five (5) Business Days prior to the requested Funding Date, in the case of RFR Loans, in each case specifying: (A) whether such Borrowing is to be a Term Benchmark Borrowing, a Base Rate Borrowing or, to the extent then applicable, an
RFR Borrowing (and if not specified, it shall be deemed a request for a Base Rate Borrowing); (B) the amount of the
Borrowing, which (x) in the case of a Term Benchmark Loan (or to the extent the Adjusted Daily Simple SOFR is then the applicable Benchmark, an RFR Loan), must equal or exceed $1,000,000 (and increments of $1,000,000 in excess of such amount)
and (y) in the case of a Base Rate Loan, must equal or exceed $1,000,000 (and increments of $1,000,000 in excess of such amount); (C) the requested Funding Date, which must be a Business Day; and (D) in the case of a request for Term Benchmark Loans, the duration of the initial Interest Period to be applicable thereto
(and if not specified, it shall be deemed a request for an Interest Period of one month). 122
(ii) At the election of the Agent or the Required Lenders, the Borrower
shall have no right to request a Term Benchmark Loan (or to the extent the Adjusted Daily Simple SOFR is then the applicable Benchmark, an RFR Loan) while an Event of Default has occurred and is continuing. Notwithstanding anything to the contrary
in this Agreement (including any references to RFR Loans), as of the Closing Date, the only Type of Loans that are available to the Borrower are Base Rate Loans and Term Benchmark Loans. (b) Reliance upon Authority. On or prior to the Closing Date, the Borrower shall deliver to the Agent a notice setting
forth the account of the Borrower (such account, together with any replacement account, the Designated Account) to which the Agent is authorized to transfer the proceeds of the Loans requested hereunder unless otherwise directed
in writing by the Borrower. The Borrower may designate a replacement account from time to time by written notice to the Agent. The Agent is entitled to rely conclusively on any Persons request for Revolving Loans on behalf of the Borrower, so
long as the proceeds thereof are to be transferred to the Designated Account or to another account designated by the Borrower in writing. The Agent has no duty to verify the identity of any individual representing himself or herself as a person
authorized by the Borrower to make such requests on its behalf. (c) No Liability. The Agent shall not incur any
liability to the Borrower as a result of acting upon any notice referred to in Section 2.4(a) or (b), which the Agent believes in good faith to have been given by an officer or other person duly authorized by the Borrower to
request Loans on its behalf. The crediting of Loans to the Designated Account conclusively establishes the obligation of the Borrower to repay such Loans as provided herein. (d) Borrowers Election. Promptly after receipt of a Notice of Borrowing for a Revolving Base Rate Loan, the
Borrower shall elect to have the terms of Section 2.4(e) or the terms of Section 2.4(f) apply to such requested Borrowing. If the condition in Section 2.4(f)(i)(C) is not satisfied, the terms of
Section 2.4(e) shall apply to the requested Borrowing. (e) Making of Revolving Loans. If the Borrower
elects to have the terms of this Section 2.4(e) apply to a requested Revolving Credit Borrowing of a Base Rate Loan or if the Agent receives a Notice of Borrowing for a Term Benchmark Loan or RFR Loans (if then applicable), then,
promptly after receipt of the Notice of Borrowing with respect to such Revolving Base Rate Loan, Revolving Term Benchmark Loan or Revolving RFR Loan, the Agent shall notify the Revolving Credit Lenders by telecopy, telephone or e-mail of the
requested Borrowing. Each Revolving Credit Lender shall transfer its Pro Rata Share of the requested Borrowing to the Agent in immediately available funds, to the account from time to time designated by the Agent, not later than 12:00 noon (New York
City time) on the applicable Funding Date; provided that on the Closing Date, such funds may be made available at such earlier time as may be agreed among the relevant Lenders, the Borrower and the Agent for the purpose of consummating the
Transactions. After the Agents receipt of all such amounts from the Lenders (or, in the event that a Defaulting Lender does not fund its portion of Loans, after the Agent receives such amounts from all other Lenders), the Agent shall make the
aggregate of such amounts available to the Borrower on the applicable Funding Date by transferring same day funds to the account(s) designated by the Borrower; provided, however, that the amount of Revolving Loans so made on any date
shall not exceed the then-current Availability on such date. 123
(f) Making of Swingline Loans. (i) If the Borrower elects to have the terms of this Section 2.4(f) apply to a requested Revolving Credit
Borrowing of a Base Rate Loan, the Swingline Lender shall make a Revolving Loan in the amount of that Borrowing available to the Borrower on the applicable Funding Date by transferring same day funds to the Designated Account or such other
account(s) as may be designated by the Borrower in writing. Each Revolving Loan made solely by the Swingline Lender pursuant to this Section 2.4(f) is herein referred to as a Swingline Loan, and such Revolving Loans
are collectively referred to as the Swingline Loans. Each Swingline Loan shall be subject to all the terms and conditions applicable to other Revolving Loans except that all payments thereon (including interest) shall be payable
to the Swingline Lender solely for its own account. The Agent shall not request the Swingline Lender to make any Swingline Loan if (A) the Agent has received written notice from any Lender that one or more of the applicable conditions precedent
set forth in Article IX will not be satisfied on the requested Funding Date for the applicable Borrowing, (B) the requested Borrowing would exceed then- current Availability on that Funding Date (as reasonably determined by the Agent),
or (C) such Swingline Loan would cause the aggregate outstanding principal balance of all Swingline Loans to exceed $15,000,000 (the Swingline Sublimit). (ii) The Swingline Loans shall be secured by the Collateral Agents Liens in and to the Collateral and shall constitute
Base Rate Loans and Obligations hereunder. (g) Agent Advances. (i) Subject to the limitations set forth below, the Agent is authorized by the Borrower and the Revolving Credit Lenders, from
time to time in the Agents sole discretion, upon notice to the Revolving Credit Lenders, (A) after the occurrence of a Default or an Event of Default, or (B) at any time that any of the other conditions precedent set forth in
Article IX have not been satisfied, to make Base Rate Loans to the Borrower on behalf of the Lenders in an aggregate principal amount outstanding at any time not to exceed 10% of the Borrowing Base (provided that the making of any such
Loan does not cause the Aggregate Revolver Outstandings to exceed the Maximum Revolver Amount) which the Agent, in its good faith judgment, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof,
(2) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations (including through Base Rate Loans for the purpose of enabling Holdings and its Subsidiaries to meet their payroll and associated Tax
obligations), and/or (3) to pay any other amount chargeable to the Borrower pursuant to the terms of this Agreement, including costs, fees and expenses as described in Section 14.7 (any of such advances are herein referred to as
Agent Advances); provided, that the Required Lenders may at any time revoke the Agents authorization to make Agent Advances. Any such revocation must be in writing and shall become effective prospectively upon
the Agents receipt thereof. 124
(ii) The Agent Advances shall be secured by the Collateral Agents
Liens in and to the Collateral and shall constitute Base Rate Loans and Obligations hereunder. (h) Notice
Irrevocable. Other than any Notice of Borrowing for a Base Rate Loan made on or prior to the Closing Date, any Notice of Borrowing made pursuant to Section 2.4(a) shall be irrevocable. The Borrower shall be bound to borrow the funds
requested therein in accordance therewith. 2.5 Reserves. The Agent may establish Reserves or change (including by decreasing the
amount of) any of the Reserves, in the exercise of its Reasonable Credit Judgment; provided that such Reserves shall not be established or changed except upon not less than five (5) Business Days notice to the Borrower (unless an
Event of Default exists and is continuing in which event such notice (which may be oral) may be given at any time prior to the establishment or change and shall not be subject to the five (5) Business Day notice requirement); provided,
further, that no such prior notice shall be required for any changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserves in accordance with the methodology of calculation previously utilized.
The Agent will be available during such period to discuss any such proposed Reserve or change with the Borrower and without limiting the right of the Agent to establish or change such Reserves in the Agents Reasonable Credit Judgment, the
Borrower may take such action as may be required so that the event, condition or matter that is the basis for such Reserve no longer exists, in a manner and to the extent reasonably satisfactory to the Agent. During such five (5) Business
Days notice period, Borrower may not obtain any new Revolving Loans (including Swingline Loans) or Letters of Credit to the extent that such Revolving Loans (including Swingline Loans) or Letters of Credit would cause an Out-Of-Formula
Condition to occur after giving effect to the establishment or increase of such Reserve as set forth in such notice. The amount of any Reserve established by the Agent pursuant to the first sentence of this Section 2.5 shall have a
reasonable relationship as determined by the Agent in its Reasonable Credit Judgment to the event, condition or other matter that is the basis for the Reserve. In the event that the Agent has determined to establish or change a Reserve pursuant to
the first sentence of this Section 2.5 and the Reserve amount to be so established or as modified is inconsistent with the Reserve amount determined by the Agent, then the greater Reserve amount so determined shall apply. Notwithstanding
anything herein to the contrary, a Reserve shall not be established to the extent that such Reserve would be duplicative of any specific item excluded as ineligible in the definition of Eligible Account, Eligible Inventory or
Eligible Unbilled Account, or of any then-existing Reserve. The establishment of any Reserve with respect to any obligation, charge, liability, debt or otherwise shall in no event grant any rights or be deemed to have granted any rights
in such reserved amount to the holder of such obligation, charge, liability or debt or any other Person (except as explicitly set forth hereunder), but shall solely be viewed as amounts reserved to protect the interests of the Secured Parties
hereunder and under the other Loan Documents. 125
2.6 Incremental Credit Extension. (a) The Borrower may at any time or from time to time after the (b) Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000
(provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving
Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) after the
(c) The Revolving Credit Commitment Increases shall be treated the same as the Revolving Credit Commitments (except that the
maturity date thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the Revolving Credit Commitments (it being understood that, if required to consummate a
Revolving Credit Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Revolving Credit Commitments may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments
and additional upfront or similar fees may be payable to the lenders providing the Revolving Credit Commitment Increase without any requirement to pay such upfront or similar fees to any then-existing Lenders). The Revolving Credit Commitment
Increases may be in the form of a separate first-in, last-out or last-out tranche (the FILO Tranche) with interest rate margins, rate floors, upfront fees, funding discounts, advance rates, premiums, unused
fees, original issue discounts, amortization, and other terms to be agreed among the Borrower, the Agent and the applicable Lenders (without the consent of any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit
Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance
covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon among the Borrower and the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche shall
not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of the Borrower, junior) in right of priority to the Collateral Agents Liens; (2) as between (x) the Revolving Credit Facility (other than
the FILO Tranche) and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral shall be applied, first to obligations owing under, or with respect to, the Revolving Credit Facility (other than the FILO
Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings
(unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO 126
Tranche) shall, subject to the terms of the Intercreditor Agreement, control exercise of remedies in respect of the Collateral; and (5) no changes affecting the priority status of the
Revolving Credit Facility (other than the FILO Tranche) vis-à-vis the FILO Tranche may be made without the consent of each of the Lenders under the Revolving Credit Facility (other than the FILO Tranche). (d) Each notice from the Borrower pursuant to this Section 2.6 shall be given in writing and shall set forth the
requested amount and proposed terms of the relevant Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no
existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other
investor being called an Additional Lender); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving Credit Commitment Increase (other than in the case of a FILO
Tranche) on a pro rata basis based on such Lenders Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each
case, not to be unreasonably withheld or delayed) to such Lenders or Additional Lenders providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans
and/or Commitments to such Lender or Additional Lender. (e) Commitments in respect of a Revolving Credit Commitment
Increase, including under a FILO Tranche, shall become Commitments under this Agreement pursuant to an amendment (an Incremental Agreement) to this Agreement and, as appropriate, the other Loan Documents, executed the Borrower,
each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agent. The Incremental Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents as may be necessary or advisable in the reasonable opinion of the Borrower and the Agent to effect the provisions of this Section 2.6. The effectiveness of any Incremental Agreement shall be subject
to the satisfaction on the date thereof (each, an Incremental Facility Closing Date) and the occurrence of any extension of credit thereunder shall be subject to (i) the satisfaction of the conditions set forth in
Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other acquisition constituting a Permitted Investment, compliance with clause (ii) thereof
shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions,
board resolutions and officers certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such amendments to the Collateral Documents, in each case, as may be reasonably requested by the Agent in order to
ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the loans under any
Revolving Credit Commitment Increase for any purpose not prohibited by this Agreement. 127
(f) (i) Except as set forth under clause (d) above, the
Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection
with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an
Incremental Revolving Credit Commitment Increase Lender) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a
portion of such Lenders participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding
(A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the
percentage of the aggregate Revolving Credit Commitments represented by such Lenders Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements
contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) This Section 2.6 shall supersede any provisions in Section 2.4(e) or 12.1 to the contrary.
For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase
without such Lenders consent. (h) Upon each increase in the Revolving Credit Commitments pursuant to this
Section 2.6 after the
2.7 Extensions of Revolving Loans and Revolving Credit Commitments. (a) The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments of
any Class and/or the Extended Revolving Credit Commitments of any Class (and, in each case, including any previously extended Revolving Credit Commitments), existing at the time of such request (each, an Existing Revolving Credit
Commitment and any related revolving credit loans under any such facility, Existing Revolving Loans; each Existing Revolving Credit Commitment and related Existing Revolving Loans together being referred to as an
Existing Revolving Credit Class) be converted or exchanged to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of
128
any principal amount of Existing Revolving Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended,
Extended Revolving Credit Commitments and any related revolving credit loans, Extended Revolving Loans) and to provide for other terms consistent with this Section 2.7. Prior to entering into any
Extension Agreement with respect to any Extended Revolving Credit Commitments, the Borrower shall provide written notice to the Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving
Credit Commitments, with such request offered equally to all Lenders of such Class) (an Extension Request) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established thereunder, which terms
shall be similar to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the Specified Existing Revolving Credit Commitment Class) except that (w) all or any of the final maturity dates
of such Extended Revolving Credit Commitments may be delayed to later dates than the final maturity dates of the Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class, (x)(A) the interest rates, interest
margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums with respect to the Extended Revolving Credit Commitments may be different than those for the Existing Revolving Credit Commitments of the
Specified Existing Revolving Credit Commitment Class and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Extended Revolving Credit Commitments in addition to or in lieu of any of the items contemplated by the
preceding clause (A) and (y)(1) the undrawn revolving credit commitment fee rates with respect to the Extended Revolving Credit Commitments may be different than those for the Specified Existing Revolving Credit Commitment Class and
(2) the Extension Agreement may provide for other covenants and terms that apply to any period after the Termination Date; provided that notwithstanding anything to the contrary in this Section 2.7, or otherwise, (I) the
borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Extended Revolving Loans under any Extended Revolving Credit Commitments shall be made on a pro rata basis with any borrowings
and repayments of the Existing Revolving Loans of the Specified Existing Revolving Credit Commitment Class (the mechanics for which may be implemented through the applicable Extension Agreement and may include technical changes related to the
borrowing and repayment procedures of the Specified Existing Revolving Credit Commitment Class), (II) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Loans shall be governed by the assignment and
participation provisions set forth in Section 12.2 and (III) subject to the applicable limitations set forth in Section 4.4(a) and (b), permanent repayments of Extended Revolving Loans (and corresponding permanent
reduction in the related Extended Revolving Credit Commitments) shall be permitted as may be agreed between the Borrower and the Lenders thereof. No Lender shall have any obligation to agree to have any of its Loans or Revolving Credit Commitments
of any Existing Revolving Credit Class converted or exchanged into Extended Revolving Loans or Extended Revolving Credit Commitments pursuant to any Extension Request. Any Extended Revolving Credit Commitments of any Extension Series shall
constitute a separate Class of revolving credit commitments from Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any other
Extended Revolving Credit Commitments so established on such date). 129
(b) The Borrower shall provide the applicable Extension Request to the Agent
at least ten (10) Business Days (or such shorter period as the Agent may determine in its sole discretion) prior to the date on which Lenders under the Existing Revolving Credit Class are requested to respond, and shall agree to such
procedures, if any, as may be established by, or acceptable to, the Agent, in each case acting reasonably, to accomplish the purpose of this Section 2.7. Any Lender (an Extending Lender) wishing to have all or a
portion of its Revolving Credit Commitments (or any earlier Extended Revolving Credit Commitments) of an Existing Revolving Credit Class subject to such Extension Request converted or exchanged into Extended Revolving Credit Commitments shall notify
the Agent (an Extension Election) on or prior to the date specified in such Extension Request of the amount of its Revolving Credit Commitments (and/or any earlier- extended Extended Revolving Credit Commitments) which it has
elected to convert or exchange into Extended Revolving Credit Commitments (subject to any minimum denomination requirements imposed by the Agent). In the event that the aggregate amount of Revolving Credit Commitments (and any earlier-extended
Extended Revolving Credit Commitments) subject to Extension Elections exceeds the amount of Extended Revolving Credit Commitments requested pursuant to the Extension Request, Revolving Credit Commitments, or earlier-extended Extended Revolving
Credit Commitments, as applicable, subject to Extension Elections shall be converted to or exchanged to Extended Revolving Credit Commitments on a pro rata basis (subject to such rounding requirements as may be established by the Agent) based on the
amount of Revolving Credit Commitments and earlier-extended Extended Revolving Credit Commitments included in each such Extension Election or as may be otherwise agreed to in the applicable Extension Agreement. Notwithstanding the conversion of any
Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, unless expressly agreed by the holders of each affected Existing Revolving Credit Commitment of the Specified Existing Revolving Credit Commitment Class, such
Extended Revolving Credit Commitment shall not be treated more favorably than all Existing Revolving Credit Commitments of the Specified Existing Revolving Credit Commitment Class for purposes of the obligations of a Revolving Credit Lender in
respect of Swingline Loans under Section 2.4 and Letters of Credit under Section 2.3, except that the applicable Extension Agreement may provide that the maturity date for the Swingline Loans and/or the last day for issuing
Letters of Credit may be extended and the related obligations to make Swingline Loans and issue Letters of Credit may be continued (pursuant to mechanics to be specified in the applicable Extension Agreement) so long as the applicable Swingline
Lender and/or the applicable Letter of Credit Issuer have consented to such extensions (it being understood that no consent of any other Lender shall be required in connection with any such extension). (c) Extended Revolving Credit Commitments shall be established pursuant to an amendment (an Extension
Agreement) to this Agreement (which, except to the extent expressly contemplated by the second sentence of this Section 2.7(c) and notwithstanding anything to the contrary set forth in Section 12.1, shall not
require the consent of any Lender other than the Extending Lenders with respect to the Extended Revolving Credit 130
Commitments established thereby) executed by Holdings, the Obligors, the Agent and the Extending Lenders. In connection with any Extension Agreement, the Borrower shall deliver an opinion of
counsel reasonably acceptable to the Agent (i) as to the enforceability of such Extension Agreement, this Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby (in the case of such other Loan
Documents as contemplated by the immediately preceding sentence) and covering customary matters and (ii) to the effect that such Extension Agreement, including the Extended Revolving Credit Commitments provided for therein, does not breach or
result in a default under the provisions of Section 12.1 of this Agreement, as modified by this Section 2.7(c). (d) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Class of Existing Revolving
Credit Commitments is converted or exchanged to extend the related scheduled maturity date(s) in accordance with Section 2.7(a) above (an Extension Date), in the case of the Existing Revolving Credit Commitments of
each Extending Lender under any Specified Existing Revolving Credit Commitment Class, the aggregate principal amount of such Existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of
Extended Revolving Credit Commitments so converted or exchanged by such Lender on such date, and such Extended Revolving Credit Commitments shall be established as a separate Class of revolving credit commitments from the Specified Existing
Revolving Credit Commitment Class and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and if, on any Extension Date, any Existing Revolving Loans of any
Extending Lender are outstanding under the Specified Existing Revolving Credit Commitment Class, such Existing Revolving Loans (and any related participations) shall be deemed to be converted or exchanged to Extended Revolving Loans (and related
participations) of the applicable Class in the same proportion as such Extending Lenders Specified Existing Revolving Credit Commitments Class to Extended Revolving Credit Commitments of such Class. (e) In the event that the Agent determines in its sole discretion that the allocation of the Extended Revolving Credit
Commitments of a given Extension Series, in each case to a given Lender was incorrectly determined as a result of manifest administrative error in the receipt and processing of an Extension Election timely submitted by such Lender in accordance with
the procedures set forth in the applicable Extension Agreement, then the Agent, the Borrower and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment
to this Agreement and the other Loan Documents (each, a Corrective Extension Agreement) within 30 days following the effective date of such Extension Agreement, as the case may be, which Corrective Extension Agreement shall
(i) provide for the conversion or exchange and extension of Existing Revolving Credit Commitments (and related exposure) in such amount as is required to cause such Lender to hold Extended Revolving Credit Commitments (and related exposure) of
the applicable Extension Series into which such other Loans or commitments were initially converted or exchanged, as the case may be, in the amount such Lender would have held had such administrative error not occurred and had such Lender received
the minimum allocation of the applicable Loans or 131
Commitments to which it was entitled under the terms of such Extension Agreement, in the absence of such error, (ii) be subject to the satisfaction of such conditions as the Agent, the
Borrower and such Lender may agree (including conditions of the type required to be satisfied for the effectiveness of an Extension Agreement described in Section 2.7(c)), and (iii) effect such other amendments of the type (with
appropriate reference and nomenclature changes) described in the second sentence of Section 2.7(c). (f) No
conversion or exchange of Loans or Commitments pursuant to any Extension Agreement in accordance with this Section 2.7 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement. (g) This Section 2.7 shall supersede any provisions in Section 2.4(e) or Section 12.1 to
the contrary. For the avoidance of doubt, any of the provisions of this Section 2.7 may be amended with the consent of the Required Lenders; provided that no such amendment shall require any Lender to provide any Extended
Revolving Credit Commitments without such Lenders consent. 2.8 Defaulting Lenders. Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then for so long as such Lender is a Defaulting Lender: (a) the Unused Line Fee shall cease to accrue on any of the Revolving Credit Commitments of such Defaulting Lender pursuant to
Section 3.5; (b) the Commitments and Loans of such Defaulting Lender shall not be included in determining
whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 12.1); provided that any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender disproportionately when compared to the other affected Lenders, or increases or extends the Commitment of such Defaulting Lender, shall
require the consent of such Defaulting Lender; (c) any payment of principal, interest, fees or other amounts received by
the Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 10.2 or Section 10.3 or otherwise), shall be applied at such time or times as may be determined by the
Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in
respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; third, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of
competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; fourth, so long as no Default or Event of Default exists, to the payment
of any amounts owing to any Obligor as a result of any judgment of a court of competent jurisdiction obtained by any Obligor against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement;
and 132
fifth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that, if such payment is a payment of the principal amount of any Loans,
such payment shall be applied solely to pay the relevant Loans of the relevant non- Defaulting Lenders on a pro rata basis prior to being applied in the manner set forth in this clause (c); (d) if any Swingline Loans are outstanding or Letters of Credit issued at the time such Lender becomes a Defaulting Lender
then: (i) all or any part of such Defaulting Lenders participations in such Swingline Loans and/or Letters of
Credit shall be reallocated among the non- Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders Aggregate Revolver Outstandings does not exceed the lesser
of the total of all non-Defaulting Lenders Revolving Credit Commitments and the Borrowing Base as of such date and (y) no such non-Defaulting Lenders Aggregate Revolver Outstandings shall exceed such Lenders Revolving Credit
Commitment at such time; (ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within three (3) Business Days following notice by the Agent (x) first, prepay such Swingline Loans and (y) second, cash collateralize for the benefit of the Letter of Credit
Issuer only the Borrowers obligations corresponding to such Defaulting Lenders participations in Letters of Credit (after giving effect to any partial reallocation pursuant to clause (i) above) for so long as such
participations in Letters of Credit are outstanding; (iii) if the Borrower cash collateralizes any portion of such
Defaulting Lenders Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.6 with respect to such Defaulting Lenders
participations in Letters of Credit during the period such participations in Letters of Credit are cash collateralized; (iv) if the participations in Letters of Credit of the non-Defaulting Lenders are reallocated pursuant to clause
(i) above, then the fees payable to the Lenders pursuant to Sections 3.5 and 3.6 shall be adjusted in accordance with such non-Defaulting Lenders Pro Rata Shares; and (v) if all or any portion of such Defaulting Lenders participations in Letters of Credit is neither reallocated nor cash
collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Letter of Credit Issuers or any other Lender hereunder, all letter of credit fees payable under
Section 3.6 with respect to such Defaulting Lenders participations in Letters of Credit shall be payable to the applicable Letter of Credit Issuer until and to the extent that such participations in Letters of Credit are
reallocated and/or cash collateralized; 133
(e) so long as (i) such Lender is a Defaulting Lender and (ii) a
reallocation pursuant to clauses (d)(i) or (d)(ii) above cannot be effectuated, the Swingline Lender shall not be required to fund any Swingline Loan and the Letter of Credit Issuers shall not be required to issue, amend or increase
any Letter of Credit, unless it has received assurances reasonably satisfactory to it that non-Defaulting Lenders will cover the related exposure and/or cash collateral will be provided by the Borrower in accordance with this
Section 2.8, and participating interests in any newly made Swingline Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with this Section 2.8 (and such
Defaulting Lender shall not participate therein); and (f) in the event that the Agent, the Borrower, the Swingline Lender
and the Letter of Credit Issuers each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the obligations and participations of the Revolving Credit Lenders shall be readjusted
to reflect the inclusion of such Lenders Revolving Credit Commitment and on such date such Lender shall purchase at par such of the Loans of the other Revolving Credit Lenders (other than Swingline Loans) as the Agent shall determine may be
necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share; 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; provided, further, that, except to the extent otherwise expressly agreed by the affected parties and subject to Section 14.21, no change hereunder from Defaulting Lender will constitute a
waiver or release of any claim of any party hereunder arising from such Lenders having been a Defaulting Lender. ARTICLE III
INTEREST AND FEES 3.1 Interest. (a) Interest Rates. All outstanding Loans to the Borrower shall bear interest on the unpaid principal amount thereof
(including, to the extent permitted by law, on interest thereon not paid when due) from the date made until paid in full in cash at a rate determined by reference to the Base Rate, Adjusted Term SOFR or, if then applicable, Daily Simple SOFR, in
each case, plus the Applicable Margin, but not to exceed the Maximum Rate. If at any time Loans are outstanding with respect to which the Borrower has not delivered to the Agent a notice specifying the basis for determining the interest rate
applicable thereto in accordance herewith, those Loans shall be treated as Base Rate Loans until notice to the contrary has been given to the Agent in accordance with this Agreement and such notice has become effective. Except as otherwise provided
herein, the Loans shall bear interest as follows: (i) For all Base Rate Loans, at a fluctuating per annum rate equal to
the Base Rate plus the Applicable Margin; and 134
(ii) For all Term Benchmark Loans, at a fluctuating per annum rate equal to
Adjusted Term SOFR for the Interest Period in effect for such Loan plus the Applicable Margin. To the extent the Adjusted Daily Simple SOFR is then the applicable Benchmark, each RFR Loan shall bear interest at a rate per annum equal to the
Adjusted Daily Simple SOFR plus the Applicable Margin. Each change in the Base Rate (or any component thereof) shall be reflected
in the interest rate applicable to Base Rate Loans as of the effective date of such change. All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365
or 366 days, 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). On the first Business Day of each calendar quarter hereafter and on the Termination Date, the Borrower shall pay to the Agent, for the ratable benefit of the Lenders (provided that all interest on
applicable Swingline Loans shall be for the benefit of the Swingline Lender and all interest on Agent Advances shall be for the benefit of the Agent), interest accrued from the first Business Day of the preceding calendar quarter to (but not
including) the first Business Day of such calendar quarter (or accrued to the Termination Date in the case of a payment on the Termination Date) on all Base Rate Loans in arrears. The Borrower shall pay to the Agent, for the ratable benefit of the
Lenders, accrued interest on all RFR Loans and Term Benchmark Loans in arrears on each applicable SOFR Interest Payment Date. (b) Default Rate. During the continuance of any Specified Event of Default, if the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming due hereunder, by acceleration or otherwise, or under any other Loan Document, the Borrower shall on demand from time to time pay interest, to the extent permitted by
Law, on such defaulted amount to but excluding the date of actual payment (after as well as before judgment) (A) in the case of overdue principal, at the Default Rate, and (B) in all other cases, at a rate per annum equal to the rate that
would be applicable to a Base Rate Loan plus 2.00%. 3.2 Continuation and Conversion Elections. (a) The Borrower may (provided that the Borrowing of Term Benchmark Loans or RFR Loans is then permitted under
Section 2.4(a)(ii)): (i) elect, as of any Business Day, to convert any Base Rate Loans other than Agent
Advances and Swingline Loans (or any part thereof) into Term Benchmark Loans (or RFR Loans to the extent that the Adjusted Daily Simple SOFR is then the applicable Benchmark); and (ii) elect, as of the last day of the applicable Interest Period, to continue any Term Benchmark Loans having Interest Periods
expiring on such day (or any part thereof); 135
provided that if the Notice of Continuation/Conversion shall fail to specify the
duration of the Interest Period, such Interest Period shall be one month. (b) The Borrower shall deliver a notice of
continuation/conversion substantially in the form of Exhibit C (a Notice of Continuation/Conversion) to the Agent not later than, (x) 1:00 p.m. (New York City time) at least three (3) Business Days in advance of
the Continuation/Conversion Date if the Loans are to be converted into or continued as Term Benchmark Loans or (y) 1:00 p.m. (New York City time) at least five (5) Business Days in advance of the Continuation/Conversion Date if the Loans
are to be converted into or continued as RFR Loans (as applicable), in each case, and specifying: (i) the proposed
Continuation/Conversion Date; (ii) the aggregate principal amount of Loans to be converted or continued; (iii) the Type of Loans resulting from the proposed conversion or continuation; and (iv) the duration of the requested Interest Period (in the case of Term Benchmark Loans), provided, however, the
Borrower may not select an Interest Period that ends after the Stated Termination Date. (c) If, upon the expiration of
any Interest Period applicable to any Term Benchmark Loans, the Borrower fails to select timely a new Interest Period to be applicable to such Term Benchmark Loans, the Borrower shall be deemed to have elected to convert such Term Benchmark Loans
into Base Rate Loans effective as of the expiration date of such Interest Period. If any Event of Default exists, at the election of the Agent or the Required Lenders, all Term Benchmark Loans shall be converted into Base Rate Loans as of the
expiration date of each applicable Interest Period. (d) The Agent will promptly notify each Lender of its receipt of a
Notice of Continuation/Conversion. All conversions and continuations shall be made ratably according to the respective outstanding principal amounts of the Loans with respect to which the notice was given held by each Lender. (e) There may not be more than ten different Term Benchmark Loans in effect hereunder at any time (which number may be
increased or adjusted by agreement between the Borrower and the Agent in connection with any Revolving Credit Commitment Increase or the creation of any Extended Revolving Credit Facility). 3.3 Maximum Interest Rate. In no event shall any interest rate provided for hereunder exceed the maximum rate legally chargeable under
applicable law with respect to loans of the Type provided for hereunder (the Maximum Rate). If, in any month, any interest rate, absent such limitation, would have exceeded the Maximum Rate, then the interest rate for that month
shall be the Maximum Rate, and, if in future months, that interest rate would otherwise be less than the Maximum Rate, then that interest rate shall remain at the Maximum Rate until such time as the amount of interest paid hereunder equals the
amount of interest which would have been paid if the 136
same had not been limited by the Maximum Rate. In the event that, upon payment in full of the Obligations, the total amount of interest paid or accrued under the terms of this Agreement is less
than the total amount of interest which would, but for this Section 3.3, have been paid or accrued if the interest rate otherwise set forth in this Agreement had at all times been in effect, then the Borrower shall, to the extent
permitted by applicable law, pay the Agent, for the account of the applicable Lenders, an amount equal to the excess of (a) the lesser of (i) the amount of interest which would have been charged if the Maximum Rate had, at all times, been
in effect or (ii) the amount of interest which would have accrued had the interest rate otherwise set forth in this Agreement, at all times, been in effect over (b) the amount of interest actually paid or accrued under this Agreement. If a
court of competent jurisdiction determines that the Agent and/or any Lender has received interest and other charges hereunder in excess of the Maximum Rate, such excess shall be deemed received on account of, and shall automatically be applied to
reduce, the Obligations other than interest, and if there are no Obligations outstanding, the Agent and/or such Lender shall refund to the Borrower such excess. 3.4 Closing Fees and Other Fees. The Borrower agrees to pay the Agent, the Lenders, the Collateral Agent and each of the Arrangers, as
applicable, all fees due and payable on any date required for payment of a fee as provided under the Fee Letters and/or this Agreement and Borrower hereby expressly agrees to be jointly and severally liable for the payment of all such fees under the
Fee Letters as though it were the Borrower thereunder. 3.5 Unused Line Fee. On the first Business Day of each calendar
quarter (commencing with the first business day of the calendar quarter beginning July 1, 2022), and on the Termination Date, the Borrower agrees to pay to the Agent, for the account of the Revolving Credit Lenders, an unused line fee (the
Unused Line Fee) equal to the Applicable Unused Line Fee Margin per annum times the amount by which the average daily Maximum Revolver Amount exceeded the sum of the average daily outstanding amount of Revolving Loans (other than
Swingline Loans) and the average daily undrawn face amount of outstanding Letters of Credit, during the immediately preceding calendar quarter (or longer period if calculated for the first such payment after the Closing Date or shorter period if
calculated on the Termination Date). All principal payments received by the Agent shall be deemed to be credited immediately upon receipt for purposes of calculating the Unused Line Fee pursuant to this Section 3.5. Upon receipt thereof,
the Agent shall distribute the Unused Line Fee to the Revolving Credit Lenders ratably based on their Pro Rata Shares of the Revolving Credit Commitments. 3.6 Letter of Credit Fees. The Borrower agrees to pay (i) to the Agent, for the account of the Revolving Credit Lenders, in
accordance with their respective Pro Rata Shares, for each Letter of Credit, a fee (the Letter of Credit Fee) equal to, on a per annum basis, the Applicable Margin for Term Benchmark Loans (or RFR Loans to the extent the Adjusted
Daily Simple SOFR is then the appliable Benchmark) multiplied by the undrawn face amount of each Letter of Credit, (ii) to each Letter of Credit Issuer, for its own account, a fronting fee of one-eighth of one percent (0.125%) per annum of the
undrawn face amount of each Letter of Credit issued by such Letter of Credit Issuer, and (iii) to each Letter of Credit Issuer, any customary costs, fees and expenses incurred by such Letter of Credit Issuer in connection with the application
for, processing of, issuance of, or amendment to any Letter of Credit. The Letter of Credit Fee and fronting fee shall be payable quarterly in arrears on the first Business Day of each calendar quarter in which a Letter of Credit is outstanding and
on the Termination Date; provided that the first such payment after the Closing Date shall be paid on July 1, 2022. 137
ARTICLE IV PAYMENTS AND PREPAYMENTS 4.1 Payments and Prepayments. (a) The Borrower shall repay the outstanding principal balance of the Revolving Loans, plus all accrued but unpaid
interest thereon, on the Termination Date. (b) The Borrower may, upon notice to the Agent, at any time or from time to
time voluntarily prepay the Loans in whole or in part without premium or penalty (but subject to Section 5.4); provided that (i) such notice must be received by the Agent not later than (A) 1:00 p.m. (New York City time)
three (3) Business Days prior to any date of prepayment of Term Benchmark Loans, (B) 1:00 p.m. (New York City time) one (1) Business Day prior to any date of prepayment of Base Rate Loans and (C) 1:00 p.m. (New York City time)
five (5) Business Days prior to any date of prepayment of RFR Loans; provided, further, that, in respect of Swingline Loans, the Borrower may deliver such notice to the Agent not later than 1:00 p.m. (New York City time) on the
date of prepayment of such Swingline Loans and (ii) each prepayment shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or, 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 Term Benchmark Loans are to be prepaid, the Interest Period(s) of such Loans. The Agent will promptly notify each Lender of its receipt of
each such notice, and of the amount of such Lenders ratable portion of such prepayment (based on such Lenders Pro Rata Share). 4.2 Out-of-Formula Condition. The Borrower shall immediately pay to the Agent, for the account of the Lenders and/or to cash
collateralize Letters of Credit pursuant to Section 2.3(g), upon demand, the amount, if any, by which the amount of the Aggregate Revolver Outstandings exceeds at any time the lesser of (i) the Maximum Revolver Amount and
(ii) the then-current Borrowing Base (any such condition being an Out-of-Formula Condition), except that no such payment shall be required if the Out-of-Formula Condition is created solely as a result of an Agent Advance.
4.3 Mandatory Prepayments. (a) (i) At all times after the occurrence and during the continuance of a Cash Dominion Period and notification thereof by the
Agent to the Borrower, on each Business Day, the Agent shall apply all same day funds credited to the Concentration Account and all amounts received pursuant to this Section 4.3(a) to one or more accounts maintained by the Agent or such
other account as directed by the Agent and subject to the terms of any Intercreditor Agreement then in effect, all amounts received in such account shall be applied by Agent in accordance with Section 4.3(a)(iii) below. 138
(ii) Upon the consummation of the IPO Transaction and the receipt of the Net
Equity Proceeds received by the Borrower or any of its Restricted Subsidiaries in connection therewith, the Borrower shall, in accordance with Section 4.3(a)(iii) below, apply against the Loans 50% of all Declined Proceeds
(as defined in the Term Loan Credit Agreement as in effect on the Closing Date) from the IPO Transaction after an offer of prepayment is made to all Term Lenders under the Term Loan Credit Agreement with respect to the applicable Net Cash
Proceeds (as defined in the Term Loan Credit Agreement as in effect on the Closing Date) and a second offer is made to all Term Lenders (who accepted prepayment with respect to the first offer) with respect to any Declined Proceeds from the
first such offer within three (3) Business Days after the Borrower receives notice from the Term Loan Agent of any such Declined Proceeds remaining after the second offer. (iii) Except as otherwise provided in Section 10.3, all amounts required to be paid pursuant to
Section 4.3(a)(i) and Section 4.3(a)(ii) above shall be applied by the Agent as follows: (A) first, to the prepayment in full of Agent Advances, (B) second, to the prepayment in full of the Swingline Loans,
(C) third, to cash collateralize Letters of Credit, (D) fourth, to the prepayment in full of the Revolving Base Rate Loans and (E) fifth, to the prepayment in full of the Revolving Term Benchmark Loans (or
Revolving RFR Loans to the extent then applicable). (b) No payment or prepayment made pursuant to this
Section 4.3 shall, or shall be deemed to, effect or reduce any Commitment of any Lender or the aggregate Commitments of the Lenders. 4.4 Termination or Reductions of Facilities. (a) The Borrower may terminate this Agreement, upon at least three (3) Business Days notice to the Agent (who will
distribute such notice to the Lenders), upon Full Payment of the Obligations and payment of amounts (if any) due under Section 5.4. Such notice may provide that such termination is contingent upon consummation of a contemplated
refinancing or another transaction. (b) The Borrower may from time to time permanently reduce the Revolving Credit
Commitments (and the Maximum Revolver Amount), as the case may be, on a pro rata basis based on the applicable Lenders respective Pro Rata Shares, upon at least three (3) Business Days prior written notice to the Agent, which notice
shall specify the amount of the reduction. Each reduction shall be in a minimum amount of $5,000,000 or an increment of $1,000,000 in excess thereof. If after giving effect to any reduction of the Revolving Credit Commitments, the Letter of Credit
Subfacility or the Swingline Sublimit shall exceed the Revolving Credit Commitments at such time, each such Subfacility or sublimit, as the case may be, shall be automatically reduced by the amount of such excess and such reduction shall be
accompanied by such payment (if any) as may be required to be made such that after giving effect to such payment the relevant aggregate Letters of Credit or Swingline Loans do not exceed the applicable Subfacility or sublimit as so reduced. Each
reduction in the Revolving Credit Commitments shall be accompanied by 139
such payment (if any) as may be required to avoid an Out-of-Formula Condition. It being understood and agreed that the Borrower may allocate any termination or reduction of Commitments among
Classes of Commitments at its direction. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Revolving Credit Commitments if such termination would have resulted from a refinancing of all of the
applicable Commitments, which refinancing shall not be consummated or otherwise shall be delayed. 4.5 Term Benchmark Loan
Prepayments. In connection with any prepayment, if any Term Benchmark Loans are prepaid prior to the expiration date of the Interest Period applicable thereto, the Borrower shall comply with Section 5.4. 4.6 Payments by the Borrower. (a) All payments to be made by the Borrower under this Agreement or the other Loan Documents shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all payments by the Borrower shall be made to the Agent for the account of the Lenders entitled thereto, at the account designated by the Agent and shall be made in Dollars
and in immediately available funds, no later than 2:00 p.m. (New York City time) on the date specified herein. Any payment received by the Agent after such time shall be deemed (for purposes of calculating interest only) to have been received on the
following Business Day and any applicable interest shall continue to accrue. (b) Subject to the provisions set forth in
the definition of Interest Period, whenever any payment is due on a day other than a Business Day, such payment shall be due on the following Business Day, and such extension of time shall in such case be included in the computation of
interest or fees, as the case may be. 4.7 Apportionment, Application and Reversal of Payments. Except as otherwise expressly
provided herein, principal and interest payments shall be apportioned ratably among the Lenders to which such payment is owed (according to the unpaid principal balance of the Loans to which such payments owed are held by each such Lender) and
payments of the fees shall, as applicable, be apportioned ratably (or other applicable share as provided herein) among the Lenders to which such payment is owed, except for fees payable solely to the Agent, any Arranger or the applicable Letter of
Credit Issuer. Whenever any payment received by the Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Agent and the Lenders under or in respect of this Agreement and the
other Loan Documents on any date, such payment shall be distributed by the Agent and applied by the Agent and the Lenders in the order of priority set forth in Section 10.3. If the Agent receives funds for application to the Obligations
of the Obligors under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Agent may, 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 Revolver Outstandings at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.
Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless an Event of Default has occurred 140
and is continuing, neither the Agent nor any Lender shall apply any payments which it receives to any Term Benchmark Loan, except (a) on the expiration date of the Interest Period applicable
to any such Term Benchmark Loan or (b) in the event, and only to the extent, that there are no outstanding Base Rate Loans and, in such event, the Borrower shall pay any additional amounts required pursuant to Section 5.4. 4.8 Indemnity for Returned Payments. If after receipt of any payment which is applied to the payment of all or any part of the
Obligations under this Agreement or the other Loan Documents, the Agent, any Lender, or any other Secured Party is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is
invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then such Obligations or part thereof intended to be satisfied shall be
revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Agent, such Lender, or such other Secured Party, and the Borrower shall be liable to pay to the Agent, the Lenders, or
such other Secured Party and hereby do indemnify the Agent, the Lenders, or such other Secured Party and hold the Agent, the Lenders, or such other Secured Party harmless for the amount of such payment or proceeds surrendered. The provisions of
this Section 4.8 shall be and remain effective notwithstanding any release of Collateral or guarantors, cancellation or return of Loan Documents, or other contrary action which may have been taken by the Agent, any Lender, or such other
Secured Party in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the Agents, the Lenders, or such other Secured Partys rights under this Agreement and the
other Loan Documents and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable. The provisions of this Section 4.8 shall survive the repayment of the Obligations and
termination of this Agreement. 4.9 Agents and Lenders Books and Records. The Agent shall record the principal amount
of the Loans owing to each Lender, the undrawn face amount of all applicable outstanding Letters of Credit and the aggregate amount of Unpaid Drawings obligations outstanding with respect to the Letters of Credit from time to time on its books. In
addition, each Lender may note the date and amount of each payment or prepayment of principal of such Lenders Loans in its books and records. Failure by the Agent or any Lender to make such notation shall not affect the obligations of the
Borrower with respect to the Loans or the Letters of Credit. The Borrower agrees that the Agents and each Lenders books and records showing the Obligations and the transactions pursuant to this Agreement and the other Loan Documents
shall be admissible in any action or proceeding arising therefrom, and shall constitute rebuttable presumptive proof thereof (absent manifest error), irrespective of whether any Obligation is also evidenced by a promissory note or other instrument.
Such statement shall be deemed correct, accurate, and binding on the Borrower and an account stated (absent manifest error and except for reversals and reapplications of payments made as provided in Section 4.7 and corrections of errors
discovered by the Agent), unless the Borrower notifies the Agent in writing to the contrary within 30 days after such statement is rendered. In the event a timely written notice of objections is given by the Borrower, only the items to which
exception is expressly made will be considered to be disputed by the Borrower. 141
ARTICLE V TAXES, YIELD PROTECTION AND ILLEGALITY 5.1 Taxes. (a) Payments Free of Taxes. Unless otherwise required by applicable Law, all payments by or on behalf of an Obligor to
a Lender or the Agent under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any Taxes. If any applicable Withholding Agent shall be required by any applicable Law (as determined in
the good faith discretion of such Withholding Agent) to deduct or withhold any Tax from any payment to a Recipient under this Agreement or any Loan Document, then (i) such Withholding Agent shall make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and (ii) if such Tax is an Indemnified Tax, then the sum payable by the applicable Obligor shall be increased as necessary
so that after all such required deductions and withholdings are made (including deductions and withholdings applicable to additional sums payable under this Section 5.1) the applicable Lender (or, in the case of a payment made to the
Agent for its own account, the Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made. In addition, the Borrower shall pay to the relevant Governmental Authority in accordance with
applicable law, or at the option of the Agent timely reimburse it for the payment of, all Other Taxes when due. (b)
Indemnification by Obligors. The Obligors agree jointly and severally to indemnify and hold harmless each Lender and the Agent for the full amount of Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to
amounts payable under this Section 5.1) paid or payable by any Lender or the Agent or required to be withheld or deducted from a payment to the Lender or the Agent and any reasonable and documented or invoiced out-of-pocket expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days after the date such Lender or the Agent makes written demand
therefor in accordance with Section 5.6. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error. (c) Evidence of Payments. As soon as practicable after the date of any payment
by an Obligor of Taxes to a Governmental Authority pursuant to this Section 5.1, the relevant Obligor shall furnish the Agent the original or a certified copy of a receipt evidencing payment thereof, or other evidence of payment
reasonably satisfactory to the Agent. (d) Status of Lenders. Any Lender that is entitled to an exemption from or
reduction of withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and Agent, at the time or times reasonably requested by the Borrower or Agent, such properly completed and executed documentation
142
reasonably requested by the Borrower or 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 Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the 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 paragraphs
(d)(i), (ii) and (iv) of this Section) shall not be required if in the Lenders 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. Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such documentation or promptly
notify the Borrower and the Agent in writing of its legal ineligibility to do so. Without limiting the generality of the foregoing, (i) any Lender that is a U.S. Person shall deliver to the Borrower and the 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 Agent), two duly executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding
Tax; (ii) any Lender that is not a U.S. Person shall, to the extent it is legally eligible to do so, deliver to the
Borrower and the Agent on or prior to the date on which such non-U.S. Person becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(A) In the case of a Lender claiming the benefits of an income Tax treaty to which the United States in a Party
(x) with respect to payments of interest under any Loan Document, two duly executed copies of IRS Form W-8BEN or 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 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; (B) two duly executed copies of IRS Form W-8ECI;
(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of
the Code, (x) two duly executed copies of a certificate substantially in the form of Exhibit J-1 to the effect that such non-U.S. 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) two duly executed copies of IRS Form W-8BEN or W-8BEN-E; or 143
(D) to the extent a Lender is not the beneficial owner, two duly executed
copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from
each beneficial owner, as applicable; provided, that if such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner; (iii) any Lender that is not a U.S. Person shall deliver to the Borrower and the Agent (in such number of copies as shall be
requested by the recipient) 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 Agent), executed copies 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 applicable Withholding Agent
to determine the withholding or deduction required to be made; and (iv) if any payment made to a Lender under any Loan
Document would be subject to Tax imposed by FATCA if such Lender 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 Lender shall
deliver to the Borrower and the Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the 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 Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA, to determine whether such
Lender has complied with such Lenders obligations under FATCA and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (iv), FATCA shall include any amendments made to
FATCA after the date of this Agreement. Notwithstanding anything to the contrary in this Section 5.1(d), a Lender shall not
be required to deliver any documentation pursuant to this Section 5.1(d) that it is not legally eligible to deliver. Each Lender hereby authorizes the Agent to deliver to the Obligors and to any successor Agent any documentation provided
by such Lender to the Agent pursuant to this Section 5.1(d). 144
(e) Treatment of Certain Refunds. If any party determines, in its
reasonable discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 5.1 (including by the payment of additional amounts pursuant to this Section 5.1), it shall pay to
the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 5.1 with respect to the Taxes giving rise to such refund), net of all reasonable and documented or invoiced out-
of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified
party, shall repay to such indemnified party the amount paid over pursuant to this Section 5.1(e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.1(e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this
Section 5.1(e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not
been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 5.1(e) shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (f) The Agent shall provide the Borrower with two duly completed original copies of, if it is a U.S. Person, IRS Form W-9
certifying that it is exempt from U.S. federal backup withholding, and, if it is not a U.S. Person, (1) IRS Form W-8ECI with respect to payments to be received by it as a beneficial owner and (2) IRS Form W-8IMY (together with required
accompanying documentation) with respect to payments to be received by it on behalf of the Lenders, certifying that, for such purpose, it is a U.S. branch that has agreed to be treated as a U.S. person for U.S. federal tax purposes. Notwithstanding
any other provision of this clause (f), the Agent shall not be required to deliver any documentation that such Agent is not legally eligible to deliver as a result of a Change in Law after the Agreement Date. (g) Definitions. For purposes of this Section 5.1, the term Lender includes any Letter of
Credit Issuer and the Swingline Lender. 5.2 Illegality. (a) If as a result of any Change in Law occurring after the later of the Agreement Date or the date that a Lender became a
party to this Agreement, has made it unlawful, or any central bank or other Governmental Authority has asserted after such date that it is unlawful, for such Lender or its applicable lending office to make Term Benchmark Loans, then, on notice
thereof by that Lender to the Borrower through the Agent, any obligation of that Lender to make Term Benchmark Loans shall be suspended (and, if necessary to avoid such illegality, the Agent shall compute the Base Rate without reference to clause
(c) in the definition of Base Rate) until that Lender notifies the Agent and the Borrower that the circumstances giving rise to such determination no longer exist. 145
(b) If a Lender determines that, as a result of a Change in Law occurring
after the later of the Agreement Date and the date such Lender became a party hereto, it is unlawful to maintain any Term Benchmark Loan, the Borrower shall, upon its receipt of notice of such fact and demand from such Lender (with a copy to the
Agent), prepay in full such Term Benchmark Loans of that Lender then outstanding, together with interest accrued thereon and amounts required under Section 5.4, either on the last day of the Interest Period, if that Lender may lawfully
continue to maintain such Term Benchmark Loans to such day, or immediately, if that Lender may not lawfully continue to maintain such Term Benchmark Loans. If the Borrower is required to so prepay any Term Benchmark Loans, then concurrently with
such prepayment, the Borrower shall borrow from the affected Lender, in the amount of such repayment, a Base Rate Loan. 5.3 Increased
Costs and Reduction of Return. (a) If any Lender determines that due to any Change in Law occurring after the later
of the Agreement Date or the date such Lender became a party to this Agreement, there shall be any increase in the cost (including Taxes) to such Lender of agreeing to make or making, funding, continuing, converting to or maintaining any Term
Benchmark Loans (other than any increase in cost resulting from (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, or (iii) Connection Income
Taxes), then, subject to clause (c) of this Section 5.3, the Borrower shall be liable for, and shall from time to time, upon demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of
such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs. (b) If any Lender
shall have determined that due to any Change in Law in respect of any Capital Adequacy Regulation occurring after the later of the Agreement Date or the date such Lender became a party to this Agreement that affects or would affect the amount of
capital or liquidity required or expected to be maintained by such Lender or any corporation or other entity controlling such Lender and such Lender (taking into consideration such Lenders or such corporations or other entitys
policies with respect to capital adequacy and such Lenders desired return on capital) determines that the amount of such capital or liquidity is required to be increased as a consequence of its Commitments, loans, credits or obligations under
this Agreement, then, upon demand of such Lender to the Borrower through the Agent, subject to clause (c) of this Section 5.3, the Borrower shall pay to such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such increase. (c) Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section 5.3 shall not constitute a waiver of such Lenders right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender
pursuant to the foregoing provisions of this Section 5.3 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrower of the event giving rise to such increased costs
or reductions and of such Lenders intention to claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include
the period of retroactive effect thereof). Notwithstanding any other provision herein, no Lender shall demand compensation pursuant to this Section 5.3 if it shall not at the time be the general policy or practice of such Lender to
demand such compensation in similar circumstances for similarly situated borrowers under comparable provisions of other credit agreements, if any. 146
5.4 Funding Losses. The Borrower shall reimburse each Lender and hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a consequence of: (a) the failure of the
Borrower to borrow a Term Benchmark Loan and/or an RFR Loan after the Borrower has given (or is deemed to have given) a Notice of Borrowing; (b) the failure of the Borrower to continue a Term Benchmark Loan or convert a Loan into a Term Benchmark Loan after the
Borrower has given (or is deemed to have given) a Notice of Continuation/Conversion; or (c) the prepayment or other
payment (including after acceleration thereof) of any Term Benchmark Loans on a day that is not the last day of the relevant Interest Period or of any RFR Loan on a day that is not a SOFR Interest Payment Date (in each case, including, without
limitation, any payment in respect thereof pursuant to Section 2.6(f)(ii), Section 5.8 or Section 12.1(b)), including, without limitation, any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its Term Benchmark Loans
(but not in respect of lost profits) or from fees payable to terminate the deposits from which such funds were obtained. 5.5 Inability
to Determine Rates. (a) Alternate Rate of Interest. Subject to clauses (b), and (c), below, if
(i) the Agent determines (which determination shall be conclusive and binding absent manifest error) (A) prior to commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for
ascertaining the Adjusted Term SOFR or Term SOFR (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time, that adequate and reasonable means do not exist for
ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or (ii) the Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term
SOFR for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or (B) at any time, the Adjusted
Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or Loan) included in such Borrowing; then the Agent shall give notice thereof to the Borrower and the Lenders as provided in Section 14.8 as promptly as practicable
thereafter and, until (x) the Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Notice of
Continuation/Conversion in accordance with the terms of Section 3.2 or a new Notice of Borrowing in accordance with the terms of Section 2.4, any Notice of 147
Continuation/Conversion that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Notice of Borrowing that requests a Term
Benchmark Borrowing shall instead be deemed to be a Notice of Continuation/Conversion or a Notice of Borrowing, as applicable, for (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of
Section 5.5(a)(i) or (ii) above or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 5.5(a)(i) or (ii) above and any Notice of Borrowing that requests an
RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for a Base Rate Borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings
shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrowers receipt of the notice from the Agent referred to in this Section 5.5(a) with respect to a Relevant Rate applicable
to such Term Benchmark Loan or RFR Loan, then until (x) the Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers
a new Notice of Continuation/Conversion in accordance with the terms of Section 3.2 or a new Notice of Borrowing in accordance with the terms of Section 2.4, (1) any Term Benchmark Loan shall on the last day of the
Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Agent to, and shall constitute, (x) an RFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the
subject of Section 5.5(a)(i) or (ii) above or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR also is the subject of Section 5.5(a)(i) or (ii) above, on such day, and (2) any RFR Loan shall
on and from such day be converted by the Agent to, and shall constitute a Base Rate Loan. Upon any such conversion pursuant to this clause (a), the Borrower shall also pay any additional amounts required pursuant to Section 5.4.
(b) [reserved] (c) Benchmark Replacement Setting. (i) Benchmark Replacement. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, if
a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (A) if a Benchmark Replacement is determined in accordance with
clause (a) of the definition of Benchmark Replacement for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such
Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause
(b) of the definition of Benchmark Replacement for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark
setting at or after 5:00 p.m. (New York City time) 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 Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. 148
(ii) Benchmark Replacement Conforming Changes. Notwithstanding
anything to the contrary in this Agreement or in any other Loan Document, the 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 or any other Loan Document. (iii) Notices: Standards for Decisions and Determinations. The Agent will promptly notify the Borrower and the
Lenders of (A) any occurrence of a Benchmark Transition Event, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, (D) the removal or reinstatement of any
tenor of a Benchmark pursuant to Section 5.5(c)(iv) below and (E) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any
Lender (or group of Lenders) pursuant to this Section 5.5(c), 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 or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in
each case, as expressly required pursuant to this Section 5.5(c). (iv) Unavailability of Tenor of
Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A) if the then- current Benchmark is a term rate
(including the Term SOFR Reference Rate), and either (x) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or
(y) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Agent may modify
the definition of Interest Period (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to
clause (A) above either (x) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (y) is not, or is no longer, subject to an announcement that it is not or will no
longer be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of Interest Period (or any similar or analogous definition) for all Benchmark settings at or after such time to
reinstate such previously removed tenor. 149
(v) Benchmark Unavailability Period. Upon the Borrowers receipt
of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted (A) any such request for a Term Benchmark Borrowing into a request for a Borrowing of or conversion to (x) an RFR Borrowing so long
as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) a Base Rate Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event or (B) any such request for an RFR Borrowing
into a request for a Base Rate Borrowing. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor
for such Benchmark, as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan or RFR Loan is outstanding on the date of the Borrowers receipt of notice of the commencement of a Benchmark
Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 5.5(c), (1) any Term Benchmark Loan
shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Agent to, and shall constitute, (x) an RFR Loan so long as the Adjusted Daily
Simple SOFR is not the subject of a Benchmark Transition Event or (y) a Base Rate Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) any RFR Loan shall on and from such day be
converted by the Agent to, and shall constitute a Base Rate Loan. 5.6 Certificates of Agent. If the Agent or any Lender claims
reimbursement or compensation under this Article V, the Agent or the affected Lender shall determine the amount thereof and shall deliver to the Borrower (with a copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Agent or the affected Lender, and such certificate shall be conclusive and binding on the Borrower in the absence of manifest error; provided that, except for compensation under Section 5.1, the Borrower shall not
be obligated to pay the Agent or such Lender any compensation attributable to any period prior to the date that is one hundred eighty (180) days prior to the date on which the Agent or such Lender first gave notice to the Borrower of the
circumstances entitling such Lender to compensation. The Borrower shall pay the Agent or such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof. 5.7 Survival. The agreements and obligations of the Borrower and each Recipient in this Article V shall survive the assignment
of rights by, or the replacement of, a Lender, the repayment, satisfaction or discharge of all other Obligations and termination of this Agreement. 150
5.8 Assignment of Commitments Under Certain Circumstances. In the event (a) any
Lender requests compensation pursuant to Section 5.3, (b) any Lender delivers a notice described in Section 5.2, (c) Holdings or any Obligor is required to pay additional amounts to any Lender or any Governmental
Authority on account of any Lender pursuant to Section 5.1, (d) [reserved] or (e) any Lender is a Defaulting Lender, the Borrower may, at its sole expense and effort (including with respect to the processing fee referred to in
Section 12.2(a)), upon notice to such Lender and the Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 12.2), all of its interests,
rights and obligations under the Loan Documents to an Eligible Assignee that shall assume such assigned obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) such assignment shall not
conflict with any Law or order of any court or other Governmental Authority having jurisdiction, (ii) except in the case of clause (d) or (e) above, no Event of Default shall have occurred and be continuing,
(iii) the Borrower or such assignee shall have paid to such Lender in immediately available funds an amount equal to the sum of 100% of the principal of and interest accrued to the date of such payment on the outstanding Loans of such Lender,
plus all fees and other amounts accrued for the account of such Lender hereunder (including any amounts under Sections 5.1, 5.2, 5.3 and 5.4), (iv) such assignment is consummated within 180 days after the date
on which the Borrowers right under this Section 5.8 arises, in the case of any such assignment resulting from payments required to be made pursuant to Section 5.1, such assignment will result in a reduction in such
payments thereafter and (v) if the consent of the Agent, any Letter of Credit Issuer or the Swingline Lender is required pursuant to Section 12.2, such consents are obtained; provided, further, that if prior to any
such assignment the circumstances or event that resulted in such Lenders request or notice under Section 5.2 or 5.3 or demand for additional amounts under Section 5.1, as the case may be, shall cease to exist or
become inapplicable for any reason, or if such Lender shall waive its rights in respect of such circumstances or event under Section 5.1, 5.2 or 5.3, as the case may be, then such Lender shall not thereafter be required to
make such assignment hereunder. In the event that a replaced Lender does not execute an Assignment and Acceptance pursuant to Section 12.2 within two Business Days after receipt by such replaced Lender of notice of replacement pursuant
to this Section 5.8 and presentation to such replaced Lender of an Assignment and Acceptance evidencing an assignment pursuant to this Section 5.8, the Borrower shall be entitled (but not obligated), upon receipt by the
replaced Lender of all amounts required to be paid under this Section 5.8, to execute such an Assignment and Acceptance on behalf of such replaced Lender, and any such Assignment and Acceptance so executed by the Borrower, the
replacement Lender and, to the extent required pursuant to Section 12.2, the Agent, shall be effective for purposes of this Section 5.8 and Section 12.2. ARTICLE VI BOOKS AND
RECORDS; FINANCIAL INFORMATION; NOTICES 6.1 Books and Records. Holdings shall maintain, and shall cause the Borrower and each
of the Restricted Subsidiaries to maintain, at all times, proper books and records and accounts prepared in conformity with GAAP consistently applied in respect of all material financial transactions and matters involving all material assets,
business and activities of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole. Holdings shall maintain, and shall cause each of the Restricted Subsidiaries to maintain, at all times books and records pertaining to the
Collateral in such detail, form and scope as is consistent in all material respects with good business practice or consistent with past practice. 151
6.2 Financial Information. Holdings shall promptly furnish to the Agent (for further
distribution to each Lender): (a) As soon as available, but in any event not later than one hundred and twenty (120) days
after the close of each Fiscal Year (for the avoidance of doubt, commencing with the Fiscal Year ending December 31, 2021), consolidated audited balance sheets, income statements and cash flow statements of the Consolidated Parties and, if
different, Holdings and its Restricted Subsidiaries, for such Fiscal Year, and the accompanying notes thereto, setting forth in each case in comparative form figures for and as of the end of the previous Fiscal Year (or, in lieu of such audited
financial statements of Holdings and its Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for Holdings and its Restricted Subsidiaries, on the one hand, and the Consolidated Parties, on the other hand), all
in reasonable detail, fairly presenting in all material respects the financial position and the results of operations of the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) as at the date thereof and for the
Fiscal Year then ended, and prepared in accordance with GAAP in all material respects. Such consolidated statements shall be certified, reported on without a going concern or like qualification (other than (x) with respect to, or
resulting from, the upcoming maturity of the Loans hereunder or (y) a prospective default under the Financial Covenant), or qualification arising out of the scope of the audit, by a firm of independent registered public accountants of
recognized national standing selected by the Borrower. During a Covenant Trigger Period, such certified statements shall be delivered together with a certificate of such accounting firm stating that in the course of its regular audit of the business
of the Consolidated Parties, which audit was conducted in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge of any Event of Default under Section 10.1 (solely arising from a breach of
the Financial Covenant) that has occurred and is continuing or, if in the opinion of such accounting firm such an Event of Default has occurred and is continuing, a statement as to the nature thereof (which certificate may be limited to the extent
required by accounting rules or guidelines or customary internal policy of such accounting firm). Notwithstanding the foregoing, the obligations in this Section 6.2(a) may be satisfied with respect to financial information of the
Consolidated Parties by furnishing (A) the applicable financial statements of Holdings (or any Parent Entity of Holdings) or (B) Borrowers or Holdings (or any Parent Entity thereof), as applicable, Form 10-K filed with the SEC;
provided that, with respect to each of clauses (A) and (B) above, (i) to the extent such information relates to Holdings (or such Parent Entity), such information is accompanied by consolidating information that
explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Consolidated Parties on a standalone basis, on the other hand and (ii) to
the extent such information is in lieu of information required to be provided under the first sentence of this Section 6.2(a), such statements shall be certified, reported on without a going concern or like qualification
(other than (x) with respect to, or resulting from, the upcoming maturity of the Loans hereunder or (y) a prospective default under the Financial Covenant), or qualification arising out of the scope of the audit, by a firm of independent
registered public accountants 152
of recognized national standing selected by Holdings (or such Parent Entity). In addition, together with the Financial Statements required to be delivered pursuant to this
Section 6.2(a), Holdings shall deliver a customary managements discussion and analysis of financial condition and results of operations with respect to the periods covered by such Financial Statements. (b) As soon as available, but in any event not later than forty-five (45) days after the end of each Fiscal Quarter of
each Fiscal Year, commencing with the Fiscal Quarter ending March 31, 2022, consolidated unaudited balance sheets of the Consolidated Parties and, if different, Holdings and its Restricted Subsidiaries, as at the end of such Fiscal Quarter, and
consolidated unaudited income statements and cash flow statements for the Consolidated Parties, and, if different from Holdings and its Restricted Subsidiaries for such Fiscal Quarter and for the period from the beginning of the Fiscal Year to the
end of such Fiscal Quarter, setting forth, in each case, in reasonable detail, in comparative form, the figures for and as of the corresponding period in (i) the prior Fiscal Year and (ii) the annual forecast for such Fiscal Year delivered
pursuant to clause (d) below (or, in lieu of such Financial Statements of Holdings and its Restricted Subsidiaries, a detailed reconciliation, reflecting such financial information for Holdings and its Restricted Subsidiaries, on the one
hand, and the Consolidated Parties on the other hand), and prepared in all material respects in conformity with GAAP consistently applied, subject to changes resulting from normal year-end audit adjustments and to the absence of footnotes and
certified by a Responsible Officer of Holdings as being complete and correct in all material respects in conformity with GAAP, prepared in reasonable detail in accordance with GAAP in all material respects consistently applied and fairly presenting
in all material respects the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) financial position as at the dates thereof and their results of operations for the periods then ended, subject to changes
resulting from normal year-end audit adjustments and to the absence of footnotes. Notwithstanding the foregoing, the obligations in this Section 6.2(b) may be satisfied with respect to financial information of the Consolidated Parties by
furnishing (A) the applicable Financial Statements of Holdings (or any Parent Entity thereof) or (B) the Borrowers or Holdings (or any Parent Entity thereof), as applicable, Form 10-Q filed with the SEC; provided that,
with respect to each of clauses (A) and (B), to the extent such information relates to Holdings (or any such Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the
differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information relating to the Consolidated Parties on a standalone basis, on the other hand. In addition, together with the Financial Statements
required to be delivered pursuant to this Section 6.2(b), Holdings shall deliver a customary managements discussion and analysis of financial condition and results of operations with respect to the periods covered by
such Financial Statements. (c) 153
(c) [Reserved]. (d) Concurrently with the delivery of the annual audited Financial Statements pursuant to Section 6.2(a)
(commencing with the Fiscal Year ending December 31, 2021),
and the quarterly Financial Statements pursuant to
Section 6.2(b) (commencing with the Fiscal Quarter ending March 31, 2022 (e) (i) to the extent that no Debt, or commitments with respect thereto, are outstanding under
Section 8.12(r) hereof, as soon as available, but in any event not later than the date of delivery of the annual audited Financial Statements pursuant to Section 6.2(a) or (ii) at all other times, as soon as available,
but in any event not later than forty-five (45) days after the end of each Fiscal Year (commencing with the date of delivery of such Financial Statements for the Fiscal Year ending December 31, 2022), annual forecasts (to include
forecasted consolidated balance sheets, income statements and cash flow statements, Borrowing Base and Availability) for Holdings and its Restricted Subsidiaries as at the end of and for each Fiscal Quarter of such Fiscal Year. (f) Subject to applicable Laws and confidentiality restrictions, promptly upon the filing thereof, copies of all reports, if
any, to or other documents filed by Holdings or any of its Restricted Subsidiaries with the SEC under the Exchange Act or any other similar regulatory or Governmental Authority of any jurisdiction, and all material reports, notices, 154
or statements sent or received by Holdings or any of its Restricted Subsidiaries to or from the holders of any Material Indebtedness of Holdings or any of its Restricted Subsidiaries registered
under the Securities Act of 1933 or any other similar Laws in any jurisdiction (other than, in each such case, amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the
Agent for further delivery to the Lenders), exhibits to any registration statement and, if applicable, any registration statements on Form S-8 and other than any filing filed confidentially with the SEC or any analogous Governmental Authority in any
relevant jurisdiction). (g) (i) to the extent that no Debt, or commitments with respect thereto, are outstanding under
Section 8.12(r) hereof, thirty (30) days after the end of each Fiscal Quarter, a quarterly report in the form attached hereto as Exhibit L or (ii) at all other times, within thirty (30) days after the end of each
month, a monthly report in the form attached hereto as Exhibit L. (h) Concurrently with the execution, receipt or
delivery thereof (but without duplication of any notices provided to Agent and Lenders under this Agreement), (i) copies of all material notice (including, without limitation, default notices), reports (including, without limitation, borrowing
base reports), statements or other material information that Holdings or any of its Restricted Subsidiaries executes, receives or delivers in connection with any Debt under the Term Facility, Subordinated Debt, Junior Debt or Material Indebtedness
and (ii) copies of any amendments, restatements, supplements or other modifications, waivers, consents or forbearances that Holdings or any of its Restricted Subsidiaries executes, receives or delivers with respect to the definitive legal
documentation for any Term Facility Indebtedness, Subordinated Debt, Junior Debt or Material Indebtedness; provided that the First Financial Loan Documents shall not be subject to the notice requirements of this clause (h). (i) Subject to applicable Laws and confidentiality restrictions set forth in this Agreement, (i) such additional
information as the Agent or any Lender may from time to time reasonably request regarding the business, legal, or financial condition of Holdings and its Restricted Subsidiaries, taken as a whole and (ii) such additional information and
documentation reasonable requested by the Agent or any Lender for purposes of compliance with applicable know your customer requirements under the PATRIOT Act or other applicable anti-money laundering laws. (j) Upon the request of the Agent or the Required Lenders, the Borrower shall make its Chief Financial Officer or another
suitable member of management in Borrowers reasonable discretion available for a management call with the Agent and the Lenders at such time (but, so long as neither a Cash Dominion Period nor an Event of Default shall have occurred and be
continuing, not more frequently than once during every two full Fiscal Quarters) as may be agreed to by the Borrower and the Agent or the Required Lenders. 155
(k) Documents required to be delivered pursuant to
Section 6.2(a), (b), (c), (f), (l) and (m) (to the extent any such documents are included in materials otherwise filed with the SEC or any similar regulator or Governmental Authority of any jurisdiction) may be
delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on the Borrowers or Holdings behalf on an Internet or intranet website, if any, to which each Lender and
the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that the Borrower or Holdings shall notify the Agent (by facsimile or electronic mail) of the posting of any such documents and
shall deliver paper copies of such documents to the Agent or any Lender that so requests. (l) Promptly, and in any event
within five (5) Business Days after the occurrence of the U.S. Well Merger Closing Date, notice of the consummation of the U.S. Well Merger. (m) Promptly, and in any event within five (5) Business Days after the occurrence of the Signal Peak Closing Date, notice
of the consummation of the Signal Peak Acquisition. (n) [**]. 6.3 Notices to the Agent. The Borrower shall notify the Agent (for further
distribution to the Lenders) in writing of the following matters at the following times: (a) Promptly, and in any event
within five (5) Business Days, after a Responsible Officer becoming aware of any Default or Event of Default. (b)
Promptly, and in any event within five (5) Business Days, after a Responsible Officer becoming aware of any claim, action, suit, or proceeding, by any Person, or any investigation by a Governmental Authority, in each case affecting Holdings or
any of its Restricted Subsidiaries and which would reasonably be expected to have a Material Adverse Effect. (c)
Promptly, and in any event within five (5) Business Days, after a Responsible Officer becoming aware of any violation of any Law (including any Environmental Law), statute, regulation, or ordinance of a Governmental Authority affecting Holdings
or any of its Restricted Subsidiaries, which, in any case, would reasonably be expected to have a Material Adverse Effect. (d) Any change in Holdings or any Obligors state of incorporation or organization, name as it appears in the state
of its incorporation or other organization, type of entity, organizational identification number, or form of organization, each as applicable, in each case at least no later than ten (10) Business Days (or such longer period to which the Agent
may agree in its discretion) after the occurrence of any such change. 156
(e) Promptly, and in any event within fifteen (15) Business Days, after
a Responsible Officer of Holdings, the Borrower or any ERISA Affiliate knows that an ERISA Event has occurred or is reasonably expected to occur, that, alone or with another ERISA Event that has occurred or is reasonably expected to occur, could
reasonably be expected to have a Material Adverse Effect, and any action taken (or threatened in writing) by the IRS, the DOL, the PBGC or the Multiemployer Plan sponsor with respect thereto; provided, however, in the event of a Reportable
Event, the Borrower shall notify the Agent by the later of fifteen (15) Business Days and the date on which notification is required to be provided to the PBGC pursuant to Section 4043(a) of ERISA. (f) Upon reasonable request, with respect to any Multi-employer Plan, (A) any documents described in Section 101(k)
of ERISA that Holdings, the Borrower or any ERISA Affiliate may request and (B) any notices described in Section 101(l) of ERISA that Holdings, the Borrower or any ERISA Affiliate may request; provided that if Holdings, Borrower or
ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multi-employer Plan, Holdings, the Borrower or ERISA Affiliate shall promptly make a request for such documents or notices from such
administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. (g)
Within fifteen (15) Business Days after the occurrence of the assumption or establishment of any new Pension Plan or Multi-employer Plan, or the commencement of contributions to any Pension Plan or Multi-employer Plan, to which Holdings, the
Borrower or any ERISA Affiliate was not previously contributing, which in any event could reasonably be expected to have a Material Adverse Effect. (h) Promptly, and in any event within five (5) Business Days, after a Responsible Officer becoming aware of any event or
circumstance which would reasonably be expected to have a Material Adverse Effect. (i) Unless otherwise publicly
disclosed in an annual or quarterly report filed by the Borrower or any Parent Entity with the SEC under the Exchange Act, promptly after any material change in accounting policies or financial reporting practices (including as a result of a change
in GAAP or the application thereof) by Holdings or any Restricted Subsidiary thereof. (j) Promptly, and in any event
within five (5) Business Days, after a Responsible Officer becoming aware of any action, suit or proceeding pursuant to which a holder of any Lien on any Accounts or Inventory of an Obligor makes a claim with respect to any such Accounts or
Inventory but only if the Accounts or Inventory that are the subject of such claim have a Fair Market Value in excess of $1,000,000. (k) Within five (5) Business Days after any change in the information provided in the Beneficial Ownership Certification
that would result in a change to the list of beneficial owners identified in such certification. (l) Promptly after the
completion thereof, notice of the completion of any fleet of hydraulic fracturing equipment, including, without limitation, the identity of such fleet and the initial location to which such fleet will be deployed; provided that no such notice
shall be required to the extent that no Debt, or commitments with respect thereto, are outstanding under Section 8.12(r) hereof. 157
(m) Each notice given under this Section 6.3 shall be
accompanied by a statement of a Responsible Officer describing the subject matter thereof in reasonable detail and setting forth the action that Holdings, its applicable Subsidiary, or ERISA Affiliate has taken or proposes to take with respect
thereto. Borrower agrees to deliver a Borrowing Base Certificate as and when applicable pursuant to the provisions of clause
(t) from the definition of Permitted Disposition (set forth herein) and Sections 6.4(a), 8.9, 8.26, and 9.1(i), as applicable. 6.4 Collateral Reporting. (a) The Borrower will furnish to the Agent (for further distribution to each Lender) a Borrowing Base Certificate prepared as
of the last Business Day of each calendar month (commencing with the calendar month ending February 28, 2022) and delivered to the Agent (for further distribution to the Lenders) by the close of business on the 20th Business Day of the
following calendar month. The Borrower acknowledges and agrees that while a Collateral Reporting Period is in effect, the Borrower will furnish to the Agent (for further distribution to each Lender) Borrowing Base Certificates prepared as of the
last Business Day of each calendar week during such Collateral Reporting Period and delivered to the Agent (for further distribution to the Lenders) by the close of business on the Wednesday of the following week (with any such weekly Borrowing Base
Certificate to be computed according to a method reasonably specified by the Agent after consultation with the Borrower). In the event that the Obligors dispose (whether through Disposition, merger, amalgamation, Investment, Distribution or
otherwise (including any other transaction permitted pursuant to Section 8.9), designation of an Unrestricted Subsidiary, or otherwise) of Current Asset Collateral that by a Borrower or Guarantor with a value individually or in the
aggregate of greater than 5.0% of the Borrowing Base based on the most recently delivered Borrowing Base Certificate and such disposition is to a non- Obligor and conducted outside the ordinary course of business, then Borrower shall be required,
prior to consummation of such disposition to deliver to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base. (b) The Borrower will furnish to the Agent (and the Agent shall further distribute to each Lender that has made a request for
such information through the Agent), in such detail as the Agent shall reasonably request, as soon as reasonably practical following the Agents request from time to time, such reports as to the Accounts, and the Inventory of the Obligors as
the Agent shall reasonably request from time to time. (c) If any of the Borrowers or Guarantors records or
reports of the Collateral, Accounts or Inventory are prepared by an accounting service or other agent, such Obligor hereby authorizes such service or agent to deliver such records, reports, and related documents to the Agent. 158
(d) The Borrower will furnish to the Agent (and the Agent shall further
distribute to each Lender that has made a request for such information through the Agent) each of the reports set forth on Schedule 6.4 at the times specified therein. ARTICLE VII GENERAL
WARRANTIES AND REPRESENTATIONS Holdings and the Borrower each warrants and represents to the Agent and the Lenders on the Closing
Date and on the date of each Borrowing that: 7.1 Authorization, Validity, and Enforceability of this Agreement and the Loan
Documents. Holdings and each Obligor party to this Agreement and the other Loan Documents has the power and authority to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, to incur the Obligations,
and to grant the Collateral Agents Liens. Holdings and each Obligor party to this Agreement and the other Loan Documents has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining
approval of its shareholders, if necessary) to authorize its execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party. This Agreement and the other Loan Documents to which it is a party have been duly
executed and delivered by Holdings and each Obligor party thereto, and constitute the legal, valid and binding obligations of Holdings and each such Obligor, enforceable against it in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors rights generally and general equitable principles (whether considered in a proceeding in equity or
at Law) and an implied covenant of good faith and fair dealing. Holdings and each Obligors execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, do not (x) conflict with, or
constitute a violation or breach of, the terms of (a) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any
Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries, or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, with respect to clauses (a),
(b) and (c) of this sentence, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the
property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing other than pursuant to the 7.2 Validity and Priority of Security Interest. Upon
execution and delivery thereof by the parties thereto, the applicable Security Documents will be effective to create legal and valid first priority Liens on all the Collateral (other than with respect to the Fixed Asset Collateral, in which case the
applicable Security Documents will be effective to create legal and valid second priority Liens in favor of the Collateral Agent for the benefit of the Secured Parties) in favor of the Collateral Agent for the benefit of the Secured Parties, subject
to the terms of the 159
general equitable principles (whether considered in a proceeding in equity or at Law) and an implied covenant of good faith and fair dealing and, upon the taking of such actions when and to the
extent required under the Security Documents or this Agreement, but subject to any exceptions in regards to taking any actions and limitations in regards to the scope, perfection and priority of Collateral Agents Lien in the assets of Holdings
and its Restricted Subsidiaries as set forth therein or in the definition of Collateral and Guarantee Requirement, such Liens (a) constitute perfected Liens on all of the applicable Collateral, (b) have priority over all other
Liens on the Collateral, subject to Permitted Liens and the provisions of any Intercreditor Agreement then in existence, and (c) are enforceable against each Obligor, as applicable, granting such Liens. 7.3 Organization and Qualification. Holdings and each Restricted Subsidiary (a) is duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization, (b) is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is in good standing in each jurisdiction in which the failure to be so
qualified and in good standing would reasonably be expected to have a Material Adverse Effect, and (c) has all requisite power and authority to conduct its business and to own its property, except where the failure to have such power and
authority would not reasonably be expected to have a Material Adverse Effect. 7.4 Subsidiaries; Stock. As of the 160
7.5 Financial Statements and Borrowing Base. (a) Holdings has delivered to the Agent (for further distribution to the Lenders) the Historical Financial Statements. The
Historical Financial Statements, including the schedules and notes thereto, if any, have been prepared in reasonable detail in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible
Officer of Holdings, and disclosed in any such schedules and notes or otherwise disclosed to the Agent prior to the Agreement Date) and present fairly, in all material respects, the Consolidated Parties financial position as at the dates
thereof and their results of operations for the periods then ended, subject, in the case of such unaudited Financial Statements, to changes resulting from normal year-end audit adjustments and to the absence of footnotes. (b) The latest Borrowing Base Certificate furnished to the Agent pursuant to Section 6.4(a) presents accurately
and fairly in all material respects the Borrowing Base and the calculation thereof as at the date thereof. Each Lender and the Agent
hereby acknowledges and agrees that Holdings and its Subsidiaries may be required to restate the Historical Financial Statements as the result of the implementation of changes in GAAP or the interpretation thereof, and that such restatements will
not result in a Default under the Loan Documents (including any effect on any conditions required to be satisfied on the Closing Date) to the extent that the restatements do not reveal any material omission, misstatement or other material inaccuracy
in the reported information from actual results for any relevant prior period. 7.6 Solvency. On the Closing Date and after giving
effect to the Transactions to be consummated on the Closing Date, Holdings and its Subsidiaries, on a consolidated basis, are Solvent. 7.7 Property. Each Obligor and each of its Restricted Subsidiaries has good and defensible title in fee simple to, or valid leasehold
interests in, or easements or other limited property interests in, all property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to
conduct its business or to utilize such assets for their intended purposes and Permitted Liens and except where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. 7.8 Intellectual Property. The conduct of the businesses of Holdings and each of its Restricted Subsidiaries
(including their use of Intellectual Property) does not infringe upon, misappropriate or violate the Intellectual Property of any other Person, and, to the knowledge of Holdings and the Borrower, no other Person is infringing or violating their own
Intellectual Property, in each case except as would not reasonably be expected to have a Material Adverse Effect. Holdings and each of its Restricted Subsidiaries owns or is licensed or otherwise has the right to use all Intellectual Property that
is used or held for use in or is otherwise reasonably necessary for the operation of its businesses as presently conducted, except as would not reasonably be expected to have a Material Adverse Effect. 161
7.9 Litigation. There is no pending, or to Holdings or the Borrowers
knowledge, threatened, action, suit, proceeding, or counterclaim by any Person, or to Holdings or the Borrowers knowledge, investigation by any Governmental Authority, which, in any case, has a reasonable likelihood of being adversely
determined and if so adversely determined, either (a) would reasonably be expected to have a Material Adverse Effect or (b) relates directly to any of the Loan Documents. 7.10 Labor Disputes. There is no strike, work stoppage, unfair labor practice claim, or other labor dispute pending or, to
Holdings or the Borrowers knowledge, reasonably expected to be commenced against Holdings or any of its Restricted Subsidiaries, which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
7.11 Environmental Laws. Except for any matters that, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect: (a) Holdings and its Restricted Subsidiaries and each of their respective facilities, locations
and operations are and, to the Borrowers knowledge, within the past three (3) years have been in compliance with all Environmental Laws. (b) Each of Holdings and its Restricted Subsidiaries have obtained all required permits under Environmental Laws necessary for
their current facilities and operations, all such permits are valid and in full force and effect, each of Holdings and its Restricted Subsidiaries is in compliance with all terms and conditions of such permits and none of such permits is, as of the
Closing Date, subject to any pending proceedings or other actions (or to Borrowers knowledge, any threatened proceedings or other actions) for violation, modification or revocation of such permits. (c) (i) Neither Holdings nor any of its Restricted Subsidiaries, nor to Holdings or the Borrowers knowledge any of
its predecessors in interest with respect to the Real Estate or any other location at which Holdings, any of the Restricted Subsidiaries or Borrower conducts or has conducted its business or operations, has stored, treated or released any
Contaminant except in compliance with Environmental Laws at any location, (ii) neither Holdings nor any Restricted Subsidiary nor any of the presently owned or leased Real Estate or presently conducted operations, nor, to any of Holdings or
the Borrowers knowledge, its previously owned or leased Real Estate or prior operations, is subject to any pending proceeding or other action under any Environmental Law, and (iii) neither Borrower nor Holdings has any knowledge of any
threatened proceeding or reasonable basis for, any alleged non-compliance, claim or liability arising out of or in connection with any Environmental Law (including from any Release or threatened Release of a Contaminant). (d) None of the present or, to Holdings or the Borrowers knowledge, former operations, and none of the real estate
interests of Holdings or any of its Restricted Subsidiaries, is subject to any investigation by any Governmental Authority against or involving Holdings or any of its Restricted Subsidiaries, evaluating whether, or alleging that, any investigation
or remedial action is needed to respond to a Release or threatened Release of a Contaminant or the presence of a Contaminant attributed to, or alleged to have been attributed to Holdings or any of its Restricted Subsidiaries or any predecessors
thereof, or of any of their operations. 162
7.12 No Violation of Law. Neither Holdings, nor any of its Restricted Subsidiaries is
in violation of any Law, judgment, order or decree applicable to it, where such violation would reasonably be expected to have a Material Adverse Effect. 7.13 No Default. No Default or Event of Default has occurred and is continuing. 7.14 ERISA Compliance. Except as would not reasonably be expected to result in a Material Adverse Effect: (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other federal or state law. The Borrower,
each Guarantor and each ERISA Affiliate, as applicable, has made all required contributions to any Pension Plan subject to Section 412 or 430 of the Code or Section 302 or 303 of ERISA or other applicable laws when due, and no application
for a funding waiver or an extension of any amortization period (pursuant to Section 412 of the Code, or otherwise) has been made with respect to any Pension Plan. (b) There are no pending or, to the best knowledge of Holdings and the other Obligors, threatened, claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan. (c) (i) No ERISA Event has occurred or is
reasonably expected to occur, (ii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
liability) under Section 4201 or 4243 of ERISA with respect to a Multi-employer Plan and (iii) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA. 7.15 Taxes. Holdings and each of its Restricted Subsidiaries have filed all federal, state, and other material Tax returns required to
be filed by them, and have paid all Taxes and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable by them (including in their capacity as a withholding agent), other than Taxes (i)
the failure of which to pay, in the aggregate, would not have a Material Adverse Effect or (ii) that are being contested in good faith and by the appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.
There are no current, pending or proposed Tax deficiencies, assessments or other claims against Holdings or any Restricted Subsidiary that would reasonably be expected to, in the aggregate, have a Material Adverse Effect. 7.16 Investment Company Act. None of Holdings, or any Restricted Subsidiary of Holdings, is an Investment Company, or a
company controlled by an Investment Company within the meaning of the Investment Company Act of 1940, as amended. 7.17 Use of Proceeds. The proceeds of the Loans are to be used solely to finance ongoing working capital needs and for other general
corporate purposes (including Permitted Acquisitions and other Permitted Investments, Permitted Distributions and the repayment or prepayment of Debt, in each case to the extent not prohibited pursuant to the terms hereof) of Holdings, the Borrower
and its Restricted Subsidiaries. 163
7.18 Margin Regulations. As of the Closing Date, none of the Collateral is comprised
of any Margin Stock. None of Holdings or any Obligor is engaged, 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 Federal Reserve Board), or
extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation U or Regulation X of Federal Reserve Board. 7.19 No Material Adverse Change. No Material Adverse Effect has occurred since December 31, 2020. 7.20 Full Disclosure. (a) None of the information or data (taken as a whole) heretofore or contemporaneously furnished by
Holdings, the Borrower, any of their respective Restricted Subsidiaries or any of their respective authorized representatives in writing to the Agent, the Collateral Agent, any Arranger or any Lender on or before the Closing Date for purposes of or
in connection with this Agreement or any transaction contemplated herein contained any untrue statement of material fact or omitted to state any material fact necessary to make such information and data (taken as a whole) not materially misleading
at such time (after giving effect to all supplements so furnished prior to such time) in light of the circumstances under which such information or data was furnished; it being understood and agreed that for purposes of this
Section 7.20, such information and data shall not include projections (including financial estimates, forecasts and other forward-looking information), pro forma financial information or information of a general economic or general
industry nature. The projections contained in the information and data referred to in this Section 7.20 were prepared in good faith based upon assumptions believed by Holdings and the Borrower to be reasonable at the time made and at the
time delivered; it being recognized by the Agent, the Collateral Agent and the Lenders that such projections are as to future events and are not to be viewed as facts, the projections are subject to significant uncertainties and contingencies, many
of which are beyond the control of Holdings, the Borrower and the Restricted Subsidiaries, that no assurance can be given that any particular projections will be realized and that actual results during the period or periods covered by any such
projections may differ from the projected results and such differences may be material. (b) The information included in
the Beneficial Ownership Certification most recently delivered to the Agent and the Lenders hereunder is true and correct in all material respects. 7.21 Government Authorization. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Agreement or any other Loan Document, other
than (i) those that have been obtained or made and are in full force and effect, (ii) those required to perfect the Liens created pursuant to the Security Documents, and (iii) where failure to obtain, effect or make any such approval,
consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect. 164
7.22 Anti-Terrorism Laws. (a) None of Holdings, nor any of its Restricted Subsidiaries nor, to the knowledge of Holdings or any of its Restricted
Subsidiaries, any of their respective officers, directors, or employees is in violation of any applicable Anti-Terrorism Law, or engages in any transaction that attempts to violate, or otherwise evades or avoids (or has the purpose of evading or
avoiding) any prohibitions set forth in any applicable Anti-Terrorism Law. (b) The use of proceeds of the Loans will not
violate any applicable Anti-Terrorism Laws. 7.23 FCPA. No part of the proceeds of the Loans or the Letters of Credit will be used,
directly, or, to the knowledge of the Borrower, indirectly, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or other applicable anti-corruption laws or anti-money laundering laws. 7.24 Sanctioned Persons. (a) None of Holdings, nor any Restricted Subsidiary nor, to the knowledge of Holdings, or any of its Restricted Subsidiaries,
any officer, director or employee thereof is currently the target of any U.S. sanctions administered by the Office of Foreign Assets Control (OFAC) of the U.S. Treasury Department or the U.S. Department of State. None of Holdings,
nor any of its Restricted Subsidiaries nor, to the knowledge of Holdings or any of its Restricted Subsidiaries, any of their respective officers, directors or employees (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets
located in Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. (b) The Borrower will not directly or, to its knowledge after due care and inquiry, indirectly, use the proceeds of the Loans
or Letters of Credit in any manner that will result in a violation of any Sanctions or to make payments to, or fund any operation or activities of, any Sanctioned Persons or Sanctioned Entities. 7.25 Designation of Senior Debt. The Obligations are Designated Senior Debt (or any similar term) under the terms of the
documentation governing any Subordinated Debt. 7.26 Insurance. The properties of Holdings and its Subsidiaries are insured with
financially sound insurance companies that are not Affiliates of the Borrower (other than an Affiliated Insurance Entity), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Holdings or the applicable Subsidiary operates, provided
that it is agreed that the insurance on AG PSC Funding, LLC and its property as of the Second Amendment Effective Date satisfies this Section 7.26. 165
ARTICLE VIII AFFIRMATIVE AND NEGATIVE COVENANTS Holdings, the Borrower and each Guarantor covenant to the Agent and each Lender that, from and after the Closing Date, so long as any of the
Commitments are outstanding and until Full Payment of the Obligations: 8.1 Taxes. Holdings and the Borrower shall, and shall cause
each of Holdings Restricted Subsidiaries to, (a) file when due (after giving effect to any valid extensions for the payment thereof) all federal, state and other material Tax returns that it is required to file and (b) pay, or provide for
the payment of, when due (after giving effect to any valid extensions for the payment thereof), all Taxes imposed upon it or upon its property, income and franchises (including in its capacity as a withholding agent); provided,
however, neither Holdings nor any of its Restricted Subsidiaries need pay any Tax described in this Section 8.1 as long as (i) such Tax is being contested in good faith and by the appropriate proceedings and adequate reserves
have been established for such Tax in accordance with GAAP or (ii) the failure to pay, or provide for payment of such Tax would not reasonably be expected to have a Material Adverse Effect. 8.2 Legal Existence and Good Standing. Holdings and the Borrower shall, and shall cause each of Holdings Restricted Subsidiaries
to, maintain (a) its legal existence and good standing in its jurisdiction of organization, and (b) its qualification and good standing in all other jurisdictions necessary or desirable in the ordinary course of business of Holdings or
such Restricted Subsidiary except, in the case of clause (a) (other than with respect to the Borrower) or clause (b) of this Section 8.2, in such cases where the failure to maintain its existence, qualification or
good standing would not reasonably be expected to have a Material Adverse Effect; provided, however, that the Borrower and the Restricted Subsidiaries may consummate any transaction permitted under any of Section 8.8,
8.9 or 8.11. 8.3 Compliance with Law; Maintenance of Licenses. Holdings and the Borrower shall comply, and shall
take all reasonable action to cause each of Holdings Restricted Subsidiaries to comply, with all Requirements of Law of any Governmental Authority having jurisdiction over it or its business (including the Federal Fair Labor Standards Act, all
Anti-Terrorism Laws, all Environmental Laws, Laws administered by OFAC and the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder), except where noncompliance would not reasonably be expected to
have a Material Adverse Effect. Holdings and the Borrower shall, and shall cause each of Holdings Restricted Subsidiaries to take all reasonable action to, obtain and maintain all licenses, permits, franchises, and governmental authorizations
necessary to own its property and to conduct its business, except where the failure to so obtain and maintain such licenses, permits, franchises, and governmental authorizations would not reasonably be expected to have a Material Adverse Effect.
8.4 Maintenance of Property, Inspection; Field Examinations. (a) Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, maintain all of its material property
necessary and useful in the conduct of its business, taken as a whole, in good operating condition and repair (or, in the case of Inventory, in saleable, useable or rentable condition), ordinary wear and tear and Casualty Events excepted, except, in
each case, to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect. 166
(b) Holdings and the Borrower shall, and shall cause the Restricted
Subsidiaries to, permit representatives and independent contractors of the Agent and/or the Collateral Agent (at the expense of the Borrower) to visit and inspect any of Holdings, the Borrowers or any Restricted Subsidiaries
properties (to the extent it is within such Persons control to permit such inspection), to examine Holdings and its Restricted Subsidiaries corporate, financial and operating records, and make copies thereof or abstracts therefrom,
to examine and audit the Collateral (to the extent it is within such Persons control to permit such examination and audit and subject to the limitations otherwise set forth in this Section 8.4), and to discuss Holdings and
its Restricted Subsidiaries affairs, finances and accounts with their respective directors, officers and independent public accountants, at such reasonable times during normal business hours, upon reasonable advance notice to the Borrower (and
subject, in the case of any such meetings or advice from such independent public accountants, to such accountants customary policies and procedures); provided, however, excluding any such visits and inspections during the
continuation of an Event of Default and without in any way limiting the rights of the Agent and/or the Collateral Agent set forth herein, neither the Agent nor the Collateral Agent shall exercise such rights more often than once during any calendar
year absent the existence of an Event of Default at the Borrowers expense; and provided, further, that when an Event of Default exists, the Agent and the Collateral Agent (or any of their 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 upon reasonable advance notice. The Agent and the Collateral Agent shall give the Borrower the opportunity to participate in any
discussions with Holdings or any of its Restricted Subsidiaries independent public accountants. Notwithstanding anything to the contrary in Article VI or any other provisions set forth herein, none of Holdings, the Borrower or any
Restricted Subsidiary will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial
proprietary information, (ii) in respect of which disclosure to the Agent, the Collateral Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable Law or any binding agreement with a non-affiliate, or
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product. The Agent and the Collateral Agent may carry out investigations, field examinations and reviews of each Obligors property (including field
audits conducted by the Agent and the Collateral Agent or at their direction, each, a Field Examination) at the expense of the Borrower and appraisals of the Obligors Inventory performed by an appraiser selected by the Agent
in its Reasonable Credit Judgment (each an Appraisal) at the expense of the Borrower and, absent the continuance of an Event of Default, during each period of twelve (12) consecutive calendar months commencing on or after the
Agreement Date, the Agent and the Collateral Agent may, collectively, carry out, at the Borrowers expense, one (1) Field Examination and one (1) Appraisal; provided, however, that notwithstanding the limitations in the
foregoing clause, (i) a during any such year during which Availability has been less than the greater of $ 167
the Collateral Agent may, collectively, carry out, at the Borrower expense, an additional one (1) Field Examination and an additional one (1) Appraisal during such year at the
expense of Borrower, and (ii) at any time during the continuation of an Event of Default, the Agent and/or the Collateral Agent may carry out, at the Borrowers expense, additional Field Examinations and Appraisals as frequently as
determined by the Agent and/or the Collateral Agent in their respective reasonable discretion. 8.5 Insurance. (a) Holdings and the Borrower shall, and shall cause the Restricted Subsidiaries to, maintain with financially sound insurance
companies, insurance on (or self-insure in such amounts and against such risks; provided that no such insurance or self-insurance shall be provided by any Obligor or any Affiliate of the Borrower other than an Affiliated Insurance Entity,
which Affiliated Insurance Entity may provide insurance policies or products to Holdings and its Restricted Subsidiaries (i) in an amount not to exceed $10,000,000 per incident and (ii) in an aggregate underwritten amount not to exceed, at
any one time, $10,000,000 (unless the aggregate underwritten amount in excess of $10,000,000 is reinsured by a bona fide financially sound reinsurer that is not an Affiliate of the Borrower or any such Affiliated Insurance Entity)) all property
material to the business of Holdings and its Restricted Subsidiaries, taken as a whole, in at least such amounts and against at least such risks (but including, in any event, public liability, casualty, hazard, theft, product liability and business
interruption) as are customarily insured against by companies of established reputation engaged in the same or similar business and in the same general area as Holdings, the Borrower and the Restricted Subsidiaries, all as determined in good faith
by Holdings, the Borrower or such Restricted Subsidiaries. For the avoidance of doubt, it is agreed that the insurance
on AG PSC Funding, LLC and its property as of the Second Amendment Effective Date satisfies this Section 8.5. (b) [Reserved]. (c) Holdings and the Borrower shall cause the Collateral Agent, for the ratable benefit of the Collateral Agent and the other
Secured Parties, to be named as secured parties or mortgagees and lender loss payees or additional insureds, as applicable, in a manner reasonably acceptable to the Collateral Agent, under all insurance policies required to be maintained by the
Obligors (or in the case of AG PSC Funding, LLC with respect to its property insurance coverage as of the Second
Amendment Effective Date, the property insurance maintained by PSC Holdings, Inc. on its behalf) under clause (a). Each such policy of insurance shall contain a clause or endorsement
requiring the insurer to give not less than thirty days prior written notice to the Collateral Agent in the event of cancellation of the policy for any reason whatsoever (other than cancellation for non-payment in which case no notice shall be
required if unobtainable after use of commercially reasonable efforts), and, if obtainable (using commercially reasonable efforts), a clause or endorsement stating that the interest of the Collateral Agent shall not be impaired or invalidated by any
act or neglect of any Obligor or the owner of any Real Estate for purposes more hazardous than are permitted by such policy. If the Obligors fail to procure any such material insurance or to pay the premium therefor when due, during the continuance
of an Event of Default and after providing written notice thereof to the Borrower, the Agent may, and at the direction of the Required Lenders shall, do so from the proceeds of Revolving Loans on a pro rata basis. 168
8.6 Environmental Laws. Holdings and the Borrower shall, and shall cause the
Restricted Subsidiaries to, conduct its business in compliance with all Environmental Laws, except where such noncompliance would not reasonably be expected to have a Material Adverse Effect. Holdings and the Borrower shall, and shall cause the
Restricted Subsidiaries to, (i) correct any material non-compliance with Environmental Laws and (ii) take any investigatory and remedial action needed to respond to the presence of Contaminants or a Release of Contaminants on the Real
Estate or at any other locations at which Contaminants are present that are attributable to the operations of Holdings or any of its Restricted Subsidiaries or Borrower, as required by Environmental Laws other than to the extent that the failure to
take such investigatory, corrective or remedial action would not reasonably be expected to cause a Material Adverse Effect. 8.7
Compliance with ERISA. Holdings and the Borrower shall, and shall cause each of its ERISA Affiliates and Subsidiaries to: (a) maintain each Plan in compliance with the applicable provisions of ERISA and the Code; and (b) not cause
an ERISA Event to occur with respect to a Pension Plan or Multi-employer Plan which the Borrower or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions, except in the case of each of
clauses (a) and (b), to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect. 8.8 Dispositions. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, Dispose of any of
its property, business or assets, except for Permitted Dispositions. 8.9 Mergers, Consolidations, etc. Other than to the extent
permitted as a Permitted Investment or Permitted Disposition, Holdings and the Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, merge, amalgamate or consolidate, or Dispose of all or substantially all of its business
units, assets and properties, or wind up, liquidate or dissolve, except: (a) any Subsidiary of the Borrower or any other
Person (other than Holdings) may be merged, amalgamated or consolidated with or into the Borrower; provided that the Borrower shall be the continuing or surviving Person; (b) any Subsidiary of the Borrower or any other Person (other than Holdings) may be merged, amalgamated or consolidated with
or into any one or more Wholly Owned Restricted Subsidiaries of the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its business units, assets and other properties; provided that, (i) in the case of any
merger, amalgamation, consolidation or Disposition involving one or more Restricted Subsidiaries, (A) a Wholly Owned Restricted Subsidiary shall be the continuing or surviving corporation or the transferee of such assets or (B) the
Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation, consolidation or Disposition (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any
merger, amalgamation, 169
consolidation or Disposition involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation,
consolidation or the transferee of such assets (in each case, if other than such Guarantor) shall execute a Guaranty Supplement referred to in the Guarantee Agreement and a Security Agreement Supplement referred to in the
Security Agreement, in order for the surviving or continuing Person or such transferee to become a Guarantor and (iii) if such merger, amalgamation, consolidation or Disposition involves a Restricted Subsidiary and a Person that, prior to the
consummation of such merger, amalgamation, consolidation or Disposition, is not a Restricted Subsidiary of the Borrower, (A) no Event of Default under any of Section 10.1(a), (e), (f) or (g) has
occurred and is continuing on the date of such merger, amalgamation, consolidation or Disposition or would result from the consummation of such merger, amalgamation, consolidation or Disposition, (B) the Borrower shall have delivered to the
Agent a certificate of a Responsible Officer stating that such merger, amalgamation, consolidation or Disposition and any supplements to any Loan Document (or new Loan Documents delivered concurrently therewith) create and preserve, as applicable,
the enforceability of the Guarantee Agreement and the perfection and priority of the Collateral Agents Liens, and (C) such merger, amalgamation, consolidation or Disposition shall comply with all the conditions set forth in the definition
of the term Permitted Acquisition or otherwise constitutes a Permitted Investment; (c) any Restricted
Subsidiary that is not a Guarantor may (i) merge, amalgamate or consolidate with or into any Wholly Owned Restricted Subsidiary and (ii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower, a Guarantor
or any Wholly Owned Restricted Subsidiary of Holdings; (d) any Guarantor may (i) merge, amalgamate or consolidate
with or into any other Restricted Subsidiary that is a Guarantor, (ii) merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Guarantor or transfer all or any of its assets to a Restricted Subsidiary that is
not a Guarantor; provided that, if such Guarantor is not the surviving Person or the transferee is not a Guarantor, (x) Borrower would have Availability of greater than zero after giving effect thereto, (y) before and immediately
after giving effect thereto, no Event of Default shall have occurred and be continuing, (z) such merger, amalgamation, consolidation, or transfer shall be deemed to be an Investment and shall be only permitted if it constitutes a
Permitted Investment, and (iii) Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary that is a Guarantor; and (e) any Restricted Subsidiary may liquidate or dissolve if (x) the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Guarantor, any assets or business not otherwise Disposed of or
transferred in accordance with Section 8.8 or Section 8.11, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Borrower or another Restricted Subsidiary that
is a Guarantor after giving effect to such liquidation or dissolution; 170
provided, that if, as of any date of determination, Dispositions (whether through Disposition,
merger, consolidation, liquidation, dissolution, or otherwise, made in reliance on the provisions of this Section 8.9 by Obligors would result in the transfer of Current Asset Collateral by a Borrower or Guarantor to non-Obligors with a
value individually or in the aggregate of greater than 5.0% of the Borrowing Base based on the most recently delivered Borrowing Base Certificate prior to such event, then Borrower shall be required, prior to consummation of such Disposition,
merger, consolidation, liquidation, dissolution in reliance on this Section 8.9 to exceed such threshold, deliver to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base.
8.10 Distributions. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to, make any Distribution, other than the following (collectively, Permitted Distributions): (a) each
Restricted Subsidiary may make Distributions to Holdings, the Borrower and to other Restricted Subsidiaries (and, in the case of a Distribution by a non- Wholly Owned Restricted Subsidiary, to Holdings, the Borrower and any other Restricted
Subsidiary and to each other owner of Stock of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests of the relevant class of Stock); (b) without duplication of any Distributions made pursuant to clause (c) below, (i) Holdings may (or may make
Distributions to permit any Parent Entity to directly or indirectly) redeem in whole or in part any of its Stock (A) for another class of its (or such Parent Entitys) Stock or rights to acquire its Stock (or its Parents Stock),
(B) with proceeds from substantially concurrent direct or indirect equity contributions by any Parent Entity to Holdings, or (C) with proceeds from substantially concurrent issuances of new Stock of Holdings (or new Stock of any Parent
Entity); provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Stock referenced in clause (A) or (C) are at least as advantageous to
the Lenders as those contained in the Stock redeemed thereby and (ii) Holdings may declare and make any Distribution payable solely in the Stock (other than Disqualified Stock not otherwise permitted by Section 8.12) of Holdings;
(c) without duplication of any Distributions made pursuant to clause (b) above, any redemption or other
acquisition by Holdings of its Stock pursuant to the Redemption Right or the Call Right (each as described in the Section of the Registration Statement for the IPO Transactions entitled Corporate reorganization)
to be included in the Holdings LLC Agreement upon the effectiveness of the IPO Transactions (it being understood and agreed, for the avoidance of doubt, that such redemption shall not in any event be made with the proceeds of any Distribution from
the Borrower or any of its Restricted Subsidiaries to Holdings), in each case, so long as the consideration paid by Holdings for such redemption or other acquisition is not cash or any other assets of Holdings, the Borrower their respective
Restricted Subsidiaries. (d) to the extent constituting Distributions, Holdings and its Restricted Subsidiaries may enter
into and consummate transactions expressly permitted by any provision of Section 8.11 (other than pursuant to clause (p) of the definition of Permitted Investments) or Section 8.14(g); 171
(e) repurchases of Stock of Holdings (Stock of any Parent Entity) or any
Restricted Subsidiary deemed to occur upon exercise, vesting and/or settlement of Stock if such Stock represents a portion of the exercise price thereof or any portion of required withholding or similar taxes due upon the exercise, vesting and/or
settlement thereof; (f) so long as no Default or Event of Default shall be continuing, from and after the date that is
twelve (12) months after the consummation of the IPO Transactions, Holdings or any Restricted Subsidiary may pay (or make Distributions to allow any Parent Entity to pay) for the repurchase, retirement or other acquisition or retirement for
value of Stock of it or any Parent Entity (or any options or warrants or stock appreciation or similar rights issued with respect to any of such Stock) held by any future, present or former employee, director, officer or other individual service
provider (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributes of any of the foregoing) of Holdings (or any Parent Entity) or any of the other Restricted
Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any stock option or stock
appreciation or similar rights plan, any management, director and/or employee stock ownership or equity-based incentive plan, stock subscription plan, employment termination agreement or any other employment agreements or equity holders
agreement) with any employee, director, officer or other individual service provider of Holdings (or any Parent Entity) or any Restricted Subsidiary; provided that any such payments do not exceed $10,000,000 in any Fiscal Year plus
(i) all net cash proceeds obtained by any Parent Entity (and contributed to the Borrower) or the Borrower during such calendar year from the sale or issuance of such Stock to other present or former officers, employees, directors and other
individual service provider in connection with any plans or agreements set forth above in this clause (f) plus (ii) all net cash proceeds obtained from any key-man life insurance policies received by the Borrower during such
calendar year; provided that any unused portion of the preceding basket calculated pursuant to clauses (i) and (ii) above for any Fiscal Year may be carried forward to the next two (2) succeeding Fiscal Years up
to a maximum of $15,000,000 in the aggregate in any Fiscal Year; provided, further, that cancellation of Debt owing to Holdings (or any Parent Entity of Borrower) or any of its Restricted Subsidiaries from employees, directors,
officers or other individual service providers of the Borrower, any of the Borrowers Parent Entity or any of Holdings Restricted Subsidiaries in connection with a repurchase of Stock of a Parent Entity or Holdings will not be deemed to
constitute a Distribution for purposes of this covenant or any other provision of this Agreement; (g) Holdings and its
Restricted Subsidiaries may make Distributions to any direct or indirect owner thereof (including but not limited to any Parent Entity of Holdings): (i) the proceeds of which shall be used to make Permitted Tax Distributions; 172
(ii) the proceeds of which shall be used: (A) to make payments to Wilks Brothers, LLC, a Texas limited liability company, in respect of the retainer fees
under the Shared Services Agreement in an aggregate amount not to exceed in any Fiscal Year $7,000,000; and (B) to pay
such Parent Entitys operating costs and expenses incurred in the ordinary course of business, other overhead costs and expenses and fees (including administrative, legal, accounting and similar expenses provided by third parties as well as
trustee, directors and general partner fees) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of Holdings and its Restricted Subsidiaries (including any reasonable and
customary indemnification claims made by directors or officers of any Parent Entity attributable to the direct or indirect ownership or operations of Holdings and its Restricted Subsidiaries) and fees and expenses otherwise due and payable by
Holdings under the Shared Services Agreement in respect of services provided thereunder (for the avoidance of doubt, excluding any retainer fees permitted to be paid thereunder pursuant to subclause (A) of this clause
(ii)) in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (ii)(B), the greater of (1) $4,500,000 and (2) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries
for the Fiscal Year most recently ended for which financial statements are available; provided that (x) such payments are made in respect of services performed on behalf of, or expenses incurred by, Holdings and its Restricted
Subsidiaries on an arms length basis and (y) such payments are approved by the Board of Directors of ProFrac Holding Corp. if required by the policies of such Board of Directors related to arms length transactions; (iii) the proceeds of which shall be used to pay franchise, excise and similar taxes, and other fees and expenses, required to
maintain its (or any of its direct or indirect parents) existence; (iv) the proceeds of which shall be used to
finance any Permitted Acquisition or any other acquisition constituting a Permitted Investment; provided that (A) such Distribution shall be made substantially concurrently with the closing of such Investment and (B) Holdings, the
Borrower or such Parent Entity shall, immediately following the closing thereof, cause all property acquired (whether assets or Stock (other than Excluded Stock described in clause (g) of the definition thereof) to be held by or
contributed to the Borrower or a Restricted Subsidiary of the Borrower; (v) the proceeds of which shall be used to pay
customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful Stock or Debt offering, Refinancing, issuance or incurrence transaction or any Disposition, acquisition or Investment permitted by this Agreement; and 173
(vi) the proceeds of which shall be used to pay customary salary,
compensation, bonus and other benefits payable to officers, employees, consultants and other service providers of any Parent Entity or partner of the Borrower to the extent such salaries, compensation, bonuses and other benefits are attributable to
the ownership or operation of Holdings and its Restricted Subsidiaries in an aggregate amount not to exceed in any Fiscal Year, for all such amounts under this clause (vi), when taken together with any Distributions made pursuant to clause
(ii)(B) above, the greater of (A) $7,000,000 and (B) 2.00% of the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the Fiscal Year most recently ended for which financial statements are available; (h) Holdings or any of its Restricted Subsidiaries may (a) pay cash in lieu of fractional Stock in connection with any
dividend, split or combination thereof or any Permitted Acquisition (or any other acquisition constituting a Permitted Investment) and (b) honor any conversion request by a holder of convertible Debt and make cash payments in lieu of fractional
shares in connection with any such conversion and may make payments on convertible Debt in accordance with its terms; (i)
in addition to the foregoing Distributions (i) Holdings or any Restricted Subsidiary of Holdings may make additional Distributions so long as the Specified Conditions shall have been satisfied with respect thereto at the time of (and after
giving effect to) such Distributions, (ii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower or any Restricted Subsidiary of Holdings may make additional Distributions,
measured at the time made, in an aggregate amount not to exceed $5,000,000 and (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make additional Distributions in an
aggregate amount not to exceed an amount equal to the Available Equity Amount at the time such Distributions are paid; and (j) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow any Parent Entity to pay)
Distributions in an amount equal to withholding or similar taxes payable or expected to be payable by any present or former employee, director, manager, consultant or other service provider (or its Affiliates, or any of their respective estates or
immediate family members) and any repurchases of Stock in consideration of such payments including deemed repurchases in connection with the exercise of Stock options; (k) to the extent constituting Distributions, the transactions described in clause (i) of the definition of IPO
Transactions; (l) any Distribution by Holdings pursuant to the FTS Distribution and Contribution Transaction; 174
(m) any Distribution by Holdings of the Stock of a Person acquired by
Holdings or any of its Subsidiaries in accordance with the provisions set forth herein so long as (i) all or substantially all of the property and assets of such Person (including any Stock owned by such Person other than the Stock of Holdings
or any Parent Entity) contributed to the Borrower or a Guarantor (other than Holdings, other than to the extent that Holdings substantially contemporaneously therewith contributes such property and assets to one of its Subsidiaries that is a
Guarantor) substantially simultaneously with such acquisition (and, for the avoidance of doubt, prior to such Distribution) and the Borrower or such Guarantor has complied with the Collateral and Guarantee Requirements with respect to such property
and assets (including any Stock owned by such Person) so contributed and (ii) such Person, after giving effect to subclause (i) above, individually has assets with a Fair Market Value of less than $2,000,000, and in the aggregate for all
such transactions during the term of the Agreement, such Persons, in each case after giving effect to subclause (i) above, collectively have assets with a Fair Market Value of less than $5,000,000 (it being understood and agreed that
such caps shall not include any assets held by any such Person after the Stock of such Person has been distributed by Holdings pursuant the provisions of this clause (m)); (n) [reserved]; and (o) Holdings or any Restricted Subsidiary of Holdings may pay (or may make Distributions to allow any Parent Entity to pay)
Distributions from the Net Equity Proceeds received by Holdings or any of its Restricted Subsidiaries from the consummation of the IPO Transaction so long as (i) no Event of Default exists or would arise as a result of making such Distribution,
(ii) such Net Equity Proceeds are Not Otherwise Applied, (iii) such Distribution is made no later than seven (7) days following Holdings or its Restricted Subsidiaries receipt of such Net Equity Proceeds, as applicable,
and (iv) the aggregate amount of Distributions made in reliance of this clause (o) does not exceed $72,930,000. 8.11
Investments. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make any Investment, except Permitted Investments. 8.12 Debt. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, incur or maintain any Debt,
other than the following Debt (collectively, Permitted Debt): (a) Debt of Holdings and any of its
Restricted Subsidiaries under the Loan Documents (including pursuant to Sections 2.6 and 2.7); (b) (i)
Debt described on Schedule 8.12 (it being understood and agreed that any such Debt that is repaid shall not be reborrowed) and any Refinancing Debt in respect thereof and (ii) any intercompany Debt outstanding on the Closing Date; 175
(c) (i) Capital Leases and purchase money Debt incurred to finance the
acquisition, construction, repair, replacement, lease or improvement of any Equipment (as defined in Article 9 of the UCC) held for sale or lease or any fixed or capital assets (whether pursuant to a loan, a Capital Lease or otherwise) , including without limitation any Debt evidenced by the Enterprise Equipment Lease Agreement and (ii) any Refinancing Debt incurred to Refinance such Debt; provided that, at the time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate
principal amount of Debt incurred under this clause (c) and then-outstanding of Borrower, Holdings and its Restricted Subsidiaries as at the last day of the Test Period ended on or prior to the date that such Debt was incurred shall not
exceed the greater of (x) $75,000,000 and (y) 5.0% of Consolidated Total Assets; (d) Debt of (A) any
Restricted Subsidiary that is not an Obligor owing to Holdings or another Restricted Subsidiary that is not an Obligor, (B) any Restricted Subsidiary that is not an Obligor owing to Holdings or any Obligor; provided that the aggregate
amount of Debt incurred under this clause (d)(B) is permitted to be incurred as an Investment pursuant to Section 8.11 or (C) any Obligor that is owing to Holdings or any Restricted Subsidiary that is not an Obligor;
provided that the Debt incurred under this clause (d)(C) shall be subject to the Subordinated Intercompany Note; (e) Debt incurred under Hedge Agreements entered into by a Borrower or Restricted Subsidiary of Holdings in the ordinary
course of business and not for speculative purposes; (f) Guaranties by Holdings and its Restricted Subsidiaries in
respect of Debt of the Borrower or any of its Restricted Subsidiaries otherwise permitted under this Agreement; provided that (i) if the Debt being guaranteed is Subordinated Debt, such Guaranties shall be subordinated in right of
payment to the Guaranty of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Subordinated Debt (ii) if the Debt being guaranteed by any Obligor is Debt of a Restricted Subsidiary that
is not an Obligor, such Guaranty must be permitted to be incurred as an Investment pursuant to Section 8.11 and (iii) no Guaranty by any Restricted Subsidiary of any Debt of an Obligor shall be permitted unless such Restricted
Subsidiary shall have also provided a Guaranty of the Obligations; (g) (i) Debt arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn against insufficient funds; provided that such Debt is extinguished within five Business Days of its incurrence and (ii) customer deposits and advance payments
received in the ordinary course of business from customers for goods and services purchased or rented in the ordinary course of business; (h) Debt of any Obligor owing to any other Obligor; (i) Debt of any Obligor or Restricted Subsidiary in respect of (i) performance bonds, completion guarantees, surety
bonds, appeal bonds, bid bonds, other similar bonds, instruments or obligations, in each case provided in the ordinary course of business (including to secure workers compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other Debt with respect to reimbursement-type obligations), but excluding any of the foregoing issued in respect of or to secure Debt for Borrowed Money; (ii) Debt owed to any
Person providing workers compensation, health, disability or other employee benefits or property, casualty, 176
liability, or other insurance to any Obligor or any of its Restricted Subsidiaries, so long as the amount of such Debt is not in excess of the amount of the unpaid cost of, and shall be incurred
only to defer the cost of, such insurance for the year in which such Debt is incurred and such Debt is outstanding only during such year, (iii) Cash Management Obligations and other Debt in respect of netting services, ACH arrangements,
overdraft protection and other arrangements arising under standard business terms of any bank at which any Obligor or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or in connection with Deposit Accounts
incurred in the ordinary course or (iv) Debt consisting of accommodation Guaranties for the benefit of trade creditors of any Obligor or any Subsidiary issued by such Obligor or Subsidiary in the ordinary course of business; (j) Debt incurred under this clause (j) and then outstanding in an aggregate principal amount, measured at the
time of incurrence and after giving Pro Forma Effect thereto and the use of the proceeds thereof, not to exceed the greater of (x) $30,000,000 and (y) 2.5% of Consolidated Total Assets (measured as of the date such Debt was incurred based
upon the Section 6.2 Financials most recently delivered on or prior to such date of incurrence) as of the last day of the Test Period most recently ended on or prior to the date such Debt was incurred and any Refinancing Debt in respect
thereof; (k) Debt (x) representing deferred compensation, severance and health and welfare retirement benefits to
current and former employees, directors, consultants, partners, members, contract providers, independent contractors or other service providers of Holdings (or any Parent Entity thereof), the Borrower and the Restricted Subsidiaries incurred in the
ordinary course of business, or (y) consisting of indemnities, obligations in respect of earn outs or other purchase price adjustments or similar obligations created, incurred or assumed in connection with Permitted Acquisitions, other
Investments and the Disposition of any business, assets or Stock permitted hereunder, other than Guaranties incurred by any Person acquiring all or any portion of such business, assets or Stock for the purpose of financing such acquisition; (l) Debt consisting of (x) obligations of Holdings (or any Parent Entity thereof), the Borrower or the Restricted
Subsidiaries under deferred compensation arrangements to their employees, directors, partners, members, consultants, independent contractors or other service providers, (y) other similar arrangements incurred by such Persons in connection with
Permitted Acquisitions (or other acquisitions constituting Permitted Investments) or (z) any other Investment permitted under Section 8.11; (m) Debt consisting of promissory notes issued by the Restricted Subsidiaries to their current or former officers, directors,
partners, members, and employees and their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributes to finance the retirement, acquisition, repurchase, purchase or redemption of Stock of Holdings (or
any Stock of Parent Entity or the Borrower) in each case permitted by Section 8.10; (n) Debt consisting of
(i) the financing of insurance premiums or (ii) take or pay obligations entered into in the ordinary course of business; 177
(o) Debt incurred pursuant to the First Financial 2021 Loan Agreement, in an
aggregate principal amount not to exceed $30,000,000 and any Refinancing Debt related thereto; (p) Debt of any Restricted
Subsidiary that is not an Obligor incurred under this clause (p); provided that (i) such Debt is not guaranteed by any Obligor, (ii) the holder of such Debt does not have, directly or indirectly, any recourse to any Obligor,
whether by reason of representations or warranties, agreement of the parties, operation of law or otherwise, (iii) such Debt is not secured by any assets other than assets of such Restricted Subsidiary and its Subsidiaries and (iv) the
aggregate amount of Debt incurred under this clause (p) shall not exceed the greater of (x) $10,000,000 and (y) 1.0% of Consolidated Total Assets (measured as of the date such Debt was incurred based upon the
Section 6.2 Financials most recently delivered on or prior to such date of incurrence); (q) Debt of the
Borrower or any Restricted Subsidiary; so long as (x) in the case of secured Debt, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of proceeds thereof, the Borrower would be in compliance with a Senior
Secured Net Leverage Ratio, calculated on a Pro Forma Basis as of the last date of the Test Period most recently ended on or prior to the incurrence of such secured Debt, that is no greater than 2.00:1.00 and (y) in the case of unsecured Debt,
at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of proceeds thereof, the Borrower would be in compliance with a Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the last date of the Test Period
most recently ended on or prior to the incurrence of such unsecured Debt, that is no greater than 2.50:1.00; provided that (A) any secured Debt incurred pursuant to clause (x) hereof may only be secured by a first priority
security interest in the Fixed Asset Collateral and/or a second priority security interest in the Current Asset Collateral, (B) if such Debt will be secured by assets that do not also secure the Obligations prior to the incurrence of such Debt,
as a condition to the permissibility of the incurrence of such Debt under this clause (q), Collateral Agent shall be granted a Lien on such assets to secure the Obligations, (C) the holder of any such debt that is secured Debt (or an
agent or representative in respect thereof) shall have entered into the Intercreditor Agreement or another customary intercreditor agreement in form and substance reasonably satisfactory to the Collateral Agent and the Borrower (providing, among
other things, that the Liens on the Current Asset Collateral securing such Debt or other obligations shall rank junior to the Collateral Agents Liens on the Current Asset Collateral and any Liens on Fixed Asset Collateral to secure such Debt
may rank senior to the Collateral Agents Liens on the Fixed Assets Collateral), (D) no Default or Event of Default is then continuing or would result therefrom, (E) the borrower and guarantors with respect to such Debt shall only be
the Obligors (or if any other Person is a borrower or guarantor in respect of such Debt, such other Person shall become a Guarantor hereunder and under the other Loan Documents pursuant to Section 8.22), (F) the maturity of such
Debt shall be no earlier than 6 months following the latest Stated Termination Date in effect at the time such debt is entered into and (G) such Debt shall not provide for amortization payments (other than up to 5.0% per annum of the
principal amount thereof) and in the case of the Debt permitted under this clause (q), any Refinancing Debt in respect thereof; 178
(r) Debt of Borrower and the Guarantors under the Term Loan Documents in an
aggregate principal amount not to exceed the Fixed Asset Cap (as defined in the Initial Intercreditor Agreement) and any Refinancing Debt in respect thereof; provided that, solely in the case of such Refinancing Debt, (i) in no event
shall the aggregate principal amount of Debt at any time outstanding in reliance on this clause (r) exceed the Fixed Asset Cap (as defined in the Initial Intercreditor Agreement), (ii) the holder of any such debt that is secured
Debt (or an agent or representative in respect thereof) shall have entered into the Intercreditor Agreement or another customary intercreditor agreement in form and substance reasonably satisfactory to the Collateral Agent and the Borrower
(providing, among other things, that the Liens on the Current Asset Collateral securing such Debt or other obligations shall rank junior to the Collateral Agents Liens on the Current Asset Collateral and any Liens on Fixed Asset Collateral to
secure such Debt may rank senior to the Collateral Agents Liens on the Fixed Assets Collateral), (iii) such Debt may only be secured by a first priority security interest in the Fixed Asset Collateral and/or a second priority security
interest in the Current Asset Collateral, (iv) if such Debt will be secured by assets that do not also secure the Obligations prior to the incurrence of such Debt, as a condition to the permissibility of the incurrence of such Debt under this
clause (r), Collateral Agent shall be granted a Lien on such assets to secure the Obligations, (v) no Default or Event of Default is then continuing or would result therefrom, (vi) the borrower and guarantors with respect to such
Debt shall only be the Obligors (or if any other Person is a borrower or guarantor in respect of such Debt, such other Person shall become a Guarantor hereunder and under the other Loan Documents pursuant to Section 8.22), (vii) the
maturity of such Debt shall be no earlier than 6 months following the latest Stated Termination Date in effect at the time such debt is entered into and (viii) such Debt shall not provide for amortization payments (other than up to
5.0% per annum of the principal amount thereof); (s) Guaranties incurred in the ordinary course of business (and not
in respect of Debt for borrowed money) in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; (t) (i) unsecured Debt in respect of obligations of Holdings or any Restricted Subsidiary to pay the deferred purchase price
of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of
business and not in connection with the borrowing of money and (ii) unsecured Debt in respect of intercompany obligations of Holdings or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services
rendered in the ordinary course of business and not in connection with the borrowing of money; (u) the IO-TEQ Debt in an
aggregate principal amount at any time outstanding not to exceed $413,080; (v) solely to the extent that the Permitted
Sale Leaseback Transaction has occurred, Attributable Indebtedness incurred in connection with the Permitted Sale Leaseback Transaction in an aggregate amount not to exceed $50,000,000; 179
(w) solely to the extent that the Permitted Sale Leaseback Transaction has
not occurred, purchase money Debt incurred to finance (or refinance) the acquisition of the Specified FTS Real Estate in an aggregate principal amount not to exceed $50,000,000 (not including any reasonable and document out-of-pocket fees, or costs
and expenses incurred or assessed in connection with such Debt); (x) (x) [**]; (y) to the extent constituting Debt, the Existing Letters of Credit in an aggregate amount not to exceed the face amount of
such Existing Letters of Credit as set forth on Schedule 1.1(a) (which amount will be reduced by the amount drawn under such Existing Letter of Credit or reduced to zero upon its expiration or termination thereof) and so long as such Existing
Letters of Credit are backstopped by Letters of Credit issued pursuant to this Agreement to secure such outstanding Existing Letters of Credit; (z) Debt evidenced by the (i) Back Stop Note in an aggregate principal amount (excluding any paid in kind interest) not
to exceed the positive difference, if any, of (A) $27,070,000 minus (B) the aggregate amount of any principal prepayments thereof; (ii) the Closing Date Note in an aggregate principal amount (excluding any paid in kind interest) not to
exceed the positive difference, if any, of (A) $23,441,859.92 minus (B) the aggregate amount of any principal prepayments thereof and (iii) the Equify Bridge Financing Note in an aggregate principal amount (excluding any paid in kind
interest) not to exceed the positive difference, if any, of (A) $45,799,986.48 minus (B) the aggregate amount of any principal payments thereof;
(aa)
(i) Debt incurred pursuant to the Paccar Equipment Loan Documents, in an aggregate principal amount outstanding as of the Second Amendment Effective Date not to exceed an amount equal to $6,000,000 minus the aggregate amount of all payments
and prepayment in respect of the principal amount thereof after the Second Amendment Effective Date (excluding for the avoidance of doubt any fees, costs, expenses and indemnification obligations that may also be payable thereunder) and
(ii) any Refinancing Debt incurred to Refinance such Debt; and (bb)
180
For purposes of determining compliance with this Section 8.12, in the event that
an item of Debt meets the criteria of more than one of the types of Debt described in the above clauses, the Borrower, in its sole discretion, may classify and reclassify or later divide, classify or reclassify such item of Debt (or any portion
thereof) and will only be required to include the amount and type of such Debt in one or, if it satisfies the criteria for more than one clause above, can be allocated among one or more of the above clauses. The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Debt shall not be deemed to be
an incurrence of Debt for purposes of this Section 8.12. 8.13 Prepayments of Debt. (a) The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, voluntarily 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 principal outstanding in respect of (i) any Subordinated Debt, except to the extent set forth in clause
(b) below or (ii) any Junior Debt (any such payment in respect of Junior Debt, a Junior Debt Payment), except, in the case of this clause (ii), (A) regularly scheduled repayments, purchases or redemptions of
Junior Debt and regularly scheduled payments of interest, fees, expenses and premiums on any such Junior Debt, provided that such prepayment is expressly permitted under the terms of the Initial Intercreditor Agreement, or another customary
intercreditor agreement or arrangements reasonably satisfactory to the Agent, the Required Lenders and the Borrower, or other applicable subordination agreement reasonably satisfactory to the Agent, the Required Lenders and the Borrower;
(B) any prepayments, redemptions, purchases, defeasances or other satisfactions of any Junior Debt in connection with any Refinancing thereof with any Refinancing Debt expressly permitted hereunder, (C) any prepayments, redemptions,
purchases, defeasances or other satisfactions of any Junior Debt required as a result of any Permitted Disposition of any property securing such Junior Debt to the extent that such security is expressly permitted under this Agreement and such
prepayment is permitted under the terms of any intercreditor or subordination provisions with respect thereto that is, in each case, reasonably satisfactory to Agent and the Required Lenders, (D) the conversion of any Junior Debt to Stock
(other than Disqualified Stock) of Holdings, the Borrower or any Parent Entity, (E) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, prepayments, redemptions, purchases, defeasances and
other satisfactions of any Junior Debt in an aggregate amount not to exceed the Available Equity Amount at such time, (F) prepayments, redemptions, purchases, defeasances and other satisfactions (including, without limitation, any payments in
respect of make-whole premiums) of Junior Debt so long as the Specified Conditions have been satisfied at the time of (and after giving effect to) such prepayment, redemption, purchase, defeasances or other satisfaction and (G) prepayments,
redemptions, purchases, defeasances and other satisfactions of Junior Debt in an aggregate amount not to exceed $5,000,000. (b) The
Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, 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 principal outstanding in respect of (i) the Closing Date Note except for any prepayments so long as (A) both immediately prior to and after giving effect to such prepayment, Liquidity shall not be less than $30,000,000, and
(B) the Specified Conditions have been satisfied at the time of 181
(and after giving effect to) such prepayment, (ii) the Back Stop Note except for (A) any prepayments so long as the Specified Conditions have been satisfied at the time of (and after
giving effect to) such prepayment or (B) any payments solely utilizing the Net Equity Proceeds received by Holdings or any of its Restricted Subsidiaries from the consummation of the IPO Transaction so long as (x) no Event of Default
exists or would arise as a result of making such payment, (y) such payment is made no later than seven (7) days following Holdings or its Restricted Subsidiaries receipt of such Net Equity Proceeds, as applicable, and
(z) such Net Equity Proceeds are not otherwise required to be applied against the Loans pursuant to Section 4.3(a) or against the Debt under the Term Loan
Credit Agreement pursuant to the terms thereof and (iii) the
Equify Bridge Financing Note except for (A) any prepayments so long as the Specified Conditions have been satisfied at the time of (and after giving effect to) such prepayment or (B) any payments solely utilizing the Net Equity Proceeds
received by Holdings or any of its Restricted Subsidiaries from the consummation of the IPO Transaction so long as (x) no Event of Default exists or would arise as a result of making such payment, (y) such payment is made no later than
seven (7) days following Holdings or its Restricted Subsidiaries receipt of such Net Equity Proceeds, as applicable, and (z) such Net Equity Proceeds are not otherwise required to be applied against the Loans pursuant to
Section 4.3(a) or against the Debt under the Term Loan Credit Agreement pursuant to the terms thereof. (c) The Borrower shall not, and shall not permit any
of the Restricted Subsidiaries to, voluntarily prepay, redeem, purchase, defease or otherwise satisfy prior to the regularly scheduled payments required to be paid thereunder in any manner, any principal outstanding in respect of Debt under the
First Financial Loan Documents except for any prepayments so long as the Specified Conditions have been satisfied at the time of (and after giving effect to) such prepayment (it being understood that this clause (c) shall not prohibit or
otherwise restrict the Borrowers or any of its Restricted Subsidiarys ability to make regularly scheduled payments under the First Financial Loan Documents). (d) [**]. 8.14 Transactions with Affiliates. Except as set forth below, the Borrower shall not, and shall not permit any of the Restricted
Subsidiaries to, sell, transfer, distribute, or pay any money or property, including, but not limited to, any fees or expenses of any nature (including, but not limited to, any fees or expenses for management services), to any Affiliate, or lend or
advance money or property to any Affiliate, or invest in (by capital contribution or otherwise) or purchase or repurchase any Stock or Debt, or any property, of any Affiliate, or become liable on any Guaranty of the Debt, dividends, or other
obligations of any Affiliate, in each case, involving aggregate payments or consideration in excess of $1,000,000 for any single transaction or series of related transactions. Notwithstanding the foregoing, the following shall be permitted: 182
(a) transactions between or among (i) Holdings, the Borrower or any
Restricted Subsidiary or any entity that becomes a Restricted Subsidiary as a result of such transaction, in each case, that is otherwise not prohibited under this Agreement and (ii) Holdings and its Subsidiaries, on one hand, and Flotek and/or
BPC, on the other hand, in each case, that is otherwise not prohibited under this Agreement; (b) transactions on terms
substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arms-length transaction with a Person other than an Affiliate; (c) the transactions contemplated by the U.S. Well Services Debt; (d) Permitted Distributions, including the FTS Distribution and Contribution Transaction; (e) loans and other transactions by and among Holdings and/or one or more Subsidiaries to the extent permitted under this
Article VIII; (f) employment, compensation, severance or termination arrangements between any Parent Entity,
Holdings or any of the Restricted Subsidiaries and their respective officers, employees and consultants (including management and employee benefit plans or agreements, subscription agreements or similar agreements pertaining to the issuance or
repurchase of equity interests held by officers, employees and consultants pursuant to put/call rights or similar rights with current or former employees, officers, directors consultants and stock option or incentive plans (including equity-based
incentive plans) and other compensation arrangements) in the ordinary course of business and transactions pursuant to management equity plans, stock option plans and other employee benefit plans, agreements and arrangements; (g) the payment of (x) customary fees to directors, officers, managers, employees, consultants and other service
providers of Holdings and its Restricted Subsidiaries or any Parent Entity in the ordinary course of business to the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries and (y) reasonable out of pocket costs
to, and indemnities provided on behalf of, directors, officers, managers, employees, consultants, partners, members and other service providers of Holdings and its Restricted Subsidiaries or any Parent Entity in the ordinary course of business to
the extent attributable to the ownership or operation of Holdings and its Restricted Subsidiaries, including, without limitation, by reason of the fact that such Person is or was serving at the request of the Parent Entity, Holdings, or any
Restricted Subsidiary as a director, officer, manager, employee, consultant or other service provider of another person; (h) transactions pursuant to permitted agreements (and such permitted agreements) in existence on the Closing Date and set
forth on Schedule 8.14 or any amendment thereto to the extent such an amendment, taken as a whole, is not adverse to the Lenders in any material respect and is not otherwise prohibited under this Agreement; 183
(i) the consummation of the IPO Transactions in accordance with the terms of
this Agreement and the payment of fees and expenses in connection therewith in accordance with the terms of this Agreement; (j) transactions entered into by an Unrestricted Subsidiary with an Affiliate prior to the designation of any such
Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the definition of Unrestricted Subsidiary; (k)
the issuance or transfer of Stock (other than Disqualified Stock) of Holdings (or any Parent Entity) to any Permitted Holder or to any former, current or future director, manager, officer, partner, member, employee, consultant or other service
provider (or any Affiliate of any of the foregoing) of Holdings (or any Parent Entity), the Borrower, any of the Restricted Subsidiaries or any direct or indirect parent thereof; (l) any issuance of Stock, or other payments, awards or grants in cash, securities, Stock or otherwise pursuant to, or the
funding of, employment arrangements, compensation arrangements, stock options and stock ownership plans, and other employee benefit plans approved by the Board of Directors of any Parent Entity of Holdings (or any Parent Entity); (m) transactions with Wholly Owned Subsidiaries for the purchase or sale of goods, products, parts and services entered into
in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry and in a manner consistent with prudent business practice followed by companies in the industry of Holdings
and its Subsidiaries; (n) transactions with joint ventures for the purchase or sale of goods, equipment and services
entered into in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry and in a manner consistent with prudent business practice followed by companies in the industry
of Holdings and its Subsidiaries; (o) (o) (i) the transactions contemplated by the Signal Peak Acquisition, the U.S. Well Merger [**] and (ii) [**]; 184
(p) the transactions between Holdings (and/or its Subsidiaries and/or its
Parent Entity) and Wilks Brothers, LLC for activities and services provided by Wilks Brothers, LLC in connection with the consummation of the IPO Transactions, through and including the date of effectiveness of the IPO, including, without
limitation, legal, tax, technology and accounting support services provided in connection with the West Munger Acquisition, Alpine Acquisition, Best Pump Acquisition and preparation for the IPO; provided, that payments made from
Holdings or any of its Restricted Subsidiaries to Wilks Brothers, LLC for the foregoing interest, activities and services referenced in this clause (p) shall not exceed in the aggregate $7,000,000; provided, that (i) before
and immediately after giving effect to any such payment, no Event of Default shall have occurred and be continuing, (ii) Borrower would have Availability after giving effect to any such payment of not less than $15,000,000, and (iii) if the IPO
shall not occur prior to May 31, 2022, such payments shall be made by Holdings to Wilks Brothers, LLC in 4 equal quarterly installments commencing on June 7, 2022; (q) the transactions contemplated by the Shared Services Agreement; provided that any and all payments thereunder by
Holdings or any of its Restricted Subsidiaries shall be subject to the limitations set forth in Section 8.10(g)(ii); (r) the payments contemplated by the Tax Receivable Agreement to the extent permitted by the definition of Permitted Tax
Distributions; (s) any business arrangements pursuant to which Automatize LLC provides, on an arms length
basis, services to Holdings and/or its Restricted Subsidiaries including, without limitation, manage last miles logistics, software logistics and trucking logistics; (t) insurance policies or products provided to Holdings and its Restricted Subsidiaries by Affiliated Insurance Entities in
accordance with the terms of Section 8.5; (u) certain transactions with Affiliates described in that certain
letter agreement dated as of the Agreement Date not to exceed $4,000,000 per Fiscal Year (Transactions with Affiliates Letter Agreement); and (v) the transactions contemplated by (i) the Basin Units Acquisition, (ii) the Flotek Supply Agreement, as amended,
restated, modified and/or supplemented from time to time to the extent not materially adverse to the Lenders, (iii) the Back Stop Note, as amended, restated, modified and/or supplemented from time to time in accordance with
Section 8.28(b), (iv) the Closing Date Note, as amended, restated, modified and/or supplemented from time to time in accordance with Section 8.28(b), (v) the Equify Bridge Financing Note, as amended, restated,
modified and/or supplemented from time to time in accordance with Section 8.28(b), (vi) the Distribution permitted under Section 8.10(o) and the (v) the Equify Four Party Agreement with respect to the transactions
contemplated therein on the Closing Date. For purposes of this Section 8.14, any transaction with any Affiliate shall be
deemed to have satisfied the standard set forth in clause (b) if such transaction is approved by a majority of the Disinterested Directors of the board of directors of the Holdings or such Subsidiary, as applicable.
Disinterested Director shall mean, with respect to any Person and transaction, a member of the board of directors of such Person who does not have any material direct or indirect financial interest in or with respect to such
transaction. [**]. 185
8.15 Business Conducted. Holdings and its Restricted Subsidiaries (taken as a whole)
shall not engage at any time in any line of business other than the lines of business of the same general type currently conducted by it and any businesses incidental to, reasonably related or ancillary thereto, and the lines of business of the
general type described on Schedule 8.15 attached hereto and any businesses incidental to, reasonably related or ancillary thereto. 8.16 Liens. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to, create, incur, assume, or permit to
exist any Lien on any property now owned or hereafter acquired by any of them, except Permitted Liens. 8.17 Restrictive
Agreements. Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon
(i) the ability of Holdings, the Borrower or any Guarantor to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Secured Parties with respect to the Obligations or under the Loan Documents or
(ii) the ability of any Restricted Subsidiary of the Borrower that is not a Guarantor to pay dividends or other Distributions with respect to any of its Stock; provided that the foregoing shall not apply to: (a) restrictions and conditions imposed by (A) Law, (B) any Loan Document, (C) with respect to clause
(ii) above, any documentation related to any Permitted Debt, and (D) with respect to clause (ii) above, any documentation governing any Refinancing Debt incurred to Refinance any such Debt referenced in clause
(C) above; (b) customary restrictions and conditions existing on the Closing Date or to any extension, renewal,
amendment, modification or replacement thereof, except to the extent any such amendment, modification or replacement expands the scope of any such restriction or condition in a manner adverse to Lenders; (c) restrictions and conditions contained in agreements relating to the sale of a Subsidiary or any assets pending such
Disposition; provided that such restrictions and conditions apply only to the Subsidiary or assets that is or are to be Disposed and such Disposition is permitted hereunder; (d) customary restrictions in leases, subleases, licenses, sublicenses and other contracts so long as such restrictions relate
solely to the assets subject thereto; 186
(e) restrictions imposed by any agreement relating to secured Debt permitted
by this Agreement to the extent such restriction applies only to specific property securing such Debt and not all assets; (f) any restrictions or conditions set forth in any agreement in effect at any time any Person becomes a Restricted Subsidiary
(but not any modification or amendment expanding the scope of any such restriction or condition in a manner adverse to Lenders); provided that such agreement was not entered into in contemplation of such Person becoming a Restricted
Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or any other Restricted Subsidiary; (g) restrictions or conditions in any Permitted Debt that is incurred or assumed by a Subsidiary that is not a Guarantor to
the extent such restrictions or conditions are no more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Subordinated Debt, are market terms, taken as a whole, at the time of issuance or, in the case of any
such Debt of any Subsidiary that is not a Guarantor, are imposed solely on such non-Guarantor and its Subsidiaries; (h)
restrictions on cash, Cash Equivalents or other deposits imposed by agreements entered into in the ordinary course of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry (or other
restrictions on such cash, Cash Equivalents or deposits constituting Liens permitted hereunder); (i) customary provisions
in joint venture agreements and other similar agreements applicable to joint ventures constituting Permitted Investments and applicable solely to such joint venture and entered into (1) in the ordinary course of business or the ordinary course
of business for similarly situated businesses in the Borrowers industry or (2) to the extent that the Borrower
determines, in its good faith business judgment, that entering into such joint venture is beneficial to Holdings and its Subsidiaries, taken as a whole, and is otherwise permitted under this Agreement; (j) negative pledges and restrictions on Liens in favor of any holder of Debt permitted under clauses (b), (c),
(e), (f), (i), (l), (o), (q), (r), (s), (t), (u), (v), (w),
(x) and ( (k) customary provisions restricting assignment, transfer or sub-letting of any agreement entered into in the ordinary course
of business or in the ordinary course of business for similarly situated businesses in the Borrowers industry; (l)
customary net worth provisions contained in Real Estate leases entered into by the Holdings or any of its Restricted Subsidiaries, so long as the Holdings or Borrower has determined in good faith that such net worth provisions could not reasonably
be expected to impair the ability of Holdings and its Subsidiaries to meet their ongoing obligation; 187
(m) provisions restricting the granting of a security interest in
Intellectual Property contained in licenses or sublicenses by Holdings and its Restricted Subsidiaries of such Intellectual Property, which licenses and sublicenses were entered into in the ordinary course of business or to the extent that the
Borrower determines, in its good faith business judgment, that entering into such licenses and sublicenses is beneficial to Holdings and its Subsidiaries, taken as a whole (in which case such restriction shall relate only to such Intellectual
Property); (n) restrictions or conditions contained in any trading, netting, operating, construction, service, supply,
purchase, sale or other agreement to which Holdings, Borrower or any Restricted Subsidiary is a party entered into in the ordinary course of business; provided that such agreement prohibits the encumbrance of solely the property or assets of
Holdings, the Borrower or such Restricted Subsidiary that are the subject of such agreement, the payment rights arising thereunder or the proceeds thereof and does not extend to any other asset or property of Holdings, Borrower or such Restricted
Subsidiary or the assets or property of another Restricted Subsidiary; (o) restrictions or conditions imposed by any
arrangement relating to the U.S. Well Services Debt solely with respect to U.S. Well Services Holdings,
(p)
other restrictions described on Schedule 8.17; (q) restrictions or conditions imposed by any agreement relating to
the EKU Debt, solely with respect to EKU Power Drives GmbH and EKU Power Drives Inc. and their assets; (r) restrictions
set forth in the Flotek Notes, the Flotek Note Purchase Agreement and the Flotek Securities Purchase Agreement; (s)
restrictions set forth in Organizational Documents with respect to Persons who are not wholly owned by Obligors and/or any of their Subsidiaries; (t) [**]; and (u) 8.18 Sale Leaseback Transactions. The Borrower shall not, and shall not permit any of the Restricted Subsidiaries to,
directly or indirectly, enter into any Sale Leaseback Transaction (i) unless (A) such transfers are transfers of real property, equipment or other fixed or capital assets, (B) such transfer occurs within ninety (90) days after the
acquisition of such property by the Borrower or any such Restricted Subsidiary, (C) the Specified Conditions have been satisfied before and after giving effect thereto, and (D) such transfer would be permitted under clause
(t) of the definition of Permitted Disposition or (ii) other than the Permitted Sale Leaseback Transaction which shall be subject to the conditions set forth in the definition thereof. 188
8.19 Fiscal Year Accounting. Holdings shall not, and shall cause its Restricted
Subsidiaries not to, (i) change their Fiscal Year end date from December 31 or method for determining Fiscal Quarters of any Obligor or of any Subsidiary of any Obligor or (ii) make any significant change in accounting treatment or
reporting practices, except as required by GAAP; provided, however, that Holdings may, and may cause any of its Restricted Subsidiaries to, upon written notice to, and consent by, the Agent, change the Fiscal Year end date convention
specified above to any other Fiscal Year end date reporting convention reasonably acceptable to the Agent, in which case the Borrower and the Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are
necessary in order to reflect such change. 8.20 Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed Charge
Coverage Ratio for any Test Period to be less than 1.0 to 1.0; provided that such Fixed Charge Coverage Ratio will only be tested on the date any Covenant Trigger Period commences (as of the last day of the Test Period ending on or
immediately prior to the date on which such Covenant Trigger Period shall have commenced) and shall continue to be tested as of the last day of each Test Period thereafter until such Covenant Trigger Period is no longer continuing. 8.21 Minimum Liquidity. The Borrower will not permit the Liquidity to be less than $ 8.22 Additional Obligors; Covenant to Give
Security. At the Borrowers expense, Holdings and the Borrower shall, and shall cause each of its Restricted Subsidiaries to, take all action necessary or reasonably requested by the Collateral Agent to ensure that the Collateral and
Guarantee Requirement (subject to the limitations set forth therein and in the Security Documents) continues to be satisfied, including: (i) upon the formation or acquisition of any new direct or indirect Domestic Subsidiary (in each case, other than an Excluded
Subsidiary) by any Obligor, the designation in accordance with Section 8.26 of any existing direct or indirect Subsidiary as a Restricted Subsidiary (in each case, other than an Excluded Subsidiary), or any Restricted Subsidiary ceasing
to be an Excluded Subsidiary, within thirty (30) days after such formation, acquisition, designation or occurrence or such longer period as the Collateral Agent may agree in its reasonable discretion: (A) [reserved]; (B) causing each such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement to duly execute and deliver to the Agent and the Collateral Agent (x) a Guaranty Agreement Supplement referred to in the Guarantee Agreement guaranteeing the Obligations under the Loan Documents and (y) a
Security Agreement Supplement referred to in the Security Agreement and any required Intellectual Property security agreements and other security 189
agreements and documents or joinders or supplements thereto (consistent with the Security
Agreement and other Security Documents in effect on the Closing Date), as reasonably requested by and in form and substance reasonably satisfactory to the Collateral Agent, in each case of this clause (y), granting the Collateral Agents
Liens solely to the extent required pursuant to the Collateral and Guarantee Requirement; (C) delivering, and causing
each such Restricted Subsidiary that is, or is required to become, a Guarantor pursuant to the Collateral and Guarantee Requirement to deliver instruments evidencing the intercompany Debt held by such Restricted Subsidiary and required to be pledged
pursuant to the Collateral and Guarantee Requirement (including the execution of the Subordinated Intercompany Note), indorsed in blank to the Collateral Agent (or such other Person specified pursuant to the Intercreditor Agreement, if applicable);
(D) taking and causing such Restricted Subsidiary and each direct or indirect parent of such Restricted Subsidiary that
is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement to take whatever action, to the extent required pursuant to the Collateral and Guarantee Requirement (including, if applicable, the recording of any Intellectual
Property security agreements, the filing of financing statements) as may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and
perfected Liens required by the Collateral and Guarantee Requirement, enforceable against all third parties in accordance with their terms; and (E) causing each such Restricted Subsidiary that is required to become a Guarantor pursuant to the Collateral and Guarantee
Requirement to duly execute and deliver to the Agent opinions, certificates and other documents, as reasonably requested by and in form and substance reasonably satisfactory to the Agent (it being understood and agreed that any opinions,
certificates and other documents that are consistent with those delivered by the Obligors on the Closing Date shall be deemed to be in form and substance reasonably satisfactory to the Agent); (ii) [reserved]; and (iii) immediately prior to or simultaneously with the incurrence of Debt pursuant to Section 8.12(q)(x) or
(r), or any amendments to the documents related thereto. entering into to Security Documents or amendments or supplements to existing Security Documents to (x) if any other Person is a borrower or guarantor in respect of such Debt, to
enter into or join such Persons to the applicable Security Documents and to cause such other Person to become a Guarantor hereunder and under the other Loan Documents pursuant to Section 8.22, (y) grant Collateral Agent a Lien (to
secure the Obligations) on the Fixed Asset Collateral that will also be collateral for the Debt incurred under Section 8.12(q)(x) or (r), as applicable, and (z) to provide Collateral Agent with corollary rights (including
representations, covenants and remedies) relative to such Fixed Asset Collateral as are provided for the benefit of the Debt incurred pursuant to Section 8.12(q)(x) or (r), as applicable. 190
8.23 Cash Management; Cash Dominion. (a) Each Obligor shall enter into, as soon as possible after the Closing Date, an effective account control agreement with
each account bank, securities intermediary, or commodities intermediary, as applicable, in each case in form and substance reasonably satisfactory to the Agent (a Control Agreement), with respect to (i) each Deposit Account
in which funds of any of the Obligors from any Cash Receipts of the Obligors are deposited (including those existing as of the Closing Date and listed on Schedule 8.23), (ii) the Designated Account into which the proceeds of the Loans
are deposited, and (iii) all other Deposit Accounts, Securities Accounts, and commodities accounts of any Obligors (but in any event, excluding all Excluded Accounts) (including those existing as of the Closing Date and listed on Schedule
8.23); provided, further, that, (A) if on or prior to ninety (90) days after the Closing Date (or such longer period following such date as the Agent may agree in its sole discretion), any Obligor shall not have entered
into a Control Agreement with respect to any such Deposit Account, Securities Account, commodity account, or the Designated Account, such Deposit Account, Securities Account, commodity account, or the Designated Account shall be closed and all funds
therein transferred to a Deposit Account at the Agent or the Collateral Agent, an Affiliate of the Agent or the Collateral Agent, or another financial institution that has executed a Control Agreement prior to the expiration of such 90-day period
and (B) the Obligors shall enter into a Control Agreement with respect to any such Deposit Account, Securities Account, commodity account, or Designated Account which is established or acquired after the Closing Date, substantially concurrently
with such establishment (or within such longer period as the Collateral Agent may agree in its discretion) but in any event prior to a deposit of any funds in the account. Notwithstanding anything in this section to the contrary, the provisions of
this Section 8.23(a) shall not apply to any (x) Deposit Account, Securities Account, or commodities account acquired by an Obligor in connection with a Permitted Acquisition (or other acquisition constituting a Permitted Investment)
prior to the date that is ninety (90) days (or such later date as the Agent may agree) following the consummation of such Permitted Acquisition (or other acquisition constituting a Permitted Investment) or (y) any Excluded Account. (b) Each Obligor shall deposit, or cause to be deposited and instruct all Account Debtors to deposit, in an Approved Deposit
Account promptly upon receipt all Cash Receipts received by any Obligor from any other Person. (c) Each Control Agreement
shall require (without further consent of the Obligors), and the Obligors shall cause, after the occurrence and during the continuance of a Cash Dominion Period and subject to the Intercreditor Agreement, the ACH or wire transfer no less frequently
than daily (and whether or not there are then any outstanding Obligations) to the concentration account in the United States maintained by and in the name of the Borrower at a bank reasonably acceptable to the Agent and the Collateral Agent, which
concentration account is under the sole dominion and control of the Collateral Agent (the Concentration Account), of all cash receipts and collections set forth below (collectively, the Cash Receipts): 191
(i) all available cash proceeds otherwise received from the Disposition of
Inventory of the Borrower and the Guarantors; (ii) all proceeds of Accounts and Inventory and other Current Asset
Collateral; and (iii) the contents of each Approved Deposit Account, Securities Account, or commodities account (other
than any Fixed Asset Priority Proceeds Accounts) (in each case, net of any minimum balance as may be required to be kept therein by the institution at which such Deposit Account, Securities Account or commodities account is maintained). (d) During the continuance of a Cash Dominion Period, the Concentration Account and all other Approved Deposit Accounts,
Securities Accounts and commodity accounts (other than any Fixed Asset Priority Proceeds Accounts) shall at all times be under the sole dominion and control of the Collateral Agent. The Obligors hereby acknowledge and agree that, during the
continuance of a Cash Dominion Period, (i) the Obligors have no right of withdrawal from the Concentration Account or any other Approved Deposit Account, Securities Account or commodities account (other than any Fixed Asset Priority Proceeds
Accounts), (ii) the funds on deposit in the Concentration Account and any other Approved Deposit Account, Securities Account and/or commodities account (other than any Excluded Account) shall at all times be collateral security for all of the
Obligations and (iii) the funds on deposit in the Concentration Account, any other Approved Deposit Account, Securities Account, or commodities account (other than any Fixed Asset Priority Proceeds Accounts) shall be applied as provided in this
Agreement, including pursuant to Section 4.3. In the event that, notwithstanding the provisions of this Section 8.23, during the continuation of any Cash Dominion Period, any Obligor receives or otherwise has dominion and
control of any Cash Receipts, such Cash Receipts shall be held in trust by such Obligor for the Collateral Agent, shall not be commingled with any of such Obligors other funds or deposited in any account of such Obligor and shall, not later
than two Business Days after receipt thereof by a Responsible Officer of Borrower or other Obligor (or not later than two Business Days after a Responsible Officer has actual knowledge that such Cash Receipts were received by Borrower or other
Obligor), be deposited into the Concentration Account or dealt with in such other fashion as such Obligor may be instructed by the Collateral Agent. (e) So long as no Cash Dominion Period is continuing, the Obligors may direct, and shall have sole control over, the manner of
disposition of funds in the Approved Deposit Account, the Securities Account any the commodities accounts. The Agent and the other Secured Parties hereby acknowledge and agree that so long as no Cash Dominion Period is continuing the Obligors shall
have the right to withdraw or direct the Agent to transfer to Obligors all funds remaining on deposit in any Concentration Account and the Collateral Agent shall no longer be permitted to direct any account bank under any Control Agreement to ACH or
wire transfer any Cash Receipts into any Concentration Account. 192
(f) Any amounts received in the Concentration Account at any time after the
Full Payment of the Obligations shall be remitted to the operating account of the Obligors maintained with the Agent or Collateral Agent or to an operating account otherwise designated by the Borrower. (g) Upon the Borrowers request, the Collateral Agent shall promptly furnish written notice to each Approved Account Bank
of any termination of a Cash Dominion Period and termination of dominion over the Concentration Account. (h) Each Obligor
shall ensure that all proceeds of Current Asset Collateral are deposited in Deposit Accounts or Securities Accounts that (1) do not contain any Fixed Asset Collateral, (2) are not Fixed Asset Priority Proceeds Accounts, and (3) are
separate and distinct from those into which the proceeds of Fixed Asset Collateral are or are expected to be deposited. Each Obligor shall ensure that all proceeds of Fixed Asset Collateral that constitute Fixed Asset Collateral are deposited in
Deposit Accounts or Securities Accounts that (1) do not contain any Current Asset Collateral, and (2) are separate and distinct from those into which the proceeds of Current Asset Collateral are or are expected to be deposited. No Grantor
shall commingle the proceeds of Current Asset Collateral with the proceeds of Fixed Asset Collateral that constitute Fixed Asset Collateral. 8.24 Use of Proceeds. The Borrower shall use the proceeds of the Loans in the manner set forth in Section 7.17 and not in
violation of Sections 7.22(b), 7.23 or 7.24(b). 8.25 Further Assurances. Subject to any limitations and
exceptions set forth in the Security Documents and in the definition of Collateral and Guarantee Requirement, Holdings and the Borrower shall, and shall cause each of the other Obligors to, promptly execute and deliver, or cause to be
promptly executed and delivered, to the Collateral Agent, such documents and agreements, and shall promptly take or cause to be taken such actions, as the Collateral Agent may, from time to time, reasonably request to grant, preserve, protect or
perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien. 8.26
Designation of Subsidiaries. The Board of Directors of Holdings or the Borrower may at any time designate any Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by
notice to the Agent; provided that, in each case, (i) other than with respect to any designation of Flotek or BPC as Unrestricted Subsidiaries after the Closing Date and only so long as Flotek or BPC are not Wholly Owned by Holdings, no
Default or Event of Default is then continuing or would result therefrom, (ii) other than with respect to any designation of Flotek or BPC as Unrestricted Subsidiaries after the Closing Date and only so long as Flotek or BPC are not Wholly
Owned by Holders, after giving effect to such designation the Aggregate Revolver Outstandings would not exceed the lesser of the Maximum Revolver Amount and the then-current Borrowing Base, (iii) no Restricted Subsidiary may be designated as an
Unrestricted Subsidiary if it was previously designated as an Unrestricted Subsidiary and then re-designated as a Restricted Subsidiary, (iv) no Restricted Subsidiary may be 193
designated as an Unrestricted Subsidiary if after such designation it would be a restricted
subsidiary for the purpose of the Term Loan Credit Agreement or any other Material Indebtedness, (v) other than with respect to any designation of Flotek or BPC as Unrestricted Subsidiaries after the Closing Date and only so long as
Flotek or BPC are not Wholly Owned by Holdings, the Borrower and the Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with a Fixed Charge Coverage Ratio, as such ratio is calculated as of the last day of the Test Period most
recently ended on or prior to the date of such designation, as if such designation and any related transactions had occurred on the first day of such Test Period, of not less than 1.00:1.00, and (vi) if such designation would result in Current
Asset Collateral owned by a Borrower or Guarantor immediately prior to such designation being owned by an Unrestricted Subsidiary immediately after such designation with a value individually or in the aggregate of greater than 5.0% of the Borrowing
Base based on the most recently delivered Borrowing Base Certificate prior to such event, then Borrower shall be required, prior to such designation, deliver to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable
assets from the Borrowing Base. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Borrower therein at the date of designation in an amount equal to the Fair Market
Value of the Borrowers investment therein and the Investment resulting from such designation must otherwise be in compliance with Section 8.11 (as determined at the time of such designation) (for the avoidance of doubt, the
designation of Flotek and/or BPC as an Unrestricted Subsidiary shall not constitute an additional Investment thereof by any of the Obligors unless such designation occurs after Flotek and/or BPC (as applicable) become Wholly Owned Subsidiaries). The
designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Debt or Liens of such Subsidiary existing at such time and the Debt or Liens of such Subsidiary must otherwise be
in compliance with Section 8.12 and 8.16 (as determined at the time of such designation). Notwithstanding anything to the contrary contained herein, (x) no Unrestricted Subsidiary may at any time hold (directly or indirectly)
Stock in, or Debt owed by or Liens (securing Debt for Borrowed Money) in, any Restricted Subsidiary and (y) in no event shall any Restricted Subsidiary that owns (or has an exclusive license to) any Intellectual Property that is material to the
operations or the business of Holdings and its Restricted Subsidiaries be permitted to be designated as an Unrestricted Subsidiary, nor shall any Unrestricted Subsidiary be permitted to own (or have an exclusive license to), develop, or receive from
Holdings or any of its Restricted Subsidiaries, any Intellectual Property that is material to the operations or the business of Holdings and its Restricted Subsidiaries. 8.27 Passive Holding Company; Etc. (a) Holdings will not conduct, transact or otherwise engage in any business or operations after the date hereof other than
(i) the ownership and/or acquisition of the Stock (other than Disqualified Stock) of the Borrower and the indirect ownership and/or acquisition of the Stock (other than Disqualified Stock) of the Subsidiaries of the Borrower, (ii) the
maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance and to open and maintain bank accounts, (iii) to the extent applicable, participating in tax, accounting and other
administrative matters as a member of the consolidated group that includes Holdings or the Borrower and their respective Subsidiaries, (iv) the performance of its obligations under and in connection with the Loan Documents and any documents
relating to other Permitted Debt, (v) any 194
public offering of its common Stock or any other issuance or registration of its Stock for
sale, resale or otherwise to the extent not prohibited by this Agreement, including the costs, fees and expenses related thereto, (vi) any transaction that Holdings is permitted to enter into or consummate under this Agreement and any
transaction between Holdings and the Borrower or any of its Restricted Subsidiaries permitted under this Agreement, including (A) making any dividend or distribution or other transaction similar to a Distribution not prohibited by
Section 8.10 (or the making of a loan to its Parent Entities in lieu of any such permitted Distribution or other transaction similar to a permitted Distribution) or holding any cash received in connection with Distributions made by the
Borrower in accordance with Section 8.10 pending application thereof by Holdings in the manner contemplated by Section 8.10 (including the redemption in whole or in part of any of its Stock (other than Disqualified Stock) in
exchange for another class of Stock (other than Disqualified Stock) or rights to acquire its Stock (other than Disqualified Stock) or with proceeds from substantially concurrent equity contributions or issuances of new shares of its Stock (other
than Disqualified Stock)), (B) making any Investment to the extent (1) payment therefor is made solely with the Stock of Holdings (other than Disqualified Stock) or a Parent Entity, the proceeds of Distributions received from the Borrower
and/or proceeds of the issuance of, or contribution in respect of, the Stock (other than Disqualified Stock) of Holdings or a Parent Entity, in each case, in accordance with the terms of this Agreement and (2) any property (including Stock)
acquired in connection therewith is contributed by Holdings to the Borrower or a Guarantor (or, if otherwise constituting Permitted Investments, a Restricted Subsidiary) or the Person formed or acquired in connection therewith is merged or
consolidated with the Borrower or a Restricted Subsidiary and (C) the (w) provision of Guaranties in the ordinary course of business in respect of obligations of the Borrower or any of its Restricted Subsidiaries to suppliers, customers,
franchisees, lessors, licensees, sublicensees or distribution partners; provided, for the avoidance of doubt, that such Guaranty shall not be in respect of Debt for Borrowed Money, (x) incurrence of Debt of Holdings contemplated by
Section 8.12 (and satisfaction of Holdings obligations under the loan agreements, loan documents, bond documents, security documents and other financing agreements evidencing such Debt), (y) incurrence of Guaranties and the
performance of its other obligations in respect of Debt incurred pursuant to Section 8.12 and (z) granting of Liens to the extent permitted under Section 8.16 or Liens imposed by operation of law, (vii) incurring
fees, costs and expenses relating to overhead and general operating expenses including professional fees for legal, tax and accounting issues and payment of taxes, (viii) providing indemnification to officers and directors and as otherwise
permitted in this Agreement, (ix) activities incidental to the consummation of the Transactions, (x) organizational activities incidental to Permitted Acquisitions or other acquisitions constituting Permitted Investments consummated by
Holdings, the Borrower or its Restricted Subsidiaries, including the formation of acquisition vehicle entities and intercompany loans and/or investments incidental to such Permitted Acquisitions or other acquisitions constituting Permitted
Investments in each case consummated substantially contemporaneously with the consummation of the applicable Permitted Acquisitions or other acquisitions constituting Permitted Investments, in each case, in accordance with the other terms and
provisions of this Agreement, (xi) the making of any loan to any officers or directors not prohibited by Section 8.11, the making of any Investment in the Borrower or any Guarantor or, to the extent otherwise allowed under
Section 8.11, a Restricted Subsidiary, (xii) the entry into customary shareholder agreements, (xiii) as specified on Schedule 8.27, and (xiv) activities incidental to the businesses or activities described in
clauses (i) to (xiii) of this Section 8.27. 195
(b) After the date hereof, Holdings will not consummate any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose all or substantially all of its assets and properties, except that Holdings may merge, amalgamate or consolidate with or
into any other Person (other than the Borrower) or otherwise Dispose of all or substantially all of its assets and property; provided that (i) Holdings shall be the continuing or surviving Person of such merger, amalgamation or
consolidation or, in the case of a merger, amalgamation or consolidation where Holdings is not the continuing or surviving Person or where Holdings has been liquidated or in connection with a Disposition of all or substantially all of its assets, in
any such case, the Person formed by or surviving any such merger, amalgamation or consolidation or the Person into which Holdings has been liquidated or to which Holdings has transferred such assets shall be an entity organized or existing under the
laws of the United States, any state thereof, the District of Columbia or any territory thereof (Holdings or such Person, as the case may be, being herein referred to as the Successor Holdings), (ii) the Successor Holdings
(if other than Holdings) shall (y) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent (including a
Guaranty Supplement referred to in the Guarantee Agreement and a Security Agreement Supplement referred to in the Security Agreement, in order for the surviving or continuing Person or such transferee to become a Guarantor)
and (z) as a condition to becoming Successor Holdings shall take all action necessary or reasonably requested by the Collateral Agent to ensure that the Collateral and Guarantee Requirement (subject to the limitations set forth therein and in
the Security Documents) is satisfied with respect to Successor Holdings assets and properties and shall otherwise comply with Section 8.22 (as though Successor Holdings were a Restricted Subsidiary), (iii) each Guarantor,
shall have by a supplement to the Guarantee Agreement confirmed that its Guaranty shall apply to the Successor Holdings obligations under this Agreement, (iv) each Guarantor, shall have by a supplement to the Security Agreement confirmed that
its obligations thereunder shall apply to the Successor Holdings obligations under this Agreement, (v) Holdings shall have delivered to the Agent an officers certificate stating that such merger, amalgamation, consolidation,
liquidation or Disposition and any supplements to the Loan Documents preserve the enforceability of the Guarantee Agreement and the perfection of the Collateral Agents Liens, (vi) the Successor Holdings shall, immediately following such
merger, amalgamation, consolidation, liquidation or Disposition, directly or indirectly, own all Subsidiaries owned by Holdings immediately prior to such merger, amalgamation, consolidation, liquidation or Disposition, (vii) if reasonably
requested by the Agent, an opinion of counsel shall be required to be provided to the effect that such merger, amalgamation, consolidation, liquidation, or Disposition does not breach or result in a default under this Agreement or any other Loan
Document, (viii) no Event of Default has occurred and is continuing or would result from the consummation of such event, (ix) Borrower would have Availability of greater than zero after giving effect thereto, and (x) the Borrower shall
have delivered to the Agent a certificate of a Responsible Officer stating that such merger, amalgamation, consolidation 196
or Disposition or other event and any supplements to any Loan Document (or new Loan
Documents delivered concurrently therewith) create and preserve, as applicable, the enforceability of the Guarantee Agreement in regards to Successor Holdings and the perfection and priority of the Collateral Agents Lien in Successor
Holdings assets and property subject to the limitations of and exceptions set forth in the Collateral and Guarantee Requirement, the other provisions set forth herein and the Security Documents; provided, further, that if the foregoing are
satisfied, the Successor Holdings (if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement. 8.28
Amendments to Certain Documents. (a) Holdings and the Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to amend, modify or change in any manner that is materially adverse to the interests of the Lenders any term or condition of (i) the Shared Services Agreement, the Tax Receivable Agreement, the FTS Acquisition Agreement
and the other FTS Acquisition Documents, the West Munger Acquisition Agreement and the other West Munger Acquisition Documents or any documentation governing Junior Debt or (ii) any Charter Document of Holdings, the Borrower or any Subsidiary
that is a Guarantor (it being understood and agreed that, in the case of each of clauses (i) and (ii), any amendments, modifications or changes thereto after the date hereof that (A) increase to the amount, rate or frequency
of any payment, reimbursement, repurchase, dividend or distribution payable thereunder, (B) change to any right of redemption, retirement or put option set forth therein, and (C) [reserved] (including, for the avoidance of doubt, in the
case of each of clauses (A) and (B), any Distribution resulting therefrom), shall, in each case, be deemed to be materially adverse to the interests of the Lenders); provided that, in the case of any Charter Document of Holdings, such
amendment, modification or change shall be permitted to the extent that Holdings and its Restricted Subsidiaries shall not be required to take any action, or otherwise be required to make any payment, reimbursement, repurchase, dividend or
distribution or exercise any redemption, retirement or put option, based on such amendment, modification or change that would not be prohibited under this Agreement (including, for the avoidance of doubt, any amendment to the Charter Document for
Holdings contemplated by the IPO Transactions) (notwithstanding any other provisions set forth herein, it being understood and agreed that any amendments, modifications, restatements or supplements to the Holdings LLC Agreement occurring after the
date hereof in accordance with the provisions set forth in the definition of Holdings LLC Agreement set forth herein shall not be prohibited by this Agreement). (b) Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to amend, modify or change
any term or condition of the Closing Date Note, the Back Stop Note or the Equify Bridge Financing Note, in each case, which would (i) have the effect of increasing the amount of principal (other than with respect to any paid in kind interest)
outstanding thereunder, (ii) require the payment of any interest on anything other than an in kind basis, (iii) provide for any amortization of principal or any scheduled or other mandatory prepayments on any date prior to the
Stated Termination Date (as in effect on the Closing Date) other than any prepayments thereunder that are permitted to be made pursuant to Section 8.13(b), (iv) include any financial maintenance covenants, (v) include any
covenants or events of default, in each case, that are more 197
restricted or onerous with respect to Holdings and its Restricted Subsidiaries than the
covenants and events of default in this Agreement (as determined in good faith by senior management of Holdings), (vi) include any restrictions on the ability of Holdings or any of its Subsidiaries to guarantee the Obligations or to pledge
assets as collateral security for the Obligations or (vii) include any prohibition on the prior prepayment of the Obligations. (c) Holdings and the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to amend, restate,
supplement, modify or change in any manner, or enter into any waivers or consents, in each case after the (d) [**]. 198
8.29 Certain Post-Closing Obligations. As promptly as practicable, and in any event
within the time periods after the Closing Date specified in Schedule 8.29 or such later date as the Agent reasonably agrees to in writing, including to reasonably accommodate circumstances unforeseen on the Closing Date, the Borrower and each
other Obligor shall deliver the documents or take the actions specified in Schedule 8.29, in each case except to the extent otherwise agreed by the Agent pursuant to its authority as set forth in the definition of the term Collateral
and Guarantee Requirement. ARTICLE IX CONDITIONS OF LENDING 9.1 Conditions Precedent to Effectiveness of Agreement and Making of Loans on the Closing Date. The effectiveness of this
Agreement, the obligation of the Lenders to make any Loans on the Closing Date, and the obligation of the Letter of Credit Issuers to issue any Letter of Credit on the Closing Date, are subject to the satisfaction (or waiver in writing by the Agent
and the Arrangers) of the following conditions precedent: (a) The Agents receipt of the following, each of which
shall be originals, facsimiles or electronic copies (followed promptly by originals if requested by Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor: (i) executed counterparts of this Agreement, the Guarantee Agreement, the Security Agreement, the Initial Intercreditor
Agreement, and Notes (to the extent requested by any Lender); (ii) each Security Document set forth on Schedule
1.5 (including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement) required to be executed on the Closing Date as indicated on such schedule, duly executed by Holdings (to the extent a party
thereto) and/or each Obligor thereto, together with (except as provided in such Security Documents): 199
(A) executed Intellectual Property Security Agreement(s) in substantially
the form of Exhibit B to the Security Agreement; (B) evidence that all financing statements under the Uniform Commercial
Code have been filed or are otherwise in a form appropriate for filing; and (C) executed Perfection Certificates; and
(D) lien searches reasonably satisfactory to the Agent; (iii) certificates substantially in the form of Exhibit H for Holdings and each Obligor which attach
(A) resolutions or other equivalent action documentation, (B) incumbency certificates, (C) Organization Documents and (D) good standing certificates; (iv) an opinion from Brown Rudnick LLP and an opinion from The Whitten Law Firm, PC, counsel to the Obligors, addressed to the
Agent and the Lenders as of the Closing Date; (v) a certificate, in the form of Exhibit G, attesting to the
Solvency of Holdings and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transactions consummated on the Closing Date, from the Chief Financial Officer of Holdings; (vi) a Notice of Borrowing relating to the initial Borrowing (if any); and (vii) a copy of, or a certificate as to coverage under, the insurance policies required by Section 8.5 and the
applicable provisions of the Security Documents. (b) All fees and expenses required to be paid hereunder or pursuant to
the Fee Letter described in clause (a) of the definition thereof, in the case of expenses, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed by the Borrower) shall,
substantially concurrently with the initial Borrowing, have been paid (which amounts may, at the Borrowers option, be offset against the proceeds of the Loans borrowed on the Closing Date). (c) The Agent and Arrangers shall have received a true, correct and complete copy of the Term Loan Credit Agreement and each
other material Term Loan Document, in each case, including all exhibits and schedules related thereto (including, for the avoidance of doubt, a true, correct and complete copy of that certain Security Agreement, dated as of the date hereof, among
Holdings, Borrower, certain of their respective Subsidiaries, as Grantors and Term Loan Agent). (d) The Agent and
Arrangers shall have received the Historical Financial Statements. 200
(e) (1) The Agent shall have received an executed payoff letter with respect
to existing Debt of Holdings, the Borrower, the Restricted Subsidiaries and FTS and each of its Subsidiaries set forth on Schedule 9.1, along with all associated UCC termination statements or other termination statements with respect to any
related filings, in each case in form and substance satisfactory to the Agent, and, (2) simultaneously or substantially concurrently with the funding of the initial Borrowing under this Agreement (i) all principal, accrued and unpaid
interest, fees, premium, if any, and other amounts outstanding as set forth on Schedule 9.1 (in each case, other than contingent indemnification obligations not then due and payable and that by their terms expressly survive the termination of
the existing Debt of Holdings, the Borrower and the Restricted Subsidiaries set forth on Schedule 9.1) shall be paid or repaid in full, (ii) all commitments to extend credit thereunder will be terminated, (iii) any security interest
and guarantees in connection therewith shall be terminated and released and (iv) all of the loan documents (or such similar term as used therein) with respect to the existing Debt of Holdings, the Borrower and the Restricted
Subsidiaries set forth on Schedule 9.1, in each case, shall be terminated and of no further force or effect (other than customary provisions therein that survive pursuant to the terms thereof). (f) (i) After giving effect to the initial Borrowings on the date hereof, the issuance of any Letters of Credit issued on the
date hereof and the consummation of the FTS Acquisition and the FTS Distribution and Contribution Transaction, (A) Liquidity on the Closing Date shall not be less than $50,000,000 and (B) Availability on the Closing Date shall not be less
than $20,000,000 and (ii) the Agent shall have received a certificate of a Responsible Officer of the Borrower certifying as to the foregoing clause (i). (g) The Agent and the Arrangers shall have received at least three (3) Business Days prior to the Closing Date all
documentation and other information (including a fully executed IRS Form W-9 or other applicable tax form) about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) Business Days prior to the Closing
Date by the Agent and the Arrangers that they reasonably determine is required by United States regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation the
USA PATRIOT Act. (h) Since December 31, 2020, there has not been any fact, change, event, circumstance, effect,
development or occurrence which, individually or in the aggregate with any other facts, changes, events, circumstances, effects, developments or occurrences, has had, or would reasonably be expected to have, a Material Adverse Effect. (i) The Borrower shall have delivered to the Agent a Borrowing Base Certificate for the month ending January 31, 2022.
(j) Substantially concurrently with the effectiveness of this Agreement, each of the conditions set forth in
Section 9.1 of the Term Loan Credit Agreement shall have been satisfied or waived and 100% of the fundings under the Term Loan Credit Agreement shall have occurred. 201
(k) No Default or Event of Default shall have occurred and be continuing
before or immediately after giving effect to this Agreement and the initial Borrowings hereunder. (l) No Default or Event
of Default (in each case, as defined under the Term Loan Credit Agreement) shall have occurred and be continuing before or immediately after giving effect to this Agreement and the borrowing of the Term Loan thereunder. (m) The Term Loan Agent shall have received the original stock certificates representing the pledged Stock constituting
Collateral (to the extent such Stock is certificated and required to be delivered on the Closing Date under the Term Loan Credit Agreement) of the Borrower and its Restricted Subsidiaries, together with customary blank stock or unit transfer powers
and irrevocable powers duly executed in blank. (n) The Agent shall have received true, complete and correct copies of the
Back Stop Note, the Closing Date Note and the Equify Bridge Financing Note, in each case, in form and substance reasonably acceptable to the Agent, and the applicable Obligors (or their designees) shall have received the full cash proceeds of the
Back Stop Note, the Closing Date Note and the Equify Bridge Financing Note (to the extent that loans are made thereunder on the date hereof). (o) The Agent shall have received a true, complete and correct copy of the Subordinated Intercompany Note, which Subordinated
Intercompany Note will be in form and substance reasonably acceptable to the Agent. (p) The Agent and the Arrangers shall
have received at least three (3) Business Days prior to the Closing Date a Beneficial Ownership Certification from any Borrower that qualifies as a legal entity customer under the Beneficial Ownership Regulation. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Letter of Credit Issuer to issue Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 12.1) at or prior to 11:59 p.m., New York City time, on the Agreement Date (and, in the event such conditions are
not so satisfied or waived, the Commitments shall terminate at such time). 9.2 Conditions Precedent to Each Loan. The obligation
of the Lenders to make each Loan (including on the Closing Date), and the obligation of the Letter of Credit Issuers to issue any Letter of Credit shall be subject to the conditions precedent that on and as of the date of any such extension of
credit: (a) The Borrower shall have delivered to the Agent a Notice of Borrowing, duly executed and completed, by the
time specified in, and otherwise permitted by Section 2.4(a). The delivery of each Notice of Borrowing shall constitute a representation and warranty by the Obligors of the correctness of the matters specified in clause
(b) below. (b) The following statements shall be true, and the acceptance by the Borrower of any extension of
credit shall be deemed to be a statement to the effect set forth in clauses (i) and (ii) with the same effect as the delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer, dated the date of
such extension of credit, stating that: 202
(i) the representations and warranties contained in this Agreement and the
other Loan Documents are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the date of such extension of
credit as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior
date, and except to the extent the Agent and the Lenders have been notified in writing by the Borrower that any representation or warranty is not correct in all material respects (or that any representation and warranty that is qualified as to
materiality or Material Adverse Effect is not correct in all respects) and the Required Lenders have explicitly waived in writing compliance with such representation or warranty; (ii) no Default or Event of Default has occurred and is continuing, or would result from such extension of credit; and (iii) the Borrowing or issuance of the Letter of Credit is in compliance with the provisions of Article II. (c) No such Borrowing or issuance of the Letter of Credit shall exceed the then- current Availability. Notwithstanding anything to the contrary, the foregoing conditions precedent in this Section 9.2 are not conditions to any Lender
participating in or reimbursing the Swingline Lender or the Agent for such Lenders Pro Rata Share of any applicable Swingline Loan or Agent Advance made in accordance with the provisions of Section 2.4(f) or
Section 2.4(g), as applicable. ARTICLE X DEFAULT; REMEDIES 10.1
Events of Default. It shall constitute an event of default (Event of Default) if any one or more of the following shall occur for any reason: (a) any failure by the Borrower to pay: (i) the principal of any of the Loans when due, whether upon demand or otherwise,
or the reimbursement of any Letter of Credit issued pursuant to this Agreement when the same is due and payable; or (ii) any interest, fee or other amount owing hereunder or under any of the other Loan Documents within five (5) Business
Days after the due date therefor, whether upon demand or otherwise; (b) any representation or warranty made or deemed
made by Holdings or the Borrower in this Agreement or by any Obligor in any of the other Loan Documents or any certificate furnished by any Obligor at any time to the Agent, the Collateral Agent or any Lender pursuant to the Loan Documents shall
prove to be untrue in any material respect as of the date on which made, deemed made, or furnished; 203
(c) any default shall occur in the observance or performance of any of the
covenants and agreements contained in: (i) Section 6.3(a), Section 8.2(a) (with respect to the
maintenance of the Borrowers existence only), Section 8.8, Section 8.9, Section 8.10, Section 8.11, Section 8.12, Section 8.13, Section 8.14,
Section 8.16, Section 8.17, Section 8.18, Section 8.21, Section 8.23 (and, other than during a Cash Dominion Period, such default continues for five (5) Business Days after receipt by
the Borrower of written notice thereof by the Agent or the Required Lenders), Section 8.24, Section 8.27, or Section 8.28; (ii) Section 8.20; provided that an Event of Default shall not occur under this clause
(ii) until the expiration of the Cure Deadline for the applicable Test Period for which the Holdings, Borrower, and its Restricted Subsidiaries were not in compliance with such Financial Covenant; (iii) Section 6.4(a) and such default continues for five (5) Business Days (or two (2) Business Days
during any Cash Dominion Period) after receipt by the Borrower of written notice thereof by the Agent or the Required Lenders; or (iv) any other provision of this Agreement or any other Loan Document and such default shall continue for thirty (30) days
(or fifteen (15) days in the case of any default of Section 8.29 or Section 3 of the First Amendment) after receipt by the Borrower of written notice thereof by the Agent or the Required Lenders; (d) any default shall occur with respect to any Debt (other than the Obligations) of any Obligor or any of its Restricted
Subsidiaries in an outstanding principal amount which constitutes Material Indebtedness, or under any agreement or instrument under or pursuant to which any such Material Indebtedness may have been issued, created, assumed, or guaranteed by any
Obligor or any of its Restricted Subsidiaries, and such default shall continue for more than the period of grace, if any, therein specified, in each case. , if the effect thereof (with or without the giving of notice) is to accelerate, or to permit
the holders of any such Material Indebtedness to accelerate, the maturity of any such Material Indebtedness; or any such Material Indebtedness shall be declared due and payable or be required to be prepaid (other than by a regularly scheduled or
required prepayment) prior to the stated maturity thereof; or any such Material Indebtedness shall not be paid in full upon the scheduled maturity thereof; provided that this clause (d) shall not apply to (x) termination events or
equivalent events not constituting events of default pursuant to the terms of any Hedge Agreement and (y) such Material Indebtedness that becomes due or as to which an offer to prepay is required to be made as a result of the voluntary
Disposition of the property or assets securing such Material Indebtedness, if such Disposition is permitted hereunder and under the documents providing for such Material Indebtedness provided, further, that any such default (other than a default in
respect of the payment of principal, interest, fees or any other amounts) in respect of the First Financial Loan Documents shall not, until the first to occur of (i) such event of default has continued for thirty (30) days, (ii) all
or any portion of the Debt under the First Financial Loan Documents been accelerated, or (iii) the lender under the First Financial Loan Documents has exercised any remedies under the First Financial Loan Documents, constitute an Event of
Default under this clause (d); 204
(e) Holdings, the Borrower or any Significant Subsidiary shall (i) file
a voluntary petition in bankruptcy or file a voluntary petition, proposal, notice of intent to file a proposal or an answer or otherwise commence any action or proceeding seeking reorganization, arrangement or readjustment of its debts or for any
other relief under the federal Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or Law, state, or federal, now or hereafter existing, or consent to, approve of, or acquiesce in, any such petition, action or proceeding;
(ii) apply for or acquiesce in the appointment of a receiver, assignee, liquidator, sequestrator, custodian, monitor, trustee or similar officer for it or for all or any part of its property; or (iii) make an assignment for the benefit of
creditors; (f) an involuntary petition shall be filed or an action or proceeding otherwise commenced seeking
reorganization, arrangement, consolidation or readjustment of the debts of Holdings, the Borrower or any Significant Subsidiary for any other relief under the federal Bankruptcy Code, as amended, or under any other bankruptcy or insolvency act or
Law, state or federal, now or hereafter existing, and such petition or proceeding shall not be dismissed within sixty (60) days after the filing or commencement thereof or an order of relief shall be entered with respect thereto; (g) (i) a receiver, interim receiver, assignee, liquidator, sequestrator, custodian, monitor, trustee or similar officer for
Holdings, the Borrower or any Significant Subsidiary or for all or any material part of such Persons property shall be appointed or (ii) a warrant of attachment, execution or similar process shall be issued against any material part of
the property of Holdings, the Borrower or any Significant Subsidiary and such warrant or similar process shall not be vacated, discharged, stayed or bonded pending appeal within sixty (60) days after the entry thereof; (h) this Agreement, the Guarantee Agreement, any Security Document, the Initial Intercreditor Agreement, or any other
Intercreditor Agreement shall be terminated (other than in accordance with its terms or the terms hereof or thereof), revoked or declared void or invalid or unenforceable or challenged by Holdings or any Obligor; (i) one or more monetary judgments, orders, decrees or arbitration awards is entered against any Holdings, the Borrower or any
Restricted Subsidiary involving in the aggregate for all Obligors and Restricted Subsidiaries liability as to any single or related or unrelated series of transactions, incidents or conditions, in excess of $30,000,000 (in each case, except to the
extent covered by insurance through an insurer who does not deny or dispute coverage), and the same shall remain unsatisfied, unbonded, unvacated and unstayed pending appeal for a period of sixty (60) days after the entry thereof; 205
(j) for any reason, any Lien on any Collateral having a Fair Market Value in
excess of $10,000,000 ceases to be, or is not, valid, perfected and prior to all other Liens in accordance with the provisions hereof (subject to (A) the terms of the Collateral and Guarantee Requirement and the Security Documents and
(B) Permitted Liens) or is terminated, revoked or declared void other than (i) as a result of a release of Collateral permitted by Section 13.10 or in accordance with the terms of the relevant Security Document, (ii) in
connection with the Full Payment of the Obligations or (iii) any loss of perfection (x) as a result of the Collateral Agent no longer having possession of any stock certificates, promissory notes or other instruments delivered to it
representing securities or other assets pledged under the Security Documents or (y) as a result of a Uniform Commercial Code filing having lapsed because a Uniform Commercial Code continuation statement was not filed in a timely manner; (k) (i) an ERISA Event shall occur which has resulted or could reasonably be expected to result in a Material Adverse Effect
or (ii) an Obligor or any ERISA Affiliate shall fail 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 Multi-employer
Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect; (l) there occurs a Change
of Control; or (m) the failure of the Obligors, ProFrac Holding Corp. or any other Parent Entity to raise at least
$200,000,000 of Net Equity Proceeds (including pursuant to the IPO) after the Closing Date and on or prior to December 31, 2022 and such default shall continue for thirty (30) days after receipt by the Borrower of written notice thereof by
the Agent or the Required Lenders. 10.2 Remedies. (a) If an Event of Default has occurred and is continuing, the Agent may, in its discretion, and shall, at the direction of
the Required Lenders, do one or more of the following at any time or times and in any order, without notice to or demand on the Borrower: (i) reduce the Maximum Revolver Amount or the advance rates against Eligible Accounts used in computing the Borrowing Base, or
reduce one or more of the other elements used in computing the Borrowing Base, in each case to the extent determined by the Agent or the Required Lenders, as the case may be; (ii) restrict the amount of or refuse to make Loans; (iii) instruct the Letter of Credit Issuers to restrict or refuse to provide Letters of Credit; (iv) terminate the Commitments; (v) declare the Loans to be immediately due and payable; provided, however, that upon the occurrence of any
Event of Default described in Section 10.1(e), 10.1(f), or 10.1(g) with respect to any Obligor, the Commitments shall automatically and immediately expire and terminate and all Loans shall automatically become immediately
due and payable without notice or demand of any kind; 206
(vi) require the Obligors to cash collateralize all outstanding Letters of
Credit; and (vii) pursue its other rights and remedies under the Loan Documents and applicable Law. (b) If an Event of Default has occurred and is continuing and subject to any Intercreditor then in effect: (i) the Agent
shall have, for the benefit of the respective Secured Parties, in addition to all other rights of the Agent and the Lenders, the rights and remedies of a secured party under the Loan Documents or the UCC; (ii) the Agent may, at any time, take
possession of the respective Collateral and keep it on the Obligors premises, at no cost to the Agent or any Lender, or remove any part of it to such other place or places as the Agent may desire, or the Borrower shall, and shall cause their
Restricted Subsidiaries to, upon the Agents demand, at the Borrowers cost, assemble the Collateral and make it available to the Agent at a place reasonably convenient to the Agent; and (iii) the Agent may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as the Agent deems advisable, in its sole discretion, and may, if the Agent deems it reasonable, postpone or adjourn any sale of any
Collateral by an announcement at the time and place of sale or of such postponed or adjourned sale without giving a new notice of sale. Without in any way requiring notice to be given in the following manner, each Obligor agrees that any notice by
the Agent of sale, disposition or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, shall constitute reasonable notice to the Borrower if such notice is mailed by registered or certified mail,
return receipt requested, postage prepaid, or is delivered personally against receipt, at least ten (10) days prior to such action to the Borrower at the address specified in or pursuant to Section 14.8. If any Collateral is sold on
terms other than payment in full at the time of sale, no credit shall be given against the Obligations until the Agent or the Lenders receive payment, and if the buyer defaults in payment, the Agent may resell the Collateral without further notice
to the Borrower or any other Obligor. In the event the Agent seeks to take possession of all or any portion of the Collateral by judicial process, the Borrower and each other Obligor irrevocably waives: (A) the posting of any bond, surety or
security with respect thereto which might otherwise be required; (B) any demand for possession prior to the commencement of any suit or action to recover the Collateral; and (C) any requirement that the Agent retain possession and not
dispose of any Collateral until after trial or final judgment. The Borrower and the other Obligors agree that the Agent has no obligation to preserve rights to the Collateral or marshal any Collateral for the benefit of any Person. 10.3 Application of Funds. Subject to any Intercreditor Agreement in effect, if the circumstances described in Section 4.7
have occurred, or after the exercise of remedies provided for in Section 10.2 or under any other Loan Document (or after the Commitments have automatically been terminated, the Loans have automatically become immediately due and payable
as set forth in Section 10.2 and the Letters of Credit have automatically been required to be cash collateralized, in each case as set forth in Section 10.2), including in any bankruptcy or insolvency proceeding, any amounts
received on account of the Obligations shall be applied by the Agent in the following order: 207
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 14.7) payable to the Agent and/or the Collateral Agent in its capacity as such (other than in connection with
Cash Management Obligations or Obligations in respect of Secured Hedge Agreements); Second, to pay accrued and
unpaid interest (including amounts which, but for the provisions of the Bankruptcy Code, would have accrued) in respect of all Agent Advances until paid in full; Third, to pay the principal of all Agent Advances until paid in full; Fourth, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders (including Attorney Costs payable under Section 14.7), ratably among them in proportion to the amounts described in this clause Fourth payable to them (other than in connection with Cash
Management Obligations or Obligations in respect of Secured Hedge Agreements); Fifth, to pay accrued and unpaid
interest (including amounts which, but for the provisions of the Bankruptcy Code, would have accrued) in respect of the Swingline Loans until paid in full; Sixth, to pay the principal of all Swingline Loans until paid in full; Seventh, to pay accrued and unpaid interest (including amounts which, but for the provisions of the Bankruptcy Code,
would have accrued) in respect of the Revolving Loans (other than Agent Advances or Swingline Loans) until paid in full; Eighth, ratably (i) to pay the principal of all Revolving Loans (other than Agent Advances and Swingline Loans)
until paid in full, (ii) to the Agent, to be held by the Agent, for the benefit of the Letter of Credit Issuers, as cash collateral in an amount up to 103% of the maximum drawable amount of any outstanding Letters of Credit and (iii) up to
an amount (calculated in the aggregate after taking into account any amounts previously paid pursuant to this clause (iii) or pursuant to clause (ii) of item Ninth below) during the continuation of the applicable
Application Event) not to exceed the lesser of (x) $20,000,000 and (y) the Bank Product Reserves) to pay any Obligations under Noticed Hedges; Ninth, ratably to pay (i) amounts, not to exceed $20,000,000 in the aggregate with clause (iii) in item
Eighth above and clause (ii) below, owing with respect to any Obligations in respect of Secured Hedge Agreements (other than Noticed Hedges), (ii) amounts (calculated after taking into account any amounts previously paid pursuant to this
clause (ii) or pursuant to clause (iii) of item Eighth above) during the continuation of the applicable Application Event), not to exceed $20,000,000 in the aggregate with amounts applied pursuant to clause
(iii) in item Eighth above and clause (i) above owing with respect to any Obligations in respect of the unreserved portion of a Noticed Hedge, and (iii) amounts, not to exceed $20,000,000, owing with respect to Cash
Management Obligations; 208
Tenth, to the payment of all other Obligations (other than
Obligations in respect of Secured Hedge Agreements, Noticed Hedges, and Bank Product Obligations) of the Obligors that are due and payable to the Agent and the other Secured Parties (other than any Defaulting Lenders) on such date, ratably based
upon the respective aggregate amounts of all such Obligations owing to the Agent and the other Secured Parties (other than any Defaulting Lenders) on such date, until paid in full; Eleventh, ratably to pay any amounts owing with respect to any Obligations in respect of any FILO Tranche, until paid
in full; Twelfth, ratably to pay any Obligations (other than Obligations in respect of Secured Hedge Agreements,
Noticed Hedges, and Cash Management Obligations) owed to Defaulting Lenders, until paid in full; and Thirteenth,
to the payment of all other Obligations in respect of Secured Hedge Agreements, Noticed Hedges, and Cash Management Obligations of the Obligors that are due and payable to the Agent and the other Secured Parties on such date, ratably based upon the
respective aggregate amounts of all such Obligations owing to the Agent and the other Secured Parties on such date, until paid in full; Last, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise
required by Law. Amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Eighth 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 and, if no Obligations remain outstanding, to the Borrower or as otherwise required by Law. Notwithstanding the foregoing, no amounts received from any Guarantor shall be applied to any
Excluded Swap Obligations of such Guarantor. 10.4 Permitted Holders Right to Cure. (a) Notwithstanding anything to the contrary contained in Section 10.1(c), in the event that the Borrower fails to
comply with the requirements of the Financial Covenant, any of the Permitted Holders, any Parent Entity or any Subsidiary of any Parent Entity (other than Holdings and its Restricted Subsidiaries) or other Person designated by the Borrower shall
have the right, during the period beginning at the end of the last Fiscal Quarter of the applicable Test Period and until the later of (i) the tenth (10th) Business Day after the date on which Financial Statements with respect to the Test
Period in which such covenant is being measured are required to be delivered pursuant to Section 6.2 and (ii) the tenth (10th) Business Day after the beginning of a Covenant Trigger Period (such later date, the Cure
Deadline), to make a direct or indirect equity investment in Holdings in cash (the Cure Right), which cash shall be promptly contributed by Holdings to the 209
Borrower, and upon the receipt by the Borrower of net proceeds pursuant to the exercise of
the Cure Right (the Cure Amount), the Financial Covenant shall be recalculated, giving effect to a pro forma increase to Consolidated EBITDA for such Test Period in an amount equal to such Cure Amount; provided that such
pro forma adjustment to Consolidated EBITDA shall be given solely for the purpose of determining the existence of a Default or an Event of Default under the Financial Covenant with respect to any Test Period that includes the Fiscal Quarter for
which such Cure Right was exercised and not for any other purpose under any Loan Document. (b) If, after the receipt of
the Cure Amount and the recalculations pursuant to clause (a) above, the Borrower shall then be in compliance with the requirements of the Financial Covenant during such Test Period, the Borrower shall be deemed to have satisfied the
requirements of the Financial Covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable Event of Default that had occurred shall be deemed
cured; provided that (i) the Cure Right may be exercised on no more than five (5) occasions, (ii) in
each four Fiscal Quarter period, there shall be at least two Fiscal Quarters in respect of which no Cure Right is exercised, (iii) with respect to any exercise of the Cure Right, the Cure Amount shall be no greater than the amount required to
cause the Borrower to be in compliance with the Financial Covenant, (iv) all Cure Amounts shall be disregarded for purposes of determining any baskets or ratios with respect to the covenants contained in the Loan Documents and (v) there
shall be no pro forma or actual reduction in Debt (by netting or otherwise) with the proceeds of any Cure Amount for determining compliance with the Financial Covenant for any Test Period for which such Cure Amount is deemed applied (even if the
proceeds of any Cure Amount are actually used to repay Debt, regardless of whether the proceeds of the Cure Amount are received before or after the last day of such Test Period). (c) Prior to the Cure Deadline, neither the Agent, the Collateral Agent nor any Lender shall exercise any rights or remedies
under Article X (or under any other Loan Document available during the continuance of any Default or Event of Default) solely on the basis of any actual or purported failure to comply with the Financial Covenant unless such failure is not
cured by the Cure Deadline (it being understood that this sentence shall not have any effect on the rights and remedies of the Lenders with respect to any other Default or Event of Default pursuant to any other provision of any Loan Document other
than breach of the Financial Covenant); provided, however, that the Lenders shall have no obligation to make any Loans, and the Letter of Credit Issuers shall have no obligation to issue any Letters of Credit, prior to receipt of the
Cure Amount. 210
ARTICLE XI TERM AND TERMINATION 11.1 Term and Termination. The term of this Agreement shall end on the Stated Termination Date unless sooner terminated in accordance
with the terms hereof. The Agent upon direction from the Required Lenders may terminate this Agreement without notice upon the occurrence and during the continuance of an Event of Default. Upon the effective date of termination of this Agreement for
any reason whatsoever, all Obligations (other than contingent obligations not then due and payable, Obligations under Secured Hedge Agreements and Cash Management Obligations) (including all unpaid principal, accrued and unpaid interest and any
amounts due under Section 5.4) shall become immediately due and payable and the Borrower shall immediately arrange, with respect to all Letters of Credit then outstanding, for (a) the cancellation and return thereof, or (b) the
cash collateralization thereof or issuance of Supporting Letters of Credit with respect thereto in accordance with Section 2.3(g). Notwithstanding the termination of this Agreement, until Full Payment of all Obligations, the Borrower
shall remain bound by the terms of this Agreement and shall not be relieved of any of its Obligations hereunder or under any other Loan Document, and the Agent, the Collateral Agent and the Lenders shall retain all their rights and remedies
hereunder (including the Collateral Agents Liens in and all rights and remedies with respect to all then-existing and after-arising Collateral). ARTICLE XII AMENDMENTS; WAIVERS; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS 12.1 Amendments and Waivers. (a) (i) Except as otherwise specifically set forth in this Agreement (including Section 5.5(c)), no amendment or
waiver of any provision of this Agreement or any other Loan Document, and no consent with respect to any departure by the Borrower or other Obligor therefrom, shall be effective unless the same shall be in writing and signed by the Required Lenders
(or by the Agent with the consent of the Required Lenders) and the Obligors party thereto and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; (ii) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective to modify eligibility criteria,
or sublimits contained in the definition of Borrowing Base or Eligible Accounts or Eligible Unbilled Accounts or Eligible Inventory or any successor or related definition, in each case that would have
the effect of increasing the Borrowing Base unless it is consented to in writing by the Supermajority Lenders and the Borrower; (iii) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective with respect to the following,
unless consented to in writing by all Lenders (or the Agent with the consent of all Lenders) and the Borrower: (A)
increase any of the advance rates set forth in the definition of Borrowing Base or add any new classes of eligible assets to such definition; (B) amend this Section 12.1 or any provision of this Agreement providing for consent or other action by all
Lenders; 211
(C) release all or substantially all of the value of the Guarantors with
respect to their Obligations owing under the Guarantee Agreement other than as permitted by Section 13.10; (D) subject to any Intercreditor Agreement then in effect, release all or substantially all of the Collateral other than as
permitted by Section 13.10; (E) change the voting percentages included in the definitions of Required
Lenders or Supermajority Lenders; or (F) amend the definition of Pro Rata Share or
Section 4.7. (iv) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective with
respect to the following, unless consented to in writing by all adversely affected Lenders (or the Agent with the consent of all adversely affected Lenders) and the Borrower: (A) increase or extend any Commitment of any Lender (other than as contemplated in Section 2.6 or 2.7);
(B) postpone or delay any date fixed by this Agreement or any other Loan Document for any (i) scheduled payment of
principal, interest or fees or (ii) payment of other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document; (C) reduce the principal of, or the rate of interest specified herein (other than waivers of the Default Rate) on any Loan,
or any fees or other amounts payable hereunder or under any other Loan Document; (D) amend the default
waterfall set forth in Section 10.3; (E) extend the expiration date of any Letter of Credit beyond the
Stated Termination Date; (F) other than in connection with a debtor-in-possession financing consented to by the Required
Lenders, subordinate the right of payment of the Obligations hereunder to any other Indebtedness or any other obligations; (G) other than in connection with a debtor-in-possession financing consented to by the Required Lenders, subordinate the
Liens on the ABL Priority Collateral granted hereunder or under the other Loan Documents to any other Lien or (H) except
as expressly permitted hereunder, subordinate the Liens on the
212
It is understood that a waiver of any condition precedent or the waiver of any Default,
Event of Default or mandatory prepayment or commitment reduction under this Agreement and the other Loan Documents shall not give rise to an all affected Lender vote pursuant to this clause (iv). (v) Notwithstanding the foregoing, no such waiver, amendment, or consent shall be effective to increase the obligations or
adversely affect the rights of the Agent, the Collateral Agent, the Swingline Lender, any Letter of Credit Issuer or any Arranger without the consent of the party adversely affected thereby; provided, however, that (A) the Agent may, in its sole discretion and notwithstanding the limitations contained in clause
(ii) or (iii)(A) above and any other terms of this Agreement, make applicable Agent Advances in accordance with Section 2.4(g); (B) Schedule 1.1 hereto (Lenders Commitments) may be amended from time to
time by the Agent alone to reflect assignments of Commitments in accordance herewith and changes in Commitments in accordance with Section 2.6 or 2.7; (C) no amendment or waiver shall be made to Section 13.19 or
to any other provision of any Loan Document as such provisions relate to the rights and obligations of any Arranger without the written consent of such Arranger and (D) each Fee Letter may be amended or waived in a writing signed by the
Borrower and JPMorgan. Further, notwithstanding anything to the contrary contained in Section 12.1, if the Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial
nature, in each case, in any provision of the Loan Documents, then the Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan
Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. Notwithstanding the foregoing, the L/C Commitment of any Letter of Credit Issuer listed on Schedule
1.1 hereto may be modified with the consent of the Borrower, such Letter of Credit Issuer and the Agent (and without the consent of any Lender). Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that (i) the Commitment of such Lender may not be increased or extended and (ii) the accrued and unpaid amount of any principal, interest or fees payable to such Lender shall not be reduced, in either case,
without the consent of such Lender. Notwithstanding anything to the contrary herein, no consent of any Lender or any other Person will be
required to effectuate any transaction permitted under Section 2.6 or 2.7 except to the extent provided therein. (b) If, in connection with any proposed amendment, waiver or consent (a Proposed Change) requiring the
consent of the Supermajority Lenders, all Lenders or all affected Lenders, the consent of Required Lenders is obtained, but the consent of other Lenders is not obtained (any such Lender whose consent is not obtained being referred to as a
Non-Consenting Lender), then, at the Borrowers request (and if applicable, payment by the Borrower of the processing fee referred to in Section 12.2(a)), the Agent (so long as the Agent is not a Non-Consenting
Lender) or an Eligible Assignee shall have the right (but not the obligation), to purchase from the Non-Consenting Lenders, and the Non- Consenting Lenders agree that they shall sell, all of the Non-Consenting Lenders interests, rights and
obligations under the Loan Documents, in accordance with the procedures set forth in clauses (i) through (v) in the proviso to Section 5.8 and the last sentence in Section 5.8, as if each such
Non-Consenting Lender is an assignor Lender thereunder. 213
(c) No Real Estate shall be taken as Collateral unless Lenders receive 45
days advance notice and each Lender confirms to Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Insurance Laws or as
otherwise satisfactory to such Lender. At any time that any Real Estate constitutes Collateral, no modification of a Loan Document shall add, increase, renew or extend any loan, commitment or credit line hereunder until the completion of flood due
diligence, documentation and coverage as required by the Flood Insurance Laws or as otherwise satisfactory to all Lenders. This Section 12.1 shall not be construed to obligate the Obligors to deliver any Real Estate as Collateral
hereunder or under any of the other Loan Documents. 12.2 Assignments; Participations. (a) Any Lender may, with the written consent of (i) the Agent, (ii) the Swingline Lender and the Letter of Credit
Issuers, and (iii) so long as no Event of Default under any of Section 10.1(a), (e), (f) or (g) has occurred and is continuing, the Borrower (in each case, which consents shall not be unreasonably
withheld or delayed), assign and delegate to one or more Eligible Assignees (provided that (x) no such Borrower consent shall be required in connection with any assignment to an existing Lender, an Affiliate of a Lender, or an Approved
Fund of a Lender and (y) such Borrower consent shall be deemed to have been given if the Borrower has not responded within ten (10) Business Days of receipt of a written request for consent (each an Assignee) all, or any
ratable part of all, of the Loans, the Commitments and the other rights and obligations of such Lender hereunder, in a minimum amount of $5,000,000, or an integral multiple of $1,000,000 in excess thereof (provided that an amount less than
the minimum amount of $5,000,000 may be assigned if agreed to by the Borrower and the Agent, or if such amount represents all of the Loans, the Commitments and the other rights and obligations of the Lender hereunder) (provided, further
that no such minimum amount shall apply to any assignment to an Approved Fund or to a Lender or to an Affiliate of a Lender); provided, however, that (A) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall be given to the Borrower and the Agent by such Lender and the Assignee; (B) such Lender and its Assignee shall deliver to the Borrower and the Agent an Assignment and
Acceptance, along with an Administrative Questionnaire and any know-your-customer documentation; and (C) the assignor Lender or Assignee shall pay to the Agent a processing fee in the amount of $3,500; provided, further, that the Agent may
elect to waive such processing fee in its sole discretion. (b) From and after the date that the Agent has received an
executed Assignment and Acceptance, the Agent has received payment of the above-referenced processing fee and the Agent has recorded such assignment in the Register as provided in Section 13.20 herein, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations, including, but not limited to, the obligation to participate in Letters of Credit, 214
have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assignor Lenders rights and obligations under this
Agreement, such assignor Lender shall cease to be a party hereto). (c) By executing and delivering an Assignment and
Acceptance, the assignor Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assignor Lender makes no
representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto or the attachment, perfection, or priority of any Lien granted by any Obligor to the Agent or any Lender in the applicable Collateral; (ii) such
assignor Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Obligor or the performance or observance by any Obligor of any of its obligations under this Agreement or any other Loan
Document furnished pursuant hereto; (iii) such Assignee confirms that it has received a copy of this Agreement, together with 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 the Agent, such assignor 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 appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Agent by the terms hereof, together with such powers, including the discretionary rights and incidental powers, as are reasonably incidental thereto; and (vi) such Assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon satisfaction of the requirements of Section 12.2(a) and recordation in the Register, this
Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. Each Commitment allocated to each Assignee shall
reduce the applicable Commitment of the assignor Lender pro tanto. (e) Any Lender may at any time sell to one or
more commercial banks, financial institutions, or other Persons not Affiliates of the Borrower (a Participant), in each case that is not a Disqualified Lender so long as the list of Disqualified Lenders shall have been made
available to all Lenders, participating interests in any Loans, any Commitment of that Lender and the other interests of that Lender (the Originating Lender) hereunder and under the other Loan Documents; provided,
however, that (i) the Originating Lenders 215
obligations under this Agreement shall remain unchanged, (ii) the Originating Lender
shall remain solely responsible for the performance of such obligations, (iii) the Borrower and the Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lenders rights and
obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant has rights to approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document except the matters set forth in Sections 12.1(a)(iii)(C) and (D) and Section 12.1(a)(iv), and all amounts payable by the Borrower hereunder shall be determined as if such
Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent and subject to the same limitation as if the amount of its participating interest were owing directly to it as a Lender under this
Agreement. Subject to paragraph (g) of this Section 12.2, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 5.1, 5.2 and 5.3, subject to the requirements and
limitations of such Sections (including Sections 5.1(d)) and Sections 5.6 and 5.8, to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this
Section 12.2 (provided that any documentation required to be provided pursuant to Section 5.1(d) shall be provided solely to the Originating Lender and provided further, for the avoidance of doubt, that if the
Originating Lender is not a U.S. Person, such Lender shall include a copy of such documentation as an exhibit to its IRS Form W-8IMY in accordance with Section 5.1(d)(ii)(D)). (f) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or
pledge, all or any portion of its rights under and interest in this Agreement (including its Note, if any) in favor of any Federal Reserve Bank or any other central bank having jurisdiction over such Lender in accordance with Regulation A of the
Federal Reserve Board or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (g) A Participant shall not be entitled to receive any greater payment under Section 5.1 or 5.3 than the
Originating Lender would have been entitled to receive with respect to the participating interest sold to such Participant, unless the sale of the participating interest to such Participant is made with the Borrowers prior written consent and
such Participant agrees to be subject to the provisions of Section 5.8 as though it were a Lender, or to the extent that such entitlement to a greater payment results from a Change in Law after the Participant became a Participant. 216
ARTICLE XIII THE APPOINTED AGENTS 13.1 Appointment and Authorization. Each Lender, on behalf of itself and any of its Affiliates that are Secured Parties, and each
Letter of Credit Issuer hereby designates and appoints the Agent and the Collateral Agent (collectively, the Appointed Agents) as its agents under this Agreement and the other Loan Documents and each Lender and each Letter of
Credit Issuer hereby irrevocably authorizes each Appointed Agent, in its respective capacity, to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each Appointed Agent agrees to act as such on the express conditions contained in this
Article XIII. The provisions of this Article XIII (other than Sections 13.9, 13.10(a) and 13.10(b)) are solely for the benefit of the Appointed Agents and the Secured Parties, and the Borrower shall have no rights
as third party beneficiaries of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, each Appointed Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall any Appointed Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist against any Appointed Agent. Without limiting the generality of the foregoing sentence, the use of the term agent in this Agreement with reference to any
Appointed 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 merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreement (including any required consent or direction from the Required Lenders), each Appointed Agent shall have
and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Appointed Agent is expressly entitled to take or assert under this Agreement
and the other Loan Documents, including (a) the determination of the applicability of ineligibility criteria with respect to the calculation of the Borrowing Base, (b) the making of Agent Advances pursuant to Section 2.4(g) and
(c) the exercise of remedies pursuant to Section 10.2, and any action so taken or not taken shall be deemed consented to by the Lenders. 13.2 Delegation of Duties. Each Appointed Agent may execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Each Appointed Agent shall not be responsible for the negligence or misconduct of any agent or attorney in
fact that it selects as long as such selection was made without gross negligence, bad faith or willful misconduct. 13.3 Liability of
Appointed Agents. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby
(except for its own gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision)), (b) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by any Obligor or any Subsidiary or Affiliate of any Obligor, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by any Appointed Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or the perfection or priority of any 217
Lien or security interest created or purported to be created under the Collateral Documents, or for any
failure of any Obligor or any other party to any Loan Document to perform its obligations hereunder or thereunder or (c) 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 Lenders; further, without limiting the generality of the foregoing clause (c), no Agent- Related Person shall (x) be obligated to ascertain, monitor or inquire as to whether any Lender or
Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information (subject in all respects
to Section 14.16), to any Disqualified Lender. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of,
this Agreement or any other Loan Document, or to inspect the properties, books or records of any Obligor or any of their Subsidiaries or Affiliates. 13.4 Reliance by Appointed Agent. Each Appointed Agent shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel (including counsel to any Obligor), independent accountants and other experts selected by such Appointed Agent. Each Appointed Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Appointed Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders (or the Supermajority Lenders, all Lenders or all affected Lenders if so required by Section 12.1) and such request
and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders. 13.5 Notice of Default. The
Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, unless the Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a notice of default. The Agent will notify the Lenders of its receipt of any such notice. The Agent shall take such action with respect to such Default or Event of Default as may be
requested by the Required Lenders in accordance with Article X; provided, however, that unless and until the Agent has received any such request, the 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 as it shall deem advisable. 13.6 Credit Decision. Each Lender
acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by any Appointed Agent hereinafter taken, including any review of the affairs of the Borrower and its Affiliates, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any Lender. Each Lender represents to each Appointed Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed 218
appropriate, made its own appraisal of, and investigation into, the business, prospects, operations,
property, financial and other condition and creditworthiness of the Obligors and their Affiliates, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Obligors and their Affiliates. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Agent, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of the Obligors or any of their Affiliates which may come
into the possession of any of the Agent-Related Persons. 13.7 Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), ratably in accordance with their
respective Pro Rata Shares, from and against any and all Losses as such term is defined in Section 14.10; provided, however, that no Lender shall be liable for the payment to such Agent-Related Persons of any portion of
such Losses to the extent resulting from such Persons gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision); provided, further, that any
action taken by any Agent-Related Person at the request of the Required Lenders (or all Lenders or all affected Lenders, as applicable) shall not constitute gross negligence, bad faith or willful misconduct. Without limitation of the foregoing, each
Lender shall ratably reimburse the Agent upon demand for its share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to
herein, to the extent that the Agent is not reimbursed for such expenses by or on behalf of the Borrower. The undertaking in this Section 13.7 shall survive the payment of all Obligations hereunder and the resignation or replacement of
the Agent. 13.8 Appointed Agents in Individual Capacity. Each Appointed Agent and its Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire Stock in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Obligors and their Subsidiaries and Affiliates as though such
Appointed Agent was not an Appointed Agent hereunder and without notice to or consent of the Lenders. Each Appointed Agent and its Affiliates may receive information regarding the Obligors, their Affiliates and Account Debtors (including information
that may be subject to confidentiality obligations in favor of the Obligors or such Affiliates) and the Lenders hereby acknowledge that each Appointed Agent shall be under no obligation to provide such information to them. With respect to its Loans,
each Appointed Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not an Appointed Agent, and the terms Lender and Lenders include each Appointed
Agent in its individual capacity. 219
13.9 Successor Agents. Each Appointed Agent may resign as an Appointed Agent upon at
least 30 days prior notice to the Lenders and the Borrower. In the event any Appointed Agent sells all of its Loans and/or Commitments as part of a sale, transfer or other disposition by such Appointed Agent of substantially all of its loan
portfolio, such Appointed Agent shall resign as an Appointed Agent and such purchaser or transferee shall become the successor Appointed Agent hereunder. In the event that an Appointed Agent becomes a Defaulting Lender, such Appointed Agent may be
removed at the reasonable request of the Borrower and the Required Lenders. Subject to the foregoing, if an Appointed Agent resigns or is removed under this Agreement, the Required Lenders (with the prior consent of the Borrower, such consent not to
be unreasonably withheld and such consent not to be required if an Event of Default under any of Section 10.1(a), (e), (f) or (g) has occurred and is continuing) shall appoint from among the Lenders a
successor agent, which successor agent shall be a Lender or a commercial bank, commercial finance company or other asset based lender having total assets in excess of $5,000,000,000. If no successor agent is appointed prior to the effective date of
the resignation of any Appointed Agent, such Appointed Agent may appoint (but without the need for the consent of the Borrower) a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the retiring Appointed Agent and the term Appointed Agent shall mean such successor agent and the retiring Appointed Agents appointment, powers and duties as an
Appointed Agent shall be terminated. After any retiring Appointed Agents resignation hereunder as an Appointed Agent, the provisions of this Article XIII and Section 14.10 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Appointed Agent under this Agreement. 13.10 Collateral Matters. (a) The Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to)
hereby irrevocably authorize the Collateral Agent (and if applicable, any subagent appointed by the Collateral Agent under Section 13.2 or otherwise) to release its Liens on the Collateral, and the Collateral Agents Liens upon any
Collateral shall be automatically released (i) upon Full Payment of the Obligations; (ii) upon a disposition of Collateral permitted by Section 8.8 to a Person that is not an Obligor; (iii) if any such Collateral
constitutes property in which the Obligors owned no interest at the time the Lien was granted or at any time thereafter; (iv) if any such Collateral constitutes property leased to an Obligor under a lease which has expired or been terminated in
a transaction permitted under this Agreement; (v) to the extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantee Agreement (in accordance with the
second succeeding sentence and the Guarantee Agreement); (vi) as required by the Collateral Agent to effect any sale, transfer or other Disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to
the Security Documents, (vii) to the extent such Collateral otherwise becomes an Excluded Stock or an Excluded Asset, and (viii) if the percentage of Lenders required to consent to the Collateral being released hereunder, so consents to the
Collateral being released. Except as provided above, the Collateral Agent will not release any of the Collateral Agents Liens without the prior 220
written authorization of the Required Lenders (or such other percentage of Lenders whose
consent is required in accordance with Section 12.1); provided that, in addition to the foregoing, the Collateral Agent may, in its discretion, release such Collateral Agents Liens on Collateral valued in the aggregate not
in excess of $1,000,000 during each Fiscal Year without the prior written authorization of any Lender, so long as all proceeds received in connection with such release are applied to the Obligations in accordance with Section 4.7 and,
after giving effect to the application of such proceeds and the updating of the Borrowing Base, as the case may be, to reflect the deletion of any assets subject to such release, Availability shall be no less than the Availability immediately prior
to such release. Upon request by the Collateral Agent or the Borrower at any time, subject to the Borrower having certified to the Collateral Agent that the disposition is made in compliance with Section 8.8 (which the Collateral Agent
may rely conclusively on any such certificate, without further inquiry), the Lenders will confirm in writing the Collateral Agents authority to release any applicable Collateral Agents Liens upon particular types or items of Collateral
pursuant to this Section 13.10. In addition, the Lenders (and each other Secured Party by their acceptance of the benefits of the Loan Documents shall be deemed to) hereby irrevocably authorize (w) the Collateral Agent to
subordinate any Lien on any property granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.12(c) or (q) (as to Fixed Asset Collateral
only), (x) the Agent to release automatically any Guarantor from its obligations under the Guarantee Agreement if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under this Agreement or such Person
otherwise becomes an Excluded Subsidiary, in each case, solely to the extent such Subsidiary ceasing to constitute a Restricted Subsidiary or otherwise becoming an Excluded Subsidiary is not prohibited by this Agreement, (y) so long as both
(1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) no Out-of-Formula Condition has occurred and is continuing or would result therefrom, then, to the extent that the Collateral Agent obtains
possession of any Collateral by operation of Section 13.12 of this Agreement that constitutes Collateral that Obligors are not required to deliver to Collateral Agent at such time pursuant to the terms hereof, the Security Documents or
any other contractual arrangement with any Obligor, following the written request by Borrower, Collateral Agent shall (to the extent not prohibited by applicable law or legal process) deliver such Collateral in accordance with the terms of the
Intercreditor Agreement or, if no Intercreditor Agreement is then in effect, to the applicable Obligor, and (z) if after the date hereof Collateral Agents Lien has been expanded to include Fixed Asset Collateral in connection with
incurrence of Debt pursuant to Section 8.12(q)(x) or (r) so long as all of the following conditions are satisfied (1) no Default or Event of Default has occurred and is continuing or would result therefrom, (2) no
Out-of-Formula Condition has occurred and is continuing or would result therefrom, and (3) no Debt has been incurred in reliance on Section 8.12(q)(x) or (r) that remains outstanding (and no commitments for Debt that, if
incurred would be incurred in reliance on Section 8.12(q)(x) or (r), remain outstanding) and no Liens are outstanding in reliance on clause (r) of the definition of Permitted Liens, or, to the extent on account of
Refinancing Debt, or outstanding commitments that, if incurred, would be Refinancing Debt, in each case incurred in reliance, directly or indirectly, on Section 8.12(q)(x) or (r)), clause (p) of the definition of
Permitted Liens, promptly following the written request of the Borrower, the Collateral Agent shall release 221
Collateral Agents Liens on Fixed Assets Collateral (other than, in each case any
Inventory or Fracturing Equipment Parts (as defined in the Initial Intercreditor Agreement)) at the expense of the Obligors. Upon request by any Appointed Agent at any time, the Required Lenders will confirm in writing such Appointed Agents
authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations pursuant to this Section 13.10(a). (b) Upon receipt by any Appointed Agent of any authorization required pursuant to Section 13.10(a) from the
Lenders of such Appointed Agents authority to release or subordinate the applicable Collateral Agents Liens upon particular types or items of Collateral, or to release any Guarantor from its obligations under the Guarantee Agreement, and
upon at least three (3) Business Days prior written request by the Borrower, such Appointed Agent shall (and is hereby irrevocably authorized by the Lenders and the other Secured Parties to) execute such documents as may be necessary to
evidence the release of such Collateral Agents Liens upon such Collateral or to subordinate its interest therein, or to release such Guarantor from its obligations under the Guarantee Agreement; provided, however, that
(i) such Appointed Agent shall not be required to execute any such document on terms which, in such Appointed Agents opinion, would expose such Appointed Agent to liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Obligors in respect
of) all interests retained by the Obligors, including the proceeds of any sale, all of which shall continue to constitute part of such Collateral. (c) The Collateral Agent shall have no obligation whatsoever to any of the Lenders to assure that the Collateral exists or is
owned by the Obligors or is cared for, protected or insured or has been encumbered, or that the applicable Collateral Agents Liens have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any
particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to
any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the
Collateral Agents own interest in the Collateral in its capacity as one of the Lenders and that the Collateral Agent shall have no other duty or liability whatsoever to any Lender as to any of the foregoing. 13.11 Restrictions on Actions by Lenders; Sharing of Payments. (a) Each of the Lenders agrees that it shall not, without the express consent of the Required Lenders, and that it shall, to
the extent it is lawfully and contractually entitled to do so, upon the request of the Required Lenders, set off against the Obligations, any amounts owing by such Lender to any Obligor or any accounts of any Obligor now or hereafter maintained with
such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so by any Appointed Agent, take or cause to be taken any action to enforce its rights under this Agreement or against any Obligor, including the
commencement of any legal or equitable proceedings, to foreclose any Lien on, or otherwise enforce any security interest in, any of the applicable Collateral. 222
(b) Except as may be expressly permitted by this Agreement, if at any time
or times any Lender shall receive (i) by payment, foreclosure, setoff or otherwise, any proceeds of Collateral or any payments with respect to the Obligations of any Obligor to such Lender arising under, or relating to, this Agreement or the
other Loan Documents, except for any such proceeds or payments received by such Lender from the Agent pursuant to the terms of this Agreement or to which such Lender is otherwise entitled to receive directly pursuant to the terms of this Agreement,
or (ii) payments from the Agent in excess of such Lenders ratable portion of all such distributions by the Agent, such Lender shall promptly (A) turn the same over to the Agent, in kind, and with such endorsements as may be required
to negotiate the same to the Agent, or in same day funds, as applicable, for the account of all of the Lenders and for application to the Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase, without
recourse or warranty, an undivided interest and participation in the Obligations owed to the other Lenders so that such excess payment received shall be applied ratably as among the Lenders in accordance with their Commitments; provided,
however, that (A) if all or part of such excess payment received by the purchasing party is thereafter recovered from it, those purchases of participations shall be rescinded in whole or in part, as applicable, and the applicable portion
of the purchase price paid therefor shall be returned to such purchasing party, but without interest except to the extent that such purchasing party is required to pay interest in connection with the recovery of the excess payment and (B) the
provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower or any other Obligor pursuant to and in accordance with the express terms of this Agreement and the other Loan Documents, (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans, Commitments or participations in a Letter of Credit or Swingline Loans to any Assignee or Participant or (z) any disproportionate
payment obtained by a Lender of any Class as a result of the extension by Lenders of the maturity date or expiration date of some but not all Loans or Commitments of that Class or any increase in the Applicable Margin (or other pricing term,
including any fee, discount or premium) in respect of Loans or Commitments of Lenders that have consented to any such extension to the extent such transaction is permitted hereunder. 13.12 Agency for Perfection. Each Lender hereby appoints each other Lender as agent for the purpose of perfecting the Lenders
security interest in assets which, in accordance with the UCC or under other applicable law, as applicable may be perfected by possession. Should any Lender (other than the Collateral Agent) obtain possession of any such Collateral, such Lender
shall notify the Collateral Agent thereof and, promptly upon the Collateral Agents request therefor, shall deliver such Collateral to the Collateral Agent or in accordance with the Collateral Agents instructions. 223
13.13 Payments by Agent to Lenders. All payments to be made by the Agent to the
applicable Lenders shall be made by bank wire transfer or internal transfer of immediately available funds to each such Lender pursuant to wire transfer instructions delivered in writing to the Agent on or prior to the Closing Date (or if such
Lender is an Assignee, on the applicable Assignment and Acceptance), or pursuant to such other wire transfer instructions as each party may designate for itself by written notice to the Agent. Concurrently with each such payment, the Agent shall
identify whether such payment (or any portion thereof) represents principal, interest or fees on the Loans or otherwise. Unless the Agent receives notice from the Borrower prior to the date on which any payment is due to the Lenders that the
Borrower will not make such payment in full as and when required, the Agent may assume that the Borrower have made such payment in full to the Agent on such date in immediately available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute 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 has not made such payment in full to the Agent, each applicable Lender shall repay
to the Agent on demand such amount distributed to such Lender, together with interest thereon at the Federal Funds Effective Rate for each day from the date such amount is distributed to such Lender until the date repaid. 13.14 Settlement. (a) Each Lenders funded portion of the applicable Loans is intended by the applicable Lenders to be equal at all times
to such Lenders Pro Rata Share of the outstanding applicable Loans. Notwithstanding such agreement, the Agent, the Swingline Lender, and the other applicable Lenders agree (which agreement shall not be for the benefit of or enforceable by the
Borrower) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among them as to the applicable Loans (including the applicable Swingline Loans and the applicable Agent Advances) shall take place
on a periodic basis in accordance with the following provisions: (i) The Agent shall request settlement
(Settlement) with the applicable Lenders at least once every week, or on a more frequent basis at the Agents election, (A) on behalf of the Swingline Lender, with respect to each applicable outstanding Swingline Loan,
(B) for itself, with respect to each applicable Agent Advance, and (C) with respect to collections received, in each case, by notifying the Lenders of such requested Settlement by telecopy or other electronic transmission, no later than
12:00 noon (New York City time) on the date of such requested Settlement (the Settlement Date). Each Lender (other than the Swingline Lender, in the case of applicable Swingline Loans and the Agent in the case of applicable Agent
Advances) shall transfer the amount of such Lenders Pro Rata Share of the outstanding principal amount of the applicable Swingline Loans and the applicable Agent Advances with respect to each Settlement to the Agent, to the Agents
account, not later than 2:00 p.m. (New York City time), on the Settlement Date applicable thereto. Settlements shall occur during the continuation of a Default or an Event of Default and whether or not the applicable conditions precedent set forth
in Article IX have then been satisfied. Such amounts made available by the applicable Lenders to the Agent shall be applied against the amounts of the applicable Swingline Loan or Agent Advance and, together with the portion of such Swingline
Loan or Agent Advance representing the Swingline Lenders Pro Rata Share thereof, shall cease to constitute Swingline Loans or Agent Advances, but shall constitute Revolving Loans of such Lenders. If any such amount is not transferred to the
Agent by any Lender on the Settlement Date 224
applicable thereto, the Agent shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the Federal Funds Effective Rate, the first three (3) days from and after the Settlement Date and thereafter at the Interest Rate then applicable to Base Rate Loans, (1) on behalf of the Swingline
Lender, with respect to each outstanding Swingline Loan, and (2) for itself, with respect to each applicable Agent Advance. (ii) Notwithstanding the foregoing, not more than one (1) Business Day after demand is made by the Agent (whether before
or after the occurrence of a Default or an Event of Default and regardless of whether the Agent has requested a Settlement with respect to an applicable Swingline Loan or applicable Agent Advance), each other applicable Lender (A) shall
irrevocably and unconditionally purchase and receive from the Swingline Lender or the Agent, as applicable, without recourse or warranty, an undivided interest and participation in such Swingline Loan or Agent Advance equal to such Lenders Pro
Rata Share of such Swingline Loan or Agent Advance and (B) if Settlement has not previously occurred with respect to such Swingline Loans or Agent Advances, upon demand by the Agent, as applicable, shall pay to the Swingline Lender or the
Agent, as applicable, as the purchase price of such participation an amount equal to one- hundred percent (100%) of such Lenders Pro Rata Share of such Swingline Loans or Agent Advances. If such amount is not in fact made available to the
Agent by any applicable Lender, the Agent shall be entitled to recover such amount on demand from such Lender together with interest thereon at the Federal Funds Effective Rate for the first three (3) days from and after such demand and
thereafter at the Interest Rate then applicable to Base Rate Loans, (A) on behalf of the Swingline Lender, with respect to each outstanding Swingline Loan, and (B) for itself, with respect to each applicable Agent Advance. (iii) Notwithstanding any provisions of Section 2.4(f) to the contrary, from and after the date, if any, on which
any Lender purchases an undivided interest and participation in any applicable Swingline Loan or applicable Agent Advance pursuant to clause (ii) above, the Agent shall promptly distribute to such Lender, such Lenders Pro Rata
Share of all payments of principal and interest and all proceeds of Collateral received by the Agent in respect of such Swingline Loan or Agent Advance. (iv) Between Settlement Dates, the Agent, to the extent no applicable Agent Advances are outstanding, may pay over to the
Swingline Lender any payments received by the Agent, which in accordance with the terms of this Agreement would be applied to the reduction of the applicable Loans, for application to the Swingline Lenders Loans including applicable Swingline
Loans. If, as of any Settlement Date, collections received since the then immediately preceding Settlement Date have been applied to the Swingline Lenders Loans (other than to applicable Swingline Loans or applicable Agent Advances in which
such Lender has not yet funded its purchase of a participation pursuant to clause (ii) above), as provided for in the previous sentence, the Swingline Lender shall pay to the Agent for the accounts of the applicable Lenders, to be
applied to the applicable 225
outstanding Loans of such Lenders, an amount such that each Lender shall, upon receipt of
such amount, have, as of such Settlement Date, its Pro Rata Share of the applicable Loans. During the period between Settlement Dates, the Swingline Lender with respect to applicable Swingline Loans, the Agent with respect to applicable Agent
Advances, and each Lender with respect to the applicable Loans other than applicable Swingline Loans and applicable Agent Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the actual average
daily amount of funds employed by the Agent and the other Lenders, respectively. (v) Unless the Agent has received
written notice from the Required Lenders to the contrary, the Agent may assume that the applicable conditions precedent set forth in Article IX have been satisfied. (b) Lenders Failure to Perform. All Loans (other than Swingline Loans and Agent Advances) shall be made by the
Lenders simultaneously and in accordance with their Pro Rata Shares thereof. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any applicable Loans hereunder, nor
shall any applicable Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligation to make any Loans hereunder, (ii) no failure by any Lender to perform its obligation to make any
Loans hereunder shall excuse any other Lender from its obligation to make any Loans hereunder, and (iii) the obligations of each Lender hereunder shall be several, not joint and several. (c) Defaulting Lenders. Unless the Agent receives notice from a Lender on or prior to the Closing Date or, with respect
to any Borrowing after the Closing Date, at least one Business Day prior to the date of such Borrowing, that such Lender will not make available as and when required hereunder to the Agent that Lenders Pro Rata Share of a Borrowing, the Agent
may assume that each such Lender has made such amount available to the Agent in immediately available funds on the Funding Date. Furthermore, the Agent may, in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If any Lender has not transferred its full Pro Rata Share to the Agent in immediately available funds, and the Agent has transferred the corresponding amount to the Borrower, on the Business Day following such Funding Date such
Lender shall make such amount available to the Agent, together with interest at the Federal Funds Effective Rate for that day. A notice by the Agent submitted to any Lender with respect to amounts owing shall be conclusive, absent manifest error. If
each Lenders full Pro Rata Share is transferred to the Agent as required, the amount transferred to the Agent shall constitute that Lenders applicable Loan for all purposes of this Agreement. If that amount is not transferred to the
Agent on the Business Day following the Funding Date, the Agent will notify the Borrower of such failure to fund and, upon demand by the Agent, the Borrower shall pay such amount to the Agent for the Agents account, together with interest
thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the Interest Rate applicable at the time to the applicable Loans comprising that particular Borrowing. The failure of any Lender to make any applicable Loan
on any Funding Date shall not relieve any other Lender of its obligation hereunder to make an applicable Loan on that Funding Date. No Lender shall be responsible for any other Lenders failure to advance such other Lenders Pro Rata Share
of any Borrowing. 226
13.15 Letters of Credit; Intra-Lender Issues. (a) Notice of Letter of Credit Balance. On each Settlement Date, the Agent shall notify each Lender of the issuance of
all Letters of Credit since the prior Settlement Date. In addition, upon the reasonable request of a Lender from time to time, the Agent shall provide such Lender with a list of the then-outstanding Letters of Credit. (b) Participations in Letters of Credit. (i) Purchase of Participations. Immediately upon issuance of any Letter of Credit in accordance with
Section 2.3(d), each Lender shall be deemed to have irrevocably and unconditionally purchased and received without recourse or warranty, an undivided interest and participation equal to such Lenders Pro Rata Share of the face
amount of such Letter of Credit in connection with the issuance or acceptance of such Letter of Credit (including all obligations of the Borrower with respect thereto, and any security therefor or guaranty pertaining thereto). (ii) Sharing of Reimbursement Obligation Payments. Whenever the Agent receives a payment from the Borrower on account
of reimbursement obligations in respect of a Letter of Credit as to which the Agent has previously received for the account of the applicable Letter of Credit Issuer thereof payment from a Lender, the Agent shall promptly pay to such Lender such
Lenders applicable Pro Rata Share of such payment from the Borrower. Each such payment shall be made by the Agent on the next Settlement Date. (iii) Documentation. Upon the request of any applicable Lender, the Agent shall furnish to such Lender copies of any
Letter of Credit, reimbursement agreements executed in connection therewith, applications for any Letter of Credit, and such other documentation relating to such Letter of Credit as may reasonably be requested by such Lender. (iv) Obligations Irrevocable. The obligations of each applicable Lender to make payments to the Agent with respect to
any applicable Letter of Credit or with respect to their participation therein or with respect to the Revolving Loans made as a result of a drawing under a Letter of Credit and the obligations of the Borrower for whose account the Letter of Credit
was issued to make payments to the Agent, for the account of the applicable Lenders, shall be irrevocable and shall not be subject to any qualification or exception whatsoever, including any of the following circumstances: (A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents; 227
(B) the existence of any claim, setoff, defense or other right which the
Borrower may have at any time against a beneficiary named in a Letter of Credit or any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), any Lender, the Agent, the applicable Letter of Credit Issuer, or
any other Person, whether in connection with this Agreement, any applicable Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the Borrower or any other Person and the
beneficiary named in any Letter of Credit); (C) any draft, certificate or any other document presented under the 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; (D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan
Documents; (E) the occurrence of any Default or Event of Default; or (F) the failure of the Borrower to satisfy the applicable conditions precedent set forth in Article IX. (c) Recovery or Avoidance of Payments; Refund of Payments In Error. In the event any payment by or on behalf of the
Borrower received by the Agent with respect to any Letter of Credit and distributed by the Agent to the applicable Lenders on account of their respective participations therein is thereafter set aside, avoided or recovered from the Agent or the
applicable Letter of Credit Issuer in connection with any receivership, liquidation or bankruptcy proceeding, the Lenders shall, upon demand by the Agent, pay to the Agent their respective applicable Pro Rata Shares of such amount set aside, avoided
or recovered, together with interest at the rate required to be paid by the Agent or the applicable Letter of Credit Issuer upon the amount required to be repaid by it. Unless the Agent receives notice from the Borrower prior to the date on which
any payment is due to the applicable Lenders that the Borrower will not make such payment in full as and when required, the Agent may assume that the Borrower have made such payment in full to the Agent on such date in immediately available funds
and the Agent may (but shall not be so required), in reliance upon such assumption, distribute to each applicable Lender on such due date an amount equal to the amount then due such applicable Lender. If and to the extent the Borrower have not made
such payment in full to the Agent, each Lender shall repay to the Agent on demand such amount distributed to such Lender, together with interest thereon at the Federal Funds Effective Rate for each day from the date such amount is distributed to
such Lender until the date repaid. (d) Indemnification by Lenders. To the extent not reimbursed by the Borrower
and without limiting the obligations of the Borrower hereunder, the Lenders agree to indemnify the applicable Letter of Credit Issuer ratably in accordance with their respective Pro Rata Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including attorneys fees) or disbursements of any kind 228
and nature whatsoever that may be imposed on, incurred by or asserted against such Letter of
Credit Issuer in any way relating to or arising out of any Letter of Credit or the transactions contemplated thereby or any action taken or omitted by such Letter of Credit Issuer under any Letter of Credit or any Loan Document in connection
therewith; provided that no Lender shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of the Person to be indemnified (as determined by a court of competent jurisdiction in a final
and non-appealable decision). Without limitation of the foregoing, each Lender agrees to reimburse the applicable Letter of Credit Issuer promptly upon demand for its Pro Rata Share of any costs or expenses payable by the Borrower to such Letter of
Credit Issuer, to the extent that such Letter of Credit Issuer is not promptly reimbursed for such costs and expenses by the Borrower. The agreement contained in this Section 13.15(c) and (d) shall survive payment in full of
all other Obligations. 13.16 Concerning the Collateral and the Related Loan Documents. Each Lender authorizes and directs each
Appointed Agent to enter into the other Loan Documents, including any Intercreditor Agreement, for the ratable benefit and obligation of the Appointed Agents and the Lenders. Each Lender agrees that any action taken by any Appointed Agent or the
Required Lenders, as applicable, in accordance with the terms of this Agreement or the other Loan Documents, and the exercise by any Appointed Agent or the Required Lenders, as applicable, of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall be binding upon all of the Lenders. The Lenders acknowledge that the Loans, applicable Agent Advances, applicable Swingline Loans, Secured Hedge Agreements, Secured Cash
Management Agreements, and all interest, fees and expenses hereunder constitute one Debt, secured equally by all of the applicable Collateral, subject to the order of distribution set forth in Section 10.3. 13.17 Field Examination; Disclaimer by Lenders. By signing this Agreement, each Lender: (a) is deemed to have requested that an Appointed Agent furnish such Lender, promptly after it becomes available, a copy of
each Field Examination (each, a Report and collectively, Reports) prepared by or on behalf of any Appointed Agent; (b) expressly agrees and acknowledges that each Appointed Agent (i) makes no representation or warranty as to the
accuracy of any Report and (ii) shall not be liable for any information contained in any Report; (c) expressly
agrees and acknowledges that the Reports are not comprehensive audits or examinations, that any Appointed Agent or other party performing any audit or examination will inspect only specific information regarding the Obligors and will rely
significantly upon the Obligors books and records, as well as on representations of Obligors personnel; (d)
agrees to keep all Reports confidential and strictly for its internal use, and not to distribute except to its participants, or use any Report in any other manner; and 229
(e) without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold each Appointed Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report
in connection with any loans or other credit accommodations that the indemnifying Lender has made or may make to the Borrower, or the indemnifying Lenders participation in, or the indemnifying Lenders purchase of, a loan or loans of the
Borrower; and (ii) to pay and protect, and indemnify, defend and hold each Appointed Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses and other amounts
(including Attorney Costs) incurred by such Appointed Agent and any such other Person preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender. 13.18 Relation Among Lenders. The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of,
or (except as otherwise set forth herein in the case of the Appointed Agents) authorized to act for, any other Lender. 13.19
Arrangers. Each of the parties to this Agreement acknowledges that, other than any rights and duties explicitly assigned to the Arrangers under this Agreement, the Arrangers do not have any obligations hereunder and shall not be responsible
or accountable to any other party hereto for any action or failure to act hereunder. Without limiting the foregoing, no Arranger shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on the Arrangers in deciding to enter into this Agreement or in taking or not taking action hereunder. 13.20
The Register. (a) The Agent shall maintain a register (each, a Register), which shall include a
master account and a subsidiary account for each applicable Lender and in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of each Loan comprising such Borrowing and any
Interest Period applicable thereto, (ii) the effective date and amount of each Assignment and Acceptance delivered to and accepted by it and the parties thereto, (iii) the amount of any principal or stated interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the notes payable by the Borrower to such Lender, and (iv) the amount of any sum received by the Agent from the Borrower or any other Obligor and each Lenders
ratable share thereof. Each Register shall be available for inspection by the Borrower or any applicable Lender (with respect to its own Loans and Commitments only) at the office of the Agent referred to in Section 14.8 at any reasonable
time and from time to time upon reasonable prior written notice. Any failure of the Agent to record in the applicable Register, or any error in doing so, shall not limit or otherwise affect the obligation of the Borrower hereunder (or under any Loan
Document) to pay any amount owing with respect to the Loans or provide the basis for any claim against the Agent. The Loans and Letters of Credit are registered obligations and the right, title and interest of any Lender and their assignees in and
to such Loans and Letters of Credit as the case may be, shall be transferable only upon notation of such transfer in the applicable Register. Upon the request of any Lender made through the Agent, the Borrower shall
230
execute and deliver to such Lender (through the Agent) a Note payable to such Lender, which shall evidence such Lenders 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. Solely for purposes of this Section 13.20, the Agent shall be the Borrowers agent for
purposes of maintaining the applicable Register (but the Agent shall have no liability whatsoever to the Borrower or any other Person on account of any inaccuracies contained in the applicable Register). The Obligors and the Agent intend that the
Loans and Letters of Credit will be treated as at all times maintained in registered form within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Internal Revenue Code and any related regulations (and any other relevant or
successor provisions of the Internal Revenue Code or such regulations). (b) In the event that any Lender sells
participations in any Loan, Commitment or other interest of such Lender hereunder or under any other Loan Document, such Lender, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters
the name of all Participants in the Loans held by it and the principal amount (and related interest thereon) of the portion of the Loans or Commitments which are the subject of the participation (the Participant Register). A Loan
or Commitment may be participated in whole or in part only by registration of such participation on the Participant Register (and each note shall expressly so provide). Any participation of such Loans or Commitments may be effected only by the
registration of such participation on the Participant Register. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a
Participants interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) 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 45.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error. (c) Each Register shall be maintained by the Agent as a non-fiduciary agent of the Borrower. Each Register shall be conclusive
absent manifest error. 13.21 Secured Cash Management Agreements and Secured Hedge Agreements. Except as otherwise expressly set
forth herein or in the Guarantee Agreement or any Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of any Guaranty or any Collateral by virtue of the provisions hereof or of the Guarantee Agreement or any Security
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) 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 XIII to the contrary, the 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 unless the Agent has received written notice of such Obligations, together with
such supporting documentation as the Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. 231
13.22 Withholding Taxes. To the extent required by any applicable Law, the Agent may
deduct or withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such
Lender (but only to the extent that an Obligor has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of any Obligor to do so), (ii) any Taxes attributable to such Lenders failure to comply
with the provisions of Section 13.20(b) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Agent to set-off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan
Document against any amount due the Agent under this Section 13.22. The agreements in this Section 13.22 shall survive the resignation and/or replacement of the Agent, any assignment of rights by, or the replacement of, a
Lender, the termination of this Agreement and the repayment, satisfaction or discharge of all other obligations. For the avoidance of doubt, (1) the term Lender shall, for purposes of this Section 13.22, include any
Letter of Credit Issuer and any Swingline Lender and (2) this Section 13.22 shall not limit or expand the obligations of the Borrower or any Guarantor under Section 5.1 or any other provision of this Agreement. 13.23 Certain ERISA Matters. (a) 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 Agent and
each (i) such
Lender is not using plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments, (ii) 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 Lenders entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, 232
(iii) (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 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 Lenders entrance into, participation
in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or (iv)
such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender. (b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to
a Lender or such Lender has not provided another representation, warranty and covenant as provided in 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 Agent, each (i) none of the Agent, any (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or
other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies
(including in respect of the Obligations), 233
(iv) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of
Credit, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and (v) no fee or other compensation is being paid directly to the Agent or any (c) The Agent and each 13.24 Erroneous Payments. (a) Each Lender (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and
agrees that if the Agent notifies such Lender that the Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender (any of the foregoing, a Payment Recipient) from the Agent (or any
of its Affiliates) were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Payment Recipient) (whether as a payment, prepayment or repayment of principal, interest,
fees or otherwise; individually and collectively, a Payment) and demands the return of such Payment, such Payment Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Agent the amount of
any such Payment as to which such a demand was made. A notice of the Agent to any Payment Recipient under this Section shall be conclusive, absent manifest error. (b) Without limitation of clause (a) above, each Payment Recipient further acknowledges and agrees that if such
Payment Recipient receives a Payment from the Agent (or any of its Affiliates) (x) that is in an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Agent (or any of its Affiliates) with
respect to such Payment (a Payment Notice), (y) that was not preceded 234
or accompanied by a Payment Notice, or (z) that such Payment Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it
understands and agrees at the time of receipt of such Payment that an error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Payment Recipient agrees that, in each such case, it shall promptly
notify the Agent of such occurrence and, upon demand from the Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Agent the amount of any such Payment (or portion thereof) as to which such a demand was
made. (c) Any Payment required to be returned by a Payment Recipient under this Section shall be made in same day funds
in the currency so received, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Agent at the greater of
the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation from time to time in effect. Each Payment Recipient hereby agrees that it shall not assert and, to the fullest
extent permitted by applicable law, hereby waives, any right to retain such Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Agent for the return of any Payment received, including
without limitation any defense based on discharge for value or any similar doctrine. (d) The Borrower and
each other Obligor hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Agent shall be subrogated to all the
rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Obligor except, in each case, to the extent such
erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Obligor. (e) Each partys obligations, agreements and waivers under this Section 13.24 shall survive the resignation
or replacement of the Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan
Document. 13.25 Intercreditor Agreements. The Agent and the Collateral Agent are hereby authorized to enter into the Initial Intercreditor Agreement, [**] and any other usual and customary
intercreditor or subordination agreements or arrangements approved in writing by the Required Lenders (for purposes of this paragraph, any such agreement, an Intercreditor Arrangement) to the extent contemplated by the terms
hereof, and the parties hereto acknowledge that each Intercreditor Arrangement is binding upon them. Each Lender (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of each Intercreditor Arrangement at
any time existing and (b) hereby authorizes and instructs each of the Agent and the Collateral Agent to enter into Intercreditor Arrangements approved by the Agent and Required Lenders and to subject the Liens on the Collateral securing the
Obligations to the provisions thereof, as the case may be. In addition, but in conformance with the terms hereof, 235
each Lender hereby authorizes each of the Agent and the Collateral Agent to enter into (i) any
amendments to the Intercreditor Arrangements and (ii) any other intercreditor arrangements, in the case of clauses (i) and (ii) to the extent approved in writing by the Required Lenders and required to give effect to the
establishment of intercreditor rights and privileges as contemplated and/or required by this Agreement. Each Lender waives any conflict of interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against the
Agent, the Collateral Agent or any of their respective Affiliates any claims, causes of action, damages or liabilities of whatever kind or nature relating thereto. Each Lender hereby acknowledges and agrees that the provisions of
Section 13.25 of this Agreement shall apply with equal effect to any Intercreditor Arrangement. 13.26 Posting of
Communications. (a) The Borrower agrees that the Agent may, but shall not be obligated to, make any Communications
available to the Lenders and the (b) Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security
procedures and policies implemented or modified by the Agent from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method
whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Letter of Credit Issuers and the Borrower acknowledges and agrees that the distribution of material through an electronic medium is
not necessarily secure, that the Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated
with such distribution. Each of the Lenders, the Letter of Credit Issuers and the Borrower hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED AS IS AND AS AVAILABLE. THE
APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM
AND THE COMMUNICATIONS. 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 THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE AGENT, THE COLLATERAL AGENT, ANY ARRANGER, OR ANY OF THEIR RESPECTIVE 236
RELATED PARTIES (COLLECTIVELY, APPLICABLE PARTIES) HAVE ANY LIABILITY TO
ANY OBLIGOR, ANY LENDER, ANY LETTER OF CREDIT ISSUER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)
ARISING OUT OF ANY OBLIGORS OR THE AGENTS TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM. Communications means, collectively, any notice, demand, communication, information, document or other material provided by
or on behalf of any Obligor pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Agent, any Lender or Letter of Credit Issuer by means of electronic communications pursuant to this Section, including
through an Approved Electronic Platform. (d) Each Lender and Letter of Credit Issuer agrees that notice to it (as
provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender and Letter of
Credit Issuer agrees (i) to notify the Agent in writing (which could be in the form of electronic communication) from time to time of such Lenders or Letter of Credit Issuers (as applicable) email address to which the foregoing
notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address. (e) Each of the Lenders, Letter of Credit Issuers and the Borrower agrees that the Agent may, but (except as may be required
by applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Agents generally applicable document retention procedures and policies. (f) Nothing herein shall prejudice the right of the Agent, any Lender or Letter of Credit Issuer to give any notice or other
communication pursuant to any Loan Document in any other manner specified in such Loan Document. ARTICLE XIV MISCELLANEOUS 14.1 No
Waivers; Cumulative Remedies. No failure by any Appointed Agent or any Lender to exercise any right, remedy, or option under this Agreement or any present or future supplement hereto, or in any other Loan Documents, or delay by any Appointed
Agent or any Lender in exercising the same, will operate as a waiver thereof. No waiver by any Appointed Agent or any Lender will be effective unless it is in writing, and then only to the extent specifically stated. No waiver by any Appointed Agent
or the Lenders on any occasion shall affect or diminish any Appointed Agents and each Lenders rights thereafter to require strict performance by the Obligors of any provision of this Agreement and the other Loan Documents. Each Appointed
Agents and each Lenders rights under this Agreement and the other Loan Documents will be cumulative and not exclusive of any other right or remedy which the Appointed Agent or any Lender may have. 237
14.2 Severability. The illegality or unenforceability of any provision of this
Agreement or any Loan Document or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.
14.3 Governing Law; Choice of Forum; Service of Process. (a) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA LOCATED IN NEW YORK COUNTY, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY LOAN DOCUMENT. NOTWITHSTANDING THE FOREGOING: (i) THE AGENT SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER, ANY
GUARANTOR OR ANY COLLATERAL IN THE COURTS OF ANY OTHER JURISDICTION THE AGENT DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS AND (ii) EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT ANY
APPEALS FROM THE COURTS DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE THOSE JURISDICTIONS. (c) EACH OF THE PARTIES HERETO HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE APPLICABLE ADDRESS SET FORTH IN SECTION 14.8 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO
DEPOSITED IN THE MAILS POSTAGE PREPAID. 238
14.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. 14.5 Survival of Representations and Warranties. All
of the Borrowers and other Obligors representations and warranties contained in this Agreement and the other Loan Documents shall survive the execution, delivery, and acceptance thereof by the parties, notwithstanding any investigation
by the Agent or the Lenders or their respective agents. 14.6 Other Security and Guarantees. The Agent may, without notice or
demand and without affecting the Borrowers or any Obligors obligations hereunder, from time to time: (a) take from any Person (to the extent permitted by such Person) and hold collateral (other than the Collateral) for the payment of all
or any part of the Obligations and exchange, enforce or release such collateral or any part thereof; and (b) accept and hold any endorsement or guaranty of payment of all or any part of the Obligations and release or substitute any such
endorser or guarantor, or any Person who has given any Lien in any other collateral as security for the payment of all or any part of the Obligations, or any other Person in any way obligated to pay all or any part of the Obligations. 14.7 Fees and Expenses. Except for the costs and expenses relating to Field Examinations and Appraisals, which shall be covered by
Section 8.4, the Borrower agrees (a) to pay or reimburse the Agent, the Collateral Agent and the Arrangers (without duplication) for all reasonable and documented or invoiced out-of-pocket costs and expenses associated with the
syndication of the Revolving Credit Facility and the preparation, execution and delivery, administration, amendment, modification, waiver and/or enforcement of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other
modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), such costs and expenses to be limited in the case of legal costs and expenses to the Attorney Costs) and (b) to pay or
reimburse the Agent, the Collateral Agent and the Required Lenders for all reasonable and documented or invoiced out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other
Loan Documents (such costs and expenses to be limited in the case of legal costs and expenses to the Attorney Costs). Subject to the limitations above, the foregoing costs and expenses shall include all reasonable and documented or invoiced search,
filing, recording and title insurance charges and fees related thereto, all reasonable and documented or invoiced costs and expenses in connection with the opening and maintenance of the Concentration Account. The agreements in 239
this Section 14.7 shall survive the Termination Date and repayment of all other Obligations. All
amounts due under this Section 14.7 shall be paid within twenty (20) Business Days of receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. 14.8 Notices. Except as otherwise provided herein, including Section 13.26, all notices, demands and requests that any
party is required or elects to give to any other shall be in writing, or by a telecommunications device capable of creating a written record, and any such notice shall become effective (a) upon personal delivery thereof, including, but not
limited to, delivery by overnight mail and courier service, (b) four (4) days after it shall have been mailed by United States mail, first class, certified or registered, with postage prepaid, or (c) in the case of notice by such a
telecommunications device, when properly transmitted, in each case addressed to the party to be notified as follows: 10 S Dearborn St., Chicago, IL 60603 Attention: Dillon Klahn Secondary Contact: Attention: Dalton
Harris Dallas, Texas 75201 Attention: Erec Winandy Email: ewinandy@velaw.com Facsimile No.:
(214) 999-7756 PROFRAC HOLDINGS II, LLC 333 Shops Boulevard,
Suite 301 Willow Park, Texas 76087 Attention: Matt
Wilks Email: matt.wilks@profrac.com Facsimile No.:
(254) 442-8042 One Financial Center Boston, Massachusetts
02111 Attention: Andreas P. Andromalos, Esq. Email:
aandromalos@brownrudnick.com Facsimile No.: (617) 289-0495 240
or to such other address as each party may designate for itself by like notice. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other communication to the persons designated above to receive copies shall not adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other
communication. 14.9 Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the
respective representatives, successors, and assigns of the parties hereto. The rights and benefits of the Agent and the Lenders hereunder shall, if such Persons so agree, inure to any party acquiring any interest in the Obligations or any part
thereof to the extent permitted hereunder. 14.10 Indemnity of the Agent, the Collateral Agent and the Lenders. (a) Subject to the provisions of Sections 14.10(b) and (c), the Borrower agrees to defend, indemnify and hold
all Agent-Related Persons, each Arranger, and each Lender (without duplication) and each of their respective Affiliates, officers, directors, employees, agents, controlling persons, advisors and other representatives, successors and permitted
assigns of the foregoing (each, an Indemnified Person) harmless from and against any and all losses, claims, costs, damages and liabilities (collectively, Losses) of any kind or nature that arises out of or
relates to (i) the Transactions, including the financing contemplated hereby and the use of proceeds hereof; (ii) breach or non-compliance with the covenants in Article VIII of this Agreement; (iii) any actual or alleged
Release or threat of Release of any Contaminant at any facility or location currently or formerly owned, used or operated by Holdings or the Borrower; or (iv) any liability under Environmental Laws relating in any way to Holdings or the
Borrower (including any inquiry or investigation of the foregoing) (regardless of whether such Indemnified Person is a party thereto or whether or not such action, claim, litigation or proceeding was brought by the Borrower, its equity holders,
affiliates (other than an Affiliated Insurance Entity) or creditors or any other third Person). (b) Under this
Section 14.10, Indemnified Persons shall be entitled to the reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to or defending any of the Losses foregoing (such
expenses, in the case of legal expenses, to be limited to the reasonable fees, disbursements and other charges of a single firm of counsel for all Indemnified Persons, taken as a whole, and, if necessary, of a single firm of local counsel in each
appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all Indemnified Persons taken as a whole (and, in the case of an actual or perceived conflict of interest, where the Indemnified
Person(s) affected by such conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, by such other firm of counsel for such affected Indemnified Person)) of any such Indemnified Person. 241
(c) No Indemnified Person will be indemnified for any Loss or related
expense under this Section 14.10 to the extent it has resulted from (i) the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of its Affiliates or any of the officers, directors, employees, agents,
controlling persons, advisors or other representatives, successors or permitted assigns of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the
obligations under this Agreement or the other Loan Documents of such Indemnified Person or any of such Indemnified Persons Affiliates or any of the officers, directors, employees, agents, controlling persons, advisors or other representatives,
successors or permitted assigns of any of the foregoing (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any claim, litigation, investigation or other proceeding that does not arise from any
act or omission by the Borrower or any of its Affiliates (other than an Affiliated Insurance Entity) and that is brought by any Indemnified Person against any other Indemnified Person; provided that the Agent, the Collateral Agent and the
Arrangers to the extent fulfilling their respective roles as an agent or arranger under this Agreement and the other Loan Documents and in their capacities as such, shall remain indemnified in respect of such proceedings to the extent that none of
the exceptions set forth in any of clauses (i) and (ii) of the immediately preceding proviso applies to such person at such time. (d) The agreements in this Section 14.10 shall survive payment of all other Obligations. For the avoidance of
doubt, this Section 14.10 shall not apply to Taxes other than Taxes that represent liabilities, obligations, losses or damages, with respect to a non- Tax claim. 14.11 Limitation of Liability. Notwithstanding any other provision of this Agreement to the contrary, (i) no Indemnified Person
shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have
resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Persons affiliates or any of its or their respective officers, directors, employees, agents, controlling persons,
advisors or other representatives, successors or permitted assigns (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of the Borrower, the other Obligors or any of their respective Subsidiaries
or Affiliates, or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Agreement, the other
Loan Documents, the Transactions (including the use of proceeds hereof), or with respect to any activities related to this Agreement and the other Loan Documents, including the preparation of this Agreement and the other Loan Documents; provided
that nothing in this Section 14.11 shall limit the Borrowers indemnity and reimbursement obligations set forth in Section 14.10 to the extent that such indirect, special, punitive or consequential damages are
included in any claim by a third party unaffiliated with the applicable Indemnified Person with respect to which the applicable Indemnified Person is entitled to indemnification as set forth in Section 14.10. 242
14.12 Final Agreement. This Agreement and the other Loan Documents are intended by
the parties hereto to be the final, complete, and exclusive expression of the agreement between them with respect to the subject matter hereof and thereof. This Agreement supersedes any and all prior oral or written agreements relating to the
subject matter hereof, except for the fee provisions in the Fee Letters (other than to the extent set forth in Section 3.4). 14.13 Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, and by the Agent, the
Collateral Agent, the Letter of Credit Issuers, each Lender and the Borrower in separate counterparts, each of which shall be an original, but all of which shall together constitute one and the same agreement; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Agreement and the other Loan Documents may be executed by facsimile or other electronic communication
and the effectiveness of this Agreement and the other Loan Documents and signatures thereon shall have the same force and effect as manually signed originals and shall be binding on all parties thereto. The Agent may require that any such documents
and signatures be confirmed by a manually-signed original thereof, provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile signature or signature delivered electronically. 14.14 Captions. The captions contained in this Agreement are for convenience of reference only, are without substantive meaning and
should not be construed to modify, enlarge, or restrict any provision. 14.15 Right of Setoff. In addition to any rights and
remedies of the Lenders provided by Law, if an Event of Default is then continuing or the Loans have been accelerated prior to the Stated Termination Date, each Lender is authorized at any time and from time to time, without prior notice to the
Borrower or any Guarantor, any such notice being waived by each Obligor to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender or any Affiliate of such Lender to or for the credit or the account of the Borrower or any Guarantor against any and all Obligations then due and owing by an Obligor under this Agreement or any other
Loan Document to such Lender, now or hereafter existing, irrespective of whether or not the Agent or such Lender shall have made demand under this Agreement or any Loan Document. Each Lender agrees promptly to notify the Borrower and the Agent after
any such set-off and application made by such Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY
RIGHT OF SET-OFF, BANKERS LIEN, OR THE LIKE WITH RESPECT TO THE LOANS AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF THE BORROWER OR ANY GUARANTOR HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS. 14.16 Confidentiality. Each Lender, each Letter of Credit Issuer and the Agent severally agrees to treat confidentially and not
publish, disclose or otherwise divulge any non-public information provided to any of them or any of their Affiliates by or on behalf of Holdings, the Borrower or any of their respective Subsidiaries or in connection with this Agreement, the other
Loan Documents or the Transactions; provided that nothing herein shall prevent such Person from 243
disclosing any such information (a) pursuant to the order of any court or administrative agency or in
any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation, or compulsory legal process based on the reasonable advice of counsel (in which case such Person agrees (except with respect to
any audit or examination conducted by bank accountants or any self-regulatory authority or Governmental Authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable Law, rule or regulation, to
inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction or purporting to have jurisdiction over such Person or any of its Affiliates (in which case such Person agrees
(except with respect to any audit or examination conducted by bank accountants or any regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable Law, rule or regulation, to inform
you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Person or any of its Affiliates or any related parties thereto (including any of
the persons referred to in clause (f) below) in violation of any confidentiality obligations owing to Holdings or any of its Subsidiaries or Affiliates, (d) to the extent that such information is or was received by such Person from
a third party that is not, to such Persons knowledge, subject to contractual or fiduciary confidentiality obligations owing to Holdings, any of its Subsidiaries or Affiliates, (e) to the extent that such information is independently
developed by such Person or its Affiliates without the use of any confidential information and without violating the terms of this Agreement, (f) to such Persons Affiliates and to its and their respective directors, officers, employees,
legal counsel, independent auditors, professionals and other experts or agents who need to know such information in connection with this Agreement and who are informed of the confidential nature of such information or who are subject to customary
confidentiality obligations of professional practice (with such Person, to the extent within its control, responsible for such persons compliance with this Section 14.16), (g) for purposes of establishing a due
diligence defense, (h) to potential or prospective Lenders, Participants or Assignees and to any direct or indirect contractual counterparty to any swap or derivative transaction relating to the Borrower or any of its Subsidiaries, in each
case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph); provided that, for purposes of this clause (h), (A) the disclosure of any such information to any Lenders, hedge
providers, Participants or Assignees, or prospective Lenders, hedge providers, Participants or Assignees referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider, Participant or Assignee, or
prospective Lender, hedge provider, Participant or Assignee that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to the Borrower and such
Person) in accordance with the standard syndication processes of the Agent or customary market standards for dissemination of such type of information, which shall in any event require click through or other affirmative actions on the
part of recipient to access such information and (B) no such disclosure shall be made by such Person to any person that is at such time a Disqualified Lender, (i) to any other party hereto, (j) any rating agency to the extent that
Borrower is given ten (10) days prior written notice prior to any such communication and/or disclosure and/or (k) with the consent of the Borrower. Notwithstanding anything herein or in any other Loan Document to the contrary, the
Agent shall not (x) be responsible for, have any liability with respect to, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders or have any liability
with respect to or arising out of any assignment or participation of 244
Loans or Commitments to any Disqualified Lender and (y) have any liability with respect to any
disclosure of confidential information to any Disqualified Lenders, except in each case of foregoing clauses (x) and (y), to the extent any such liability results directly from the Agents gross negligence, bad faith or
willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision). To extent permitted in accordance with Applicable Law, the Agent and the Lenders may disclose information concerning the terms and
conditions of this Agreement and the other Loan Documents to loan syndication and pricing reporting services or in its marketing or promotional materials, with such information to consist of deal terms and other information customarily found in such
publications or marketing or promotional materials and may otherwise use the name, logos, and other insignia of any Borrower or the other Obligors and the Commitments provided hereunder in any tombstone or other advertisements, on its
website or in other marketing materials of the Agent or any Lender. Each of the Agent, the Lenders and the Letter of Credit Issuer acknowledges that
(a) the information provided by or behalf of Obligors may include material non-public information concerning the Obligors and/or Parent Entity and its Subsidiaries, 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. 14.17 Conflicts with Other Loan Documents. Unless otherwise expressly provided in this Agreement (or in another Loan Document by
specific reference to the applicable provision contained in this Agreement), if any provision contained in this Agreement conflicts with any provision of any other Loan Document (other than any Intercreditor Agreement), the provision contained in
this Agreement shall govern and control. 14.18 No Fiduciary Relationship. Each Obligor acknowledges and agrees that, (i) in
connection with all aspects of each transaction contemplated by this Agreement, the Obligors, on the one hand, and the Appointed Agents, the Arrangers, the Lenders and each of their Affiliates through which they may be acting (collectively, the
Applicable Entities), on the other hand, have an arms-length business relationship that creates no fiduciary duty on the part of any Applicable Entity, and each Obligor expressly disclaims any fiduciary relationship, (ii) the
Applicable Entities may be engaged in a broad range of transactions that involve interests that differ from those of such Obligor, and no Applicable Entity has any obligation to disclose any of such interests to such Obligor and (iii) such
Obligor has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each Obligor further acknowledges and agrees that such Obligor is responsible for making its own independent judgment with respect
to the transactions contemplated by this Agreement and the process leading thereto, and agrees that it will not claim that the Applicable Entities have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to such
Obligor or its affiliates, in connection with such transactions or the process leading thereto. 14.19 Judgment Currency. If for
the purpose of obtaining judgment in any court it is necessary to convert an amount due hereunder in the currency in which it is due (the Original Currency) into another currency (the Second Currency), the rate
of exchange applied shall be that at which, in accordance with normal banking procedures, the Agent could purchase in the New York foreign exchange market, the Original Currency with the Second Currency on the date two 245
(2) Business Days preceding that on which judgment is given. Each Obligor agrees that its obligation in
respect of any Original Currency due from it hereunder shall, notwithstanding any judgment or payment in such other currency, be discharged only to the extent that, on the Business Day following the date the Agent receives payment of any sum so
adjudged to be due hereunder in the Second Currency, the Agent may, in accordance with normal banking procedures, purchase, in the New York foreign exchange market, the Original Currency with the amount of the Second Currency so paid; and if the
amount of the Original Currency so purchased or could have been so purchased is less than the amount originally due in the Original Currency, each Obligor agrees as a separate obligation and notwithstanding any such payment or judgment to indemnify
the Agent against such loss. The term rate of exchange in this Section 14.19 means the spot rate at which the Agent, in accordance with normal practices, is able on the relevant date to purchase the Original Currency with the
Second Currency, and includes any premium and costs of exchange payable in connection with such purchase. 14.20 USA PATRIOT Act.
Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not on behalf of any Lender) hereby notifies each Obligor that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the Act), it is required to obtain, verify and record information that identifies each Obligor, which information includes the name and address of each Obligor and other information that will
allow such Lender or the Agent, as applicable, to identify each Obligor in accordance with the Act. Each Obligor shall, promptly following a request by the Agent or any Lender, provide all documentation and other information that the Agent or such
Lender requests in order to comply with its ongoing obligations under applicable know your customer an anti- money laundering rules and regulations, including the Act. 14.21 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. (a) 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 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: (A) a reduction in full or in part or cancellation of any such liability; 246
(B) 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 (C) 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. 14.22 Acknowledgement
Regarding Any Supported QFCs. 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): (a) 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. (b) As used in this Section 14.22, the following terms have the following meanings: 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. 247
Covered Entity means any of the following: (i) a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
47.3(b); or (iii) a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b). 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. 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). [Remainder of Page Left Blank] 248
SCHEDULE 1.1 COMMITMENTS Lender JPMorgan Chase Bank, N.A. Bank of America, N.A. Fifth Third Bank, National Association Webster Business Credit a Division of Webster Bank N.A. BOKF, National Association TOTAL Letter of Credit Issuer JPMorgan Chase Bank, N.A. (or any of its Subsidiaries or Affiliates) Bank of America, N.A. (or any of its Subsidiaries or Affiliates) Fifth Third Bank, National Association (or any of its Subsidiaries or Affiliates) TOTAL
SCHEDULE 1.1(C) SPECIFIED EXCLUDED ASSETS YEAR MAKE MODEL VEHICLE IDENTIFICATION 2018 2018 2018 2017 2018 2018 2018 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2020 2020 2020 2020 2020 2020 2018 2018 2018 2017 2018 2018 2018 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2020 2020 2020 2020 2020 2020 2020 2020 2020 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2019 2019 2019 2019 2019 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019 2019
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2019 2019 2019 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2020 2019 2019 2017 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2020 2020 2020 2020 2020 2020 2020 2020 2020 2017 2018 2018 2018 2018 2018 2018 2018 2018 2018
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2018 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2016 2020 2020
YEAR MAKE MODEL VEHICLE IDENTIFICATION 2020 2020 2020 2020 2020 2020 2020
SCHEDULE 7.4 SUBSIDIARIES; STOCK Holdings and
Subsidiaries: Obligor Name Jurisdiction of Organization Form of Organization Organizational I.D. States where Qualified to do Business
Obligor Name Jurisdiction of Organization Form of Organization Organizational I.D. States where Qualified to do Business
Obligor Name Jurisdiction of Organization Form of Organization Organizational I.D. States where Qualified to do Business Chief Executive Office (ProFrac Holdings, LLC, ProFrac Holdings II, LLC, ProFrac Services, LLC, ProFrac Manufacturing, LLC,
Best Pump and Flow, LLC, Alpine Silica, LLC, SP Silica of Monahans, LLC, SP Silica Sales, LLC, AG PSC Funding LLC, U.S. Well Services Holdings, LLC, U.S. Well Services, LLC, USWS Holdings LLC, USWS Fleet 10, LLC and USWS Fleet 11, LLC): 333 Shops
Blvd., Ste 301 Willow Park, TX 76087 Chief Executive Office (FTS International Services, LLC, and FTS International Manufacturing, LLC ): 777 Main Street
Suite 2900 Fort Worth, TX 76102 Chief Executive Office (IOT-eq, LLC): 8902 FM 2920 Rd. Ste 100, Spring, TX 77379 Chief Executive Office (EKU): 2408
Timberloch Pl, Ste. A5, The Woodlands, TX 77380
Equity Ownership: Owner Issuer Type of Organization No. of Shares or Interests Owned Percentage Ownership 21,195.924 Series B-1 Preferred Units
Owner Issuer Type of Organization No. of Shares or Interests Owned Percentage Ownership Effective immediately upon consummation of the U.S. Well Merger
SCHEDULE 8.11 PERMITTED INVESTMENTS Equity
Ownership: Owner Issuer Type of Organization No. of Shares or Interests Owned Percentage Ownership 21,195.924 Series B-1 Preferred Units
Owner Issuer Type of Organization No. of Shares or Interests Owned Percentage Ownership Effective immediately upon consummation of the U.S. Well Merger
EXHIBIT D FORM OF COMPLIANCE CERTIFICATE Financial Statement Date: , To: JPMorgan Chase Bank, N.A., as Agent, Collateral Agent, a Letter of Credit Issuer and Swingline Lender Ladies and Gentlemen: Reference is made to that certain Credit
Agreement, dated as of March 4, 2022 (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time, the Credit Agreement), among ProFrac Holdings, LLC, a Texas limited
liability company (Holdings), ProFrac Holdings II, LLC, a Texas limited liability company (the Borrower), the guarantors from time to time party thereto, the Lenders and Letter of Credit Issuers from time to
time party thereto, and JPMorgan Chase Bank, N.A., as the Agent, the Collateral Agent and the Swingline Lender. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement. The undersigned Responsible Officer of Holdings hereby certifies as of the date hereof that he/she is a Responsible Officer of Holdings, and that, as such,
he/she is authorized to execute and deliver this Compliance Certificate, in his or her capacity as a Responsible Officer and not in his or her individual capacity, to the Agent on the behalf of Holdings, and that: [Use following paragraph 1 for fiscal year-end financial statements to be delivered pursuant to Section 6.2(a) of the Credit Agreement] 1. Holdings has delivered the year-end audited financial statements required by Section 6.2(a) of the Credit Agreement for the Fiscal Year ended as of
the above date, together with all certificates, opinions and documents required by such section. All such audited financial statements have been prepared in reasonable detail, fairly presenting in all material respects the financial position and the
results of operations of the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) as at the date thereof and for the Fiscal Year then ended, and have been prepared in accordance with GAAP in all material respects. [Use following paragraph 1 for fiscal quarter-end financial statements to be delivered pursuant to Section 6.2(b)
of the Credit Agreement] 1. Holdings has delivered the unaudited financial statements required by Section 6.2(b) of the Credit Agreement for the
Fiscal Quarter ended as of the above date. Such consolidated financial statements are complete and correct in all material respects in conformity with GAAP consistently applied, have been prepared in reasonable detail in accordance with GAAP in all
material respects, and fairly presenting, in all material respects consistently applied and fairly presenting in all material respects the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) financial
position as at such date and their results of operation for such period then ended, subject to changes resulting from normal year-end audit adjustments and to the absence of footnotes. Form of Compliance Certificate D-1
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has
caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Consolidated Parties and, if applicable, Holdings and its Restricted Subsidiaries, during the accounting period covered
by such financial statements. [select one:] 3. [To the knowledge of the undersigned, during such fiscal period, no Default or Event of Default has occurred and is continuing.] or 3. [To the knowledge of
the undersigned, the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:] 4. The analyses and information set forth on Schedule 1A and Schedule 1B attached hereto are true and accurate on and as of the date of this
Compliance Certificate and set forth reasonably detailed calculations of the Fixed Charge Coverage Ratio, Consolidated EBITDA and Liquidity. 5. Except as
set forth on Schedule 2 hereto, subsequent to the date of the most recent Compliance Certificate submitted by the Borrower pursuant to Section 6.2(a) or (b) of the Credit Agreement, no Obligor has (i) changed its name as it
appears in official filings in the state or other jurisdiction of its incorporation or other organization, (ii) changed its chief executive office or principal place of business, (iii) changed the locations in which it maintains books or
records relating to Collateral owned by it or any office or facility at which inventory or equipment owned by it is located (including the establishment of any such new office or facility, but excluding in- transit inventory and/or equipment,
inventory and/or equipment out for repair, and inventory and/or equipment temporarily stored at a customers location in connection with the providing of services to such customer and any other inventory and equipment with value not in excess
of$5,000,000 in the aggregate), (iv) changed the type of entity that it is, (v) changed (or has had changed) its organization identification number, if any, issued by its jurisdiction of organization or its federal taxpayer identification
number, (vi) changed its jurisdiction of organization, (vii) changed the end of its Fiscal Year, or (viii) formed or acquired any new Subsidiary without giving the Agent any notice required by the Loan Documents. [Signature Page Follows] Form of Compliance Certificate D-2
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of
, .
For the Month/Quarter/Year ended
,
(Statement Date) SCHEDULE 1A to the Compliance Certificate ($
in 000s) Fixed Charge Coverage Ratio Calculation Consolidated EBITDA1 Less: Unfinanced Capital Expenditures2 Total (A) Fixed Charges (a) Consolidated Interest Expense3 (b) Scheduled Payments of Principal4 (c) Cash Taxes5 Actually Paid Total Fixed Charges (B) Fixed Charge Coverage Ratio (A/B) As calculated below. Unfinanced Capital Expenditures made by Holdings, the Borrower and its Restricted Subsidiaries during such Test
Period. As defined in the Credit Agreement, provided that, for purposes of calculating the Fixed Charge
Coverage Ratio for any period ending prior to the first anniversary of the Closing Date, Consolidated Interest Expense shall be an amount equal to actual Consolidated Interest Expense from the Closing Date through the date of determination
multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing Date through the date of determination. Scheduled Payments of Principal (including any scheduled payment of principal resulting from the requirement to
make a payment as a result of the accumulation of excess cash flow, but excluding, for the avoidance of doubt, any IPO Prepayment (as defined in the Term Loan Credit Agreement)) on Debt for Borrowed Money of Holdings and its Restricted Subsidiaries
(other than payments by Holdings or any of its Restricted Subsidiaries to Holdings or to any of such Restricted Subsidiaries) paid in cash during such Test Period and the principal component of Debt attributable to Capital Leases paid in cash during
such Test Period. As defined in the Credit Agreement.
For the Month/Quarter/Year
ended , (Statement Date) Consolidated EBITDA6 a) the Net Income,7 attributable
to such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP (adjusted to exclude the equity interests in any Unrestricted Subsidiary owned by such Person or any of its
Restricted Subsidiaries); b) the amount of distributions received in cash by such Person or any of its
Restricted Subsidiaries from any Subsidiary (including any Unrestricted Subsidiary) for such period, to the extent not already included in line 1(a) above; c) i. the cumulative effect of a change in accounting principles and changes as a
result of the adoption or modification of accounting policies during such period, ii. the income (or loss) of any Person (other than a Restricted Subsidiary of such
Person) in which any other Person (other than such Person or any of its Restricted Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or any of its Restricted
Subsidiaries by such Person during such period, iii. the income (or loss) of any Person accrued prior to the date it becomes a
Restricted Subsidiary of such Person or is merged into or consolidated with such Person or any of its Restricted Subsidiaries or that Persons assets are acquired by such Person or any of its Restricted Subsidiaries (except as may be required
in connection with the calculation of a covenant or test on a pro forma basis), Consolidated EBITDA shall be determined on a consolidated basis for Holdings and its Restricted Subsidiaries in
accordance with GAAP and the terms and conditions of the Credit Agreement. As defined in the Credit Agreement.
iv. the income of any Restricted Subsidiary of such Person to the extent that
the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Restricted Subsidiary, v. any after-Tax gains or losses attributable to Dispositions of Property permitted
under this Agreement, in each case other than in the ordinary course of business (as determined in good faith by the Borrower) or returned surplus as-sets of any Pension Plan, vi. any net after-Tax gains or losses from disposed, abandoned, transferred,
closed or discontinued operations and any net after-Tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations, vii. any losses and expenses with respect to liability or casualty events to the extent
covered by insurance or indemnification and actually reimbursed or so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to
the extent that such amount is (a) not denied by the applicable carrier or indemnifying party
in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), viii. (to the extent not included in sub-clauses (i) through (vii) above)
any net extraordinary gains or net extraordinary losses ix. Sum of lines 1.(c)(i.) through 1.(c)(viii) In addition, to the extent not already accounted for in the Consolidated Net Income of such Person and its
Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include (without duplication) (i) the amount of proceeds received during such period from business interruption insurance in
respect of insured claims for such period, (ii) the amount of proceeds as to which the Borrower has determined there is reasonable evidence it will be reimbursed by the insurer in respect of such period from business interruption insurance
(with a deduction for any amounts so added back to the extent denied by the applicable carrier in writing within 180 days or not so reimbursed within 365 days) and (iii) reimbursements received of any expenses and charges that are covered by
indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder.
1. Distributions made by Holdings and its Restricted Subsidiaries pursuant to
Section 8.10(g)(i) of the Credit Agreement during such period and provision for taxes based on income or profits or capital gains, including, without limitation, foreign, federal, state, provincial, franchise, excise, value added and similar
taxes and foreign withholding taxes of Holdings and its Restricted Subsidiaries paid or accrued during such period, including any penalties and interest relating to such taxes or arising from any tax examinations and any payments to any Parent
Entity in respect of such taxes 2. total interest expense and other financing expense (including breakage costs,
premiums or consent fees and including the amortization of original issue discount) 3. Consolidated Depreciation and Amortization Expense of Holdings and its Restricted
Subsidiaries for such period 4. any fees, expenses or charges incurred in connection with any issuance of debt or
equity securities, any refinancing transaction or any amendment or other modification of any debt instrument to the extent consummated in accordance with the terms of the Loan Documents including (i) such fees, expenses or charges related to
the IPO Transactions and related to the other Transactions (other than the FTS Acquisition Transactions ) if consummated, and (ii) any amendment, modification or waiver in connection with this Agreement or any instrument governing any other
Debt 5. any fees (including legal and investment banking fees), transfer or mortgage
recording Taxes and other out-of-pocket costs and expenses of Holdings and its Restricted Subsidiaries (including expenses of third parties paid or reimbursed Holdings and its Restricted Subsidiaries) incurred as a result of the transactions
contemplated by the Loan Documents or any Disposition of Property permitted under the Credit Agreement 6. any fees and expenses incurred by Holdings and any of its Restricted Subsidiaries
solely in connection with any Permitted Acquisition or any other acquisition constituting a Permitted Investment (in each case, whether or not consummated)
7. any impairment charge or asset write-off pursuant to GAAP and the amortization of
intangibles arising pursuant to GAAP 8. [reserved] 9. any losses from the early extinguishment of Debt (including Hedge Agreements or
other derivative instruments) 10. the amount of run rate cost savings, operating expense reductions and
other synergies achieved in connection with a Permitted Acquisition or any other acquisition constituting a Permitted Investment projected by the Borrower in good faith to be realized as a result of specified actions taken, actions with respect to
which substantial steps have been taken or actions that are expected to be taken (which cost savings, operating expense reductions or synergies shall be calculated on a Pro Forma Basis as though such cost savings, operating expense reductions or
synergies had been realized on the first day of the applicable Test Period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such cost savings, operating expense reductions or
synergies are reasonably identifiable and factually supportable, (B) such cost savings, operating expense reductions or synergies do not exceed, when combined with the amount of any Pro Forma Adjustment made pursuant to clause
(d) below, 20% of Consolidated EBITDA for such Test Period, prior to giving effect to any increase in Consolidated EBITDA pursuant to this clause (10), clause (14) below or clause (d) below, and (C) such actions have been
taken, such actions with respect to which substantial steps have been taken or such actions are expected to be taken within twelve (12) months after the date of determination to take such action; provided, further, that the adjustments pursuant
to this clause (10) and clause (14) below may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause (d) below; or (y) to the extent that no Debt, or commitments with respect thereto, are
outstanding under Section 8.12(r) of the Credit Agreement, that would be permitted to be included in pro forma financial statements prepared in accordance with Regulation S-X under the Security Act of 1933
11. any non-cash compensation expense recorded from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights to officers, directors or employees 12. any non-cash losses or charges, including any write offs, write downs, expenses,
losses or items for such period decreasing Consolidated Net Income for such period; provided, that to the extent any non-cash item added back to Consolidated EBITDA in any period results in a cash payment in such period or a subsequent period such
cash payment shall result in a reduction of Consolidated EBITDA in the period when such payment is made 13. proceeds from property or business interruption insurance received or reasonably
expected to be received (to the extent not reflected as revenue or income in Consolidated Net Income and to the extent that the related loss was deducted in the determination of Consolidated Net Income) 14. all Restructuring Costs and any other extraordinary, unusual or non-recurring
expenses, losses or charges incurred; provided that such adjustments do not exceed 15% of Consolidated EBITDA for such Test Period calculated prior to giving effect to any increase to Consolidated EBITDA pursuant to this clause (14) or clause
(d) below; provided, further, that the adjustments pursuant to this clause (14) above may be incremental to (but not duplicative of) Pro Forma Adjustments made pursuant to clause (d) below 15. any non-cash loss attributable to the mark-to-market movement in the valuation of
Hedge Agreements (to the extent the cash impact resulting from such loss has not been realized) or other derivative instruments pursuant to GAAP 16. Sum of lines 2.(a)(1) through 2.(a)(15) 1. any non-cash gain increasing Consolidated Net Income of such Person for such
period, other than the accrual of revenues in the ordinary course of business Provided that, to the extent non-cash gains are deducted pursuant to this clause (b) for any previous
period and not otherwise added back to Consolidated EBITDA, Consolidated EBITDA shall be increased by the amount of any cash receipts (or any netting arrangements resulting in reduced cash expenses) in respect of such non-cash gains received in
subsequent periods to the extent not already included therein.
2. any non-cash gain attributable to the mark-to-market movement in the valuation of
Hedge Agreements (to the extent the cash impact resulting from such gain has not been realized) or other derivate instruments pursuant to GAAP 3. any gains from the early extinguishment of Debt (including Hedge Agreements or
other derivative instruments) 4. any extraordinary, unusual or non-recurring gains increasing Consolidated Net
Income for such period 5. Sum of lines 2.(b)(1) through 2(b)(4) There shall be included in determining Consolidated EBITDA for any period, without duplication, the Acquired
EBITDA of any Person, property, business or asset acquired by Holdings or any Restricted Subsidiary during such period (other than any Unrestricted Subsidiary) to the extent not subsequently sold, transferred or otherwise Disposed of during such
period (but not including the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired) (each such Person, property, business or asset acquired, including pursuant to the Transactions or pursuant to a
transaction consummated prior to the Closing Date, and not subsequently so Disposed of, an Acquired Entity or Business), and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such
period (each, a Converted Restricted Subsidiary), in each case based on the Acquired EBITDA of such Acquired Entity or Business or any Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such
acquisition or conversion) determined on a historical Pro Forma Basis. There shall be excluded in determining Consolidated EBITDA for any period the Disposed EBITDA of any Person,
property, business or asset sold, transferred or otherwise Disposed of, closed or classified as discontinued operations by Holdings, the Borrower or any Restricted Subsidiary to the extent not subsequently reacquired, reclassified or continued, in
each case, during such period (each such Person (other than an Un-restricted Subsidiary), property, business or asset so sold, transferred or otherwise Disposed of, closed or classified, a Sold Entity or Business), and the Disposed
EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each, a Converted Unrestricted Subsidiary), in each case based on the Disposed EBITDA of such Sold Entity or Business or Converted
Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer, dis-position, closure, classification or conversion) determined on a historical Pro Forma Basis. Notwithstanding anything to the contrary contained herein and subject to adjustments as provided in the
immediately preceding footnotes 17 and 18 with respect to acquisitions and dispositions occurring prior to, on and following the Closing Date and other adjustments as contemplated in the definitions of Pro Forma Basis and Pro Forma
Effect, including as provided under clause 2.(a)(10) above or clause 2.(d) above or in the definition of Pro Forma Adjustment, Consolidated EBITDA shall be deemed to be, $19,768,888, $37,675,374, $38,449,657 and $52,600,000,
respectively, for the Fiscal Quarters ended March 31, 2021, June 30, 2021, September 30, 2021 and December 31, 2021.
For the Month/Quarter/Year
ended , (Statement Date) SCHEDULE 1B to the Compliance
Certificate ($ in 000s) Liquidity Unrestricted Cash13 Availability14 (at such time) Total Liquidity As defined in the Credit Agreement. As defined in the Credit Agreement.
SCHEDULE 2 to the Compliance Certificate [Obligor Changes]
SCHEDULE 6 POST-CLOSING OBLIGATIONS 1.
Within ninety (90) days after the Second Amendment Effective Date (or such later date as the Agent reasonably agrees to in writing), the Agent shall have received all due diligence information regarding the New Obligors insurance
coverage, including insurance endorsements, to the extent required to be carried pursuant to Section 8.5 of the Credit Agreement. 2. Within ninety
(90) days after the Second Amendment Effective Date (or such later date as the Agent reasonably agrees to in writing), the New Obligors, as applicable, shall deliver or cause to be delivered to the Term Loan Agent originals of the Certificates
of Title for such Titled Goods acquired pursuant to the U.S. Well Merger, with the Collateral Agents Lien noted thereon, to the extent required to be delivered pursuant to the Collateral and Guarantee Requirement.
Intellectual Property
161
Litigation
162
Labor Disputes
162
Environmental Laws
162
No Violation of Law
163
No Default
163
ERISA Compliance
163
Taxes
163
Investment Company Act
163
Use of Proceeds
163
Margin Regulations
164
No Material Adverse Change
164
Full Disclosure
164
Government Authorization
164
Anti-Terrorism Laws
165
FCPA
165
Sanctioned Persons
165
Designation of Senior Debt
165
Insurance
165
ARTICLE VIII
AFFIRMATIVE AND NEGATIVE COVENANTS
Taxes
166
Legal Existence and Good Standing
166
Compliance with Law; Maintenance of Licenses
166
Maintenance of Property, Inspection; Field Examinations
166
Insurance
168
Environmental Laws
169
Compliance with ERISA
169
Dispositions
169
Mergers, Consolidations, etc
169
Distributions
171
Investments
175
Debt
175
Prepayments of Debt
181
Transactions with Affiliates
182
Business Conducted
186
Liens
186
Restrictive Agreements
186
Sale Leaseback Transactions
188
Fiscal Year Accounting
189
Fixed Charge Coverage Ratio
189
Minimum Liquidity
189
Additional Obligors; Covenant to Give Security
189
Notice of Default
218
Credit Decision
218
Indemnification
219
Appointed Agents in Individual Capacity
219
Successor Agents
220
Collateral Matters
220
Restrictions on Actions by Lenders; Sharing of Payments
222
Agency for Perfection
223
Payments by Agent to Lenders
224
Settlement
224
Letters of Credit; Intra-Lender Issues
227
Concerning the Collateral and the Related Loan Documents
229
Field Examination; Disclaimer by Lenders
229
Relation Among Lenders
230
Arrangers
230
The Register
230
Secured Cash Management Agreements and Secured Hedge Agreements
231
Withholding Taxes
232
Certain ERISA Matters
232
Erroneous Payments
234
Intercreditor Agreements
235
Posting of Communications
236
ARTICLE XIV
MISCELLANEOUS
No Waivers; Cumulative Remedies
237
Severability
238
Governing Law; Choice of Forum; Service of Process
238
WAIVER OF JURY TRIAL
239
Survival of Representations and Warranties
239
Other Security and Guarantees
239
Fees and Expenses
239
Notices
240
Binding Effect
241
Indemnity of the Agent, the Collateral Agent and the Lenders
241
Limitation of Liability
242
Final Agreement
243
Counterparts; Facsimile Signatures
243
Captions
243
Right of Setoff
243
Confidentiality
243
Conflicts with Other Loan Documents
245
No Fiduciary Relationship
245
Judgment Currency
245
USA PATRIOT Act
246
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
246
Acknowledgement Regarding Any Supported QFCs
247
EXHIBIT A
FORM OF BORROWING BASE CERTIFICATE
EXHIBIT B
FORM OF NOTICE OF BORROWING
EXHIBIT C
FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT F
PERFECTION CERTIFICATES
EXHIBIT G
FORM OF SOLVENCY CERTIFICATE
EXHIBIT H
FORM OF CLOSING CERTIFICATE
EXHIBIT I
[RESERVED]
EXHIBIT J-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT J-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT J-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT J-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT K
FORM OF REVOLVING NOTE
EXHIBIT L
FORM OF MONTHLY REPORT
EXHIBIT M
FORM OF SHARED SERVICES AGREEMENT
EXHIBIT N
FORM OF HOLDINGS LLC AGREEMENT
SCHEDULE 1.1
COMMITMENTS
SCHEDULE 1.1(a)
EXISTING LETTERS OF CREDIT
SCHEDULE 1.1(b)
PERMITTED INVENTORY LOCATIONS
SCHEDULE 1.1(c)
SPECIFIED EXCLUDED ASSETS
SCHEDULE 1.2
GUARANTORS
SCHEDULE 1.3
IMMATERIAL SUBSIDIARIES
SCHEDULE 1.4
UNRESTRICTED SUBSIDIARIES
SCHEDULE 1.5
CLOSING DATE SECURITY DOCUMENTS
SCHEDULE 6.4
COLLATERAL REPORTING
SCHEDULE 7.4
SUBSIDIARIES; STOCK
SCHEDULE 8.11
PERMITTED INVESTMENTS
SCHEDULE 8.12
DEBT
SCHEDULE 8.14
AFFILIATE TRANSACTIONS
SCHEDULE 8.15
BUSINESSES CONDUCTED
SCHEDULE 8.16
LIENS
SCHEDULE 8.17
RESTRICTIVE AGREEMENTS
SCHEDULE 8.23
DEPOSIT ACCOUNTS
SCHEDULE 8.27
HOLDINGS OPERATIONS
SCHEDULE 8.29
CERTAIN POST-CLOSING OBLIGATIONS
SCHEDULE 9.1
EXISTING DEBT
Initial Intercreditor Agreement) on substantially all of its assets with certain limited exceptions specifically
set forth in the Loan Documents; and Initial Intercreditor Agreement) on
substantially all of its assets with certain limited exceptions specifically set forth in the Loan Documents.
Applicable Margin for
Term Benchmark
Loans and RFR Loans
Applicable
Margin for Base
Rate Loans
1.50
%
0.50
%
1.75
%
0.75
%
2.00
%
1.00
%
Applicable
Unused
Line Fee
Margin
0.375
%
0.250
%
$13,333,333.33ii) $20,000,000, for five (5) consecutive Business Days and continuing
until the date on which Availability shall have been at least the greater of (y) 12.5% of the Maximum Credit and (z) $13,333,333.33 20,000,000 for twenty (20) consecutive calendar days or (b) any period commencing upon the occurrence of a Specified Event
of Default, and continuing during the period that such Specified Event of Default shall be continuing.
and (ix) the
assets of an Excluded Subsidiary , and (x)(I) all of U.S. Well Services Holdings, LLCs interests under the
Enterprise Equipment Lease Agreement and all of the vehicles at any time leased thereunder and (II) to the extent the obligations of U.S. Well Services LLC under the Paccar Equipment Loan Documents remain outstanding, certain equipment identified on
Schedule 1.1(c) hereto (the assets excluded pursuant to this clause (c), collectively, the Excluded Assets; provided that notwithstanding anything herein to the
contrary, Excluded Assets shall not include any proceeds, replacements or substitutions of Collateral (unless such proceeds, replacements or substitutions otherwise constitute Excluded Assets)), (d) the original Flotek Notes shall not be
required to be delivered to the Agent (or the Term Loan Agent to the extent required in the Initial Intercreditor Agreement) until June 30, 2022 (to the extent that the Flotek Notes have not been converted into Flotek Stock by such date),
(e) share certificates of Immaterial Subsidiaries and Unrestricted Subsidiaries shall not be required to be delivered, (f) no perfection actions shall be required (i) with respect to letter of credit rights, except to the extent
perfection is accomplished solely by the filing of a UCC financing statement (it being understood that no actions shall be required to perfect a security interest in letter of credit rights, other than the filing of a UCC financing statement) and
(ii) in regards to any Commercial Tort Claim (in addition to filing the financing statements (which cover commercial tort claims) filed on the Closing Date and/or in connection with the joinder of Obligors after the Closing Date),
unless (x) Debt is outstanding in regards to Debt permitted under
$40,000,000ii)
$60,000,000, for five (5) consecutive Business Days and ending on the date on which Availability shall have been equal to or greater than (y) 20.0% of the Maximum Credit and (z) $40,000,000
60,000,000 for fifteen (15) consecutive calendar days or (b) upon the
occurrence of a Specified Event of Default, the period that such Specified Event of Default shall be continuing.
$13,333,333.33
ii) $20,000,000 and (b) ending on
the date upon which Availability shall have been at least equal to the greater of (i) 12.5% of the Maximum Credit and
(ii) $13,333,333.33
20,000,000 for a period of twenty (20) consecutive calendar days.
Agreement Second Amendment Effective Date, the
Guarantors, in addition to the Borrower to the extent set forth in clause (a), are Holdings, ProFrac Services, Manufacturing, Best Pump,
Alpine , the FTS Subsidiaries, SP Silica of Monahans, LLC, SP Silica Sales, LLC, AG PSC Funding LLC and, immediately after giving effect to the Permitted FTS Acquisition on the Closing Date, FTS and the FTS Subsidiaries (it
being understood that immediately after giving effect to clause (b) of the definition of the FTS Distribution and Contribution Transaction, FTS shall cease to be a Guarantor pursuant to the terms set forth in the definition of Permitted
FTS Acquisition)U.S. Well Merger on the Second Amendment Effective Date, the U.S. Well
Entities.
15,000,00025,000,000
.
300,000,000400,000,000
. As of the
First Second
Amendment Effective Date, the Maximum Revolver Amount is $200,000,000280,000,000. Anything contained herein to the contrary notwithstanding,
upon termination of the Revolving Credit Commitments, the Maximum Revolver Amount shall automatically be reduced to zero.
(i) the Pledgors and FTS shall not constitute Obligors hereunder or under the other Loan Documents for any purpose unless the Pledgors and FTS, as applicable, become
Restricted Subsidiaries of Holdings at any time after the Closing Date (and (x) after giving effect to the FTS Distribution and Contribution Transaction on the Closing Date and the proviso set forth in the definition of Permitted FTS
Acquisition and (y) only for so long as Pledgors and FTS remain Restricted Subsidiaries of Holdings) and become Guarantors and provide Collateral to the extent set forth in Section 8.22 and (ii) the FTS Subsidiaries the U.S. Well Entities shall not become Obligors hereunder or under any
of the Loan Documents until the FTS Subsidiaries are contributed to Holdings pursuant to clause (b) of the definition of FTS Distribution and Contribution Transaction on the Closing after the U.S. Well Merger is consummated on the Second Amendment Effective Date (at which point, the FTS Subsidiaries U.S. Well Entities shall automatically become Obligors hereunder and
under the Loan Documents for all purposes).
First Second Amendment Effective Date and identified in Schedule 8.11;
and (ii) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any Investment permitted by clause (b)(i) existing on the First Second Amendment Effective Date; provided that the aggregate amount of the Investments permitted pursuant to this clause (b) is not increased from the aggregate amount of such Investments on the
First
Second Amendment Effective Date except pursuant to the terms of such Investment as of the
First
Second Amendment Effective Date or as otherwise permitted by Section 8.11;
and
Inc. LLC and/or its Subsidiaries (but not any other Subsidiaries of Holdings) acquired on the U.S. Well Merger Closing Date securing the U.S. Well Services Debt incurred pursuant to Section 8.12(b);
and
Adjuster
Adjusted Term SOFR or (b) with respect to any RFR Borrowing, the Adjusted Daily Simple SOFR, as applicable.
,
or 6.2(b) or
6.2(c).
25,000,000 37,500,000 and (d) the Borrower shall have delivered a certificate of a Responsible
Officer, to the Agent stating that the conditions contained in the foregoing clauses (a), (b) and (c) have been satisfied.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
and , (g) any prepayments in respect of the Debt under the First Financial Loan Documents made pursuant to Section 8.13(c)
and (h) [**].
shall , (y) the U.S. Well Services Debt and (z) [**], in each case,
not be deemed to constitute Material Indebtedness for purposes of clause (b) of this definition.
First
Second Amendment Effective Date, by written notice
delivered to the Agent, request one or more increases in the amount under any Class of Revolving Credit Commitments (each such increase, a Revolving Credit Commitment Increase). First Second
Amendment Effective Date shall not exceed $100,000,000120,000,000.
First
Second Amendment Effective Date, the dollar thresholds set forth in the definitions of Cash Dominion Period, Collateral Reporting Period, Covenant Trigger
Period, Specified Conditions, and in Section 8.21 shall be increased in proportion to the amount of the Revolving Credit Commitment Increase.
Solely during a Collateral Reporting Period, as soon as available, but in any event not later than thirty (30) days after the end of each month of each Fiscal Year, consolidated unaudited balance sheets of the Consolidated Parties and, if
different, Holdings and its Restricted Subsidiaries, as at the end of such month, and consolidated unaudited income statements and cash flow statements for the Consolidated Parties, and, if different from Holdings and its Restricted Subsidiaries for
such month and for the period
from the beginning of the Fiscal Year to the end of such month, setting forth, in each case, in reasonable
detail, in comparative form, the figures for and as of the corresponding period in the prior Fiscal Year (or, in lieu of such Financial Statements of Holdings and its Restricted Subsidiaries, a detailed reconciliation, reflecting such financial
information for Holdings and its Restricted Subsidiaries, on the one hand, and the Consolidated Parties on the other hand), and prepared in all material respects in conformity with GAAP consistently applied, subject to changes resulting from normal
year-end audit adjustments and to the absence of footnotes and certified by a Responsible Officer of Holdings as being complete and correct in all material respects in conformity with GAAP, prepared in reasonable detail in accordance with GAAP in
all material respects consistently applied and fairly presenting in all material respects the Consolidated Parties (and, if applicable, Holdings and its Restricted Subsidiaries) financial position as at the dates thereof and their
results of operations for the periods then ended, subject to changes resulting from normal year-end audit adjustments and to the absence of footnotes. Notwithstanding the foregoing, the obligations in this Section 6.2(c)
may be satisfied with respect to financial information of the Consolidated Parties by furnishing the applicable Financial Statements of Holdings (or any Parent Entity thereof); provided that, to the extent such information relates to Holdings
(or any such Parent Entity), such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Holdings (or such Parent Entity), on the one hand, and the information
relating to the Consolidated Parties on a standalone basis, on the other hand. ) and, to the extent applicable, the monthly Financial Statements
pursuant to Section 6.2(c), a
duly completed Compliance Certificate signed by a Responsible Officer of Holdings and including setting forth a reasonably detailed calculation of the Fixed Charge Coverage Ratio, regardless of whether a Covent Trigger Period is then in effect, and
Liquidity.
Initial Intercreditor Agreement. Initial Intercreditor Agreement and other Permitted Liens permitted to be senior to the
Liens securing the Obligations and to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other similar Laws relating to or affecting creditors rights generally,
Agreement Second Amendment
Effective Date, Schedule 7.4 contains a correct and complete list of Holdings and its Subsidiaries, including (a) jurisdiction of organization, (b) the form of organization,
(c) identification number of such Person in its jurisdiction of organization, if any, (d) the address of each Persons chief executive office and (e) each jurisdiction where such Person is qualified to do business. The Stock of
Holdings and its Subsidiaries is free and clear of all Liens (other than, statutory Permitted Liens, if applicable) and has been duly authorized and validly issued in compliance with all applicable federal, state and other Laws and is fully paid and
non-assessable (except to the extent such concepts are not applicable under the applicable Law of such Subsidiarys jurisdiction of formation). Except as set forth on Schedule 7.4, in each case as of the Agreement First Amendment
Effective Date, there is no existing option, warrant, call, right, commitment or other agreement (including, without limitation, preemptive rights) to which Holdings or any of its Subsidiaries is
a party requiring, and there is no membership interest or other Stock of Holdings or any of its Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Holdings or any of its Subsidiaries of any additional
membership interests or other Stock of Holdings or any of its Subsidiaries or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase, a membership interest or other Stock of Holdings or any of its
Subsidiaries. Schedule 7.4 correctly sets forth the ownership interest of Holdings, the Borrower and each of their respective Subsidiaries as of the
Agreement
Second Amendment Effective Date. As of the First Second Amendment Effective Date, the Obligors have no equity
investments in any other Person other than those specifically disclosed in Schedule 8.11 (as updated on the First Second Amendment Effective Date). The copies of the Organization
Documents of each Obligor and each amendment thereto provided pursuant to Section 9.1 are true and correct copies of each such document as of the Agreement Date, each of which is valid and in full force and effect as of the Agreement Date.
20,000,000 30,000,000 and 20.0% of the Maximum Credit for five
(5) consecutive Business Days, the Agent and
[reserved]; and (aa)all premiums (if any), interest (including post-petition interest), fees, expenses, charges
and additional or contingent interest on obligations described in clauses (a) through (zaa) above.
the transactions contemplated by the Signal Peak Acquisition and the U.S. Well Merger;
xaa) of Section 8.12, but solely to the extent any negative pledge relates to the property financed by, the subject of or securing such Debt;
Inc.
LLC and its Subsidiaries and/or their respective assets; and (t)restrictions and conditions imposed by any extension, renewal, amendment, restatement, modification,
increase, supplement, refunding, refinancing or replacement of the contracts, instruments or obligations referred to in clauses (a) through
(st)
above; provided that such extension, renewal, amendment, restatement, modification, increase, supplement, refunding, refinancing or replacement is, in the good faith judgment of the
Borrower, not materially more restrictive with respect to such restriction or condition taken as a whole than those prior to such extension, renewal, amendment, restatement, modification, increase, supplement, refunding, refinancing or replacement.
6,666,666.67
10,000,000 at any time.
First Second Amendment Effective Date that is materially adverse to the
interests of the Lenders with respect to any term or condition of the (i) Signal Peak Acquisition Documents and , (ii) U.S. Well Merger Documents and (iii) [**], in each case, without the written consent of the Required Lenders [**].
Term Fixed
Asset Priority Collateral granted hereunder or under the other Loan Documents to any other Lien.
Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower or any other Obligor, that at least one of the following is and will be true:
Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Obligor, that: Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender
(including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),
Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection
with the Loans, the Letters of Credit, the Commitments or this Agreement. Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment
advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof
(i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Commitments for an amount
less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or
otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of
credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankers acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
Issuing
Bank Letter of Credit Issuers by posting the
Communications on IntraLinks, DebtDomain, SyndTrak, ClearPar or any other electronic system chosen by the Agent to be its electronic transmission system (the Approved Electronic Platform).
If to the Agent:
JPMORGAN CHASE BANK, N.A.
Email: Dillon.klahn@jpmorgan.com
Email: dalton.harris@jpmorgan.com
With a copy
(which shall not constitute notice) to:
VINSON & ELKINS L.L.P.
2001 Ross Avenue, Suite 3900
If to the Borrower:
With a copy
(which shall not constitute notice) to:
BROWN RUDNICK LLP
If to a Lender or
Letter of Credit Issuer:
To the address of such Lender or Letter of Credit Issuer set forth on the signature page hereto or on the Assignment and Acceptance for such Lender, as applicable
Percentage
Revolving Credit Commitment
30.357142857
%
$
85,000,000
26.785714286
%
$
75,000,000
26.785714286
%
$
75,000,000
10.714285714
%
$
30,000,000
5.357142857
%
$
15,000,000
100.000000000
%
$
280,000,000.00
L/C Commitment
$
12,500,000
$
6,250,000
$
6,250,000
$
25,000,000.00
KENWORTH
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1XKZD49X4JJ198617
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3WKDD49X8KF295674
KENWORTH
T800
3WKDD49XXKF295675
KENWORTH
T800
3WKDD49X1KF295676
KENWORTH
T800
3WKDD49X3KF295677
KENWORTH
T800
3WKDD49X5KF295678
KENWORTH
T800
3WKDD49X7KF295679
KENWORTH
T800
3WKDD49X3KF295680
KENWORTH
T800
3WKDD49X5KF295681
KENWORTH
T800
3WKDD49X7KF295682
KENWORTH
T800
3WKDD49X9KF295683
KENWORTH
T800
3WKDD49X0KF295684
KENWORTH
T880
1XKZD49X1JJ215714
KENWORTH
T880
1XKZD49X5JJ215716
KENWORTH
T880
1XKZD49X7JJ215717
KENWORTH
T880
1XKZD49X7JJ215720
KENWORTH
T880
1XKZD49X9JJ215721
KENWORTH
T880
1XKZD49X1JJ215728
KENWORTH
T880
1XKZD49X3JJ215729
KENWORTH
T880
1XKZD49X3JJ215732
KENWORTH
T880
1XKZD49X9JJ215718
KENWORTH
T880
1XKZD49X5JJ215733
KENWORTH
T880
1XKZD49X7JJ215734
KENWORTH
T800
3WKDD49X8KF295643
KENWORTH
T800
3WKDD49XXKF295644
KENWORTH
T800
3WKDD49X1KF295645
KENWORTH
T800
3WKDD49X3KF295646
KENWORTH
T800
3WKDD49X7KF295648
KENWORTH
T800
3WKDD49X9KF295649
KENWORTH
T800
3WKDD49X6KF295642
KENWORTH
T800
3WKDD49X5KF295647
KENWORTH
T800
3WKDD49X5KF295650
KENWORTH
T800
3WKDD49X4KF295655
KENWORTH
T800
3WKDD49X6KF295656
KENWORTH
T800
3WKDD49X8KF295657
KENWORTH
T800
3WKDD49X1KF295659
KENWORTH
T800
3WKDD49X8KF295660
KENWORTH
T800
3WKDD49X7KF295665
KENWORTH
T800
3WKDD49X4KF295641
KENWORTH
T800
3WKDD49X7KF295651
KENWORTH
T800
3WKDD49X9KF295652
KENWORTH
T800
3WKDD49X2KF295654
KENWORTH
T800
3WKDD49XXKF295658
KENWORTH
T800
3WKDD49XXKF295661
KENWORTH
T800
3WKDD49X1KF295662
KENWORTH
T800
3WKDD49X3KF295663
KENWORTH
T800
3WKDD49X5KF295664
KENWORTH
T800
3WKDD49X0KF295667
KENWORTH
T800
3WKDD49X2KF295668
KENWORTH
T800
3WKDD49X0KF295653
KENWORTH
T800
3WKDD49X9KF295666
KENWORTH
T800
3WKDD49X4KF295669
KENWORTH
T800
3WKDD49X0KF295670
KENWORTH
T800
3WKDD49X2KF295671
KENWORTH
T800
3WKDD49X4KF295672
KENWORTH
T800
3WKDD49X6KF295673
KENWORTH
T800
3WKDD49X2KF295685
KENWORTH
T800
3WKDD49X8KF295674
KENWORTH
T800
3WKDD49XXKF295675
KENWORTH
T800
3WKDD49X1KF295676
KENWORTH
T800
3WKDD49X3KF295677
KENWORTH
T800
3WKDD49X5KF295678
KENWORTH
T800
3WKDD49X7KF295679
KENWORTH
T800
3WKDD49X3KF295680
KENWORTH
T800
3WKDD49X5KF295681
KENWORTH
T800
3WKDD49X7KF295682
KENWORTH
T800
3WKDD49X9KF295683
KENWORTH
T800
3WKDD49X0KF295684
KENWORTH
T800
3WKDD40X3KF363991
KENWORTH
T800
3WKDD40X5KF363992
KENWORTH
T800
3WKDD40X7KF363993
KENWORTH
T800
3WKDD40X9KF363994
KENWORTH
T800
3WKDD40X0KF363995
KENWORTH
T800
3WKDD40X2KF363996
KENWORTH
T800
3WKDD40X4KF363997
KENWORTH
T800
3WKDD40X6KF363998
KENWORTH
T800
3WKDD40X8KF363999
KENWORTH
T800
3WKDD40X9KF364000
KENWORTH
T800
3WKDD40X0KF364001
KENWORTH
T800
3WKDD40X2KF364002
KENWORTH
T800
3WKDD40X4KF364003
KENWORTH
T800
3WKDD40X3KF363988
KENWORTH
T800
3WKDD40X0KF371532
KENWORTH
T800
3WKDD40X2KF371533
KENWORTH
T800
3WKDD40X4KF371534
KENWORTH
T800
3WKDD40X6KF371535
KENWORTH
T800
3WKDD40X8KF371536
KENWORTH
T800
3WKDD40XXKF371537
KENWORTH
T800
3WKDD40X1KF371538
KENWORTH
T800
3WKDD40X3KF371539
KENWORTH
T800
3WKDD40XXKF371540
KENWORTH
T800
3WKDD40X1KF371541
KENWORTH
T800
3WKDD40X3KF371542
KENWORTH
T800
3WKDD40X5KF371543
KENWORTH
T800
3WKDD40X7KF371544
KENWORTH
T800
3WKDD40X9KF371545
KENWORTH
T800
3WKDD40X9LF371546
KENWORTH
T800
3WKDD40X0LF371547
KENWORTH
T800
3WKDD40X2LF371548
KENWORTH
T800
3WKDD40X4LF371549
KENWORTH
T800
3WKDD40X0LF371550
KENWORTH
T800
3WKDD40X2LF371551
KENWORTH
T800
3WKDD40X4LF371552
KENWORTH
T800
3WKDD40X6LF371553
KENWORTH
T800
3WKDD40X8LF371554
KENWORTH
T800
3WKDD40XXLF371555
KENWORTH
T800
3WKDD40X1LF371556
KENWORTH
T800
3WKDD40X3LF371557
KENWORTH
T800
3WKDD40X5LF371558
KENWORTH
T800
3WKDD40X7LF371559
KENWORTH
T800
3WKDD40X3LF371560
KENWORTH
T800
3WKDD40X5LF371561
KENWORTH
T800
3WKDD40X5KF363989
KENWORTH
T800
3WKDD40X1KF363990
KENWORTH
T800
3WKDD40X3KF363991
KENWORTH
T800
3WKDD40X5KF363992
KENWORTH
T800
3WKDD40X7KF363993
KENWORTH
T800
3WKDD40X9KF363994
KENWORTH
T800
3WKDD40X0KF363995
KENWORTH
T800
3WKDD40X2KF363996
KENWORTH
T800
3WKDD40X4KF363997
KENWORTH
T800
3WKDD40X6KF363998
KENWORTH
T800
3WKDD40X8KF363999
KENWORTH
T800
3WKDD40X9KF364000
KENWORTH
T800
3WKDD40X0KF364001
KENWORTH
T800
3WKDD40X2KF364002
KENWORTH
T800
3WKDD40X4KF364003
KENWORTH
T800
3WKDD40X3KF363988
KENWORTH
T800
3WKDD40X0KF371532
KENWORTH
T800
3WKDD40X2KF371533
KENWORTH
T800
3WKDD40X4KF371534
KENWORTH
T800
3WKDD40X6KF371535
KENWORTH
T800
3WKDD40X8KF371536
KENWORTH
T800
3WKDD40XXKF371537
KENWORTH
T800
3WKDD40X1KF371538
KENWORTH
T800
3WKDD40X3KF371539
KENWORTH
T800
3WKDD40XXKF371540
KENWORTH
T800
3WKDD40X1KF371541
KENWORTH
T800
3WKDD40X3KF371542
KENWORTH
T800
3WKDD40X5KF371543
KENWORTH
T800
3WKDD40X7KF371544
KENWORTH
T800
3WKDD40X9KF371545
KENWORTH
T800
3WKDD40X9LF371546
KENWORTH
T800
3WKDD40X0LF371547
KENWORTH
T800
3WKDD40X2LF371548
KENWORTH
T800
3WKDD40X4LF371549
KENWORTH
T800
3WKDD40X0LF371550
KENWORTH
T800
3WKDD40X2LF371551
KENWORTH
T800
3WKDD40X4LF371552
KENWORTH
T800
3WKDD40X6LF371553
KENWORTH
T800
3WKDD40X8LF371554
KENWORTH
T800
3WKDD40XXLF371555
KENWORTH
T800
3WKDD40X1LF371556
KENWORTH
T800
3WKDD40X3LF371557
KENWORTH
T800
3WKDD40X5LF371558
KENWORTH
T800
3WKDD40X7LF371559
KENWORTH
T800
3WKDD40X3LF371560
KENWORTH
T800
3WKDD40X5LF371561
KENWORTH
T800
3WKDD40X5KF363989
KENWORTH
T800
3WKDD40X1KF363990
KENWORTH
T880
1XKZD49X4HJ170536
KENWORTH
T680
1XKYDP9X7JJ185597
KENWORTH
T680
1XKZD49X2JJ185607
KENWORTH
T680
1XKZD49X4JJ185608
KENWORTH
T680
1XKZD49X2JJ185610
KENWORTH
T680
1XKZD49XXJJ193602
KENWORTH
T680
1XKZD49X4JJ197130
KENWORTH
T680
1XKZD49X6JJ197131
KENWORTH
T680
1XKZD49X8JJ197132
KENWORTH
T680
1XKZD49X3JJ198611
KENWORTH
T680
1XKZD49X5JJ198612
KENWORTH
T680
1XKZD49X7JJ198613
KENWORTH
T680
1XKZD49X9JJ198614
KENWORTH
T680
1XKZD49X0JJ198615
KENWORTH
T680
1XKZD49X2JJ198616
KENWORTH
T680
1XKZDP9X9JJ198632
KENWORTH
T680
1XKZD49X1JJ198641
KENWORTH
T680
1XKZD49X3JJ198642
KENWORTH
T680
1XKYD49XXJJ207848
KENWORTH
T680
1XKYD49X1JJ207849
KENWORTH
T880
1XKZD49X6JJ215711
KENWORTH
T880
1XKZD49X8JJ215712
KENWORTH
T880
1XKZD49XXJJ215713
KENWORTH
T880
1XKZD49X3JJ215715
KENWORTH
T880
1XKZD49X0JJ215719
KENWORTH
T880
1XKZD49X0JJ215722
KENWORTH
T880
1XKZD49X2JJ215723
KENWORTH
T880
1XKZD49X4JJ215724
KENWORTH
T880
1XKZD49X6JJ215725
KENWORTH
T880
1XKZD49X8JJ215726
KENWORTH
T880
1XKZD49XXJJ215727
KENWORTH
T880
1XKZD49X1JJ215731
KENWORTH
T880
1XKZD49XXJJ215730
KENWORTH
T880
1XKZD49X9JJ215735
KENWORTH
T880
1XKZD49X0JJ215736
KENWORTH
T880
1XKZD49X2JJ215737
KENWORTH
T880
1XKZD49X4JJ215738
PETERBILT
567
1XPCD79X6GD278042
PETERBILT
567
1XPCD79X8GD278043
PETERBILT
567
1XPCD79XXGD278044
PETERBILT
567
1XPCD79X1GD278045
PETERBILT
567
1XPCD79X3GD278046
PETERBILT
567
1XPCD79X5GD278047
PETERBILT
567
1XPCD79X7GD278048
PETERBILT
567
1XPCD79X9GD278049
PETERBILT
567
1XPCD79X5GD278050
PETERBILT
567
1XPCD79X7GD278051
PETERBILT
567
1XPCD79X9GD278052
PETERBILT
567
1XPCD79X0GD278053
PETERBILT
567
1XPCD79X2GD278054
PETERBILT
567
1XPCD79X4GD278055
PETERBILT
567
1XPCD79X6GD278056
PETERBILT
567
1XPCD79X8GD278057
PETERBILT
567
1XPCD79XXGD278058
PETERBILT
567
1XPCD79X1GD278059
PETERBILT
567
1XPCD79X8GD278060
KENWORTH
T800
1XKDP40X0LJ364004
KENWORTH
T800
1XKDP40X2LJ364005
KENWORTH
T800
1XKDP40X4LJ364006
KENWORTH
T800
1XKDP40X6LJ364007
KENWORTH
T800
1XKDP40X8LJ364008
KENWORTH
T800
1XKDP40XXLJ364009
KENWORTH
T800
1XKDP40X6LJ364010
KENWORTH
T800
1XKDP40X8LJ364011
KENWORTH
T800
1XKDP40XXLJ364012
KENWORTH
T880
1XKZD49X4HJ170536
KENWORTH
T680
1XKYDP9X7JJ185597
KENWORTH
T680
1XKZD49X2JJ185607
KENWORTH
T680
1XKZD49X4JJ185608
KENWORTH
T680
1XKZD49X2JJ185610
KENWORTH
T680
1XKZD49XXJJ193602
KENWORTH
T680
1XKZD49X4JJ197130
KENWORTH
T680
1XKZD49X6JJ197131
KENWORTH
T680
1XKZD49X8JJ197132
KENWORTH
T680
1XKZD49X3JJ198611
KENWORTH
T680
1XKZD49X5JJ198612
KENWORTH
T680
1XKZD49X7JJ198613
KENWORTH
T680
1XKZD49X9JJ198614
KENWORTH
T680
1XKZD49X0JJ198615
KENWORTH
T680
1XKZD49X2JJ198616
KENWORTH
T680
1XKZDP9X9JJ198632
KENWORTH
T680
1XKZD49X1JJ198641
KENWORTH
T680
1XKZD49X3JJ198642
KENWORTH
T680
1XKYD49XXJJ207848
KENWORTH
T680
1XKYD49X1JJ207849
KENWORTH
T880
1XKZD49X6JJ215711
KENWORTH
T880
1XKZD49X8JJ215712
KENWORTH
T880
1XKZD49XXJJ215713
KENWORTH
T880
1XKZD49X3JJ215715
KENWORTH
T880
1XKZD49X0JJ215719
KENWORTH
T880
1XKZD49X0JJ215722
KENWORTH
T880
1XKZD49X2JJ215723
KENWORTH
T880
1XKZD49X4JJ215724
KENWORTH
T880
1XKZD49X6JJ215725
KENWORTH
T880
1XKZD49X8JJ215726
KENWORTH
T880
1XKZD49XXJJ215727
KENWORTH
T880
1XKZD49X1JJ215731
KENWORTH
T880
1XKZD49XXJJ215730
KENWORTH
T880
1XKZD49X9JJ215735
KENWORTH
T880
1XKZD49X0JJ215736
KENWORTH
T880
1XKZD49X2JJ215737
KENWORTH
T880
1XKZD49X4JJ215738
PETERBILT
567
1XPCD79X6GD278042
PETERBILT
567
1XPCD79X8GD278043
PETERBILT
567
1XPCD79XXGD278044
PETERBILT
567
1XPCD79X1GD278045
PETERBILT
567
1XPCD79X3GD278046
PETERBILT
567
1XPCD79X5GD278047
PETERBILT
567
1XPCD79X7GD278048
PETERBILT
567
1XPCD79X9GD278049
PETERBILT
567
1XPCD79X5GD278050
PETERBILT
567
1XPCD79X7GD278051
PETERBILT
567
1XPCD79X9GD278052
PETERBILT
567
1XPCD79X0GD278053
PETERBILT
567
1XPCD79X2GD278054
PETERBILT
567
1XPCD79X4GD278055
PETERBILT
567
1XPCD79X6GD278056
PETERBILT
567
1XPCD79X8GD278057
PETERBILT
567
1XPCD79XXGD278058
PETERBILT
567
1XPCD79X1GD278059
PETERBILT
567
1XPCD79X8GD278060
KENWORTH
T800
1XKDP40X0LJ364004
KENWORTH
T800
1XKDP40X2LJ364005
KENWORTH
T800
1XKDP40X4LJ364006
KENWORTH
T800
1XKDP40X6LJ364007
KENWORTH
T800
1XKDP40X8LJ364008
KENWORTH
T800
1XKDP40XXLJ364009
KENWORTH
T800
1XKDP40X6LJ364010
KENWORTH
T800
1XKDP40X8LJ364011
KENWORTH
T800
1XKDP40XXLJ364012
ProFrac Holdings, LLC
Texas
Limited Liability Company
802098256
N/A
ProFrac Holdings II, LLC
Texas
Limited Liability Company
804336696
N/A
ProFrac Services, LLC
Texas
Limited Liability Company
802462568
Colorado, Louisiana, Mississippi, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Utah, West Virginia, Wyoming
ProFrac Manufacturing, LLC
Texas
Limited Liability Company
802251920
North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, West Virginia
Best Pump and Flow, LLC
Texas
Limited Liability Company
8197010
N/A
Alpine Silica, LLC
Texas
Limited Liability Company
802687185
OK
FTS International Services, LLC
Texas
Limited Liability Company
0801211281
Alabama, Arkansas, Colorado, Kentucky, Louisiana, Mississippi, Montana, North Dakota, New Mexico, Ohio, Oklahoma, Pennsylvania, Utah, West Virginia, Wyoming
FTS International Manufacturing, LLC
Texas
Limited Liability Company
0800918108
Arkansas, Colorado, Kentucky, Louisiana, Mississippi, North Dakota, New Mexico, Ohio, Oklahoma, Pennsylvania, Utah, West Virginia, Wyoming
SP Silica of Monahans, LLC
Delaware
Limited Liability Company
6307584
Texas
SP Silica Sales, LLC
Delaware
Limited Liability Company
6171128
New Mexico, Texas
U.S. Well Services Holdings, LLC
Delaware
Limited Liability Company
5985759
N/A
U.S. Well Services, LLC
Delaware
Limited Liability Company
5109388
Nevada, New Mexico, Pennsylvania, Texas, West Virginia, Wyoming
USWS Holdings LLC
Delaware
Limited Liability Company
6264482
Nevada
USWS Fleet 10, LLC
Delaware
Limited Liability Company
6431333
Texas
USWS Fleet 11, LLC
Delaware
Limited Liability Company
6431337
Texas
IOT-eq, LLC
Texas
Limited Liability Company
802479332
Texas
EKU Power Drives Inc.
Delaware
Corporation
5714174
Texas, North Dakota, Pennsylvania
EKU Power Drives GmbH
Germany
GmbH
N/A
N/A
AG PSC Funding LLC
Delaware
Limited Liability Company
6646627
N/A
ProFrac Holdings, LLC
ProFrac Holdings II, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
IOT-eq, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Alpine Silica, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Best Pump and Flow LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
EKU Power Drives GmbH
Limited Liability Company
Membership Interests
75%
EKU Power Drives GmbH
EKU Power Drives, Inc.
Corporation
Stock
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
120,000 Series A-1 Preferred Units
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
100%
ProFrac Holdings II, LLC
FTS International Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
FTS International Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica of Monahans, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica Sales, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
AG PSC Funding LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC*
U.S. Well Services Holdings, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services Holdings, LLC*
USWS Holdings LLC
Limited Liability Company
Membership Interests
100%
USWS Holdings LLC*
U.S. Well Services, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 10, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 11, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Transportation, LLC
Limited Liability Company
Membership Interests
100%
*
ProFrac Holdings, LLC
ProFrac Holdings II, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
IOT-eq, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Alpine Silica, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
Best Pump and Flow LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
EKU Power Drives GmbH
Limited Liability Company
Membership Interests
75%
EKU Power Drives GmbH
EKU Power Drives, Inc.
Corporation
Stock
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
120,000 Series A-1 Preferred Units
100%
ProFrac Holdings II, LLC
Basin Production and Completion LLC
Limited Liability Company
100%
ProFrac Holdings II, LLC
FTS International Services, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
FTS International Manufacturing, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica of Monahans, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
SP Silica Sales, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
AG PSC Funding LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC*
U.S. Well Services Holdings, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services Holdings, LLC*
USWS Holdings LLC
Limited Liability Company
Membership Interests
100%
USWS Holdings LLC*
U.S. Well Services, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 10, LLC
Limited Liability Company
Membership Interests
100%
U.S. Well Services, LLC*
USWS Fleet 11, LLC
Limited Liability Company
Membership Interests
100%
ProFrac Holdings II, LLC
ProFrac Transportation, LLC
Limited Liability Company
Membership Interests
100%
*
PROFRAC HOLDINGS, LLC
By:
Name:
Title:
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1.
Consolidated Net Income of Holdings and its Restricted Subsidiaries
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plus
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minus
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6
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Consolidated Net Income (Lines 1.(a) plus 1.(b) minus 1.(c)(ix))8
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2.
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(a) the following in each case to the extent deducted (and not added back) in computing Consolidated Net Income (other than clause (a)(10) and (a)(13) below), but without duplication:
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(b) the sum of the amounts for such period, solely to the extent included in Consolidated Net Income, without duplication:9
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plus or minus, as applicable, without duplication
(c) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Debt, intercompany balances and other balance sheet items, plus or minus, as the case may be
$
plus
(d) in accordance with the definition of Pro Forma Basis, an adjustment equal to the amount, without duplication of any amount otherwise included in any other clause of the definition of Consolidated EBITDA,
of the Pro Forma Adjustment shall be added to (or subtracted from) Consolidated EBITDA (including the portion thereof occurring prior to the relevant Specified Transaction and/or Specified Restructuring) as specified in a certificate from a
Responsible Officer of the Borrower delivered to the Agent (for further delivery to the Lenders)
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Consolidated EBITDA101112 (Lines 1 plus 2.(a)(16) minus 2.(b)(5) plus/minus 2.(c) plus 2.(d))
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10
11
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Minimum Liquidity Covenant
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Exhibit 10.3
AMENDED AND RESTATED WARRANT AGREEMENT
between
PROFRAC HOLDING CORP.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
THIS AMENDED AND RESTATED WARRANT AGREEMENT (this Agreement), dated as of November 1, 2022, is by and between ProFrac Holding Corp., a Delaware corporation (the Company), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the Warrant Agent, also referred to herein as the Transfer Agent).
WHEREAS, U.S. Well Services, Inc. (USWS) and Transfer Agent entered into that certain Purchase Agreement (the Purchase Agreement), dated as of May 23, 2019, with the purchasers named therein (collectively, the Purchasers), pursuant to which USWS agreed to issue and sell, and the Purchasers agreed to purchase, shares of preferred stock and warrants (the USWS Warrants);
WHEREAS, USWS and Transfer Agent are parties to that certain Warrant Agreement, dated as of May 24, 2019 (the Existing Warrant Agreement);
WHEREAS, each USWS Warrant entitles the holder thereof to purchase one share of Class A common stock of USWS, par value $0.0001 per share (USWS Class A Common Stock), for the Warrant Price as described in the Existing Warrant Agreement;
WHEREAS, on June 21, 2022 that certain Agreement and Plan of Merger (Merger Agreement) was entered into by and among the Company, USWS, and Thunderclap Merger Sub I, Inc., a Delaware corporation and an indirect subsidiary of Company (Merger Sub);
WHEREAS, the Merger Agreement provides for, among other things, the merger of Merger Sub with and into USWS, with USWS surviving the merger as the surviving corporation and an indirect subsidiary of the Company (the Merger);
WHEREAS, the Company and Transfer Agent wish to amend the Existing Warrant Agreement and each USWS Warrant outstanding as of the effective time of the Merger (the Existing Warrants) such that as of the effective time of the Merger, the holders of the Existing Warrants (Existing Warrant Holders) shall have the right to purchase the number of shares of Class A Common Stock of the Company, par value $.01 per share, equal to the product of (i) the number of shares of Series A Common Stock of USWS, par value $0.0001 per share (the USWS Common Stock) underlying the Existing Warrants and (ii) 0.3366 (as adjusted for the 1-for-6 reverse split of USWS Common Stock effected by USWS on August 4, 2022);
WHEREAS, the Company and Transfer Agent desire to amend the Existing Warrant Agreement such that the Company assumes the Existing Warrants and they are otherwise amended as of the Effective Time in accordance with the terms hereof and of the Merger Agreement (each such amended Existing Warrant, a Warrant);
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. WARRANTS.
2.1 Form of Warrant. Each Warrant shall be physically certificated in the form annexed hereto as Exhibit A.
2.2 Effect of Countersignature. Unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books (the Warrant Register) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
Physical certificates shall be signed by, or bear the facsimile signature of, the Executive Chairman of the Board, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
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2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the Registered Holder) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on any physical certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
3. TERMS AND EXERCISE OF WARRANTS.
3.1 Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Class A Common Stock stated therein (the Warrant Entitlement), at the price of $477.89 per share (the Warrant Price), subject to the adjustments provided in Section 4 hereof.
3.2 Duration of Warrants. A Warrant may be exercised only during the period (the Exercise Period) commencing on the date that is six months and one day after the date of this Agreement and terminating at 5:00 p.m., New York City time, on the date that is six (6) years after such date (the Expiration Date). Each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m., New York City time, on the Expiration Date.
3.3 Exercise of Warrants.
3.3.1 Cashless Exercise. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised in whole or in part from time to time by the Registered Holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, for that number of shares of Class A Common Stock equal to the quotient obtained by dividing (a) the product of (i) the aggregate Warrant Entitlement of the Warrants subject to such surrender and exercise, multiplied by (ii) the difference between the Warrant Price and the Fair Market Value, as defined in this Section 3.3.1, by (b) the Fair Market Value. Solely for purposes of this Section 3.3.1, Fair Market Value means the volume weighted average price of the Class A Common Stock as reported during the ten (10) trading day period ending on the second trading day prior to the date on which the notice of exercise is delivered by such holder to the Warrant Agent. The holder shall be responsible for any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for shares of Class A Common Stock and the issuance of such Class A Common Stock. For the avoidance of doubt, the Warrant shall only be exercisable on a cashless basis in accordance with this Section 3.1.1.
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3.3.2 Issuance of Shares of Class A Common Stock on Exercise.
(a) As soon as practicable after the exercise of any Warrant pursuant to Section 3.3.1, the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full shares of Class A Common Stock to which it is entitled, registered in such name or names as may be directed by it, and if such Warrant shall not have been exercised in full, a countersigned Warrant for the number of shares of Class A Common Stock as to which such Warrant shall not have been exercised. No Warrant shall be exercisable and the Company shall not be obligated to issue shares of Class A Common Stock upon exercise of a Warrant unless the Class A Common Stock issuable upon such Warrant exercise has been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants. Subject to Section 4.6 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of shares of Class A Common Stock. If the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall round down to the nearest whole number the number of shares of Class A Common Stock to be issued to such holder.
3.3.3 Valid Issuance. All shares of Class A Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and non-assessable.
3.3.4 Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for shares of Class A Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares of Class A Common Stock on the date on which the Warrant was surrendered, irrespective of the date of delivery of such certificate, except that, if the date of such surrender is a date when the share transfer books of the Company of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares of Class A Common Stock at the close of business on the next succeeding date on which the share transfer books are open.
4. ADJUSTMENTS.
4.1 Stock Dividends.
4.1.1 Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding shares of Class A Common Stock is increased by a stock dividend payable in shares of Class A Common Stock, or by a split-up of shares of Class A Common Stock or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the Warrant Entitlement shall be increased in proportion to such increase in the outstanding shares of Class A Common Stock. A rights offering to holders of the Class A Common Stock entitling holders to purchase shares of Class A Common Stock at a price less than the Fair Market Value (as defined below) shall be deemed a stock dividend of a number of shares of Class A Common Stock equal to the product of (i) the number of shares of Class A Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Class A Common Stock) multiplied by (ii) one (1) minus the quotient of (x) the price per share of Class A Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Class A Common Stock, in determining the price payable for Class A Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) Fair Market Value means the volume weighted average price of the Class A Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the shares of Class A Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
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4.1.2 Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Class A Common Stock on account of such shares of Class A Common Stock (or other shares of the Companys capital stock into which the Warrants are convertible), other than as described in subsection 4.1.1 above, then the Warrant Price shall be decreased, effective immediately after the effective date of such dividend, by the amount of cash and/or the fair market value (as determined by the Companys board of directors (the Board), in good faith) of any securities or other assets paid on each share of Class A Common Stock in respect of such dividend.
4.2 Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of outstanding shares of Class A Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Class A Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the Warrant Entitlement shall be decreased in proportion to such decrease in outstanding shares of Class A Common Stock.
4.3 Adjustments in Warrant Price and Warrant Entitlement. Whenever the Warrant Entitlement is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the Warrant Entitlement immediately prior to such adjustment, and (y) the denominator of which shall be the Warrant Entitlement immediately thereafter. Whenever the Warrant Price is adjusted as provided in subsection 4.1.2 above, the Warrant Entitlement shall be adjusted by multiplying such Warrant Entitlement immediately prior to such adjustment by a fraction (x) the numerator of which shall be the Warrant Price immediately prior to such adjustment, and (y) the denominator of which shall be the Warrant Price immediately thereafter.
4.4 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Class A Common Stock (other than a change under subsections 4.1.1 or 4.1.2 or Section 4.2 hereof or that solely affects the par value of such shares of Class A Common Stock), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Class A Common Stock), or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Class A Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization,
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merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had held a number of shares of Class A Common Stock equal to the aggregate then-applicable Warrant Entitlement of such Warrants immediately prior to such event (the Alternative Issuance) and the successor or purchasing entity, as the case may be, shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, however, that (i) if the holders of the Class A Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Class A Common Stock in such consolidation or merger, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Class A Common Stock under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor rule)) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act (or any successor rule)) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act (or any successor rule)) more than 50% of the outstanding shares of Class A Common Stock, (x) the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a stockholder if such Warrant holder had held a number of shares of Class A Common Stock equal to the then-applicable Warrant Entitlement prior to the expiration of such tender or exchange offer, accepted such offer and all of the Class A Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4 and (y) if the issuer(s) of the securities constituting the Alternative Issuance is not the Company, then the Company and such issuer(s) shall take such action so as to ensure the availability of Section 3(a)(9) under the Securities Act of 1933, as amended (the Securities Act) for any issuance of such securities upon exercise of the Warrants and the tacking of the holding period under Rule 144 under the Securities Act for the Warrants to such securities provided, further, that if less than 70% of the consideration receivable by the holders of the Class A Common Stock in the applicable event is payable in the form of common stock in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) (but in no event less than zero) minus (B) the Black-Scholes Warrant Value (as defined below). The Black-Scholes Warrant Value means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (Bloomberg). For purposes of calculating such amount, (1) the price of each share of Class A Common Stock shall be the volume weighted average price of the Class A Common Stock as reported during the ten (10) trading day period ending on the trading
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day prior to the effective date of the applicable event, (2) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event, and (3) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. Per Share Consideration means (i) if the consideration paid to holders of the Class A Common Stock consists exclusively of cash, the amount of such cash per share of Class A Common Stock, and (ii) in all other cases, the volume weighted average price of the Class A Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in shares of Class A Common Stock covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant.
4.5 Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the Warrant Entitlement under Section 4, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the Warrant Entitlement, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Subject to the procedures in Section 4.8 (as applicable), the Company shall be responsible for any adjustments made to the Warrant Price or Warrant Entitlement. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.8, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.6 No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Class A Common Stock upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Class A Common Stock to be issued to such holder.
4.7 Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same Warrant Entitlement as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
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4.8 Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5. TRANSFER AND EXCHANGE OF WARRANTS.
5.1 Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate for a fraction of a warrant.
5.4 Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5 Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
6. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS.
6.1 No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter.
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6.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
6.3 Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Class A Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
6.4 DTC Undertaking. The Company shall use commercially reasonable efforts to exchange each holders Warrants for book-entry interests in a global Warrant at The Depositary Trust Company with an unrestricted CUSIP no later than the date that is 370 days from such Warrants issuance date (or such shorter period of time if permitted under the securities laws or if such Warrants are sold under Rule 144 or under a registration statement).
7. CONCERNING THE WARRANT AGENT AND OTHER MATTERS.
7.1 Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Class A Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares of Class A Common Stock.
7.2 Resignation, Consolidation, or Merger of Warrant Agent.
7.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Companys cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the
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predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
7.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Class A Common Stock not later than the effective date of any such appointment.
7.2.3 Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
7.3 Fees and Expenses of Warrant Agent.
7.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
7.3.2 Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
7.4 Liability of Warrant Agent.
7.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, Secretary or Chairman of the Board and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
7.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agents gross negligence, willful misconduct or bad faith.
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7.4.3 Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Class A Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Class A Common Stock shall, when issued, be valid and fully paid and non-assessable.
7.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Class A Common Stock through the exercise of the Warrants.
7.6 Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (Claim) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
8. MISCELLANEOUS PROVISIONS.
8.1 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
8.2 Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, or by e-mail with delivery receipt obtained, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
ProFrac Holding Corp.
333 Shops Boulevard, Suite 301
Willow Park, Texas 76087
Email: lance.turner@profrac.com
Attention: Lance Turner
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Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, or by e-mail with delivery receipt obtained, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Email: compliance@continentalstock.com
Attention: Compliance Department
8.3 Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
8.4 Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
8.5 Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
8.6 Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
8.7 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
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8.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (a) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (b) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the vote or written consent of the Registered Holders of more than seventy-five percent (75%) of the then outstanding Warrants.
8.9 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
Exhibit A Form of Warrant Certificate
Exhibit B Legend Warrants
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
PROFRAC HOLDING CORP. | ||
By: | /s/ Matthew D. Wilks | |
Name: | Matthew D. Wilks | |
Title: | Executive Chairman | |
CONTINENTAL STOCK TRANSFER & | ||
TRUST COMPANY, as Warrant Agent | ||
By: | /s/ Henry Farrell | |
Name: | Henry Farrell | |
Title: | Vice President |
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EXHIBIT A
[Form of Warrant Certificate]
[FACE]
Number | Warrant Entitlement: [] |
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
PROFRAC HOLDING CORP.
Incorporated Under the Laws of the State of Delaware
Warrant Certificate
This Warrant Certificate certifies that , or registered assigns, is the registered holder of warrant(s) evidenced hereby (the Warrants and each, a Warrant) to purchase shares of Class A common stock, par value $0.01 per share (Class A Common Stock), of ProFrac Holding Corp., a Delaware corporation (the Company). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Class A Common Stock equal to the Warrant Entitlement at a price (the Warrant Price) as determined pursuant to the Warrant Agreement and through cashless exercise provisions set forth in Section 3.3.1 thereof, upon surrender of this Warrant Certificate at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
The initial Warrant Price per share of Class A Common Stock for any Warrant is equal to $477.89 per share; provided, however, that a Warrant may not be exercised for a fractional share. The Warrant Price and the Warrant Entitlement are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
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This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
PROFRAC HOLDING CORP. | ||
By: |
| |
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER & | ||
TRUST COMPANY, as Warrant Agent | ||
By: |
| |
Name: | ||
Title: |
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[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Class A Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of May 24, 2019 (as amended, the Warrant Agreement), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the Warrant Agent), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words holders or holder meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, at the principal corporate trust office of the Warrant Agent through the cashless exercise provisions as provided for in the Warrant Agreement. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Class A Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Class A Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Class A Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
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The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.
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Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Class A Common Stock of ProFrac Holding Corp. (the Company) in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Class A Common Stock be registered in the name of _______________, whose address is _______________ and that such shares of Class A Common Stock be delivered to __________ whose address is __________. If said number of shares of Class A Common Stock is less than all of the shares of Class A Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Class A Common Stock be registered in the name of __________, whose address is _______________ and that such Warrant Certificate be delivered to _______________, whose address is _______________.
The Warrant may only be exercised on a cashless basis pursuant to Section 3.3.1 of the Warrant Agreement. Accordingly, (i) the number of shares of Class A Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 3.3.1 of the Warrant Agreement and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Class A Common Stock. If said number of shares is less than all of the shares of Class A Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Class A Common Stock be registered in the name of _______________, whose address is _______________ and that such Warrant Certificate be delivered to _______________, whose address is _______________.
[Signature Page Follows]
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Date: __________, 20__ |
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(Signature) | ||
| ||
| ||
| ||
(Address) | ||
| ||
(Tax Identification Number) | ||
Signature Guaranteed: | ||
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad-15 (OR ANY SUCCESSOR RULE)).
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EXHIBIT B
LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
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Exhibit 10.4
AMENDED AND RESTATED WARRANT AGREEMENT
between
PROFRAC HOLDING CORP.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
THIS AMENDED AND RESTATED WARRANT AGREEMENT (this Agreement), dated as of November 1, 2022, is by and between ProFrac Holding Corp., a Delaware corporation (the Company), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the Warrant Agent, also referred to herein as the Transfer Agent).
WHEREAS, U.S. Well Services, Inc., a Delaware corporation (USWS), and Transfer Agent are parties to that certain Warrant Agreement, dated as of March 9, 2017 (the Existing Warrant Agreement);
WHEREAS, on June 21, 2022 that certain Agreement and Plan of Merger (Merger Agreement) was entered into by and among the Company, USWS, and Thunderclap Merger Sub I, Inc., a Delaware corporation and an indirect subsidiary of Company (Merger Sub);
WHEREAS, the Merger Agreement provides for, among other things, the merger of Merger Sub with and into USWS, with USWS surviving the merger as the surviving corporation and an indirect subsidiary of the Company (the Merger);
WHEREAS, the Company and Transfer Agent wish to amend the Existing Warrant Agreement and each warrant issued pursuant to the Existing Warrant Agreement and outstanding as of the effective time of the Merger (the Existing Warrants) such that as of the effective time of the Merger, the holders of the Existing Warrants (Existing Warrant Holders) shall have the right to purchase the number of shares of Class A Common Stock of the Company, par value $.01 per share equal to the product of (i) the number of shares of Series A Common Stock of USWS, par value $0.0001 per share (the USWS Common Stock), underlying the Existing Warrants and (ii) 0.3366 (as adjusted for the 1-for-6 reverse split of USWS Common Stock effected by USWS on August 4, 2022);
WHEREAS, the Company and Transfer Agent desire to amend the Existing Warrant Agreement such that the Company assumes the Existing Warrants and they are otherwise amended as of the Effective Time in accordance with the terms hereof and of the Merger Agreement (each such amended Existing Warrant, a Warrant);
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be issued in registered form only.
2.2 Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books (the Warrant Register), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with the Depository Trust Company (the Depositary) (such institution, with respect to a Warrant in its account, a Participant).
If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants which shall be in the form annexed hereto as Exhibit A.
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Physical certificates, if issued, shall be signed by, or bear the facsimile signature of, the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the Registered Holder) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on any physical certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4 Detachability of Warrants. The Common Stock and Public Warrants comprising the Units shall begin separate trading on the 52nd day following the date of the Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business (a Business Day), then on the immediately succeeding Business Day following such date, or earlier (the Detachment Date) with the consent of CF & Co., as representative of the several underwriters, but in no event shall the Common Stock and the Public Warrants comprising the Units be separately traded until (A) the Company has filed a current report on Form 8-K with the Commission containing an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Offering, including the proceeds received by the Company from the exercise by the underwriters of their right to purchase additional Units in the Offering (the Over-allotment Option), if the Over-allotment Option is exercised prior to the filing of the Form 8-K, and (B) the Company issues a press release and files with the Commission a current report on Form 8-K announcing when such separate trading shall begin.
2.5 Private Placement Warrants. The Private Placement Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor, CF & Co. or any of their Permitted Transferees (as defined below) the Private Placement Warrants: (i) may be exercised for cash or on a cashless basis, pursuant to subsection 3.3.1(c) hereof, (ii) may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination (as defined below), and (iii) shall not be redeemable by the Company; provided, however, that in the case of (ii), the Private Placement Warrants and any shares of Common Stock held by the Sponsor, CF & Co. or any of their Permitted Transferees and issued upon exercise of the Private Placement Warrants may be transferred by the holders thereof:
(a) as gift to such persons immediate family or to a trust, the beneficiary of which is a member of such persons immediate family, an affiliate of such person or to a charitable organization;
(b) to the Companys officers or directors, any affiliate or family member of any of the Companys officers or directors, any affiliate of the Sponsor or to any member(s) of the Sponsor or any of their affiliates, or CF & Co.s officers, directors and direct and indirect equityholders;
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(c) by virtue of the laws of descent and distribution upon death of such person;
(d) pursuant to a qualified domestic relations order;
(e) by virtue of the laws of the state of Delaware or the Sponsors limited liability company agreement upon dissolution of the Sponsor;
(f) through private sales or transfers made in connection with the consummation of the Companys initial Business Combination at prices no greater than the price at which the Warrants were originally purchased;
(g) in the event of the Companys liquidation prior to consummation of the Companys initial Business Combination; or
(h) in the event that, subsequent to the consummation of the Companys initial Business Combination, the Company consummates a merger, capital stock exchange, reorganization or other similar transaction that results in all of the holders of the Companys equity securities issued in the Offering having the right to exchange their shares of Common Stock for cash, securities or other property;
provided, however, that, in the case of clauses (a) through (f), these transferees (the Permitted Transferees) enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent, entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the price of $717.47 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term Warrant Price as used in this Agreement shall mean the price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days, provided, that the Company shall provide at least twenty (20) days prior written notice of such reduction to Registered Holders of the Warrants and, provided further that any such reduction shall be identical among all of the Warrants.
3.2 Duration of Warrants. A Warrant may be exercised only during the period (the Exercise Period) commencing on the later of: (i) the date that is thirty (30) days after the first date on which the Company completes a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (a Business Combination), or (ii) the date that is twelve (12) months from the date of the closing of the Offering, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) the date that is five (5) years after the date on which the Company completes its Business Combination, (y) the liquidation of the Company in accordance with the Companys amended and restated certificate of incorporation as amended from time to time, if the Company
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fails to complete a Business Combination, or (z) other than with respect to the Private Placement Warrants, the Redemption Date (as defined below) as provided in Section 6.2 hereof (the Expiration Date); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement. Except with respect to the right to receive the Redemption Price (as defined below) (other than with respect to a Private Placement Warrant) in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Private Placement Warrant in the event of a redemption) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
3.3 Exercise of Warrants.
3.3.1 Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such Common Stock, as follows:
(a) in lawful money of the United States, in good certified check or good bank draft payable to the Warrant Agent;
(b) in the event of a redemption pursuant to Section 6 hereof in which the Companys board of directors (the Board) has elected to require all holders of the Warrants to exercise such Warrants on a cashless basis, by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the Fair Market Value, as defined in this subsection 3.3.1(b) by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(b) and Section 6.3, the Fair Market Value shall mean the average last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant to Section 6 hereof;
(c) with respect to any Private Placement Warrant, so long as such Private Placement Warrant is held by the Sponsor, CF & Co. or a Permitted Transferee, by surrendering the Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the Fair Market Value, as defined in this subsection 3.3.1(c), by (y) the Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the Fair Market Value shall mean the average last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent; or
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(d) as provided in Section 7.4 hereof.
3.3.2 Issuance of Shares of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of full shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares of Common Stock as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any shares of Common Stock pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the shares of Common Stock underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Companys satisfying its obligations under Section 7.4. No Warrant shall be exercisable and the Company shall not be obligated to issue shares of Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the Registered Holder of the Warrants. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the shares of Common Stock underlying such Unit. Subject to Section 4.6 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of shares of Common Stock (i.e., only an even number of Warrants may be exercised at any given time by a Registered Holder). In no event will the Company be required to net cash the Warrant exercise. The Company may require holders of Public Warrants to settle the Warrant on a cashless basis pursuant to Section 7.4. If, by reason of any exercise of warrants on a cashless basis, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
3.3.3 Valid Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and non-assessable.
3.3.4 Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares of Common Stock on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares of Common Stock at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.
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3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holders Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such persons affiliates), to the Warrant Agents actual knowledge, would beneficially own in excess of 9.8% (the Maximum Percentage) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Companys most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
4. Adjustments.
4.1 Stock Dividends.
4.1.1 Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock or other similar event, then, on the effective date of such stock dividend, split-up or similar event, the
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number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the outstanding shares of Common Stock. A rights offering to holders of the Common Stock entitling holders to purchase shares of Common Stock at a price less than the Fair Market Value (as defined below) shall be deemed a stock dividend of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) multiplied by (ii) one (1) minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Common Stock, in determining the price payable for Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) Fair Market Value means the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.1.2 Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Common Stock on account of such shares of Common Stock (or other shares of the Companys capital stock into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Common Stock in connection with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of Common Stock in connection with a stockholder vote to amend the Companys amended and restated certificate of incorporation to modify the substance or timing of the Companys obligation to redeem 100% of Common Stock if the Company does not complete the Business Combination within 24 months from the closing of the Offering, or (e) in connection with the redemption of public shares upon the failure of the Company to complete its initial Business Combination and any subsequent distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an Extraordinary Dividend), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, Ordinary Cash Dividends means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
4.2 Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
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4.3 Adjustments in Exercise Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.4 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Common Stock (other than a change under subsections 4.1.1 or 4.1.2 or Section 4.2 hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or in the case of any sale or conveyance to another entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the Alternative Issuance ) and the successor or purchasing entity, as the case may be, shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, however, that (i) if the holders of the Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Stock in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Common Stock (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by stockholders of the Company as provided for in the Companys amended and restated certificate of incorporation or as a result of the repurchase of shares of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (or any successor rule)) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act (or any successor rule)) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the
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Exchange Act (or any successor rule)) more than 50% of the outstanding shares of Common Stock, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a stockholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided, further, that if less than 70% of the consideration receivable by the holders of the Common Stock in the applicable event is payable in the form of common stock in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) (but in no event less than zero) minus (B) the Black-Scholes Warrant Value (as defined below). The Black-Scholes Warrant Value means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (Bloomberg). For purposes of calculating such amount, (1) Section 6 of this Agreement shall be taken into account, (2) the price of each share of Common Stock shall be the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (3) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event, and (4) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. Per Share Consideration means (i) if the consideration paid to holders of the Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in shares of Common Stock covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant.
4.5 Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares of Common Stock issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares of Common Stock purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
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4.6 No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Common Stock upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued to such holder.
4.7 Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares of Common Stock as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.8 Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5. Transfer and Exchange of Warrants.
5.1 Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
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5.3 Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant.
5.4 Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5 Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6 Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date.
6. Redemption.
6.1 Redemption. Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.2 below, at the price of $0.01 per Warrant (the Redemption Price), provided that the last sales price of the Common Stock reported has been at least $24.00 per share (subject to adjustment in compliance with Section 4 hereof), on each of twenty (20) trading days within the thirty (30) trading-day period ending on the third Business Day prior to the date on which notice of the redemption is given and provided that there is an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.2 below) or the Company has elected to require the exercise of the Warrants on a cashless basis pursuant to subsection 3.3.1.
6.2 Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, the Company shall fix a date for the redemption (the Redemption Date). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (the 30-day Redemption Period) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice.
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6.3 Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a cashless basis in accordance with subsection 3.3.1(b) of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event that the Company determines to require all holders of Warrants to exercise their Warrants on a cashless basis pursuant to subsection 3.3.1, the notice of redemption shall contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the Fair Market Value (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4 Exclusion of Private Placement Warrants. The Company agrees that the redemption rights provided in this Section 6 shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor, CF & Co. or their Permitted Transferees. However, once such Private Placement Warrants are transferred (other than to Permitted Transferees under Section 2.5), the Company may redeem the Private Placement Warrants, provided that the criteria for redemption are met, including the opportunity of the holder of such Private Placement Warrants to exercise the Private Placement Warrants prior to redemption pursuant to Section 6.3. Private Placement Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Private Placement Warrants and shall become Public Warrants under this Agreement.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1 No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter.
7.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3 Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration of Common Stock; Cashless Exercise at Companys Option.
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7.4.1 Registration of the Common Stock. The Company agrees that as soon as practicable, but in no event later than fifteen (15) Business Days after the closing of its initial Business Combination, it shall use its best efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the shares of Common Stock issuable upon exercise of the Warrants. The Company shall use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the 60th Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 61st Business Day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a cashless basis, by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) or another exemption) for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the Fair Market Value (as defined below) by (y) the Fair Market Value. Solely for purposes of this subsection 7.4.1, Fair Market Value shall mean the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the cashless exercise of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the shares of Common Stock issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act (or any successor rule)) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of any doubt, unless and until all of the Warrants have been exercised, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.
7.4.2 Cashless Exercise at Companys Option. If the Common Stock is at the time of any exercise of a Warrant not listed on a national securities exchange such that it satisfies the definition of a covered security under Section 18(b)(1) of the Securities Act (or any successor rule), the Company may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a cashless basis in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) as described in subsection 7.4.1 and (ii) in the event the Company so elects, the Company shall (x) not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Common Stock issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary, and (y) use its best efforts to register or qualify for sale the Common Stock issuable upon exercise of the Public Warrant under the blue sky laws of the state of residence of the exercising Public Warrant holder to the extent an exemption is not available.
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8. Concerning the Warrant Agent and Other Matters.
8.1 Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares of Common Stock.
8.2 Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Companys cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment.
8.2.3 Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
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8.3 Fees and Expenses of Warrant Agent.
8.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2 Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4 Liability of Warrant Agent.
8.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, Chief Financial Officer, Secretary or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agents gross negligence, willful misconduct or bad faith.
8.4.3 Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock shall, when issued, be valid and fully paid and non-assessable.
8.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common Stock through the exercise of the Warrants.
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8.6 Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (Claim) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
9. Miscellaneous Provisions.
9.1 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2 Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
ProFrac Holding Corp.
333 Shops Boulevard, Suite 301
Willow Park, Texas 76087
Email: lance.turner@profrac.com
Attention: Lance Turner
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Email: compliance@continentalstock.com
Attention: Compliance Department
9.3 Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
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9.4 Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
9.5 Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6 Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Private Placement Warrants, shall require the vote or written consent of the Registered Holders of 65% of the then outstanding Public Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.
9.9 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
Exhibit A Form of Warrant Certificate
Exhibit B LegendPrivate Placement Warrants
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
PROFRAC HOLDING CORP. | ||
By: | /s/ Matthew D. Wilks | |
Name: | Matthew D. Wilks | |
Title: | Executive Chairman | |
CONTINENTAL STOCK TRANSFER & | ||
TRUST COMPANY, as Warrant Agent | ||
By: | /s/ Henry Farrell | |
Name: | Henry Farrell | |
Title: | Vice President |
[Signature Page to Warrant Agreement]
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EXHIBIT A
[Form of Warrant Certificate]
[FACE]
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR IN THE WARRANT AGREEMENT DESCRIBED BELOW
PROFRAC HOLDING CORP.
Incorporated Under the Laws of the State of Delaware
CUSIP [ ]
Warrant Certificate
This Warrant Certificate certifies that, or registered assigns, is the registered holder of warrant(s) evidenced hereby (the Warrants and each, a Warrant) to purchase shares of Class A common stock, par value $0.01 per share (Common Stock), of ProFrac Holding Corp., a Delaware corporation (the Company). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Common Stock as set forth below, at the exercise price (the Exercise Price) as determined pursuant to the Warrant Agreement, payable in lawful money (or through cashless exercise as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each 124.777 Warrants are initially exercisable for one fully paid and non-assessable share of Common Stock. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Exercise Price per share of Common Stock for any Warrant is equal to $717.47 per share; provided, however, that a Warrant may not be exercised for a fractional share, so that only an even number of Warrants may be exercised at a given time. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
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This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
PROFRAC HOLDING CORP. | ||
By: |
| |
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER | ||
& TRUST COMPANY, as Warrant Agent | ||
By: |
| |
Name: | ||
Title: |
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[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of March 9, 2017 (as amended, the Warrant Agreement), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the Warrant Agent), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words holders or holder meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through cashless exercise as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the shares of Common Stock is current, except through cashless exercise as provided for in the Warrant Agreement.
The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
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Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.
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Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of ProFrac Holding Corp. (the Company) in the amount of $_______________ in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of _______________, whose address is _______________ and that such shares of Common Stock be delivered to _______________ whose address is _______________. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of _______________, whose address is _______________ and that such Warrant Certificate be delivered to _______________, whose address is _______________.
In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.
In the event that the Warrant is a Private Placement Warrant that is to be exercised on a cashless basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.
In the event that the Warrant is to be exercised on a cashless basis pursuant to Section 7.4 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.
In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares of Common Stock that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of _______________, whose address is _______________ and that such Warrant Certificate be delivered to _______________, whose address is _______________.
[Signature Page Follows]
Date: __________, 20__ |
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(Signature) |
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|
|
(Address) |
|
(Tax Identification Number) |
Signature Guaranteed: |
|
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE)).
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EXHIBIT B
LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE LETTER AGREEMENT BY AND AMONG PROFRAC HOLDING CORP. (THE COMPANY), MATLIN & PARTNERS ACQUISITION SPONSOR LLC AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 2 OF THE WARRANT AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.
SECURITIES EVIDENCED BY THIS CERTIFICATE AND SHARES OF CLASS A COMMON STOCK OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
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Exhibit 10.5
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
AMENDED AND RESTATED PLACEMENT AGENT
COMMON STOCK PURCHASE WARRANT
PROFRAC HOLDING CORP.
Warrant Shares: _______ | Issue Date: March 31, 2022 |
Initial Exercise Date: March 31, 2022
THIS AMENDED AND RESTATED PLACEMENT AGENT COMMON STOCK PURCHASE WARRANT (the Warrant) certifies that, for value received, _____________ or its assigns (the Holder) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the Initial Exercise Date) and on or prior to 5:00 p.m. (New York City time) on September 11, 2025 (the Termination Date) but not thereafter, to subscribe for and purchase from PROFRAC HOLDING CORP., a Delaware corporation (the Company), up to ______ shares (as subject to adjustment hereunder, the Warrant Shares) of the Companys Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b) as amended pursuant to the terms of that certain Agreement and Plan of Merger (Merger Agreement) entered by and among the Company, U.S. Well Services, Inc., a Delaware corporation (USWS), and Thunderclap Merger Sub I, Inc., a Delaware corporation.
This Warrant amends and restates the terms of the Warrant issued on March 11, 2022 (the Original Warrant) pursuant to that certain engagement letter, dated as of March 8, 2022, by and between USWS and H.C. Wainwright & Co., LLC (the Letter). By accepting this Warrant, the Holder hereby agrees to surrender to the Company for cancellation the Original Warrant or at the request of the Company to execute an instrument of cancellation in form and substance acceptable to the Company. Holder and Company hereby acknowledge and agree that upon the issuance of this Warrant, the Original Warrant shall be amended and restated and all of the Companys obligations under such warrant shall be discharged and released in full without any further action on the part of the Company or Holder.
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The following is a statement of the rights of the Holder and the conditions to which this Warrant is subject, and to which Holder, by acceptance of this Warrant, agrees:
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Amended and Restated Securities Purchase Agreement (the Purchase Agreement), dated March 9, 2022, among USWS and the purchasers signatory thereto.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the Notice of Exercise). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashiers check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise; provided, however, in the event that the Holder has not delivered such aggregate Exercise Price within three (3) Trading Days following the date of such exercise as aforesaid, the Company shall not be obligated to deliver such Warrant Shares hereunder until such payment is made. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $39.28 subject to adjustment hereunder (the Exercise Price).
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c) Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a cashless exercise in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) | = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of regular trading hours (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (Bloomberg) as of the time of the Holders execution of the applicable Notice of Exercise if such Notice of Exercise is executed during regular trading hours on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of regular trading hours on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of regular trading hours on such Trading Day; | ||
(B) | = | the Exercise Price of this Warrant, as adjusted hereunder; and; | ||
(X) | = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
Bid Price means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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VWAP means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holders or his designees balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (DWAC) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Companys share register in the name of the Holder or his designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) two (2) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the Warrant Share Delivery Date). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, Standard Settlement Period means the standard settlement period, expressed in a number of Trading Days, on the Companys primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
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ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by his broker to purchase (in an open market transaction or otherwise) or the Holders brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a Buy-In), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holders total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holders right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Companys failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof. The obligation of the Company to pay compensation for Buy In under this Section 2(d)(iv) is subject to delivery by the Holder of the aggregate Exercise Price in accordance with the terms of Section 2(a) herein.
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v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holders Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holders Affiliates, and any other Persons acting as a group together with the Holder or any of the Holders Affiliates (such Persons, Attribution Parties)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and his Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of his Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of his Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant
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is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holders determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Companys most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two (2) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or his Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The Beneficial Ownership Limitation shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then
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in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the Purchase Rights), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holders right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as his right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend (other than cash) or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a Distribution), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holders right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as his right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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d) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a Fundamental Transaction), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the Alternate Consideration) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration he receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holders option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that if the Fundamental Transaction is not within the Companys control, including not approved by the Companys Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of
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consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. Black Scholes Value means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the OV function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holders request pursuant to this Section 3(d) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Trading Days of the Holders election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the Successor Entity) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such
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Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the Company shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at his last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or his agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or his agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the Warrant Register), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
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e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that he is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for his own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a cashless exercise, and to receive the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holders rights, powers or remedies, notwithstanding the fact that the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of his rights, powers or remedies hereunder.
h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered to the address for the Holder that appears in the Companys Warrant Register.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
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j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of his rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder of this Warrant, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
PROFRAC HOLDING CORP. | ||
By: | /s/ Matthew D. Wilks | |
Name: | Matthew D. Wilks | |
Title: | Executive Chairman |
NOTICE OF EXERCISE
TO: PROFRAC HOLDING CORP.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DWAC Account Number:
(4) Accredited Investor. The undersigned is an accredited investor as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: | ||
(Please Print) | ||
Address: | ||
(Please Print) | ||
Phone Number: | ||
Email Address: | ||
Dated: _______________ __, ______ | ||
Holders Signature: | ||
Holders Address: |
Exhibit 10.6
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
PROFRAC HOLDING CORP.
Warrant Shares: _______ | Issue Date: March 11, 2022 | |
Initial Exercise Date: March 11, 2022 |
THIS AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT (the Warrant) certifies that, for value received, _____________ or its assigns (the Holder) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the Initial Exercise Date) and on or prior to 5:00 p.m. (New York City time) on September 11, 2025 (the Termination Date) but not thereafter, to subscribe for and purchase from PROFRAC HOLDING CORP., a Delaware corporation (the Company), up to ______ shares (as subject to adjustment hereunder, the Warrant Shares) of the Companys Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b), as amended pursuant to the terms of that certain Agreement and Plan of Merger (Merger Agreement) entered by and among the Company, U.S. Well Services, Inc., a Delaware corporation (USWS), and Thunderclap Merger Sub I, Inc., a Delaware corporation.
This Warrant amends and restates the terms of the Warrant to the Holder issued on March 11, 2022 (the Original Warrant). By accepting this Warrant, the Holder hereby agrees to surrender to the Company for cancellation the Original Warrant or at the request of the Company to execute an instrument of cancellation in form and substance acceptable to the Company. Holder and Company hereby acknowledge and agree that upon the issuance of this Warrant, the Original Warrant shall be amended and restated and all of the Companys obligations under such warrant shall be discharged and released in full without any further action on the part of the Company or Holder.
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The following is a statement of the rights of the Holder and the conditions to which this Warrant is subject, and to which Holder, by acceptance of this Warrant, agrees:
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Amended and Restated Securities Purchase Agreement (the Purchase Agreement), dated March 9, 2022, among USWS and the purchasers signatory thereto.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the Notice of Exercise). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashiers check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise; provided, however, in the event that the Holder has not delivered such aggregate Exercise Price within three (3) Trading Days following the date of such exercise as aforesaid, the Company shall not be obligated to deliver such Warrant Shares hereunder until such payment is made. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
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b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $31.43, subject to adjustment hereunder (the Exercise Price).
c) Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a cashless exercise in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of regular trading hours (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (Bloomberg) as of the time of the Holders execution of the applicable Notice of Exercise if such Notice of Exercise is executed during regular trading hours on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of regular trading hours on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of regular trading hours on such Trading Day; |
(B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
(X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
Bid Price means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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VWAP means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holders or its designees balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (DWAC) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Companys share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) two (2) Trading
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Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the Warrant Share Delivery Date). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, Standard Settlement Period means the standard settlement period, expressed in a number of Trading Days, on the Companys primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holders brokerage firm otherwise purchases, shares of Common Stock to
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deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a Buy-In), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holders total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holders right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Companys failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof. The obligation of the Company to pay compensation for Buy In under this Section 2(d)(iv) is subject to delivery by the Holder of the aggregate Exercise Price in accordance with the terms of Section 2(a) herein.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be
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accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holders Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holders Affiliates, and any other Persons acting as a group together with the Holder or any of the Holders Affiliates (such Persons, Attribution Parties)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holders determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as
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to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Companys most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two (2) Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The Beneficial Ownership Limitation shall be [4.99%/9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of
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shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the Purchase Rights), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holders right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
c) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a Distribution), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holders right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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d) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a Fundamental Transaction), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the Alternate Consideration) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holders option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public
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announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that if the Fundamental Transaction is not within the Companys control, including not approved by the Companys Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. Black Scholes Value means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the OV function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holders request pursuant to this Section 3(d) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Trading Days of the Holders election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the Successor Entity) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is
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exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the Company shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
e) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company
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shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
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b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the Warrant Register), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a cashless exercise, and to receive the cash payments contemplated pursuant to Sections 2(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant.
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b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
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Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holders rights, powers or remedies, notwithstanding the fact that the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
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k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder of this Warrant, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
PROFRAC HOLDING CORP. | ||||
By: | /s/ Matthew D. Wilks | |||
Name: | Matthew D. Wilks | |||
Title: | Executive Chairman |
NOTICE OF EXERCISE
TO: PROFRAC HOLDING CORP.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
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The Warrant Shares shall be delivered to the following DWAC Account Number:
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(4) Accredited Investor. The undersigned is an accredited investor as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: ________________________________________________________________________ |
Signature of Authorized Signatory of Investing Entity: _________________________________________________ |
Name of Authorized Signatory: ___________________________________________________________________ |
Title of Authorized Signatory: ____________________________________________________________________ |
Date: ________________________________________________________________________________________ |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) | ||
Address: |
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(Please Print) | ||
Phone Number: |
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Email Address: |
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Dated: _______________ __, ______ | ||
Holders Signature: | ||
Holders Address: |
Exhibit 10.7
AMENDMENT NO. 1
TO
AMENDED AND RESTATED WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED WARRANT AGREEMENT (this Amendment), is made and entered into as of November 1, 2022, by and among ProFrac Holding Corp., a Delaware corporation (the Company), Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (Continental), and American Stock Transfer & Trust Company, LLC (AST). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Warrant Agreement (as defined below).
WHEREAS, the Company and Continental previously entered into that certain Amended and Restated Warrant Agreement, dated as of November 1, 2022 (the Warrant Agreement);
WHEREAS, pursuant to Section 7.2.1 of the Warrant Agreement, Continental has agreed to resign from its duties as the Warrant Agent as of the date hereof, and AST has agreed to serve as successor Warrant Agent from and after the date hereof; and
WHEREAS, pursuant to Section 8.8 of the Warrant Agreement, the parties may amend the Warrant Agreement without the consent of the Registered Holders with respect to matters or questions arising under the Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. | Amendment of the Warrant Agreement. The parties hereby amend, effective as of the date of this Amendment, the Warrant Agreement as provided in this Section 1: |
1.1. | Change in Warrant Agent. References to Continental Stock Transfer & Trust Company in the Warrant Agreement shall be replaced with American Stock Transfer & Trust Company, LLC and it shall be understood that Warrant Agent shall hereafter refer to AST. |
1.2. | Change of Address of Warrant Agent. Section 8.2 of the Warrant Agreement is hereby amended to direct that all notices, instructions and communications under the Warrant Agreement to the Warrant Agent shall be delivered to: |
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Email: Reorg_warrants@astfinancial.com
1
1.3 | Resignation of Current Warrant Agent and Appointment of Successor Warrant Agent. Continental hereby resigns as Warrant Agent under the Warrant Agreement, and the Company hereby appoints AST to act as the Warrant Agent for the Company under the Warrant Agreement, and AST hereby accepts such appointment and agrees to perform the same duties and obligations in accordance with the terms and conditions set forth in the Warrant Agreement as modified by this Amendment. |
2. | Miscellaneous Provisions. |
2.1. | Successors. All the covenants and provisions of this Amendment by or for the benefit of the parties hereto shall bind and inure to the benefit of their respective successors and assigns. |
2.2. | Applicable Law. The validity, interpretation, and performance of this Amendment shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties hereto hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Amendment shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereto hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. |
2.3. | Counterparts. This Amendment may be executed in any number of original or electronic counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. |
2.4. | Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof. |
2.5. | Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. |
2.6. | Effect on Warrant Agreement. Other than as specifically set forth herein, all other terms and provisions of the Warrant Agreement shall remain unaffected by the terms of this Amendment, and shall continue in full force and effect and be enforceable against the parties thereto in accordance with its terms. |
2.7. | Entire Agreement. The Warrant Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof. |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
PROFRAC HOLDING CORP. | ||
By: | /s/ Matthew D. Wilks | |
Name: | Matthew D. Wilks | |
Title: | Executive Chairman | |
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
By: | /s/ Henry Terrell | |
Name: | Henry Terrell | |
Title: | Vice President | |
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
By: | /s/ Michael Legregin | |
Name: | Michael Legregin | |
Title: | Senior Vice President, Corporate Actions Relationship Management & Operations |
[Signature Page to Amendment No. 1 to A&R Warrant Agreement]
Exhibit 10.8
AMENDMENT NO. 1
TO
AMENDED AND RESTATED WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED WARRANT AGREEMENT (this Amendment), is made and entered into as of November 1, 2022, by and among ProFrac Holding Corp., a Delaware corporation (the Company), Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (Continental), and American Stock Transfer & Trust Company, LLC (AST). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Warrant Agreement (as defined below).
WHEREAS, the Company and Continental previously entered into that certain Amended and Restated Warrant Agreement, dated as of November 1, 2022 (the Warrant Agreement);
WHEREAS, pursuant to Section 8.2.1 of the Warrant Agreement, Continental has agreed to resign from its duties as the Warrant Agent as of the date hereof, and AST has agreed to serve as successor Warrant Agent from and after the date hereof; and
WHEREAS, pursuant to Section 9.8 of the Warrant Agreement, the parties may amend the Warrant Agreement without the consent of the Registered Holders with respect to matters or questions arising under the Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. | Amendment of the Warrant Agreement. The parties hereby amend, effective as of the date of this Amendment, the Warrant Agreement as provided in this Section 1: |
1.1. | Change in Warrant Agent. References to Continental Stock Transfer & Trust Company in the Warrant Agreement shall be replaced with American Stock Transfer & Trust Company, LLC and it shall be understood that Warrant Agent shall hereafter refer to AST. |
1.2. | Change of Address of Warrant Agent. Section 9.2 of the Warrant Agreement is hereby amended to direct that all notices, instructions and communications under the Warrant Agreement to the Warrant Agent shall be delivered to: |
American Stock Transfer & Trust Company, LLC
6201 15th Avenue
Brooklyn, NY 11219
Email: Reorg_warrants@astfinancial.com
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1.3 | Resignation of Current Warrant Agent and Appointment of Successor Warrant Agent. Continental hereby resigns as Warrant Agent under the Warrant Agreement, and the Company hereby appoints AST to act as the Warrant Agent for the Company under the Warrant Agreement, and AST hereby accepts such appointment and agrees to perform the same duties and obligations in accordance with the terms and conditions set forth in the Warrant Agreement as modified by this Amendment. |
2. | Miscellaneous Provisions. |
2.1. | Successors. All the covenants and provisions of this Amendment by or for the benefit of the parties hereto shall bind and inure to the benefit of their respective successors and assigns. |
2.2. | Applicable Law. The validity, interpretation, and performance of this Amendment shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties hereto hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Amendment shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereto hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. |
2.3. | Counterparts. This Amendment may be executed in any number of original or electronic counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. |
2.4. | Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof. |
2.5. | Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. |
2.6. | Effect on Warrant Agreement. Other than as specifically set forth herein, all other terms and provisions of the Warrant Agreement shall remain unaffected by the terms of this Amendment, and shall continue in full force and effect and be enforceable against the parties thereto in accordance with its terms. |
2.7. | Entire Agreement. The Warrant Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof. |
[Signature Page Follows]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
PROFRAC HOLDING CORP. | ||
By: | /s/ Matthew D. Wilks | |
Name: | Matthew D. Wilks | |
Title: | Executive Chairman | |
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
By: | /s/ Henry Terrell | |
Name: | Henry Terrell | |
Title: | Vice President | |
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC | ||
By: | /s/ Michael Legregin | |
Name: | Michael Legregin | |
Title: | Senior Vice President, Corporate Actions Relationship Management & Operations |
[Signature Page to Amendment No. 1 to A&R Warrant Agreement]
Exhibit 99.1
Contacts: | ProFrac Holding Corp. | |||
Lance Turner Chief Financial Officer | ||||
investors@profrac.com | ||||
FOR IMMEDIATE RELEASE |
||||
Dennard Lascar Investor Relations | ||||
Ken Dennard / Rick Black | ||||
PFHC@dennardlascar.com |
ProFrac Holding Corp. Closes on U.S. Well Services, Inc. Acquisition
ProFrac becomes the largest provider of electric frac services with 12 electric fleets
WILLOW PARK, TX November 1, 2022 ProFrac Holding Corp. (NASDAQ: PFHC) (ProFrac or the Company) announced today that it has closed on its acquisition of U.S. Well Services, Inc. (NASDAQ: USWS) (USWS) in a stock-for-stock merger transaction. As a result of this transaction, ProFrac issued an aggregate of approximately 12.9 million shares of the Companys Class A Common Stock to holders of USWS Class A Common Stock, USWS Series A Preferred Stock, USWS Equity Linked Convertible Notes, and USWS equity awards. The equity issued, based on the ProFrac Class A Common Stock 10-day VWAP as of October 31, 2022, would be approximately $270 million. In addition, ProFrac is using cash to retire approximately $170 million of USWS debt, leaving approximately $35 million of various forms of equipment related financing outstanding.
Matt Wilks, ProFracs Executive Chairman, commented, ProFrac has created a market leader in NextGen frac solutions with an expected 44 active fleets by the first quarter of 2023, including 12 electric fleets and over 13 Tier IV dual fuel fleets. This acquisition of U.S. Well Services solidifies ProFracs position as the industry leader in electric hydraulic fracturing, which we believe represents the future of the industry.
Ladd Wilks, ProFracs Chief Executive Officer, added, We are excited to welcome the U.S. Well Services team to the ProFrac family. We are eager to leverage our scale and capabilities along with our Clean Fleet® technology and we intend to make ProFrac THE electric fleet provider in the U.S.
Transaction Details
At the effective time of the merger, each share of USWS Class A Common Stock was converted automatically into the right to receive 0.3366 (the Exchange Ratio) shares of ProFrac Class A Common Stock. Immediately prior to the effective time of the merger, each holder of USWS Series A Preferred Stock had the option of converting such stock into shares of USWS Class A Common Stock at a conversion ratio stipulated in the merger agreement, and any shares of USWS Series A Preferred Stock not so converted were automatically converted into shares of USWS Class A Common Stock at the then-effective conversion rate as calculated pursuant to USWS organizational documents. In addition, immediately prior to the effective time of the merger, each Equity Linked Convertible Note (as defined in the merger agreement) was automatically converted into a number of shares of USWS Class A Common Stock equal to the quotient obtained by dividing (i) the amount of outstanding aggregate principal amount, plus accrued and unpaid interest, owing thereunder through July 9, 2022, by (ii) $7.32.
Pursuant to the terms of the merger agreement, ProFrac assumed the obligations of USWS under certain of its public and private warrants, including those that traded on NASDAQ. These warrants now represent the right to receive, upon valid exercise thereof, shares of ProFrac Class A Common Stock in an amount equal to the product of (i) the number of shares of USWS Class A Common Stock subject to such warrant immediately prior to the effective time of the merger and (ii) the Exchange Ratio. The Company anticipates that the assumed public warrants will commence trading on NASDAQ on or about November 2, 2022. In addition, pursuant to a warrant purchase agreement entered into concurrently with the execution of the merger agreement, ProFrac purchased all of the outstanding USWS Term C Loan Warrants from their holders for total aggregate consideration of approximately $2.6 million, which warrants were automatically canceled and ceased to exist as of the effective time of the merger.
Advisors
Jefferies LLC and Kirkland & Ellis LLP served as exclusive financial and legal advisor, respectively, to the Special Committee of ProFracs Board of Directors. Brown Rudnick LLP and Lowenstein Sandler LLP served as legal advisor and merger clearance counsel, respectively, to ProFrac.
About ProFrac Holding Corp.
ProFrac Holding Corp. is a growth-oriented, vertically integrated and innovation-driven energy services company providing hydraulic fracturing, completion services and other complementary products and services to leading upstream oil and gas companies engaged in the exploration and production (E&P) of North American unconventional oil and natural gas resources. Founded in 2016, ProFrac was built to be the go-to service provider for E&P companies most demanding hydraulic fracturing needs. ProFrac is a market leader in electric pressure pumping and is focused on employing new technologies to significantly reduce greenhouse gas emissions and increase efficiency in what has historically been an emissions-intensive component of the unconventional E&P development process. For more information, please visit the ProFracs website at www.pfholdingscorp.com.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this press release may be considered forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. In some cases, the reader can identify forward-looking statements by words such as may, should, expect, intend, will, estimate, anticipate, believe, predict, or similar words. Forward-looking statements relate to future events, or ProFracs future financial or operating performance. These forward-looking statements include, among other things, statements regarding: the expected benefits of the merger, including any resulting synergies and positive impact on earnings, competitive advantages, expanded active fleet and electric fleet portfolio, increased value, improved efficiency, cost savings including fuel cost savings, access to and rights in acquired intellectual property, emissions minimization and other expected advantages of the transaction to the combined company; the services to be offered by the combined company; the markets in which ProFrac operates; business strategies, debt levels, industry environment and growth opportunities; the projected value of operational synergies, including value expected to result from license fee savings; and expectations regarding ProFracs ability to finance USWS debt. Such forward-looking statements are based upon assumptions made by ProFrac as of the date hereof and are subject to risks, uncertainties, and other factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: the effect of the consummation of the merger on ProFracs business relationships, performance, and business generally; risks that the consummation of the merger disrupts current plans of ProFrac or causes difficulties in employee retention; the outcome of any legal proceedings instituted against ProFrac or USWS or any of their affiliates related to the merger agreement and the transactions contemplated thereby; the impact of the merger on the price of ProFracs securities, including volatility resulting from changes in the competitive and highly regulated industries in which ProFrac operates, variations in performance across competitors, changes in laws and regulations affecting ProFracs business and changes in the combined companys capital structure; the ability to implement business plans, forecasts, and other expectations after the completion of the merger, and identify and realize additional opportunities; the ability to integrate acquired assets and personnel into ProFracs existing business model and realize the expected value of resulting operational synergies; the ability to successfully and sustainably execute on current business strategies and plans for growth; and other risks and uncertainties set forth in the section entitled Risk Factors in the proxy statement/information statement/prospectus relating to the merger (File No. 333-267168) on Form S-4 that was filed with the Securities and Exchange Commission (the SEC) on September 22, 2022, and in ProFracs other filings with the SEC, which are available on the SECs website at www.sec.gov. The foregoing list of factors is not exhaustive. There may be additional risks that ProFrac does not presently know or that ProFrac currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
Nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements will be achieved, including without limitation any expectations about ProFracs operational and financial performance or achievements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and ProFrac assumes no obligation and, except as required by law, does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise.
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