Second Lien Guaranty and Security Agreement Joinder, dated October 5, 2018, by and among the Company, the other grantors party thereto, and Wilmington Savings Fund Society, FSB
Exhibit 10.8
SECOND LIEN GUARANTY AND SECURITY AGREEMENT
JOINDER
Joinder (this Joinder), dated as of October 5, 2018, to the Second Lien Guaranty and Security Agreement, dated as of August 7, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the Second Lien Guaranty and Security Agreement), by and among each of the parties listed on the signature pages thereto and those additional entities that thereafter become parties thereto (collectively, jointly and severally, Grantors and each, individually, a Grantor) and WILMINGTON SAVINGS FUND SOCIETY, FSB, in its capacity as agent for the Lender Group (in such capacity, together with its successors and assigns in such capacity, Agent).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Lien Term Loan Credit Agreement dated as of August 7, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the Credit Agreement) by and among Nuverra Environmental Solutions, Inc., a Delaware corporation, as borrower (Borrower), the lenders party thereto as Lenders (such Lenders, together with their respective successors and assigns in such capacity, each, individually, a Lender and, collectively, the Lenders), and Agent, the Lender Group has agreed to make certain term loans available to Borrower from time to time pursuant to the terms and conditions thereof;
WHEREAS, initially capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Second Lien Guaranty and Security Agreement or, if not defined therein, in the Credit Agreement, and this Joinder shall be subject to the rules of construction set forth in Section 1(b) of the Second Lien Guaranty and Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis;
WHEREAS, Grantors have entered into the Second Lien Guaranty and Security Agreement in order to induce the Lender Group to make term loans to Borrower as provided for in the Credit Agreement and the other Loan Documents;
WHEREAS, pursuant to Section 5.11 of the Credit Agreement and Section 26 of the Second Lien Guaranty and Security Agreement, certain Subsidiaries of the Loan Parties, must execute and deliver certain Loan Documents, including the Second Lien Guaranty and Security Agreement, and the joinder to the Second Lien Guaranty and Security Agreement by the undersigned new Grantor or Grantors (collectively, the New Grantors) may be accomplished by the execution of this Joinder in favor of Agent, for the benefit of the Lender Group; and
WHEREAS, each New Grantor (a) is a Subsidiary of Borrower and, as such, will benefit by virtue of the term loans extended to Borrower by the Lender Group and (b) by becoming a Grantor will benefit from certain rights granted to the Grantors pursuant to the terms of the Loan Documents.
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor hereby agrees as follows:
1. In accordance with Section 26 of the Second Lien Guaranty and Security Agreement, each New Grantor, by its signature below, becomes a Grantor and Guarantor under the Second Lien Guaranty and Security Agreement with the same force and effect as if originally named therein as a Grantor and Guarantor and each New Grantor hereby (a) agrees to all of the terms and provisions of the Second Lien Guaranty and Security Agreement applicable to it as a Grantor or Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor or Guarantor thereunder are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality in the text thereof) on and as of the date hereof. In furtherance of the foregoing, each New Grantor hereby (a) jointly and severally unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations, and (b) unconditionally grants, assigns, and pledges to Agent, for the benefit of the Lender Group, to secure the Secured Obligations, a continuing security interest in and to all of such New Grantors right, title and interest in and to the Collateral. Each reference to a Grantor or Guarantor in the Second Lien Guaranty and Security Agreement shall be deemed to include each New Grantor. The Second Lien Guaranty and Security Agreement is incorporated herein by reference.
2. Schedule 1, Commercial Tort Claims, Schedule 2, Copyrights, Schedule 3, Intellectual Property Licenses, Schedule 4, Patents, Schedule 5, Pledged Companies, Schedule 6, Trademarks, Schedule 7, Name; Chief Executive Office; Tax Identification Numbers and Organizational Numbers, Schedule 8, Owned Real Property, Schedule 9, Deposit Accounts and Securities Accounts, Schedule 11, List of Uniform Commercial Code Filing Jurisdictions, and Schedule 12, Certificated Equipment attached hereto supplement Schedule 1, Schedule 2, Schedule 3, Schedule 4, Schedule 5, Schedule 6, Schedule 7, Schedule 8, Schedule 9, Schedule 11, and Schedule 12 respectively, to the Second Lien Guaranty and Security Agreement and shall be deemed a part thereof for all purposes of the Second Lien Guaranty and Security Agreement.
3. Each New Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments thereto (i) describing the Collateral as all personal property of debtor or all assets of debtor or words of similar effect, (ii) describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance. Each New Grantor also hereby ratifies any and all financing statements or amendments previously filed by Agent in any jurisdiction in connection with the Loan Documents.
4. Each New Grantor represents and warrants to Agent, the Lender Group that this Joinder has been duly executed and delivered by such New Grantor and constitutes its legal, valid, and binding obligation, enforceable against it in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium, or other similar laws affecting creditors rights generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
5. This Joinder is a Loan Document. This Joinder may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Joinder. Delivery of an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Joinder. Any party delivering an executed counterpart of this Joinder by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Joinder but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Joinder.
6. The Second Lien Guaranty and Security Agreement, as supplemented hereby, shall remain in full force and effect.
7. THIS JOINDER SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 25 OF THE SECOND LIEN GUARANTY AND SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
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IN WITNESS WHEREOF, the parties hereto have caused this Joinder to the Second Lien Guaranty and Security Agreement to be executed and delivered as of the day and year first above written.
NEW GRANTORS: | NUVERRA OHIO DISPOSAL LLC | |||||
By: | /s/ Edward A. Lang | |||||
Name: | Edward A. Lang | |||||
Title: | Vice President and Treasurer | |||||
CLEARWATER THREE, LLC | ||||||
By: | /s/ Edward A. Lang | |||||
Name: | Edward A. Lang | |||||
Title: | Vice President and Treasurer | |||||
CLEARWATER FIVE, LLC | ||||||
By: | /s/ Edward A. Lang | |||||
Name: | Edward A. Lang | |||||
Title: | Vice President and Treasurer | |||||
CLEARWATER SOLUTIONS, LLC | ||||||
By: | /s/ Edward A. Lang | |||||
Name: | Edward A. Lang | |||||
Title: | Vice President and Treasurer |
AGENT: | WILMINGTON SAVINGS FUND SOCIETY, FSB | |||||
By: | /s/ Geoffrey J. Lewis | |||||
Name: | Geoffrey J. Lewis | |||||
Title: | Vice President |
Agreed and accepted: | ||
NUVERRA ENVIRONMENTAL SOLUTIONS, INC. | ||
By: | /s/ Edward A. Lang | |
Name: | Edward A. Lang | |
Title: | Executive Vice President and Chief Financial Officer | |
1960 WELL SERVICES, LLC | ||
BADLANDS LEASING, LLC BADLANDS POWER FUELS, LLC, a Delaware limited liability company BADLANDS POWER FUELS, LLC, a North Dakota limited liability company HECKMANN WATER RESOURCES CORPORATION HECKMANN WATER RESOURCES (CVR), INC. HECKMANN WOODS CROSS, LLC HEK WATER SOLUTIONS, LLC IDEAL OILFIELD DISPOSAL, LLC LANDTECH ENTERPRISES, L.L.C. NES WATER SOLUTIONS, LLC NUVERRA TOTAL SOLUTIONS, LLC | ||
By: | /s/ Edward A. Lang | |
Name: | Edward A. Lang | |
Title: | Vice President and Treasurer |