FIFTH AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT
Execution Version
FIFTH AMENDMENT,
CONSENT AND WAIVER TO CREDIT AGREEMENT
CONSENT AND WAIVER TO CREDIT AGREEMENT
This FIFTH AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT (this “Fifth Amendment”), dated as of December 9, 2016, is by and among Archrock Services, L.P., a limited partnership formed under the laws of the state of Delaware (the “Borrower”), Archrock, Inc., a corporation formed under the laws of the state of Delaware (“Parent”), the Guarantors party hereto, the Lenders listed on the signature pages attached hereto and Xxxxx Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
R E C I T A L S
A. The Borrower, Parent, the Administrative Agent and the financial institutions from time to time party thereto (each, a “Lender” and collectively, the “Lenders”) are parties to that certain Credit Agreement, dated as of July 10, 2015 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”);
B. The Guarantors are parties to that certain Guaranty and Collateral Agreement, dated as of November 3, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty and Collateral Agreement”);
C. The Borrower and Parent have informed the Lenders that Parent’s management and the Audit Committee of Parent’s Board of Directors (the “Audit Committee”) are in the process of reviewing certain matters more particularly described on the Disclosure Schedule attached to that certain Fourth Amendment, Consent and Waiver to Amended and Restated Credit Agreement, dated as of November 22, 2016, by and among Exterran Energy Solutions, L.P., as borrower, Exterran Corporation, as parent, the guarantors party thereto, the lenders listed on the signature pages attached thereto and Xxxxx Fargo Bank, National Association, as administrative agent (the “Disclosed Matters”) to determine the possible impact on the Parent’s financial statements prior to the Separation Transaction (such review by Parent’s management and the Audit Committee being referred to as the “Disclosed Matters Review”);
D. Section 8.01(a)(ii) of the Credit Agreement requires that Parent deliver to the Administrative Agent a copy of the quarterly report filed by Parent with the SEC pursuant to Section 13 or 15(d) of the Exchange Act for the Fiscal Quarters ended March 31, 2016 (the “Q1 2016 Quarterly Report”), June 30, 2016 (the “Q2 2016 Quarterly Report”) and September 30, 2016 (the “Q3 2016 Quarterly Report”), in each case, within 30 days after the same is required to be filed with the SEC (but in any event within 60 days after the end of such Fiscal Quarter);
E. As a result of the Disclosed Matters Review, Parent was not able to file the Q1 2016 Quarterly Report, the Q2 2016 Quarterly Report or the Q3 2016 Quarterly Report by the time required by SEC rules;
F. The Borrower and Parent had previously requested that the Lenders consent to an extension of the periods set forth in Sections 8.01(a) and 8.01(b) of the Credit Agreement for delivery of (i) the Q1 2016 Quarterly Report and the related Compliance Certificate (the “Original Q1 2016 Quarterly Report Extension”), (ii) the Q2 2016 Quarterly Report and the related Compliance Certificate (the “Original Q2 2016 Quarterly Report Extension”) and (iii) the Q3 2016 Quarterly
Report and the related Compliance Certificate (the “Original Q3 2016 Quarterly Report Extension”), in each case to the earlier of (x) within ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarters ended March 31, 2016, June 30, 2016 or September 30, 2016, respectively, and (y) December 31, 2016;
G. The Borrower and Parent have informed the Lenders that there is a possibility that, upon completion of the Disclosed Matters Review, the Audit Committee could conclude that the previously issued audited consolidated financial statements and other financial information contained in Parent’s Annual Report on Form 10-K for the Fiscal Year ended December 31, 2015 (the “2015 Audited Report”) should no longer be relied upon. In the event that such conclusion (the “Non-Reliance Conclusion”) is made by the Audit Committee, (i) Parent’s earnings releases and other financial communications for the Fiscal Year ended December 31, 2015 (collectively with the 2015 Audited Report, the “Prior 2015 Financial Information”) may no longer be able to be relied upon and (ii) there is a possibility that certain financial information related to the prior fiscal periods of Parent would no longer be able to be relied upon (collectively with the Prior 2015 Financial Information, the “Prior Financial Information”);
H. In the event that the Non-Reliance Conclusion is made by the Audit Committee, management of Parent could restate or modify the 2015 Audited Report and, if applicable, the other Prior Financial Information (collectively, the “Replacement Financial Information”);
I. Pursuant to Section 8.01(b) of the Credit Agreement, Parent timely delivered a Compliance Certificate to the Administrative Agent with respect to the Parent’s compliance with Sections 9.10(a) and 9.10(b) of the Credit Agreement as of December 31, 2015 (the “Q4 2015 Compliance Certificate”);
J. In the event that the Non-Reliance Conclusion is made by the Audit Committee, a Default or Event of Default may exist or arise under Section 10.01(c) of the Credit Agreement in respect of Section 8.01(b) of the Credit Agreement due to the fact that the information contained in the Q4 2015 Compliance Certificate was based on the Prior 2015 Financial Information (the “Compliance Certificate Potential Default”);
K. Pursuant to Section 8.02(a) of the Credit Agreement, Parent is required to keep its books of record and account and the books of record and account of its Consolidated Subsidiaries in accordance with GAAP;
L. In the event that the Non-Reliance Conclusion is made by the Audit Committee, a Default or Event of Default may exist or arise under Section 10.01(d)(iii) of the Credit Agreement as a result of the potential failure by Parent to keep books of record and account in accordance with GAAP as required by Section 8.02(a) of the Credit Agreement in connection with the Prior Financial Information (the “Books of Record Potential Default”);
M. The Borrower and Parent have made, or have been deemed to make, from time to time the representations and warranties set forth in Section 7.11 of the Credit Agreement with respect to the accuracy of all or a portion of the Prior Financial Information as and when required by the Loan Documents (collectively, the “Specified Representation”), including pursuant to Section 6.03 of the Credit Agreement in connection with the making of Loans by the Lenders on the occasion of any Borrowing and the issuance, amendment, renewal or extension of any Letter of Credit by
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any Issuing Bank (any date on which the Specified Representation is made or deemed made, a “Representation Date”);
N. In the event that the Non-Reliance Conclusion is made by the Audit Committee, a Default or Event of Default may exist or arise under Section 10.01(c) of the Credit Agreement as a result of the potential for the Specified Representation to have been false or misleading in any material respect when made or deemed made on one or more Representation Dates (the “Representation Potential Defaults”, and together with the Compliance Certificate Potential Default and the Books of Record Potential Default, the “Specified Potential Defaults”);
O. In the event that the Non-Reliance Conclusion is made by the Audit Committee, additional related Defaults or Events of Default may exist or arise (i) under Section 10.01(c) of the Credit Agreement in the event that any representation or warranty made or deemed made as to the absence of a Default or Event of Default under the Loan Documents was false or misleading in any material respect on any Representation Date, in any such case solely as a result of the existence of the Specified Potential Defaults on such Representation Date; (ii) under Section 10.01(d)(i) of the Credit Agreement due to the failure to notify the Administrative Agent of any Specified Potential Default promptly after a Responsible Officer of Parent or the Borrower obtains actual knowledge thereof, as required by Section 8.01(e) of the Credit Agreement; and (iii) under Section 10.01(d) of the Credit Agreement due to the taking of any action conditioned upon the absence of a Default or Event of Default solely due to the presence of a Specified Potential Default at such time (collectively, the “Related Potential Defaults”);
P. Pursuant to that certain Fourth Amendment, Consent and Waiver to Credit Agreement, dated as of September 21, 2016 (the “Fourth Amendment”), among the Borrower, Parent, the Administrative Agent and the Lenders party thereto, the Lenders agreed to (i) waive any and all Specified Potential Defaults and Related Potential Defaults until December 31, 2016 (the “Waiver Termination Date”) unless on or prior to such date, Parent shall have delivered to the Administrative Agent the financial information required to be delivered pursuant to Section 3 of the Fourth Amendment and (ii) consent to the Original Q1 2016 Quarterly Report Extension, the Original Q2 2016 Quarterly Report Extension and the Original Q3 2016 Quarterly Report Extension; and
Q. The Borrower and Parent have requested that the Lenders consent to (i) an extension of the Waiver Termination Date until March 31, 2017, (ii) an extension of the Original Q1 2016 Quarterly Report Extension until the earlier of (x) within ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended March 31, 2016 and (y) Xxxxx 00, 0000 (xxx “Amended Q1 2016 Quarterly Report Extension”), (iii) an extension of the Original Q2 2016 Quarterly Report Extension until the earlier of (x) within ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended June 30, 2016 and (y) March 31, 2017 (the “Amended Q2 2016 Quarterly Report Extension”) and (iv) an extension of the Original Q3 2016 Quarterly Report Extension until the earlier of (x) within ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended September 30, 2016 and (y) March 31, 2017 (the “Amended Q3 2016 Quarterly Report Extension”).
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NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.Defined Terms. Each capitalized term used herein but not otherwise defined herein has the meaning given to such term in the Credit Agreement. Unless otherwise indicated, all references to Sections, Articles, Annexes and Schedules in this Fifth Amendment refer to Sections, Articles, Annexes and Schedules of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Additional Definitions. Section 1.01 of the Credit Agreement is hereby amended to add thereto in alphabetical order the following definitions which shall read in full as follows:
“Fifth Amendment” means that certain Fifth Amendment, Consent and Waiver to Credit Agreement dated as of December 9, 2016, by and among the Borrower, Parent, the Lenders party thereto and the Administrative Agent.
“Fifth Amendment Effective Date” means December 9, 2016.
2.2 Amendment and Restatement of Definition. Section 1.01 of the Credit Agreement is hereby amended by amending and restating the following definitions in their entireties to read in full as follows:
“Loan Documents” means this Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the Notes, the Letter of Credit Agreements, the Commitment Increase Certificates, the Additional Lender Certificates, the Letters of Credit, the Fee Letters, the Security Instruments, and each consent, waiver, subordination agreement, intercreditor agreement, Compliance Certificate, Borrowing Request, Letter of Credit Request or Interest Election Request executed by the Borrower pursuant to this Agreement.
“Required Financial Information” means, collectively, (a) the Q1 2016 Quarterly Report (as defined in the Fifth Amendment) and the related Compliance Certificate, (b) the Q2 2016 Quarterly Report (as defined in the Fifth Amendment) and the related Compliance Certificate, and (c) the Q3 2016 Quarterly Report (as defined in the Fifth Amendment) and the related Compliance Certificate.
2.3 Amendment to Definition of “Applicable Margin”.
(a) Section 1.01 of the Credit Agreement is amended hereby by amending and restating the second sentence of the last paragraph of the definition “Applicable Margin” to read in full as follows:
“Each change in the Applicable Margin resulting from a change in the Total Leverage Ratio (which shall be calculated quarterly) shall take effect as of the fifth Business Day following the receipt of the Compliance Certificate delivered pursuant to Section 8.01(b); provided that (x) the Total Leverage Ratio shall be deemed to be Level V if the Borrower fails to deliver the annual or quarterly consolidated financial
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statements required to be delivered by it pursuant to Sections 8.01(a) and 8.01(b), respectively, during the period from the expiration of the time for delivery thereof until such consolidated financial statements are delivered (except that clause (x) of this proviso shall not apply and shall have no force and effect during the period beginning on the Second Amendment Effective Date and ending on the date that is the earlier of (1) the date the Required Financial Information is delivered to the Administrative Agent in accordance with Section 4 of the Fifth Amendment and (2) March 31, 2017) and (y) the Total Leverage Ratio in effect on the Second Amendment Effective Date shall be deemed to be Level I, subject to any retroactive corrections set forth in the second proviso in this sentence; provided further that in the event that the Required Financial Information or any Compliance Certificate delivered pursuant to Section 3(b) of the Fifth Amendment shows a Total Leverage Ratio that would have led to the application of an Applicable Margin higher than the Applicable Margin actually applied for such period, then Parent and the Borrower shall promptly pay to the Administrative Agent (for the account of the Lenders) the accrued additional interest resulting from such increased Applicable Margin for the period beginning on the Second Amendment Effective Date and ending on the date when the Applicable Margin is reset pursuant to its terms.”
Section 3. Waiver of Specified Potential Defaults and Related Potential Defaults. Subject to the occurrence of the Fifth Amendment Effective Date (as defined in Section 5 below), the Majority Lenders hereby waive, solely in respect of the Disclosed Matters, (x) any and all Specified Potential Defaults and Related Potential Defaults to the extent now existing or hereafter arising and (y) any requirement that Parent or the Borrower make any representations and warranties after the date hereof as to any Prior Financial Information; provided that the waiver and agreements set forth in this Section 3 shall terminate on March 31, 2017 unless on or prior to such date, Parent shall have delivered to the Administrative Agent the following:
(a) the Replacement Financial Information in respect of the 2015 Audited Report; provided that delivery of such Replacement Financial Information shall be deemed to be made by Parent if Parent shall have made available a restated or modified copy of the 2015 Audited Report on “XXXXX” (or any successor thereto) and/or on its home page on the worldwide web by such date; and
(b) a replacement Compliance Certificate delivered for the Fiscal Year ended December 31, 2015 that demonstrates that Parent was in compliance with each of the covenants set forth in Sections 9.10(a) and 9.10(b) of the Credit Agreement as of such date and certifies that as of such date there were no Defaults that had occurred and were continuing (other than the Specified Potential Defaults and Related Potential Defaults).
It is understood and agreed that, in the event that the Non-Reliance Conclusion is not made by the Audit Committee, Parent shall not be required to deliver the items described in clauses (a) and (b) of this Section 3.
Section 4. Consent.
4.1 Subject to the occurrence of the Fifth Amendment Effective Date (as defined in Section 5 below), the Majority Lenders hereby consent to the Amended Q1 2016 Quarterly Report
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Extension, the Amended Q2 2016 Quarterly Report Extension and the Amended Q3 2016 Quarterly Report Extension for delivery of the Q1 2016 Quarterly Report, the Q2 2016 Quarterly Report and the Q3 2016 Quarterly Report, respectively, and the respective related Compliance Certificates, and no Default or Event of Default shall arise under the Loan Documents with respect to such delayed delivery so long as (i) the Q1 2016 Quarterly Report and the related Compliance Certificate are delivered on or prior to the earlier of (A) ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended March 31, 2016 and (B) March 31, 2017; (ii) the Q2 2016 Quarterly Report and the related Compliance Certificate are delivered on or prior to the earlier of (A) ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended June 30, 2016 and (B) March 31, 2017; and (iii) the Q3 2016 Quarterly Report and the related Compliance Certificate are delivered on or prior to the earlier of (A) ten Business Days following the date Parent files its quarterly report with the SEC for the Fiscal Quarter ended September 30, 2016 and (B) March 31, 2017, in each case in conformity with the terms of Section 8.01 of the Credit Agreement. The failure to deliver the Q1 2016 Quarterly Report, the Q2 2016 Quarterly Report, the Q3 Quarterly Report and the respective related Compliance Certificates in conformity with the terms of Section 8.01 of the Credit Agreement as required by this Section 4.1 shall constitute an immediate Event of Default under the Credit Agreement.
4.2 The consents set forth in this Section 4 are limited to the extent described herein and shall not be construed to be a consent to the modification of any other terms of the Credit Agreement or of the other Loan Documents, except as required to implement the consent set forth in this Section 4.
Section 5. Conditions Precedent. This Fifth Amendment shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 12.02 of the Credit Agreement) (the “Fifth Amendment Effective Date”):
5.1 The Administrative Agent shall have received from the Majority Lenders, the Borrower, and each Guarantor counterparts (in such number as may be requested by the Administrative Agent) of this Fifth Amendment signed on behalf of such Persons.
5.2 The Borrower shall have paid to the Administrative Agent all fees and other amounts due and payable on or prior to the Fifth Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket costs and expenses required to be reimbursed or paid by the Borrower under the Credit Agreement.
5.3 No Default or Event of Default shall have occurred and be continuing as of the date hereof after giving effect to the terms of this Fifth Amendment.
5.4 The Administrative Agent shall have received such other documents as the Administrative Agent (or its counsel) may reasonably request relating to the transactions contemplated by the Fifth Amendment.
Section 6. Miscellaneous.
6.1 Confirmation. The provisions of the Credit Agreement, except as specifically waived or consented to above, or as amended by this Fifth Amendment, shall remain in full force and effect following the effectiveness of this Fifth Amendment. The amendments contemplated hereby shall not limit or impair any Liens granted by the Borrower or any other Loan Party to secure the Secured
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Obligations, each of which are hereby ratified, affirmed and extended to secure the Secured Obligations as they may be extended pursuant hereto.
6.2 Representations and Warranties.
(a) Ratification and Affirmation. The Borrower hereby: (i) acknowledges the terms of this Fifth Amendment; (ii) ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended hereby, after giving effect to the amendments contained herein; (iii) agrees that, from and after the Fifth Amendment Effective Date, each reference to the Credit Agreement in the Security Instruments and the other Loan Documents shall be deemed to be a reference to the Credit Agreement, as amended by this Fifth Amendment; and (iv) represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms of this Fifth Amendment, including the waivers and consents contained herein: (A) all of the representations and warranties made by the Borrower contained in each Loan Document to which it is a party are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) on and as of the date hereof, except to the extent such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties are true and correct in all material respects as of such specified earlier date; provided that no representations and warranties are made herein as to any Prior Financial Information; and (B) other than any Default or Event of Default that may exist with respect to the Specified Potential Defaults and Related Potential Defaults, no Default or Event of Default has occurred and is continuing.
(b) Corporate Authority; Enforceability; No Conflicts. The Borrower hereby represents and warrants to the Lenders that (i) it has all necessary power and authority to execute, deliver and perform its obligations under this Fifth Amendment; (ii) the execution, delivery and performance by the Borrower of this Fifth Amendment has been duly authorized by all necessary action on its part; (iii) this Fifth Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditor’s rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) the execution and delivery of this Fifth Amendment by the Borrower and the performance of its obligations hereunder require no authorizations, approvals or consents of, or registrations or filings with, any Governmental Authority, except for those that have been obtained or made and are in effect; and (v) neither the execution and delivery of this Fifth Amendment nor the transactions contemplated hereby will (A) contravene, or result in a breach of, the Organization Documents of the Borrower, (B) violate any Governmental Requirement applicable to or binding upon the Borrower or any of its Properties, except to the extent that any such violation, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, or (C) violate or result in a default under any agreement or instrument to which the Borrower is a party (other than any agreement or instrument the contravention of which or breach of which could not reasonably be expected to be materially
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adverse to any Secured Party) or by which it is bound or to which its Properties are subject, except to the extent that any such violation or default, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(c) Compliance with Financial Covenants. The Borrower hereby represents and warrants to Administrative Agent, the Issuing Banks and the Lenders that, notwithstanding the occurrence of the Disclosed Matters and any restatement of or adjustments to the Prior Financial Information, to the best knowledge of any Financial Officer of the Borrower as of the date this representation and warranty is made, Parent is in compliance with the financial covenants contained in Section 9.10 (i) as of the last day of the Testing Period ended December 31, 2015 and (ii) as of the last day of each Testing Period ended thereafter, but prior to the date this representation and warranty is made.
6.3 No Waiver. Neither the execution by the Administrative Agent or the Lenders of this Fifth Amendment, nor any other act or omission by the Administrative Agent or the Lenders or their officers in connection herewith, shall be deemed a waiver by the Administrative Agent or the Lenders of any Default or Event of Default which may exist, which may have occurred prior to the date of the effectiveness of this Fifth Amendment or which may occur in the future under the Credit Agreement and/or the other Loan Documents, except to the extent expressly set forth in this Fifth Amendment. Similarly, nothing contained in this Fifth Amendment shall directly or indirectly in any way whatsoever: (a) except for the waivers set forth herein, impair, prejudice or otherwise adversely affect the Administrative Agent’s or any Lender’s right at any time to exercise any right, privilege or remedy in connection with the Loan Documents with respect to any Default or Event of Default; (b) except as expressly provided herein, amend or alter any provision of the Credit Agreement, the other Loan Documents, or any other contract or instrument; or (c) constitute any course of dealing or other basis for altering any obligation of the Borrower or any right, privilege or remedy of the Administrative Agent or the Lenders under the Credit Agreement, the other Loan Documents or any other contract or instrument.
6.4 Loan Document. This Fifth Amendment is a “Loan Document” as defined and described in the Credit Agreement and all of the terms and provisions of the Credit Agreement relating to Loan Documents shall apply hereto.
6.5 Parties in Interest. All of the terms and provisions of this Fifth Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
6.6 Counterparts. This Fifth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Fifth Amendment by facsimile transmission or electronic transmission (e.g., PDF) shall be effective as delivery of a manually executed counterpart hereof.
6.7 NO ORAL AGREEMENT. THIS FIFTH AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR UNWRITTEN
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ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
6.8 GOVERNING LAW. THIS FIFTH AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
6.9 RELEASE. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, EACH LOAN PARTY, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, FULLY AND WITHOUT RESERVE, HEREBY WAIVES, RELEASES, ACQUITS, AND FOREVER DISCHARGES THE ADMINISTRATIVE AGENT, EACH ISSUING BANK AND EACH LENDER, THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ADVISORS AND AFFILIATES (COLLECTIVELY THE “RELEASED PARTIES” AND INDIVIDUALLY A “RELEASED PARTY”) FROM ANY AND ALL ACTIONS, CLAIMS, CAUSES OF ACTION, JUDGMENTS, SUITS OR LIABILITIES OF ANY KIND AND NATURE WHATSOEVER, DIRECT AND/OR INDIRECT, AT LAW OR IN EQUITY, WHETHER NOW EXISTING OR HEREAFTER ASSERTED, WHETHER ABSOLUTE OR CONTINGENT, WHETHER DUE OR TO BECOME DUE, WHETHER DISPUTED OR UNDISPUTED, IN EACH CASE THAT ARE KNOWN TO SUCH LOAN PARTY AS OF THE DATE HEREOF (INCLUDING, WITHOUT LIMITATION, ANY CROSS-CLAIMS, OFFSETS, REDUCTIONS, REBATEMENT, CLAIMS OF USURY OR CLAIMS WITH RESPECT TO THE NEGLIGENCE OF ANY RELEASED PARTY IN EACH CASE THAT ARE KNOWN TO SUCH LOAN PARTY AS OF THE DATE HEREOF) (COLLECTIVELY, THE “RELEASED CLAIMS”), FOR OR BECAUSE OF ANY MATTERS OR THINGS OCCURRING, EXISTING OR ACTIONS DONE, OMITTED TO BE DONE, OR SUFFERED TO BE DONE BY ANY OF THE RELEASED PARTIES, IN EACH CASE, ON OR PRIOR TO THE DATE HEREOF BUT ONLY TO THE EXTENT DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY CONNECTED TO ANY OF THIS FIFTH AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (COLLECTIVELY, THE “RELEASED MATTERS”). THE PROVISIONS OF THIS SECTION 6.9 SHALL SURVIVE THE TERMINATION OF THIS FIFTH AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS AND PAYMENT IN FULL OF THE SECURED OBLIGATIONS.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed as of the date first written above.
ARCHROCK SERVICES, L.P., a
Delaware limited partnership, as the Borrower
By: /s/ Xxxxx X. Xxxxxx
Delaware limited partnership, as the Borrower
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Title: Senior Vice President and
Chief Financial Officer
ARCHROCK, INC., a Delaware corporation,
as Parent
By: /s/ Xxxxx X. Xxxxxx
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and
Title: Senior Vice President and
Chief Financial Officer
Signature Page to Fifth Amendment – Archrock Services, X.X.
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
CRÉDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, as a Lender and Issuing Bank
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
INVESTMENT BANK, as a Lender and Issuing Bank
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
Name: Xxxxx Xxxxxxx
Title: Managing Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
BANK OF AMERICA, N.A., as a Lender and Issuing Bank
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
JPMORGAN CHASE BANK, N.A., as a Lender and Issuing Bank
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Authorized Officer
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Authorized Officer
Signature Page to Fifth Amendment – Archrock Services, L.P.
ROYAL BANK OF CANADA, as a Lender and Issuing Bank
By: /s/ Xxxxx Xxxxx Jr.
Name: Xxxxx Xxxxx Jr.
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxx Jr.
Name: Xxxxx Xxxxx Jr.
Title: Authorized Signatory
Signature Page to Fifth Amendment – Archrock Services, L.P.
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
COMPASS BANK, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
SUMITOMO MITSUI BANKING CORPORATION, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
THE TORONTO DOMINION (NEW YORK) LLC,
As a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
Signature Page to Fifth Amendment – Archrock Services, X.X.
XXXXXXX XXXXX BANK USA, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
Signature Page to Fifth Amendment – Archrock Services, L.P.
MUFG UNION BANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxx XxXxxxx
Name: Xxxxxxx XxXxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx XxXxxxx
Name: Xxxxxxx XxXxxxx
Title: Assistant Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
REGIONS BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Director
Signature Page to Fifth Amendment – Archrock Services, L.P.
BRANCH BANKING AND TRUST COMPANY, as a Lender
By: /s/ Lincoln La Cour
Name: Lincoln La Cour
Title: Assistant Vice President
By: /s/ Lincoln La Cour
Name: Lincoln La Cour
Title: Assistant Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
CITIBANK, N.A., as a Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
Signature Page to Fifth Amendment – Archrock Services, X.X.
XXXXXXX XXXXX BANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
SANTANDER BANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Puiki Lok
Name: Puiki Lok
Title: Vice President
Name: Puiki Lok
Title: Vice President
Signature Page to Fifth Amendment – Archrock Services, L.P.
REAFFIRMATION AND RATIFICATION: Each Guarantor hereby (a) acknowledges the terms of this Fifth Amendment; (b) ratifies and affirms its obligations under, and acknowledges its continued liability under, each Loan Document to which it is a party, including the Guaranty and Collateral Agreement, and agrees that each Loan Document to which it is a party, including the Guaranty and Collateral Agreement, remains in full force and effect as expressly amended hereby; and (c) represents and warrants to the Lenders that, as of the date hereof, after giving effect to the terms of this Fifth Amendment: (i) all of the representations and warranties made by such Guarantor contained in each Loan Document to which such Guarantor is a party, including the Guaranty and Collateral Agreement, are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representation or warranty that is already qualified or modified by materiality in the text thereof) as though made on and as of the Fifth Amendment Effective Date (unless such representations and warranties are stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects as of such earlier date) and (ii) no Default or Event of Default has occurred and is continuing.
ACKNOWLEDGED AND RATIFIED: |
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: | Senior Vice President and Chief Financial Officer |
ARCHROCK SERVICES LEASING LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: | Senior Vice President and Chief Financial Officer |
ARCHROCK MLP LP LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: | Senior Vice President and Chief Financial Officer |
Reaffirmation and Ratification
Fifth Amendment – Archrock Services, L.P.
Fifth Amendment – Archrock Services, L.P.
ARCHROCK GP LP LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: | Senior Vice President and Chief Financial Officer |
Reaffirmation and Ratification
Fifth Amendment – Archrock Services, L.P.
Fifth Amendment – Archrock Services, L.P.
