Fourth Amendment to Amended and Restated Credit Agreement


 Exhibit 10.1 
 FOURTH AMENDMENT TO 
 AMENDED AND RESTATED CREDIT AGREEMENT 
 THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of May 12, 2009 (the “Effective
Date”) is between Flotek Industries, Inc., a Delaware corporation (the “Borrower”) and Wells Fargo Bank, National Association, as lender (the “Bank”). 
 INTRODUCTION 
 WHEREAS, the Borrower
and Bank entered into an Amended and Restated Credit Agreement dated as of August 31, 2007, as amended by that certain Amendment to Amended and Restated Credit Agreement dated as of November 15, 2007, that certain Second Amendment to
Amended and Restated Credit Agreement dated as of February 4, 2008, and that certain Agreement and Third Amendment to Amended and Restated Credit Agreement dated March 31, 2008 (as amended, the “Credit Agreement”).

 THEREFORE, the Borrower and the Bank hereby agree as follows: 
 Section 1. Definitions. Unless otherwise defined in this Agreement, terms used in this Agreement that are defined in the Credit Agreement shall
have the meanings assigned to such terms in the Credit Agreement. 
 Section 2. Amendment. 
 (a) Section 1.01 (Certain Defined Terms). Section 1.01 of the Credit Agreement is hereby amended by deleting the defined term
“Permitted Liens” in its entirety and replacing it with the following: 
 “Permitted
Liens” means (i) Liens granted to the Bank to secure the Obligations, (ii) Liens in the Collateral to secure the obligations of the Borrower and its Subsidiaries under the Syndicated Credit Agreement to the extent permitted under
the Subordination and Intercreditor Agreement, (iii) Liens for taxes, assessments or other governmental charges which are not yet due or which are being actively contested in good faith by appropriate proceedings diligently conducted, and
(iv) landlord’s, materialmen’s, mechanics’, carriers’, workmen’s, warehouseman’s and repairmen’s liens, and other similar liens imposed by Law arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days or are being contested in good faith by appropriate procedures or proceedings and for which adequate reserves have been established. 
 (b) Section 1.01 (Certain Defined Terms). Section 1.01 of the Credit Agreement is hereby further amended by adding the following new
term: 
 “Subordination and Intercreditor Agreement” means that certain Subordination and Intercreditor
Agreement dated as of May 6, 2009, among the Borrower, the Bank and Wells Fargo in its capacity as the administrative agent under the Syndicated Credit Agreement. 






 Section 3. Effectiveness. This Agreement shall become effective, and the Credit Agreement shall be
amended as provided in this Agreement, upon the occurrence of the following conditions precedent: 
 (a) after giving effect to this
Agreement, the representations and warranties in this Agreement shall be true and correct in all material respects; 
 (b) the Bank shall
have received this Agreement duly executed and delivered to the Bank by the Borrower and executed by the Bank; 
 (c) the Subordination and
Intercreditor Agreement shall have been fully executed and delivered to the Bank by the Borrower and executed by the Bank; 
 (d) the
Borrower shall have paid or reimbursed the Bank for all of its out-of-pocket costs and expenses incurred in connection with this Agreement, and any other documents prepared in connection herewith and the transactions contemplated hereby, including,
without limitation, the fees and disbursements of counsel(s) to the Bank. 
 Section 4. Representations and Warranties. The Borrower
represents and warrants to Bank that: 
 (a) (i) the execution, delivery, and performance of this Agreement are within the corporate power
and authority of the Borrower and have been duly authorized by appropriate proceedings, and (ii) this Agreement constitutes a legal, valid, and binding obligation of the Borrower, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the rights of creditors generally and general principles of equity; 
 (b) the representations and warranties set forth in the Credit Agreement and in the other Loan Documents are true and correct in all material respects as of the date of this Agreement, except for any representations
or warranties made as of a specified date, which are true and correct in all material respects as of such specified date; 
 (c) no Default
has occurred and is continuing as of the date hereof or will result from the execution and delivery of this Agreement; and 
 (d) this
Agreement is a Loan Document for the purposes of the provisions of the other Loan Documents. Without limiting the foregoing, any breach of representations, warranties, covenants and agreements under this Agreement by the Borrower shall be a Default
or Event of Default, as applicable, under the Credit Agreement. 
 Section 5. Continuing Effect on Loan Documents. This Agreement
shall not constitute a waiver of any provision of the Credit Agreement and shall not be construed as a consent to any action on the part of the Borrower that would require a waiver or consent of the Bank or an amendment or modification to any term
of the Loan Documents except as expressly 

  

 2 







 
stated herein. The Borrower hereby confirms and ratifies the Credit Agreement and each of the other Loan Documents as amended hereby and acknowledges and
agrees that the same shall continue in full force and effect as amended hereby. 
 Section 6. Reference to the Credit Agreement. Upon
the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “herein” or words of like import, and each reference to the Credit Agreement in any of the other Loan
Documents, refer to the Credit Agreement, as amended hereby. 
 Section 7. Counterparts. This Agreement may be executed by all parties
hereto in any number of separate counterparts each of which may be delivered in original, electronic or facsimile form and all of such counterparts taken together shall be deemed to constitute one and the same instrument. 
 Section 8. References. The words “hereby,” “herein,” “hereinabove,” “hereinafter,”
“hereinbelow,” “hereof,” “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular section or provision of this Agreement. 
 Section 9. Headings Descriptive. The headings of the several sections of this Agreement are inserted for convenience only and do not in any way
affect the meaning or construction of any provision of this Agreement. 
 Section 10. Choice of Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of Texas. 
 Section 11. Governing Law. This Agreement shall be
governed by and construed in accordance with the law of the State of Texas, without regard to such state’s conflict of laws rules that would require the application of the laws of another jurisdiction. 
 Section 12. Release. The Borrower hereby releases and forever discharges the Bank and each affiliate thereof and each of their respective
employees, officers, directors, trustees, agents, attorneys, successors, assigns or other representatives from any and all claims, demands, damages, actions, cross-actions, causes of action, costs and expenses (including legal expenses), of any kind
or nature whatsoever, whether based on law or equity, which any of said parties has held or may now or in the future own or hold, whether known or unknown, for or because of any matter or thing done, omitted or suffered to be done on or before the
actual date upon which this Agreement is signed by any of such parties (i) arising directly or indirectly out of the Credit Agreement as amended or any other documents, instruments or any other transactions relating thereto and/or
(ii) relating directly or indirectly to all transactions by and between the Borrower or their representatives and the Bank or any of their respective directors, officers, agents, employees, attorneys or other representatives, including any such
that is caused by the negligence of any released party. Such release, waiver, acquittal and discharge shall and does include, without limitation, any claims of usury, fraud, duress, misrepresentation, lender liability, control, exercise of remedies
and all similar items and claims, which may, or could be, asserted by the Borrower.  
  

 3 







 PURSUANT TO SECTION 26.02 OF
THE TEXAS BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE
AMOUNT INVOLVED IN THE LOAN AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT
ENFORCEABLE UNLESS THE LOAN AGREEMENT IS IN WRITING AND SIGNED BY THE
PARTY TO BE BOUND OR THAT PARTY’S AUTHORIZED REPRESENTATIVE. 
 THE RIGHTS AND OBLIGATIONS OF THE PARTIES
TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH SHALL BE DETERMINED
SOLELY FROM THE WRITTEN LOAN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN
AGREEMENT. THIS AGREEMENT AND THE LOAN DOCUMENTS, AS DEFINED IN THE
CREDIT AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. 
 [Signature page follows. Remainder of this page
intentionally left blank.] 
  

 4 







 EXECUTED to be effective as of the date first above written. 
  

			
	BORROWER:
	
	FLOTEK INDUSTRIES, INC.
		
	By:	 	/s/ Jesse E. Neyman
	Name:	 	Jesse E. Neyman
	Title:	 	Chief Financial Officer


 Signature Page to Fourth Amendment 







			
	BANK:
	
	 WELLS FARGO BANK,
 NATIONAL
ASSOCIATION

		
	By:	 	/s/ Michael W. Nygren
		 	Michael W. Nygren
		 	Vice President


 Signature Page to Fourth Amendment