Exhibit 10.10


 


WAIVER AND SECOND AMENDMENT TO REVOLVING
CREDIT,

TERM LOAN AND SECURITY AGREEMENT


 


THIS WAIVER AND SECOND
AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT (this ''Amendment"), dated as of May 3, 2013, is entered
into by and among ENSERVCO CORPORATION, a Delaware corporation ("Enservco"), DILLCO FLUID SERVICE, INC., a Kansas
corporation ("Dillco''), and HEAT WAVES HOT OIL SERVICES LLC, a Colorado limited liability company (""Heat
Waves (Enservco, Dillco and Heat Waves, each, a "Borrower" and collectively, “Borrowers"),
PNC BANK, NATIONAL ASSOCIATION, as the sole Lender on the date hereof, and PNC BANK, NATIONAL ASSOCIATION, as Agent for the Lenders
(in such capacity, "Agent"), with reference to the following facts:


 


RECITALS


 


		l.	The parties to this Amendment have entered into a Revolving Credit, Term Loan and Security Agreement,
dated as of November 2, 2012, as amended by that certain First Amendment to Revolving Credit, Term Loan and Security Agreement
dated February 7, 2013 (as further amended, modified and supplemented from time to time, the "Credit Agreement"),
pursuant to which the Lenders provide certain credit facilities to Borrowers;



 


		2.	Borrowers have informed Agent and the Lenders that certain Events of Default have occurred and
are continuing under the Credit Agreement and have requested such Events of Default be waived;



 


		3.	Borrowers have also requested that certain provisions of the Credit Agreement be amended, as more
fully set forth below; and



 


		4.	Agent and the Lenders are willing to make such waivers and amendments to the Credit Agreement,
in accordance with, and subject to the terms and conditions set forth herein.



 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.          Defined
Terms. Any and all initially capitalized terms used in this Amendment (including, without limitation, in the recitals hereto)
without definition shall have the respective meanings specified for such terms in the Credit Agreement.


 




    	 



    	 



    

 


2.           Waiver of
Known Existing Defaults.


 


A.           Lease
Event of Default. Pursuant to Section 7.11 of the Credit Agreement, Borrowers are prohibited from entering into, as lessee,
any lease arrangement for real or personal property (unless capitalized and permitted under Section 7.6 of the Credit Agreement)
if after giving effect thereto, the aggregate annual rental payments for all leased property would exceed $250,000 in any one fiscal
year. Borrowers informed Agent and the Lenders that for the 2013 fiscal year, Borrowers' aggregate annual rental payment for all
leased property exceeds the required limit set forth in Section 7.11 by approximately $38,000. Pursuant to Section 10.5 of the
Credit Agreement, an Event of Default has occurred and is continuing by virtue of the Borrower's failure to comply with the covenant
contained in Section 7.11 of the Credit Agreement (the "Lease Event of Default");


 


B.           Payment
Event of Default. Pursuant to Section 2.21(a) of the Credit Agreement, Borrowers are required, when any Borrower sells or otherwise
disposes of any Collateral other than Inventory in the Ordinary Course of Business, to repay the Advances in an amount equal to
the net proceeds of such sale. Borrowers informed Agent and the lenders that during the 2013 fiscal year Borrowers received approximately
$211,000 in net proceeds from the disposition of non-Inventory Collateral which were not remitted to repay the Advances. Pursuant
to Sections 10.1 and 10.5 of the Credit Agreement, an Event of Default has occurred and is continuing by virtue of the Borrower's
failure to repay outstanding Obligations (the "Payment Event of Default"; and together with the Lease Event of Default,
collectively the "Known Existing Defaults'');


 


C.           Effectiveness
of Waiver. Borrowers acknowledge that there exists those certain Known Existing Defaults. Agent and the Lenders hereby waive
enforcement of their respective rights against any Borrower or Guarantor arising from the Known Existing Defaults; provided, however,
nothing herein shall be deemed a waiver with respect to any other or future failure of any Borrower or Guarantor to comply fully
with the Credit Agreement (as amended hereby) or the terms of any Other Document. The foregoing is not an exhaustive list of the
Sections of the Credit Agreement breached by the Known Existing Defaults and the failure to list any other applicable section shall
not constitute a waiver of any future failure by any Borrower or Guarantor to comply with all sections of the Credit Agreement.
This waiver shall be effective only for the specific defaults comprising the Known Existing Defaults, and in no event shall this
waiver be deemed to be a waiver of enforcement of any of Agent's or any Lender's rights with respect to any other Defaults or Events
of Default now existing or hereafter arising, whether known or unknown. Nothing contained in this Amendment or any communications
between any Borrower or Guarantor, on the one hand, and Agent or any Lender, on the other hand, shall be a waiver of any rights
or remedies Agent or any Lender has or may have against any Borrower or Guarantor, except as specifically provided herein. Except
as specifically provided herein, each of Agent and each Lender hereby reserves and preserves all of its rights and remedies against
the Loan Parties under the Credit Agreement and the Other Documents.


 


3.          Amendment
to Section 4.3 (Disposition of Collateral): Section 4.3 of the Credit Agreement is hereby amended and restated in its entity
to read as follows:


  




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"4.3     Disposition
of Collateral. Each Borrower will safeguard and protect all Collateral for Agent's general account and make no disposition
thereof whether by sale, lease or otherwise except the disposition or transfer of damaged, obsolete or worn out Equipment in the
Ordinary Course of Business during any fiscal year having an aggregate fair market value of not more than $250,000 and only to
the extent that (i) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Agent's
first priority security interest or (ii) the proceeds of which are remitted to Agent to be applied pursuant to Section 2.21. Notwithstanding
the foregoing, during the fiscal year 2013, Borrowers may dispose or transfer damaged, obsolete or worn out Equipment in the Ordinary
Course of Business so long as (i) the aggregate proceeds of such dispositions does not exceed $1,250,000, and (ii) the proceeds
of any such disposition are used within 180 days to acquire replacement Equipment which is subject to Agent's first priority security
interest or the proceeds of which are remitted to Agent to be applied pursuant to Section 2.21."


 


4. Amendment to
Section 7.6 (Capital Expenditures). Section 7.6 of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:


 


"7.6     Capital
Expenditures.          Contract for, purchase or make any expenditure or commitments
for Capital Expenditures (i) in the 2013 fiscal year, in an aggregate amount for all Borrowers in excess of $5,800,000, and (ii)
in any fiscal year (other than the 2013 fiscal year), in an aggregate amom1t for all Borrowers in excess of $2,500,000."


 


5.          Amendment
to Section 7.8 (Indebtedness). Section 7.8 of the Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


"7.8      Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness (exclusive of trade debt) except in respect of (i) Indebtedness to
Lenders; (ii) Indebtedness incurred for Capital Expenditures permitted under Section 7.6 hereof; and (iii) indebtedness secured
by Permitted Encumbrances."


 


6.          Amendment
to Section 7.11 (Leases). Section 7.11 of the Credit Agreement is hereby amended and restated in its entity to read as follows:


 


"7.11 Leases. Enter as lessee
into any lease arrangement for real or personal property (unless capitalized and permitted under Section 7.6 hereof) if after giving
effect thereto, aggregate annual rental payments for all leased property would exceed $500,000 in any one fiscal year in the aggregate
for all Borrowers except to the extent in effect on the Closing Date or which are entered into to replace or renew existing leases."


 


7.          Amendment
Fee. In consideration of the agreement of PNC, as Agent and sole Lender on the date hereof, to enter into this Amendment and
provide Borrowers the accommodations contemplated hereunder, on the effective date of this Amendment, Borrowers shall pay to Agent,
for the benefit of the sole Lender, a one-time amendment fee in the amount of $15,000 (the "Amendment Fee"). Borrowers
acknowledge and agree that the Amendment Fee shall be non-refundable when due and that Agent may effect payment of the Amendment
Fee when due by charging the full amount thereof to Borrowers' Revolving Advances loan account.


 




    	 



    	 



    

 


8.          Condition
Precedent. The effectiveness of this Amendment shall be subject to Agent's receipt of (i) this Amendment, duly executed by
Borrowers and by PNC, as Agent and as the sole Lender as of the date hereof, (ii) the Reaffirmation of Limited Guaranty, duly executed
by each Guarantor, and (iii) receipt of the Amendment Fee and reimbursement of expenses permitted hereunder.


 


9.          Miscellaneous.


 


A.           Survival
of Representations and Warranties.      All
representations and warranties made in the Credit Agreement or in any Other Document and any related agreements to which it is
a party, and each of the representations and warranties contained in any certificate, document or financial or other statement
furnished at any time under or in connection with the Credit Agreement, the Other Documents or any related agreement are true
and correct in all material respects on and as of the date hereof as though made on and as of the date hereof, other than representations
and warranties relating to a specific earlier date, and in such case such representations and warranties are true and correct
in all material respects as of such earlier date.


 


B.           Authority.     
Each Borrower has full power, authority and legal right to enter into this Amendment and to perform all its respective Obligations
hereunder and under the Other Documents (as amended or modified hereby). This Amendment has been duly executed and delivered such
Person, and this Amendment constitutes the legal, valid and binding obligation of such Person enforceable in accordance with its
terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally. The execution, delivery and performance of this Amendment (a) are within such Person's corporate,
limited liability company or limited partnership powers (as applicable), have been duly authorized by as necessary company or
partnership (as applicable) action, are not in contravention of law or the terms of such Person's operating agreement, bylaws,
partnership agreement, certificate of formation, articles of incorporation or other applicable documents relating to such Person's
formation or to the conduct of such Person's business or of any material agreement or undertaking to which such Person is a party
or by which such Person is bound, (b) will not, in any material respect, conflict with or violate any law or regulation, or any
judgment, order or decree of any Governmental Body, (c) will not require the Consent of any Governmental Body or any other Person,
except those Consents which have been duly obtained, made or compiled prior to the date hereof and which are in full force and
effect or except those which the failure to have obtained would not have, or could not reasonably be expected to have a Material
Adverse Effect and (d) will not conflict with, nor result in any breach in any of the provisions of or constitute a default under
or result in the creation of any Lien except Permitted Encumbrances upon any asset of any Loan Party under the provisions of any
material agreement, charter document, operating agreement or other instrument to wbich any Borrower or Guarantor is a party or
by which it or its property is a party or by which it may be bound.


 




    	 



    	 



    

 


C.          No
Default. After giving effect to this Amendment, no event has occurred and is continuing that constitutes a Default or an Event
of Default.


 


D.          References
to the Credit Agreement. The Credit Agreement, each of the Other Documents, and any and all other agreements, documents or
instruments now or hereafter executed and delivered pursuant to the terms hereof, or pursuant to the terms of the Credit Agreement
as amended hereby, are hereby amended so that any reference therein to the Credit Agreement shall mean a reference to the Credit
Agreement as amended by this Amendment.


 


E.           Credit
Agreement Remains in Effect. The Credit Agreement and the Other
Documents remain in full force and effect and Borrowers ratify and confirm their agreements and covenants contained therein. Borrowers
hereby confirm that, after giving effect to this Amendment, no Event of Default or Default has occurred and is continuing. The
execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Agent
or the Lenders under any of the Other Documents, nor constitute a waiver of any provision of any of the Other Documents.


 


F.           Submission
of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not
constitute a commitment by Agent or the Lenders to modify any of their respective rights and remedies under the Other Documents,
and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have
been satisfied as set forth herein.


 


G.          Severability.
Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate
the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.


 


H.          Counterparts.    This
Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all
of which when taken together shall constitute one and the same instrument.


 


L         Headings.     The
headings, captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of
this Amendment.


 


J.           Expenses
of Agent.       Borrowers agree to pay on demand all costs and expenses reasonably
incurred by Agent in connection with the preparation, negotiation and execution of this Amendment, including, without limitation,
the costs and fees of Agent's legal counsel.


 


K.         NO
ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE OTHER DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS AMONG THE PARTIES.


 


[Signature Pages Follow]


 




    	 



    	 



    

 


IN WITNESS WHEREOF, the parties have entered
into this Amendment by their respective duly authorized officers as of the date first above written.


 


	 	BORROWERS:
	 	 
	 	ENSERVCO CORPORATION,
	 	a Delaware corporation
	 	 
	 	  
	 	Rick D. Kasch
	 	President
	 	 
	 	DILLCO FLUID SERVICE, INC.,
	 	a Kansas corporation
	 	 
	 	  
	 	Rick D. Kasch
	 	Treasurer
	 	 
	 	HEAT WAVES HOT OIL SERVICES LLC,
	 	a Colorado limited liability company
	 	 
	 	  
	 	Rick D. Kasch
	 	Manager





 






    	 



    	 



    

 


	 	AGENT:
	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,
	 	as Agent
	 	 
	 	Mark Vito
	 	Vice President
	 	 
	 	SOLE LENDER;
	 	 
	 	PNC BANK, NATIONAL ASSOCIATION
	 	 
	 	Mark Vito
	 	Vice President