fifthamendmenttotermloan






Exhibit 10.10                                                  Execution Version                        AMENDMENT NO. 5 AND WAIVER TO                        LOAN AND SECURITY AGREEMENT         AMENDMENT  NO.   5 AND  WAIVER   TO  LOAN  AND  SECURITY  AGREEMENT,  dated as of June 29, 2020 (this “Amendment”), is by and among Forbes Energy Services LLC, a  Delaware limited  liability  company (the “Borrower”), the  Guarantors  listed  on  the  signature  pages hereto, the Lenders party hereto, and Wilmington Trust, National Association, as agent for  the Secured Parties under the Loan Agreement (as defined below) (the “Agent”).                                W I T N E S S E T H :         WHEREAS,   the  Borrower,  the Guarantors (together  with  the  Borrower,  the  “Loan  Parties”), the Lenders and the Agent are parties to financing arrangements pursuant to which the  Lenders  have  made  and  may  make  loans  and  advances  and  provide  other  financial  accommodations to the Borrower as set forth in the Loan and Security Agreement, dated as of  April 13, 2017, by and among the Loan Parties, the Lenders and the Agent (as amended, restated,  supplemented or otherwise modified from time to time, including pursuant to this Amendment,  the “Loan Agreement”); and         WHEREAS,   subject  to  the  conditions  set  forth  herein,  the  Lenders  party  hereto,  constituting the Required Lenders, are willing to consent to amendments and provide a waiver to  the Loan Agreement as set forth in this Amendment.         NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and  covenants  contained  herein,  and  other  good  and  valuable  consideration,  the  receipt  and  sufficiency of which are hereby acknowledged, the parties hereto agree as follows:          1. Definitions. Unless  otherwise  defined  herein,  capitalized  terms  or  matters  of construction defined or established in the Loan Agreement shall be applied herein as defined or  established therein.         2. Amendments to Loan Agreement.           (a) Section 1.02 of the Loan Agreement is hereby amended by adding the following definition:         “Subordinated  Notes  Indenture”  means  the  Indenture,  dated  as  of  March  4,  2019,        between Parent, as issuer, and Wilmington Trust, National Association, as trustee, with        respect to the 5.00% Subordinated Convertible PIK Notes due 2020 issued thereunder.            (b) The first sentence of Section 9.08 of the Loan Agreement is hereby amended and  restated in its entirety as follows:         To the extent delivery of monthly financial statements is required under the Revolving        Loan Agreement, furnish Agent and each Lender within thirty (30) days after the end of        each month (or, if such due date is not a Business Day, then on the next Business Day),        an unaudited balance sheet of Loan Parties and their Subsidiaries on a consolidated and        consolidating  basis  and  unaudited  statements  of  income  of Loan  Parties  and  their        Subsidiaries  on  a  consolidated  and  consolidating  basis  reflecting  results  of operations                                                                            22032667 





 






         from  the  beginning  of  the  fiscal  year  to  the  end  of  such  month  and  for  such  month,        prepared  on a  basis  consistent  with  prior  practices  and  complete  and  correct  in  all        material respects, subject to normal and recurring year-end adjustments that individually        and in the aggregate are not material to the business of Loan Parties or their Subsidiaries,        and subject to the absence of footnotes.             (c) Section  10.08  of  the  Loan  Agreement  is  hereby  amended  and  restated  in  its  entirety as follows:          Any default under any documents, instruments or agreements to which any Loan Party or        any Subsidiary of any Loan Party is a party or by which any of its properties is bound,        relating  to  any Indebtedness  (other  than  the  Obligations and  the  obligations  under  the        Subordinated Notes Indenture) individually or in aggregate in excess of $500,000, which        default continues for more than the applicable cure period, if any, with respect thereto;        provided that, notwithstanding the foregoing, no Event of Default shall occur under this        Section 10.08 as  a result of a default under the Revolving Loan Agreement due to the        expiration  of  the  March  2020  Revolving  Loan Temporary  Waiver  after  the  end  of  the        March 2020 Revolving Loan Temporary Waiver Period;         3. Waiver. The Lenders party hereto, constituting the Required Lenders, hereby waive  (a) the requirements of Section 6.02 of the Loan Agreement with respect to property taxes of the  Loan Parties that have become due during the fiscal year ending December 31, 2020 but have not  yet  been paid (the  “Tax  Payment  Default”), effective  at  the  time  such  taxes  became  due  and  payable (and for the avoidance of doubt, such waiver shall continue to apply to the requirements  of  Section 6.02 of  the Loan Agreement  for  all  unpaid  amounts  related  to  the Tax  Payment  Default) and (b) the failure to comply with the requirements to provide notice of any Default or  Event of Default in respect of the Tax Payment Default.         4. Representations  and  Warranties. Each  Loan  Party represents  and  warrants  to  the  Agent and the Lenders party hereto as follows:            (a) this Amendment has been duly executed and delivered by each Loan Party, and is  a legally valid and binding obligation of such Loan Party, enforceable against such Loan Party 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; and            (b) the execution, delivery and performance of this Amendment and the transactions  contemplated  hereunder  (i) are  all  within  each  Loan  Party’s limited  liability  company  or  corporate powers, as applicable, (ii) have been duly authorized by such Loan Party, (iii) are not  in  contravention  of  law  or  the  terms  of  such Loan  Party’s certificate  of  formation,  limited  liability company agreement, certificate of incorporation, by-laws or other applicable constituent  documents or of any material agreement or undertaking to which such Loan Party is a party or by  which such  Loan  Party is  bound and  (iv) will  not  materially  conflict  with  nor  result  in  any  material 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 such  Loan  Party under  the  provisions of any agreement or instrument to which such Loan Party or its property is a party or  by which it may be bound.                                         2                                                                          22032667 





 






         5. Acknowledgments by Guarantors. Each Guarantor hereby expressly and specifically  ratifies, restates and confirms the terms and conditions of the Guarantee in favor of the Agent  and the Lenders and its liability for all of the obligations under the Guarantee by such Guarantor,  and all other obligations, liabilities, agreements and covenants thereunder. Each Guarantor, by its  signature below, hereby acknowledges, confirms and agrees that the Guarantee executed by the  Guarantors,  guaranteeing  the  payment  and  performance  of  the  Borrower  as  set  forth  in  the  Guarantee and all other obligations, liabilities, agreements and covenants thereunder, is in full  force and effect as of the Amendment Effective Date.          6. Conditions  Precedent. This  Amendment shall  be  effective  upon  the  satisfaction of  each  of  the  following  conditions  precedent  on  the  date  hereof  (the  “Amendment  Effective  Date”):            (a) Amendment. The Agent shall have received this Amendment duly executed and  delivered by an authorized officer of each of the parties hereto;             (b) Expenses. The Agent shall have received all reimbursable expenses of the Agent  (including fees, disbursements and expenses of its counsel) invoiced to date in accordance with  the Loan Agreement;            (c) Representations and Warranties. Each of the representations and warranties made  by any Loan Party in or pursuant to the Loan Agreement and any Other Document 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  Loan  Agreement  or  any  Other  Document  shall  be  true  and  correct  in  all  material  respects  (without  duplication of any materiality qualifiers already set forth therein) on and as of such date as if  made  on  and  as  of  such  date,  except  to  the  extent  that  such  representations  and  warranties  expressly relate solely to an earlier date (in which case such representations and warranties shall  have  been  true  and  correct  in  all  material  respects  (without  duplication  of  any  materiality  qualifiers already set forth therein) on and as of such earlier date), subject to (i) with respect to  Section 5.04 of the Loan Agreement, the exclusion of property taxes subject to the Tax Payment  Default, and (ii) with respect to Section 5.08(a) of the Loan Agreement, the assumption that the  Loan Parties are able to refinance or otherwise satisfy the obligations under the Loan Agreement  on or prior to the maturity thereof; and            (d) No  Default. After  giving  effect  to this  Amendment,  no Event  of  Default  or  Default shall have occurred and be continuing on the Amendment Effective Date, or would exist  after giving effect to the transactions described in this Amendment on the Amendment Effective  Date.         7. General.            (a) Effect  of this  Amendment.  Except  as  expressly  provided  herein,  no  other  consents,  waivers,  changes  or  modifications  to  the  Loan Agreement  or  any  Other  Documents  (together,  the  “Loan  Documents”) are  intended  or  implied,  and  in  all  other  respects  the Loan  Documents are hereby specifically ratified, restated and confirmed by all parties hereto as of the  date hereof. To the extent of conflict between the terms of this Amendment and the other Loan                                          3                                                                          22032667 





 






   Documents, the terms of this Amendment shall control. The Loan Agreement shall be read and  construed as one agreement with this Amendment.            (b) Governing  Law. This  Amendment shall  be  governed  by  and  construed  in  accordance with the laws of the State of New York applied to contracts to be performed wholly  within the State of New York, without regard to conflicts of laws principles.            (c) Binding  Effect. This  Amendment shall  bind  and  inure  to  the  benefit  of  the  respective successors and permitted assigns of each of the parties hereto.            (d) Counterparts,  etc. This  Amendment may  be  executed  in  any  number  of  and  by  different parties hereto on separate counterparts, all of which, when so executed, shall be deemed  an original, but all such counterparts shall constitute one and the same agreement. Any signature  delivered  by  a  party  by  facsimile  or  email  transmission  shall  be  deemed  to  be  an  original  signature hereto.            (e) Direction.  The  Lenders  party  hereto,  constituting  the  Required  Lenders,  hereby  direct the Agent to execute and deliver this Amendment, and, by their execution below, each of  the undersigned Lenders agrees to be bound by the terms and conditions of this Amendment.                               [Signature Pages Follow]                                                                                   4                                                                          22032667 





 






[Signature Page to Amendment No. 5 and Waiver to Term Loan Agreement]





 






[Signature Page to Amendment No. 5 and Waiver to Term Loan Agreement]





 












 






                                                   LENDERS                                      ASCRIBE III INVESTMENTS LLC                                                                            By:_____________________________                                     Name: Lawrence First                                     Title:   Chief Investment Officer and                                                 Managing Director                                     [Signature Page to Amendment No. 5 and Waiver to Term Loan Agreement] 





 






                                  LENDERS                                     SOLACE FORBES HOLDINGS LLC                                     By: Solace Capital Partners LP                                                                          By:_____________________________                                    Name: Naeem Arastu                                    Title: Managing Director                                    [Signature Page to Amendment No. 5 and Waiver to Term Loan Agreement]