Form 8-K Forbes Energy Services For: Oct 14
Tweet
Share
E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: October 14, 2016
(Date of earliest event reported)
Forbes Energy Services Ltd.
(Exact Name of Registrant as Specified in Its Charter)
Texas | 001-35281 | 98-0581100 | ||
(State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification Number) | ||
3000 South Business Highway 281 Alice, Texas | 78332 | |||
(Address of Principal Executive Offices) | (Zip Code) | |||
(361) 664-0549
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 – Entry into a Material Definitive Agreement
Indenture Forbearance Agreement
As previously disclosed, on July 15, 2016, Forbes Energy Services Ltd., or the Company, and its domestic subsidiaries, or the Subsidiaries, entered into a forbearance agreement, or the Indenture Forbearance Agreement, with holders of over a majority of the Company’s 9% senior notes due 2019, or the Forbearing Holders, pursuant to the Indenture (as defined below). Pursuant to the Indenture Forbearance Agreement, the Forbearing Holders agreed that they would forbear through September 16, 2016 from exercising default remedies or accelerating any indebtedness under the Indenture resulting from the Company’s failure to make its semi-annual interest payment due on June 15, 2016 on the 9% senior notes due 2019, or the Missed Interest Payment.
On September 13, 2016, the Company, the Subsidiaries and the Forbearing Holders entered into Amendment No. 1 to the Forbearance Agreement to extend the forbearance period under the Indenture Forbearance Agreement until the earlier to occur of (i) 11:59 p.m. Central Time on October 14, 2016 and (ii) certain other specified events under the terms of the Indenture Forbearance Agreement.
On October 14, 2016, the Company, the Subsidiaries and the Forbearing Holders entered into Amendment No. 2 to the Forbearance Agreement, or the Second Amendment, to extend the forbearance period under the Indenture Forbearance Agreement, as previously amended, until the earlier to occur of (i) 11:59 p.m. Central Time on November 15, 2016 and (ii) certain other specified events under the terms of the Indenture Forbearance Agreement, including the termination of the Loan Forbearance Agreement (as defined below).
The term “Indenture” means the indenture, dated as of June 7, 2011, among the Company, as issuer, the Subsidiaries, as subsidiary guarantors, and Wells Fargo Bank, National Association, as trustee, governing the terms of the 9% senior notes due 2019.
Loan Forbearance Agreement
As previously disclosed, on July 15, 2016, the Company and the Subsidiaries entered into a forbearance agreement and an amendment, or the Loan Forbearance Agreement, to the Loan and Security Agreement (as defined below). Pursuant to the Loan Forbearance Agreement, the Agent and the Lenders (each as defined below) agreed that they would forbear through October 14, 2016 from exercising default remedies or accelerating any indebtedness under the Loan Agreement resulting from the Missed Interest Payment.
On October 14, 2016, the Company, the Subsidiaries, the Agent and the Lenders entered into the First Amendment to Forbearance Agreement and Fourth Amendment to Loan and Security Agreement, or the Loan Forbearance Agreement Amendment, to extend the forbearance period under the Loan Forbearance Agreement until the earlier to occur of (i) 5.01 p.m. on December 28, 2016 and (ii) certain other specified events under the terms of the Loan Forbearance Agreement.
The term “Loan Agreement” means the Company’s loan and security agreement, dated as of September 9, 2011, with Regions Bank, as agent for the secured parties, or the Agent, and the lenders party thereto, or the Lenders.
The Company and the Subsidiaries entered into the Second Amendment and the Loan Forbearance Agreement Amendment to provide the Company and the Subsidiaries with additional time to continue discussions with the Forbearing Holders, the Agent and the Lenders with respect to a proposed financial restructuring of the Company.
The foregoing descriptions are summaries and are qualified in their entirety by reference to the Second Amendment and the Loan Forbearance Agreement Amendment. The forms of the Second Amendment and the Loan Forbearance Agreement Amendment executed and delivered are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and are hereby incorporated by reference.
Item 9.01 – Financial Statements and Exhibits
(d) | Exhibits. | |||
10.1 | Amendment No. 2 to the Forbearance Agreement, dated as of October 14, 2016. | |||
10.2 | First Amendment to Forbearance Agreement and Fourth Amendment to Loan and Security Agreement made and entered into on October 14, 2016. | |||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Forbes Energy Services Ltd.
Date: October 18, 2016 By: /s/ L. Melvin Cooper
L. Melvin Cooper
Senior Vice President and Chief Financial Officer
Exhibit 10.1
AMENDMENT NO. 2 TO THE FORBEARANCE AGREEMENT
THIS AMENDMENT NO. 2 (this “Amendment”), dated as of October 14, 2016, to the Forbearance Agreement dated July 15, 2016, as amended by Amendment No. 1 to the Forbearance Agreement, dated September 13, 2016 (the “Forbearance Agreement”), by and among (1) FORBES ENERGY SERVICES LTD, a Texas corporation (the “Issuer”), as issuer of the 9% Senior Notes due 2019 (the “Notes”) issued pursuant to that certain indenture dated as of June 7, 2011 (the “Indenture”) by and among the Issuer, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), (2) the following affiliates of the Issuer: FORBES ENERGY SERVICES LLC, a limited liability company formed under the laws of the State of Delaware (“Energy Services”), TX ENERGY SERVICES, LLC, a limited liability company formed under the laws of the State of Delaware (“TX Energy”), C.C. FORBES, LLC, a limited liability company formed under the laws of the State of Delaware (“C.C.”), and FORBES ENERGY INTERNATIONAL, LLC, a limited liability company formed under the laws of the State of Delaware (“International”; and together with Energy Services, TX Energy, and C.C., each a “Guarantor” and collectively, the “Guarantors”), and, together with the Issuer, the “Obligor Parties”) and (3) certain beneficial holders of the Notes that are party hereto (the “Forbearing Holders”). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Forbearance Agreement.
WHEREAS, the Obligor Parties and the Forbearing Holders desire to amend the Forbearance Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the receipt and sufficiency of which are severally acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. | Definition of Forbearance Termination Date: Section 1(a) of the Forbearance Agreement with respect to the definition of the “Forbearance Termination Date” is hereby amended and restated in its entirety as follows: |
“Forbearance Termination Date” shall mean the sooner to occur of (a) 11:59 o’clock p.m. Central Standard Time on November 15, 2016 and (b) the date on which the agreement to forbear terminates as provided in Section 4 of this Agreement.”
2. | Forbearance Conditions: Section 3(b) of the Forbearance Agreement is hereby amended and restated as follows: |
(i) delete “and” at the end of Section 3(b)(vii);
(ii) add “and” at the end of Section 3(b)(viii); and
(iii) add the following new Section 3(b)(ix).
“Termination of the agreement to forbear pursuant to that certain Forbearance Agreement and Fourth Amendment to Loan and Security Agreement dated July 15, 2016, by and among Forbes Energy Services, TX Energy Services, C.C. Forbes, LLC, Superior Tubing Testers, LLC and Forbes Energy International, LLC and Regions Bank, as amended.”
3. | Condition Precedent to Effectiveness of Amendment: It shall be a condition precedent to the effectiveness of this Amendment that REGIONS BANK, an Alabama bank organized under the laws of the State of Alabama, has entered into that certain First Amendment to Forbearance Agreement and Fourth Amendment to Loan and Security Agreement, which agreement changes the definition of Forbearance Termination Date to: |
“‘Forbearance Termination Date’ shall mean the sooner to occur of (a) 5:01 o'clock p.m. on December 28, 2016 and (b) the date on which the agreement to forbear terminates as provided in Section 4 of this Agreement.”
4. | No Other Amendment: Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Forbearance Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. |
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed and delivered on the date first written above.
ISSUER: | ||
FORBES ENERGY SERVICES LTD | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
GUARANTORS: FORBES ENERGY SERVICES, LLC | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
TX ENERGY SERVICES, LLC | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
C. C. FORBES, LLC | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
FORBES ENERGY INTERNATIONAL, LLC | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
[Signature Page to Amendment No. 2 to Forbearance Agreement (Forbes Energy Services)]
HOLDERS: | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
By:___________________________________ | ||
Name: _____________________________ | ||
Title:_______________________________ | ||
[Signature Page to Amendment No. 2 to Forbearance Agreement (Forbes Energy Services)]
Exhibit 10.2
FIRST AMENDMENT TO FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Agreement") is made and entered into on October 14, 2016, by and among FORBES ENERGY SERVICES LLC, a limited liability company formed under the laws of the State of Delaware (“Energy Services”), TX ENERGY SERVICES, LLC, a limited liability company formed under the laws of the State of Delaware (“TX Energy”), C.C. FORBES, LLC, a limited liability company formed under the laws of the State of Delaware and successor by merger to SUPERIOR TUBING TESTERS, LLC, a limited liability company formed under the laws of the State of Delaware (“C.C.”), and FORBES ENERGY INTERNATIONAL, LLC, a limited liability company formed under the laws of the State of Delaware (“International”; and together with Energy Services, TX Energy and C.C., each a “Borrower” and collectively, the “Borrowers”), FORBES ENERGY SERVICES LTD., a Texas corporation (“Parent” or “Guarantor”; and, together with Borrowers, the "Loan Parties"); the Lenders (as hereinafter defined); and REGIONS BANK, an Alabama bank organized under the laws of the State of Alabama (in its individual capacity, “Regions”), as agent for such Lenders and other Secured Parties (as such term is defined in the Loan Agreement referred to herein) (Regions, in such capacity, the “Agent”).
Recitals:
Pursuant to that certain Loan and Security Agreement, dated September 9, 2011 (as amended by the First Amendment to Loan and Security Agreement, dated as of December 13, 2011, by the Second Amendment to Loan and Security Agreement, dated as of July 3, 2012, by the Third Amendment to Loan and Security Agreement, dated as of July 25, 2013, and by the Forbearance Agreement and Fourth Amendment to Loan and Security Agreement dated July 15, 2016 (as amended, modified, restated or supplemented from time to time, the “Forbearance Agreement”), and as at any time further amended, modified, restated or supplemented, the "Loan Agreement") among Borrowers, Parent, certain lenders from time to time ("Lenders"), and Agent, Agent and Lenders have made loans and other extensions of credit to Borrowers, which loans and extensions of credit are secured by first priority, perfected security interests in and other liens in substantially all of the assets of Borrowers and guaranteed unconditionally by Guarantor.
Borrowers, Agent and Lenders entered into the Forbearance Agreement to, among other things, provide for a forbearance of rights and remedies with respect to the Stipulated Default (as defined in the Forbearance Agreement) arising under the Loan Agreement on the terms and conditions set forth in the Forbearance Agreement. Borrowers and Guarantor have requested that Agent and Lenders (or Required Lenders, as applicable) amend the terms of the Forbearance Agreement in connection therewith and to extend the Forbearance Period (as defined in the Forbearance Agreement). Agent and Lenders (or Required Lenders, as applicable) are willing to
1
enter into this Agreement in order to, among other things, amend the Forbearance Agreement, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and in consideration of the premises and the mutual covenants herein contained, the receipt and sufficiency of which are severally acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1.Definitions; Rules of Construction. All capitalized terms used in this Agreement, unless otherwise defined, shall have the meaning ascribed to such terms in the Forbearance Agreement and, if not defined in the Forbearance Agreement, the Loan Agreement. The rules of construction set forth in Section 1(b) of the Forbearance Agreement shall be applicable to this Agreement.
2. Acknowledgments and Stipulations by Loan Parties. Each Loan Party acknowledges, stipulates and agrees that (a) as of the opening of business on October 11, 2016, the aggregate principal balance of Revolving Advances outstanding under the Loan Agreement, exclusive of costs and attorneys' fees chargeable to Borrower under the Loan Agreement and the Other Documents, totaled $15,000,000.00, and the aggregate amount of all outstanding Letters of Credit totaled $9,050,963.68; (b) as of the opening of business on October 11, 2016, the aggregate principal balance of Swingline Loan Advances outstanding under the Loan Agreement, exclusive of costs and attorneys' fees chargeable to Borrower under the Loan Agreement and the Other Documents, totaled $-0-; (c) all of the Obligations are absolutely due and owing by each Loan Party to Agent and Lenders without any defense, deduction, offset or counterclaim (and, to the extent each such Loan Party has any defense, deduction, offset or counterclaim on the date hereof, the same is hereby waived); (d) the Stipulated Event has occurred and is continuing, and is material; (e) the Loan Agreement and the Other Documents executed by each Loan Party are legal, valid and binding obligations of each such Loan Party enforceable against each such Loan Party in accordance with their terms; (f) the security interests granted by Loan Parties to Agent for the benefit of Lender Parties in the Accounts, Inventory, General Intangibles and other Collateral are duly perfected, first priority security interests; (g) the Guarantee is a legal, valid and binding obligation of the Guarantor and is enforceable against such Loan Party in accordance with its terms; (h) each of the Recitals contained at the beginning of this Agreement is true and correct; and (i) prior to executing this Agreement, each Loan Party consulted with and had the benefit of advice of legal counsel of its own selection and each has relied upon the advice of such counsel, and in no part upon any representation of Agent or Lender concerning the legal effects of this Agreement or any provision hereof.
3. Amendments to Forbearance Agreement. Subject to the satisfaction of the conditions set forth in Section 4, the Forbearance Agreement is hereby amended as follows:
(a) By deleting the definitions of “Forbearance Termination Date” and “Notes Forbearance Agreement” from Section 1(a) of the Forbearance Agreement and substituting, respectively, the following in lieu thereof:
2
"Forbearance Termination Date" shall mean the sooner to occur of (a) 5:01 o'clock p.m. on December 28, 2016 and (b) the date on which the agreement to forbear terminates as provided in Section 4 of this Agreement.
"Notes Forbearance Agreement" shall mean each forbearance agreement at any time entered into in connection with the Senior Unsecured Notes and providing for a forbearance of exercising rights and remedies under the Senior Unsecured Note Documents, including, without limitation that certain Forbearance Agreement entered into on July 15, 2016, by and among certain holders of the Senior Unsecured Notes and the Loan Parties, as at any time amended or modified, including, without limitation, by that certain Amendment No. 1 to the Forbearance Agreement dated as of September 13, 2016.
(b) By (i) deleting the phrase “Loan Documents” from Section 3(c) of the Forbearance Agreement and substituting in lieu thereof the phrase “the Loan Agreement and the Other Documents” and (ii) deleting the phrase “any Loan Document” from Section 4 of the Forbearance Agreement and substituting in lieu thereof the phrase “in the Loan Agreement or any Other Documents”.
4. Conditions Precedent to Amendments. The amendments to the Forbearance Agreement set forth in Section 3 of this Agreement are subject to the satisfaction of the following conditions precedent, in form and substance satisfactory to Agent: (i) Agent shall have received a duly executed counterpart of this Agreement from each Loan Party and each Lender (or the Required Lenders, as applicable), together with a duly executed certificate of resolutions in the form attached hereto; (ii) Agent shall have received a duly executed copy of an amendment to the Notes Forbearance Agreement, in form and substance satisfactory to Agent, and providing, among other things, an extension of the stated expiration date of the agreement to forbear thereunder to a date satisfactory to Agent; (iii) Borrowers shall have reimbursed Agent and its professional advisors in immediately available funds for all accrued and unpaid fees, costs, expenses and other charges that are reimbursable under the Loan Agreement, invoices for which were submitted by Agent on or prior to the date hereof; and (iv) Borrowers and Agent shall have entered into a fee letter dated the date hereof in form and substance satisfactory to Agent.
5. Representations and Warranties of Loan Parties. Each Loan Party represents and warrants that (a) no Default or Event of Default exists under the Loan Agreement or the Other Documents, except for the Stipulated Default and no Default or Event of Default (as such terms are defined in the Senior Unsecured Note Documents) exists except for the Stipulated Notes Default; (b) the representations and warranties of each Loan Party contained in the Loan Agreement and the Other Documents were true and correct when made and continue to be true and correct on the date hereof in all material respects (without duplication of any materiality qualifier contained therein); (c) the execution, delivery and performance by each Loan Party of this Agreement and the consummation of the transactions contemplated hereby are within the entity power of each such Loan Party and have been duly authorized by all necessary entity action on the part of each such Loan Party, do not require any approval or consent, or filing with, any governmental agency or authority (other than a filing of a Form 8-K with the Securities and Exchange Commission
3
announcing the entering of this Agreement), do not violate any provisions of any law, rule or regulation or any provision of any order, writ, judgment, injunction, decree, determination or award presently in effect in which each such Loan Party is named or any provision of the organizational or governing documents of each such Loan Party and do not result in a breach of or constitute a default under any agreement or instrument to which each such Loan Party is a party or by which it or any of its properties are bound; (d) this Agreement constitutes the legal, valid and binding obligation of Loan Parties, enforceable against Loan Parties in accordance with its terms; (e) all Payroll Taxes required to be withheld from the wages of Borrowers' and Guarantor's employees have been paid or deposited when due; (f) each is entering into this Agreement freely and voluntarily with the advice of legal counsel of its own choosing; (g) each has freely and voluntarily agreed to the releases, waivers and undertakings set forth in this Agreement; and (h) at all times on and after July 15, 2016, and as of the date hereof, the Forbearance Conditions have been timely satisfied and continue to be timely satisfied.
6. Reaffirmation of Obligations. Each Loan Party hereby ratifies and reaffirms the Loan Agreement and the Other Documents including, without limitation, the Forbearance Agreement, and all of its covenants, duties, obligations and liabilities thereunder. Without limiting the generality of the foregoing, each Loan Party further agrees that all of the Forbearance Conditions shall remain in full force and effect, including, without limitation, the Forbearance Condition in Section 3(b)(vii) of the Forbearance Agreement. Guarantor hereby ratifies and reaffirms the validity, legality and enforceability of the Guarantee and agrees that such Guarantee is and shall remain in full force and in effect until all the Obligations have been paid in full. Borrowers and Guarantor hereby reaffirm their obligations under the Forbearance Agreement and acknowledge that the agreement of the Agent and Lenders to forbear from exercising rights and remedies as a result of the Stipulated Default are subject to the terms and conditions contained therein.
7. Relationship of Parties; No Third Party Beneficiaries. Nothing in this Agreement shall be construed to alter the existing debtor-creditor relationship between Borrowers and any Lender Party, nor is this Agreement intended to change or affect in any way the relationship between any Lender Party and Guarantor to one other than a debtor-creditor relationship. This Agreement is not intended, nor shall it be construed, to create a partnership or joint venture relationship between or among any of the parties hereto. No Person other than a party hereto is intended to be a beneficiary hereof and no Person other than a party hereto shall be authorized to rely upon or enforce the contents of this Agreement.
8. Entire Agreement; Modification of Agreement; Verbal Agreements Not Binding. This Agreement, the Loan Agreement and the Other Documents constitute the entire understanding of the parties with respect to the subject matter hereof and thereof, and supersedes all other discussions, promises, representations, warranties, agreements and understandings between the parties with respect thereto. This Agreement may not be modified, altered or amended except by an agreement in writing signed by all the parties hereto. The parties anticipate that discussions addressing the Stipulated Default, the Loan Agreement and the Other Documents may take place in the future. During the course of such discussions, the parties may touch upon and possibly reach preliminary understandings on one or more issues prior to concluding negotiations or executing definitive documentation to memorialize such understandings. Notwithstanding such
4
understandings, none of the parties will be bound by any such understandings unless and until an agreement is reached on all issues and such agreement is reduced to writing and signed by the parties.
9. Construction; Section Headings; Severability. This Agreement has been prepared through the joint efforts of all of the parties hereto. Neither the provisions of this Agreement nor any alleged ambiguity herein shall be interpreted or resolved against any party on the grounds that such party or its counsel drafted this Agreement, or based on any other rule of strict construction. Each of the parties hereto represents that such party has carefully read this Agreement and all other instruments and agreements executed in connection herewith and that such party knows the contents hereof and has signed the same freely and voluntarily. Section titles and references contained in this Agreement have been inserted as a matter of convenience and for reference only and shall not control or affect the meaning or construction of any of the terms contained herein. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
10. Governing Law. This Agreement 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 law principles.
11. Non-Waiver of Default. Neither this Agreement, any Lender Party's forbearance hereunder nor any Lender Party's election in its sole discretion to continue making loans or other extensions of credit to Borrowers under the Loan Agreement shall be deemed a waiver of or consent to the Stipulated Default or any Default or Event of Default. Loan Parties agree that no Default or Event of Default shall be deemed to have been waived, released or cured by virtue of Advances or other extensions of credit at any time extended to Borrowers, by the agreement to forbear pursuant to the terms of this Agreement or by the execution of this Agreement.
12. No Novation, etc. This Agreement is not intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the Loan Agreement and the Other Documents shall remain in full force and effect. Notwithstanding any prior mutual temporary disregard of any of the terms of the Loan Agreement or any of the Other Documents, the parties agree that the terms of each of the Loan Agreement and the Other Documents shall be strictly adhered to on and after the date hereof, except as expressly modified by this Agreement.
13. Counterparts; Waiver of Notice of Acceptance. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall constitute an original, but all of which taken together shall be one and the same instrument. In proving this Agreement, the Loan Agreement or any of the Other Documents, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought. Notice of acceptance hereof is hereby waived. Delivery by one or more parties hereto of an executed counterpart of the Forbearance Agreement or any other agreement, including this Agreement, delivered in connection therewith via facsimile, telecopy or
5
other electronic method of transmission shall have the same force and effect as the delivery of an original executed counterpart.
14. Reimbursement for Legal Expenses. Borrowers agree to reimburse each Lender Party, promptly on demand therefor, for any costs and expenses, including legal fees, incurred by such Lender Party in connection with the drafting, negotiation, execution and closing of this Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
16. Release of Claims; Covenant Not to Sue. To induce Agent and Lenders (or the Required Lenders, as applicable) to enter into this Agreement, each Loan Party, for itself and on behalf of such Loan Party's officers, directors, subsidiaries, successors and assigns (collectively with each Loan Party, the "Releasors" and individually a "Releasor"), hereby RELEASES, ACQUITS AND FOREVER DISCHARGES each Releasee (as hereinafter defined) from any and all claims, demands, debts, liabilities, actions or causes of action of any kind (if any there be), whether absolute or contingent, due or to become due, disputed or undisputed, liquidated or unliquidated, at law or in equity, or known or unknown (collectively, "Claims") that any Releasor now has, ever had or hereafter may have against any Lender Party in any capacity or any of such Lender Party's respective officers, directors, employees, agents, attorneys, representatives, subsidiaries, affiliates and shareholders (collectively with Lender Parties, the "Releasees") based on actions, inactions, transactions, or circumstances occurring on or before the date of this Agreement that arise out of or relate to (i) the Loan Agreement, any Other Documents, the Forbearance Agreement or Collateral, (ii) any transaction, act or omission contemplated under the Loan Agreement, the Forbearance Agreement or any Other Documents or concluded thereunder or (iii) any aspect of the dealings or relationships between or among any Loan Party, on the one hand, and any Lender Party, on the other hand, relating to the Loan Agreement, the Forbearance Agreement or any Other Document or any transaction, act or omission contemplated by or described in the Loan Agreement, the Forbearance Agreement or any Other Document or concluded thereunder, INCLUDING, IN EACH CASE AND WITHOUT LIMITATION, CLAIMS ARISING, IN WHOLE OR IN PART, FROM THE NEGLIGENCE OR MISCONDUCT OF ONE OR MORE RELEASEES. The provisions of this Section shall survive the termination of this Agreement, the Loan Agreement, the Forbearance Agreement and any of the Other Documents and payment in full of the Obligations. Each Loan Party, on behalf of such Loan Party and such Loan Party's successors, assigns and other legal representatives, hereby unconditionally and irrevocably agrees such Loan Party will not sue any Releasee on the basis of any Claim released, remised and discharged pursuant to the foregoing provisions of this Section, and if any Loan Party or any of such Loan Party's successors, assigns or other legal representatives violate the foregoing covenant, each Loan Party, for such Loan Party and such Loan Party's successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys' fees and cost incurred by any Releasee as a result of such violation.
6
17. Waiver of Jury Trial. To the fullest extent permitted by Applicable Law, the parties hereto each hereby waives the right to trial by jury in any action, suit or proceeding arising out of or related to this Agreement, the Loan Agreement, the Forbearance Agreement or any Other Document.
[Remainder of page intentionally left blank;
signatures begin on following page.]
7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered on the date first written above.
BORROWERS: | ||
FORBES ENERGY SERVICES LLC | ||
By:___________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
FORBES ENERGY INTERNATIONAL, LLC | ||
By:___________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
TX ENERGY SERVICES, LLC | ||
By:___________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
C. C. FORBES, LLC | ||
By:___________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
GUARANTOR: | ||
FORBES ENERGY SERVICES LTD. | ||
By:___________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
First Amendment to Forbearance Agreement and Fourth Amendment to Loan and Security Agreement
LENDER PARTIES: | ||
REGIONS BANK, as Agent, Swingline Lender, Issuer and a Lender | ||
By:____________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
SUNTRUST BANK, as a Lender | ||
By:____________________________________ | ||
Name:___________________________________ | ||
Title: ___________________________________ | ||
CAPITAL ONE BUSINESS CREDIT CORP. (formerly known as Capital One Leverage Finance Corp.), as a Lender | ||
By:____________________________________ Name:___________________________________ Title: ___________________________________ | ||
First Amendment to Forbearance Agreement and Fourth Amendment to Loan and Security Agreement
Serious News for Serious Traders! Try StreetInsider.com Premium Free!
You May Also Be Interested In
- TabaPay to Acquire the Assets of Synapse Financial Technologies, Inc.
- Port Houston Regular Commission Meeting
- Stockholder Alert: Robbins LLP Informs Investors of the Class Action Filed Against Sharecare, Inc. (SHCR)
Create E-mail Alert Related Categories
SEC FilingsSign up for StreetInsider Free!
Receive full access to all new and archived articles, unlimited portfolio tracking, e-mail alerts, custom newswires and RSS feeds - and more!
