FORBEARANCE AGREEMENTDefault Notice Forbearance Agreement |
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FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("Forbearance Agreement"), effective as
of January 21, 2005 (the "Forbearance Date"), is made by and among OMNI ENERGY
SERVICES CORP., AMERICAN HELICOPTERS INC., OMNI ENERGY SERVICES CORP.-MEXICO,
TRUSSCO, INC., AND TRUSSCO PROPERTIES, LLC (collectively, "Maker" and each,
individually, a "Maker"), and BEAL BANK, S.S.B., a savings bank organized under
the laws of the State of Texas ("Payee"), and is based on the following recitals
of fact.
R E C I T A L S:
A. The Maker is indebted to the Payee under a Promissory Note dated as of
October 22, 2004 (the "Note"; capitalized terms used in this Forbearance
Agreement but not defined herein shall have the same sense and meaning as in the
Note), among the Maker and the Payee. As of the Forbearance Date, the
outstanding principal balance of the Note is Six Million, Five Hundred Thousand
Dollars ($6,500,000.00) (the "Balance"). Unpaid interest continues to accrue
according to the terms of the Note, currently at the Default Rate. Additionally,
the Maker is obligated for other fees, costs, and expenses in accordance with
and as may be provided for in the Loan Documents.
B. As of the date of this Forbearance Agreement, an Event of Default
exists under paragraph 7(a) of the Note as a result of the Maker's failure to
repay the Obligations owing to the Payee under the Note on the Final Maturity
Date (the "Existing Default").
C. The Maker has requested that the Payee temporarily forbear from
exercising its available rights and remedies arising as a result of the Existing
Default and the Payee is willing to forebear from exercising such rights and
remedies conditioned upon and subject to the terms and conditions set forth in
this Forbearance Agreement.
A G R E E M E N T:
For and in consideration of the mutual covenants herein, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Maker and the Payee agrees as follows:
1. Recitals. The foregoing recitals are confirmed by the parties as true,
accurate, and correct and are incorporated herein by reference. The recitals are
a substantive, contractual part of this Forbearance Agreement.
FORBEARANCE AGREEMENT - Page 1
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2. Extension of Maturity, Forbearance and Limitations Thereof.
(a) Subject to the terms and provisions of this Forbearance
Agreement (including without limitation, paragraph 6 and paragraph 7
hereof), the Payee hereby agrees to forbear from exercising any of its
rights and remedies arising under the Loan Documents or otherwise as a
result of the Existing Default (the "Forbearance") for the period, and
only for the period, commencing on the Forbearance Date through and
including February 28, 2005 (the "Expiration Date") or such earlier date
on which Payee's agreement to forbear pursuant hereto terminates (such
period being referred to hereinafter as the "Forbearance Period").
(b) Paragraph 2(a) of this Forbearance Agreement shall be limited
strictly as written and this Forbearance Agreement does not constitute a
forbearance with respect to any Event of Default other than the Existing
Default and does not constitute a waiver of the Existing Default or any
other Event of Default. In the event that prior to the end of the
Forbearance Period any further Event of Default occurs under the Note
(i.e., other than the Existing Default) or if the Maker shall breach any
provision of this Forbearance Agreement or any Loan Document, then the
Payee shall have the right and option, in its sole discretion and without
notice to the Maker, to terminate its agreement to forbear pursuant to
this Forbearance Agreement and to exercise any and all of its rights and
remedies under the Loan Documents or otherwise arising as a result of such
Event of Default or the Existing Default.
(c) Notwithstanding anything contained herein to the contrary, and
as an additional material inducement to the Payee to enter into this
Forbearance Agreement, the Maker hereby agrees that, except as expressly
set forth herein with respect to the Forbearance during the Forbearance
Period, this Forbearance Agreement shall have no effect on, and shall not
act as a waiver of, any Event of Default (including, without limitation,
the Existing Default), or any rights or remedies resulting therefrom,
whether now existing or hereafter arising, under the terms and provisions
of the Loan Documents or otherwise whether known or unknown by the Payee.
The Payee expressly reserves the right to, and may, at its option, declare
any other Event of Default, except as expressly set forth herein.
3. Liens. By this Forbearance Agreement, all liens, security interests,
assignments, superior titles, rights, remedies, powers, equities, and priorities
securing the Obligations (collectively, the "Outstanding Liens") are hereby
ratified and confirmed as valid, subsisting, and continuing to secure the
Obligations as amended to date, and this Forbearance Agreement shall not affect
the priority of any Outstanding Lien. Nothing in this Forbearance Agreement
shall in any manner diminish, impair, or extinguish any of the Outstanding Liens
or the Loan Documents or be construed as a novation in any respect. In addition,
the Maker acknowledges and agrees that this Forbearance Agreement constitutes a
Loan Document and that the obligations of the Maker hereunder (including,
without limitation, the obligation of Maker to repurchase the Stock, as
hereinafter defined, as provided in paragraph 7 (d) below) constitute
Obligations secured by the Outstanding Liens.
FORBEARANCE AGREEMENT - Page 2
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4. Amounts Due. The Payee and the Maker acknowledge that, prior to giving
effect to any payment or payments specified in this Forbearance Agreement, the
aggregate outstanding unpaid principal balance of the Note is equal to the
Balance, and accrued and unpaid interest on the Note is equal to $198,972.04as
of the Forbearance Date.
5. Waivers of Makers. Each Maker waives any and all rights to other notice
of payment default or any other default, protest and notice of protest,
dishonor, diligence in collecting and the bringing of suit or arbitration
proceedings against any party, notice of intention to accelerate, notice of
acceleration, demand for payment, and any other notices whatsoever regarding the
Obligations or any of the Loan Documents, and further waives any claims that any
notices previously given are or were insufficient for any reason.
6. Conditions Precedent. The following are conditions precedent to the
effectiveness of this Forbearance Agreement:
(a) Delivery. Before this Forbearance Agreement becomes effective
and any party becomes obligated under it, the Payee shall have received
fully executed originals of this Forbearance Agreement.
(b) Reimbursement of the Payee's Costs and Expenses; Receipt of
Payments. The Payee shall have received reimbursement, in immediately
available funds, of all unpaid fees, expenses and costs due from the Maker
to the Payee, and all costs and expenses incurred by the Payee in
connection with this Forbearance Agreement, including but not limited to
charges for preparing, recording, and/or filing amendments to financing
statements, appraisal, and legal fees and expenses of the Payee's counsel
("Reimbursable Costs") to the extent incurred by the Payee and submitted
to the Maker for reimbursement. The amount of Reimbursable Costs to be
paid by Maker in order for this Forbearance Agreement to become effective
is $22,000.00. All other Reimbursable Costs incurred by Payee shall be
paid by Maker as provided below and in the Loan Documents.
(c) Payment of Interest and Principal. The Payee shall receive
payment of an amount equal to all accrued and unpaid interest on the Note
as of the Forbearance Date (being $198,972.04) plus Two Hundred Fifty
Thousand Dollars ($250,000.00) of principal of the Note.
(d) Additional Information. The Payee shall have received such
additional agreements, certificates, documents, instruments, and
information as the Payee or its legal counsel may request to effect the
Forbearance contemplated hereby.
(e) All payments to be made by Maker to Payee as provided in the
Note, this Forbearance Agreement or any other Loan Document will be paid
to Payee in accordance with Payee's wire transfer instructions attached
hereto as Exhibit "A".
FORBEARANCE AGREEMENT - Page 3
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7. Continuing Conditions. Payee's agreement to forbear pursuant to this
Forbearance Agreement is conditioned upon the Maker's compliance with each of
the following conditions. The Maker acknowledges and agrees that the Maker's
failure to fully comply with any of the following conditions shall constitute a
breach of the terms of this Forbearance Agreement which shall result in the
termination of the Payee's agreement to forbear.
(a) Obligation to Remain Current. The Maker shall remain current in
the payment of all interest and other fees and expenses as provided by the
Note, any other Loan Document and this Forbearance Agreement.
(b) Applicable Interest Rates. Interest on the outstanding principal
of the Obligations shall be calculated at a per annum rate equal to the
lesser of (x) the Highest Lawful Rate or (y) the Default Rate.
(c) Payments. In addition to the payments required by paragraphs 6
(b) and (c) above, on January 28, 2005, Maker shall pay to Payee an
additional Two Hundred Fifty Thousand Dollars ($250,000.00), with such
payment being applied first to accrued and unpaid interest on the Note and
additional Reimbursable Costs, and with the balance of such payment being
applied to the unpaid principal balance of the Note. The remaining
principal due on the Note and all other amounts due to Payee pursuant to
the Loan Documents are due and payable on the last day of the Forbearance
Period.
(d) Payment in Stock; Obligation to Purchase. Subject to
satisfaction of the conditions set forth below, the Maker's obligation to
pay all of the amounts required to be paid as provided in paragraphs 6 (b)
and (c) and the Two Hundred Fifty Thousand Dollars ($250,000.00) payment
required to be made on January 28, 2005 as provided above (but not the
principal balance of the Note, and interest thereon, due and payable on
the last day of the Forbearance Period) may be satisfied by the delivery
to the Payee, on the date the payment in question is due, of fully
registered, publicly traded, unrestricted common stock ("Stock") of OMNI
Energy Services Corp., or, if Maker is unable to deliver such Stock as
fully registered, unrestricted shares, by delivery to the Payee of
privately issued restricted shares of Stock, in each case, registered in
the name of Payee or its nominee, valued at the lesser of (i) the closing
price of the Stock on the NASDAQ Stock Market on the last day the Stock
was trading on such market prior to the due date of such payment or (ii)
the opening price of the Stock on such market on the date such payment is
due, in each case rou






