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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 rounded up to the next highest whole number of shares of
Stock. If
the shares of Stock are privately issued, restricted shares,
Maker
shall cause OMNI Energy Services Corp. to prepare and file a
registration statement on Form S-3, or other appropriate form, to
register
the resale
of such Stock, and to use its best efforts to cause such
registration statement to be declared effective on or before the
last day
of the
Forbearance Period. The issuer shall cause the registration
statement
to continue in effect until such time that the Payee (and/or
its
nominee
and/or successor or assign) has disposed of a
