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
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 —
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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 —
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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 Forbe
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