EXHIBIT 10.1
SECOND AMENDMENT TO FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO FORBEARANCE AGREEMENT (the "Second Amendment")
is made and entered into as of April 26, 2005, 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 XXXX BANK, S.S.B. ("Payee").
RECITALS:
A. Maker and Payee have entered into that certain Forbearance
Agreement, dated January 21, 2005 (as amended by that certain First Amendment to
Forbearance Agreement dated as of March 15, 2005 between Maker and Payee, the
"Forbearance Agreement"). Capitalized terms used in this Second Amendment, if
not defined herein, shall have the meanings set forth for such terms in the
Forbearance Agreement.
B. Pursuant to the Forbearance Agreement, Payee agreed to forbear in
exercising certain of its rights in regard to the Note, as defined therein, for
the period expiring on April 15, 2005 provided certain conditions were
satisfied.
C. Maker has been unable to complete a refinancing of the loan
evidenced by such Note and has requested that Payee agree to again extend the
Forbearance Period and the Expiration Date, as such terms are defined in the
Forbearance Agreement.
D. Payee has agreed to extend such Forbearance Period and Expiration
Date again provided certain conditions are satisfied. One of the conditions to
be satisfied is that this Second Amendment is entered into.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed by each of the parties hereto, Maker and Payee hereby agree as
follows:
1. The Forbearance Agreement is amended to extend the Expiration
Date from April 15, 2005 until earlier to occur of: (i) May
31, 2005 or (ii) the date of the consummation of the
refinancing of the loan evidenced by the Note on terms
acceptable to Payee.
2. In consideration for the agreement of Payee to so extend the
Expiration Date, concurrently with the execution hereof, Maker
is paying to Payee by wire transfer in accordance with the
wire transfer instructions attached as
1
SECOND AMENDMENT TO FORBEARANCE AGREEMENT by and among OMNI ENERGY SERVICES
CORP., AMERICAN HELICOPTERS INC., OMNI ENERGY SERVICES CORP.-MEXICO, TRUSSCO,
INC., and TRUSSCO PROPERTIES, LLC, and XXXX BANK, S.S.B., entered into as of
April 26, 2005.
Exhibit "A" to the Forbearance Agreement, (i) all accrued and
unpaid interest on the loan evidenced by the Note up to and
including April 26, 2005 equal to $109,053; (ii) $5,000 to
reimburse Payee for certain costs and expenses it has incurred
in regard to the Note, the loan evidenced thereby and the
Forbearance Agreement; and (iii) a forbearance fee equal to
$60,000. The full and timely payment of such amounts by Maker
to Payee is a condition to the effectiveness of this Second
Amendment.
3. By its execution of this Second Amendment, Maker hereby
acknowledges and agrees that Payee has no obligation to make
any additional loan or extension of credit to or for the
benefit of Maker, no obligation to further extend the maturity
date of any credit extended to Maker, and no obligation to
enter into any additional renewals of the Forbearance
Agreement or any other forbearance agreement. Furthermore,
Maker hereby acknowledges that Payee has advised Maker that
Payee does not intend to enter into any future extension of
the Forbearance Period or any future modification of the
Forbearance Agreement.
4. The Maker shall not make, during the term of this Forbearance
Agreement, or agree to make, directly or indirectly, any
payment or other distribution (whether in cash, securities or
other property) on account of any Indebtedness (as defined in
the Note) not secured by a Lien (as defined in the Note) as of
the date hereof or any Equity Interest (as defined in the
Note) of any Maker except regularly scheduled payments of
trade payables in the ordinary course. The continued
effectiveness of the Forbearance Agreement is condition upon
the Maker's compliance with the foregoing covenant. The Maker
acknowledges and agrees that the Maker's failure to fully
comply with any of the terms of the Forbearance Agreement (as
amended hereby) and this Section 4 shall result in the
termination of the Forbearance Agreement without notice by the
Payee to the Maker.
5. The waiver and release of Claims set forth in Section 11 of
the Forbearance Agreement is remade for the benefit of Payee
as of the date of this Second Amendment.
6. Each Maker hereby affirms and confirms each covenant,
agreement, representation and warranty made by Maker in the
Forbearance Agreement and the Loan Documents, and without
limitation of the foregoing, Maker hereby ratifies and
confirms each of the Outstanding Liens, as such term is
defined in the Forbearance Agreement, and agrees all such
Outstanding Liens are valid, existing and continuing to secure
the Obligations, with the priority thereof provided in the
Loan Documents.
2
SECOND AMENDMENT TO FORBEARANCE AGREEMENT by and among OMNI ENERGY SERVICES
CORP., AMERICAN HELICOPTERS INC., OMNI ENERGY SERVICES CORP.-MEXICO, TRUSSCO,
INC., and TRUSSCO PROPERTIES, LLC, and XXXX BANK, S.S.B., entered into as of
April 26, 2005.
7. Except as amended hereby, the Forbearance Agreement shall be
and continue in full force and effect.
EXECUTED as of the day and year first above written.
MAKER:
OMNI ENERGY SERVICES CORP.
By: /s/ G. Xxxxx Xxxx
--------------------------------
G. Xxxxx Xxxx
Executive Vice President
OMNI ENERGY SERVICES CORP.-MEXICO
By: /s/ G. Xxxxx Xxxx
--------------------------------
G. Xxxxx Xxxx
Executive Vice President
AMERICAN HELICOPTERS INC.
By: /s/ G. Xxxxx Xxxx
--------------------------------
G. Xxxxx Xxxx
Executive Vice President
TRUSSCO, INC.
By: /s/ G. Xxxxx Xxxx
--------------------------------
G. Xxxxx Xxxx
Executive Vice President
3
SECOND AMENDMENT TO FORBEARANCE AGREEMENT by and among OMNI ENERGY SERVICES
CORP., AMERICAN HELICOPTERS INC., OMNI ENERGY SERVICES CORP.-MEXICO, TRUSSCO,
INC., and TRUSSCO PROPERTIES, LLC, and XXXX BANK, S.S.B., entered into as of
April 26, 2005.
TRUSSCO PROPERTIES, LLC
By: /s/ G. Xxxxx Xxxx
--------------------------------
G. Xxxxx Xxxx
Executive Vice President
PAYEE:
XXXX BANK, S.S.B.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
Senior Vice President
4
SECOND AMENDMENT TO FORBEARANCE AGREEMENT by and among OMNI ENERGY SERVICES
CORP., AMERICAN HELICOPTERS INC., OMNI ENERGY SERVICES CORP.-MEXICO, TRUSSCO,
INC., and TRUSSCO PROPERTIES, LLC, and XXXX BANK, S.S.B., entered into as of
April 26, 2005.
