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 XXXX 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 - Page 2
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
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 all the Stock or that
it may be entitled to dispose of all of the Stock without any restrictions
or limitations under the securities laws. On or prior to the Expiration
Date, Payee may, with one business day's prior notice to Maker, require
that Maker
FORBEARANCE AGREEMENT - Page 4
purchase the Stock issued to Payee as aforesaid by delivery to Payee by
wire transfer in same day funds U.S. Dollars equal to the value of such
Stock valued at the higher of (x) the value determined under clauses (i)
or (ii) of the preceding sentence or (y) the then current market price of
the Stock. The rights of Maker set forth in this paragraph (d) to make the
above-described payment to Payee by the delivery of the Stock is
conditioned and contingent upon Payee agreeing, at or prior to the time
such Stock is offered to Payee, that it will accept such Stock, and if
Payee does not agree in writing to so accept such Stock, Maker shall have
no right to make such payment by delivering such Stock to Payee and Payee
will have no obligation to accept such Stock. Payee may make its
determination of whether to accept such Stock in payment of the amounts
due as set forth in this paragraph (d) in Payee's sole discretion.
(e) Notice of Payment. If Maker elects to pay all amounts due under
the Note, the other Loan Documents and this Forbearance Agreement prior to
the last day of the Forbearance Period, Maker must give the Payee no less
than 5 business days' prior written notice of such payment. Once given,
such notice will be irrevocable and the Note shall be due and payable on
the date prior to the last day of the Forbearance Period as provided in
such notice.
8. Representations and Warranties. In order to induce the Payee to
execute, deliver, and perform this Forbearance Agreement, the Maker warrants and
represents to the Payee each and every of the following:
(a) This Forbearance Agreement is not being made or entered into
with the actual intent to hinder, delay, or defraud any entity or person,
and the Maker is solvent and is not bankrupt.
(b) This Forbearance Agreement is not intended by the parties to be
a novation of the Loan Documents and, except as expressly modified herein,
all terms, conditions, rights, and obligations as set out in the Loan
Documents are hereby reaffirmed and shall otherwise remain in full force
and effect as originally written and agreed.
(c) No action or proceeding, including, without limitation, a
voluntary or involuntary petition for bankruptcy under any chapter of the
United States Bankruptcy Code (the "Bankruptcy Code"), has been instituted
by or against any Maker or threatened against any Maker.
(d) The execution of this Forbearance Agreement by the Maker and the
performance by the Maker of its respective obligations hereunder will not
violate or result in a breach or constitute a default under any agreement
to which it is a party.
(e) All information provided by the Maker to the Payee prior to the
Forbearance Date, including, without limitation, all representations and
warranties made and given by any Maker in the Loan Documents, all
financial statements, balance sheets, and cash flow statements, was, at
the date of delivery, and is, as of the date hereof, true,
FORBEARANCE AGREEMENT - Page 5
accurate, and correct in all respects. The Maker recognizes and
acknowledges that the Payee is entering into this Forbearance Agreement
based in part on the financial information provided to the Payee by the
Maker and that the truth and correctness of that financial information is
a material inducement to the Payee in entering into this Forbearance
Agreement. During the term of this Forbearance Agreement, the Maker agrees
to advise the Payee promptly in writing of any and all new information,
facts, or occurrences which would in any way materially supplement,
contradict, or affect any financial statements, balance sheets, cash flow
statements, or similar items furnished to the Payee.
(f) Other than the Existing Default, no Default or Event of Default
under any Loan Document has occurred and is continuing, and no event has
occurred and is continuing which, with notice or the passage of time or
both, would be a Default or an Event of Default.
(g) The Maker lawfully possesses and holds a 100% ownership interest
in all of the Collateral for the Obligations, free and clear of any Lien,
defect, reservation of title, or conditional sales contract, and also of
any security interest, other than the Outstanding Liens in favor of the
Payee or Permitted Encumbrances. There is no financing statement affecting
any real, personal, tangible, or intangible property ("Property") of the
Maker on file in any public office except for financing statements in
favor of the Payee and any relating to Permitted Encumbrances.
(h) Since the inception of the Obligations, there have been no
changes in the organization, composition, material ownership, structure,
or formation documents of any Maker which has not been disclosed in
writing to the Payee; in each state in which any Maker does business, it
is properly licensed, in good standing, and, where required, in compliance
with fictitious name statutes.
(i) Execution, delivery, and performance of this Forbearance
Agreement, and any instrument or agreement required hereunder, are within
each Maker's powers, have been duly authorized, and do not conflict with
any of its organizational papers.
(j) The Loan Documents to which the Maker is a party, including this
Forbearance Agreement, are legal, valid, and binding agreements of the
Maker, enforceable in accordance with its respective terms, and any
instrument or agreement required hereunder or thereunder, when executed
and delivered, will be similarly legal, valid, binding, and enforceable;
this Forbearance Agreement does not conflict with any law, agreement, or
obligation by which the Maker is bound.
9. Reaffirmation. Each Maker reaffirms all of its obligations under the
Loan Documents to which it is a party.
10. Termination of Forbearance and Rights in the Event of Bankruptcy.
FORBEARANCE AGREEMENT - Page 6
(a) Notwithstanding anything to the contrary in this Forbearance
Agreement, the obligations of the Payee to forbear from exercising any of
its rights and remedies arising under the Loan Documents or otherwise as a
result of the Existing Default shall terminate upon the filing of any
proceeding, voluntarily or involuntarily, under Title 11 of the United
States Code or any other state or federal statute seeking the
reorganization, liquidation or restructuring of any Maker, or the filing
by any person of any legal, administrative or arbitration proceeding
seeking the reorganization, liquidation, dissolution, restructuring,
foreclosure, appointment of a receiver or transfer of control or
possession of the assets of any Maker for the benefit of a creditor. In
the event of any such filing, all obligations, covenants, representations,
warranties and releases of and/or granted by the Maker, and the Maker's
shareholders shall remain in full force and effect.
(b) All of the above terms and conditions have been freely bargained
for and are all supported by reasonable and adequate consideration and the
provisions herein are material inducements for the Payee entering into
this Forbearance Agreement.
11. Waiver of Claims and Defenses. To induce the Payee to enter into this
Forbearance Agreement, each Maker represents and warrants to Payee that as of
the Forbearance Date there are no claims or offsets against or defenses or
counterclaims to their respective obligations under the Loan Documents, and each
Maker waives any and all such claims, offsets, defenses, or counterclaims
whether known or unknown, arising prior to the Forbearance Date. Additionally,
each Maker, on behalf of itself and its shareholders/owners, hereby releases and
agrees to hold the Payee, and each of its legal representatives, successors,
affiliates, parents, subsidiaries, predecessors, assigns, shareholders,
partners, trustees, beneficiaries, administrators, heirs, former and current
officers, directors, agents, attorneys, and employees, and their respective
successors, assigns, heirs, executors, and administrators harmless from any and
all claims, actions, suits, causes of action, accounts, judgments, agreements,
promises, executions, debts, damages, demands, rights, obligations, liabilities,
and controversies now in existence concerning or in connection with the Note,
this Forbearance Agreement, or any other Loan Documents (collectively, the
"Claims") of every nature and description, at law or in equity, whether known or
unknown, foreseen or unforeseen, and regardless of whether the Maker, or any
other person hereafter discovers any fact which may give rise to any of the
Claims.
12. Acknowledgments. Each Maker hereby acknowledges and agrees that:
(a) No Future Obligations. The Payee has no obligation to make any
additional loan or extension of credit to or for the benefit of the Maker,
and no obligation to extend the maturity date of any credit extended to
the Maker.
(b) No Third Party Beneficiaries. This Forbearance Agreement is not
intended for, and shall not be construed to be for, the benefit of any
person not a signatory hereto.
FORBEARANCE AGREEMENT - Page 7
13. Impairment/Security. Except as otherwise specifically set forth
herein, the Loan Documents shall each remain unaffected by this Forbearance
Agreement and all such Loan Documents shall remain in full force and effect. The
Maker's payment and performance of its various obligations to the Payee under
the Loan Documents (including, without limitation, this Forbearance Agreement),
including all extensions, amendments, renewals, or replacements thereof,
continue to be and shall be secured by the Outstanding Liens. Nothing contained
herein shall be deemed a waiver of any of the rights and remedies that the Payee
may have against any Maker, or of the Payee's rights and remedies arising out of
the Loan Documents.
14. Severability. If any court of competent jurisdiction determines any
provision of this Forbearance Agreement or any provision in any of the other
Loan Documents to be invalid, illegal, or unenforceable, that portion shall be
deemed severed from the rest, which shall remain in full force and effect.
15. Attorneys' Fees. If any lawsuit, reference, or arbitration is
commenced which arises out of or relates to the Obligations or any of the Loan
Documents, the prevailing party shall be entitled to recover from each other
party such sums as the court, referee, or arbitrator may adjudge to be
reasonable attorneys' fees in the action, reference, or arbitration, in addition
to costs and expenses otherwise allowed by law. In all other situations,
including any matter arising out of or relating to any bankruptcy or insolvency
proceeding, the Maker agrees to pay all of the Payee's costs and expenses,
including attorneys' fees (including, without limitation, the allocated costs of
in-house counsel), which may be incurred in enforcing or protecting the Payee's
rights or interests. From the time(s) incurred until paid in full to the Payee,
all such sums shall bear interest at the rate specified in paragraph 7(b)
hereof.
16. Miscellaneous.
(a) Counterparts. This Forbearance Agreement may be executed in a
number of identical counterparts which, taken together, shall constitute
collectively one agreement; but in making proof of this Forbearance
Agreement, it shall not be necessary to produce or account for more than
one such counterpart executed by the party to be charged.
(b) Amendments, etc. Any future waiver, alteration, amendment, or
modification of any of the provisions of the Loan Documents or this
Forbearance Agreement shall not be valid or enforceable unless in writing
and signed by all parties, it being expressly agreed that neither the Loan
Documents, nor this Forbearance Agreement can be modified orally, by
course of dealing, or by implied agreement. Moreover, any delay by the
Payee in enforcing its rights after a Default or an Event of Default shall
not be a release or waiver of the Default or the Event of Default and
shall not be relied upon by the Maker as a release or waiver of the
Default or Event of Default. Except as specifically provided in this
Forbearance Agreement, no express or implied consent to any further
forbearance or modifications involving any of the matters set forth in
this
FORBEARANCE AGREEMENT - Page 8
Forbearance Agreement or otherwise shall be inferred or implied by the
Payee's execution of this Forbearance Agreement or any other action of the
Payee.
(c) Successors and Assigns. This Forbearance Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, their
heirs, executors, administrators, successors, legal representatives, and
assigns; however, nothing contained herein will constitute Payee's consent
to any assignment or delegation of any rights, duties or obligations of
any Maker hereunder or under the Note or any other Loan Document.
(d) Headings. The headings of paragraphs in this Forbearance
Agreement are for convenience of reference only and shall not in any way
affect the interpretation or construction of this Forbearance Agreement.
As used herein, neuter pronouns include the masculine and feminine
genders, and the singular includes the plural (and vice versa), unless the
context otherwise requires.
(e) Governing Law. THIS FORBEARANCE AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF LOUISIANA AND FEDERAL LAW, AS APPLICABLE.
(f) Survival. The warranties and representations of the parties in
this Forbearance Agreement shall survive the termination of this
Forbearance Agreement.
(g) Joint Preparation. The terms and conditions set forth in this
Forbearance Agreement are the product of joint draftsmanship by all
parties, each being represented by counsel, and any ambiguities in this
Forbearance Agreement or any documentation prepared pursuant to or in
connection with this Forbearance Agreement shall not be construed against
any of the parties because of draftsmanship.
17. Time is of the Essence. Time is of the essence of this Forbearance
Agreement and the other Loan Documents.
18. Further Performance. The Maker, whenever and as often as it shall be
requested by the Payee, shall execute, acknowledge, and deliver, or cause to be
executed, acknowledged, and delivered such further instruments and documents and
to do any and all things as may be reasonably requested in order to carry out
the intent and purpose of this Forbearance Agreement and the other Loan
Documents.
19. Ratification and Confirmation of Loan Documents. The Maker hereby
ratifies and confirms each of the Loan Documents to which it is a party entered
into prior to the Forbearance Date, including its respective Collateral
Documents, executed pursuant to the Note and agrees that such Loan Documents
continue to be legal, valid, binding, and enforceable in accordance with their
respective terms except as amended pursuant to the terms hereof.
FORBEARANCE AGREEMENT - Page 9
20. Integration. The Loan Documents, including this Forbearance Agreement,
(a) integrate all the terms and conditions mentioned in or incidental to the
Loan Documents, (b) supersede all oral negotiations and prior and other writings
with respect to their subject matter, and (c) are intended by the parties as the
final expression of the agreement with respect to the terms and conditions set
forth in those documents, including this Forbearance Agreement, and as the
complete and exclusive statement of the terms agreed to by the parties. If there
is any conflict between the terms, conditions, and provisions of this
Forbearance Agreement and those of any other agreement or instrument, including
the other Loan Documents, the terms, conditions, and provisions of this
Forbearance Agreement shall prevail. No supplement, modification, or amendment
of this Forbearance Agreement or the other Loan Documents shall be effective
unless in writing and signed by the Payee, and the Maker. THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES. EXCEPT AS MODIFIED OR SUPPLEMENTED HEREBY, THE AGREEMENT, THE OTHER
LOAN DOCUMENTS AND ALL OTHER DOCUMENTS AND AGREEMENTS EXECUTED IN CONNECTION
THEREWITH SHALL CONTINUE IN FULL FORCE AND EFFECT.
IN WITNESS WHEREOF, the parties hereto have executed this Forbearance
Agreement as of the date first above written.
MAKER:
OMNI ENERGY SERVICES CORP. OMNI ENERGY SERVICES CORP.-MEXICO
By: /s/ G. Xxxxx Xxxx By: /s/ G. Xxxxx Xxxx
------------------------- -----------------------------
G. Xxxxx Xxxx, Executive Vice President G. Xxxxx Xxxx, Executive Vice
President
AMERICAN HELICOPTERS INC. TRUSSCO, INC.
By: /s/ G. Xxxxx Xxxx By: /s/ G. Xxxxx Xxxx
------------------------ ----------------------------
G. Xxxxx Xxxx, Executive Vice President G. Xxxxx Xxxx, Executive Vice
President
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
FORBEARANCE AGREEMENT - Page 10
