SURRENDER OF NOTES AGREEMENT
This Surrender of Notes Agreement ("Agreement") is entered into as of May
18, 2005, by and between:
(a) Trussco, Inc. ("Trussco"), appearing through its undersigned
authority, James C. Eckert;
(b) Trussco Properties, LLC ("Trussco Properties"), appearing through
its undersigned authority, James C. Eckert;
(c) OMNI Energy Services Corp. ("OMNI"), appearing through its
undersigned authority, James C. Eckert;
(d) Larry Becker, et ux, (as used herein "Becker" shall refer to Larry
Becker and his wife);
(e) Craig Hargrave, et ux (as used herein "Hargrave" shall refer to
Craig Hargrave and his wife);
(f) N. R. Broussard, et ux (as used herein "N. R. Broussard" shall refer
to N. R. Broussard and his wife );
(g) Danny P. Broussard, et ux (as used herein "Danny Broussard" shall
refer to Danny P. Broussard and his wife); and
(h) OMNI Properties Corp., appearing through its undersigned authority,
James C. Eckert.
WITNESSETH:
WHEREAS, on or about the 30th day of June, 2004, Trussco, Trussco
Properties, and the shareholders and membership interest holders of both,
entered into a Non-Employee Shareholder Stock Purchase and Sale Agreement and an
Employee Shareholder Stock Purchase and Sale Agreement (the "Agreements")
whereby 100% of the interest owned by N. R. Broussard, Danny P. Broussard and
Larry Becker (non-employees) and Craig Hargrave, Karl Comeaux and Edward Laborde
(employees) in both Trussco and Trussco Properties was transferred to OMNI; and
WHEREAS, OMNI issued and delivered to the employees a promissory note
dated June 30, 2004 in the original principal amount of $1,500,000.00 bearing
interest at the rate of five (5%) percent per annum and having a term of
thirty-six (36) months ("Seller Note No. 1"); and
WHEREAS, OMNI issued and delivered to the employees a promissory note
dated June 30, 2004 in the original principal amount of the lesser of: (i)
$3,000,000.00 or (ii) the product of
3.12 times the average annual EBITDA for the thirty-six (36) month period ending
December 31, 2006, less the sum of $9,000,000.00 and the amount of bank and
shareholder debt of Trussco on June 30, 2004, bearing interest at the rate of
five (5%) percent per annum and having a term of thirty-six (36) months ("Seller
Note No. 2"); and
WHEREAS, OMNI issued and delivered to the non-employees a promissory note
dated June 30, 2004 in the original principal amount of $1,500,000.00 bearing
interest at the rate of five (5%) percent per annum and having a term of
thirty-six (36) months ("Seller Note No. 3"); and
WHEREAS, General Electric Capital Corporation ("GECC") and OMNI are
entering into a Credit Agreement of even date herewith pursuant to which GECC
would provide to OMNI a $50 Million facility that would enable OMNI to
restructure its debt;
NOW THEREFORE, for the purpose of aiding OMNI in restructuring its overall
debt, with GECC (the "GECC Transaction"), Becker, Hargrave, N. R. Broussard and
Danny Broussard appear herein along with OMNI, Trussco and Trussco Properties
and execute this Agreement and agree as follows:
A. Becker. Contemporaneously with the execution of this Agreement, Becker
shall execute and deliver a Subordination Agreement in favor of GECC and a
Subordination Agreement in favor of Webster Business Credit Corporation
("WBCC"). Becker acknowledges and agrees that contemporaneously with the
execution of this Agreement, Seller Note No. 3 shall be delivered to OMNI and
marked "Paid in Full" in exchange for OMNI's obligations set forth below. Becker
hereby irrevocably agrees that his 1/3 interest in Seller Note No. 3 is
irrevocably paid and satisfied in full in exchange for the obligations of OMNI
set forth below. In consideration of the delivery and surrender of the Seller
Note No. 3 and the execution of the subordination agreements referenced above,
OMNI agrees as follows:
(1) OMNI agrees to pay Becker the amount of $250,000 in cash by
wire transfer to the account designated by Becker within 90
days of closing the GECC Transaction;
(2) Within 10 business days of closing the GECC Transaction, OMNI
shall issue to Becker, 50,000 shares of its fully paid and
non-assessable, $.01 par value common shares ("Common
Shares").
B. Hargrave Contemporaneously with the execution of this Agreement,
Hargrave shall execute and deliver a Subordination Agreement in favor of GECC
and a Subordination Agreement in favor of Webster Business Credit Corporation
("WBCC"). For and in consideration of Omni's obligations set forth below,
Hargrave hereby transfers and assigns to Omni Properties Corp. all of his right,
title and interest (which he represents is a 1/3 interest) in and to Seller Note
No. 1 and Seller Note No. 2. Hargrave hereby irrevocably agrees that he accepts
the obligations of Omni set forth below as irrevocable payment in full for the
transfer to
Omni Properties Corp. of his 1/3 interest in Seller Note No. 1 and Seller Note
No. 2 and irrevocably releases and relinquishes unto Omni Properties Corp. all
his interests in Seller Note No. 1 and Seller Note No. 2. In consideration of
the transfer and assignment by Hargrave of his 1/3 interest in Seller Note No. 1
and Seller Note No. 2 to Omni Properties Corp., a wholly owned subsidiary of
OMNI, and Hargrave's execution and delivery of the subordination agreements
referenced above, OMNI agrees as follows:
(1) OMNI shall pay to Hargrave the amount of $250,000 in cash by
wire transfer to the account designated by Hargrave within 90
days of Closing the GECC Transaction;
(2) Within 10 business days of Closing the GECC Transaction, OMNI
shall issue to Hargrave, 50,000 shares of its Common Shares.
C. N. R. Broussard. Contemporaneously with the execution of this
Agreement, N.R. Broussard shall execute and deliver a Subordination Agreement in
favor of GECC and a Subordination Agreement in favor of Webster Business Credit
Corporation ("WBCC"). N. R. Broussard acknowledges and agrees that
contemporaneously with the execution of this Agreement, Seller Note No. 3 shall
be delivered to OMNI and marked "Paid in Full" in exchange for OMNI's
obligations set forth below. N.R. Broussard hereby irrevocably agrees that his
1/3 interest in Seller Note No. 3 is irrevocably paid and satisfied in full in
exchange for the obligations of OMNI set forth below. In consideration of the
delivery and surrender of the Seller Note No. 3 and the execution of the
subordination agreements referenced above, OMNI agrees as follows:
(1) OMNI shall pay to N. R. Broussard the amount of $250,000 in
cash by wire transfer to the account designated by N. R.
Broussard within 90 days of closing the GECC Transaction;
(2) Within 10 business days of closing GECC Transaction, OMNI
shall issue to N. R. Broussard, 50,000 shares of its Common
Shares.
D. Danny Broussard. Contemporaneously with the execution of this
Agreement, Danny Broussard shall execute and deliver a Subordination Agreement
in favor of GECC and a Subordination Agreement in favor of Webster Business
Credit Corporation ("WBCC"). Danny Broussard acknowledges and agrees that
contemporaneously with the execution of this Agreement, Seller Note No. 3 shall
be delivered to OMNI and marked "Paid in Full" in exchange for OMNI's
obligations set forth below. Danny Broussard hereby irrevocably agrees that his
1/3 interest in Seller Note No. 3 is irrevocably paid and satisfied in full in
exchange for the obligations of OMNI set forth below. In consideration of the
delivery and surrender of the Seller Note No. 3 and the execution of the
subordination agreements referenced above, OMNI agrees as follows:
(1) OMNI shall pay to Danny Broussard the amount of $250,000 in
cash by wire transfer to the account designated by Danny
Broussard within 90 days of closing the GECC Transaction;
(2) Within 10 business days of closing the GECC Transaction, OMNI
shall issue to Danny Broussard, 50,000 shares of its Common
Shares.
E. Securities Act Representations, Warranties and Understandings. Becker,
Hargrave, N. R. Broussard and Danny Broussard hereby make the following
representations and warranties to OMNI:
(1) Accredited Investor. Becker, Hargrave, N. R. Broussard and
Danny Broussard represent and warrant that they are each an
accredited investor as that term is defined in Rule 501 of
Regulation D, and are acquiring the Common Shares solely for
their own account as a principal and not with a present view
to the public resale or distribution of all or any part
thereof, except pursuant to sales that are exempt from the
registration requirement of the Securities Act and/or sales
registered under the Securities Act; provided, however that in
making such representation, neither agrees to hold the Common
Shares for any minimum or specific term and reserves the right
to sell, transfer or otherwise dispose of the Common Shares at
any time in accordance with Federal and state securities laws
applicable to such sale, transfer or disposition. Each has the
knowledge and experience in business and financial matters so
as to enable it to understand the risks of and form an
investment decision with respect to its investment in Common
Shares.
(2) Information. OMNI has made available to Becker, Hargrave, N.
R. Broussard and Danny Broussard and their advisors and
representatives, if any, information regarding the business,
operations and financial condition of OMNI, and has granted to
each the opportunity to ask questions of and receive answers
from representatives of OMNI, its officers, directors,
employees and agents concerning the Company. OMNI answered all
of the questions asked by each, their advisors and
representatives.
(3) Limitations on Disposition. Becker, Hargrave, N. R. Broussard
and Danny Broussard acknowledge that the Common Shares have
not been and are not currently being registered under the
Securities Act and may not be transferred or resold without
registration under the Securities Act or unless pursuant to an
exemption therefrom.
(4) Legend. Becker, Hargrave, N. R. Broussard and Danny Broussard
understand that the certificates representing the Common
Shares except as
set forth below, shall bear at issuance a restrictive legend
in substantially the following form:
"The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Securities Act"), or the securities laws
of any state, and may not be offered for sale, sold,
transferred or assigned unless a registration statement
under the Securities Act and applicable state securities
laws shall have become effective with regard thereto, or
an exemption from registration under the Securities Act
and applicable state securities laws is available in
connection with such offer or sale."
Notwithstanding the foregoing, it is agreed that, as long as
(A) the resale or transfer (including without limitation a
pledge) of any of the Common Shares is registered pursuant to
an effective registration statement, (B) such Common Shares
have been sold pursuant to Rule 144 under the Securities Act
or any successor provision ("Rule 144"), subject to receipt by
OMNI of customary documentation in connection therewith, or
(C) such Common Shares are eligible for resale under Rule
144(k) or any successor provision, such Common Shares shall be
issued without any legend or other restrictive language and,
with respect to Common Shares upon which such legend is
stamped, OMNI shall issue new certificates with such legend to
the holder upon request.
(5) Reliance on Exemptions. Becker, Hargrave, N. R. Broussard and
Danny Broussard understand that the Common Shares are being
offered and sold to it in reliance upon specific exemptions
from the registration requirements of United States federal
and state securities laws and that OMNI is relying upon the
truth and accuracy of the representations and warranties of
Becker, Hargrave, N. R. Broussard and Danny Broussard set
forth herein in order to determine the availability of such
exemptions and the eligibility of Becker, Hargrave, N. R.
Broussard and Danny Broussard to acquire the Common Shares.
(6) Non-Affiliate Status; Common Stock Ownership. Neither Becker,
Hargrave, N. R. Broussard and Danny Broussard is an Affiliate
of OMNI. Becker's, Hargrave's, N. R. Broussard's and Danny
Broussard's investment in the Common Shares is not for the
purpose of acquiring, directly or indirectly, control of, and
it has no intent to acquire or exercise control of, the
Company or to influence the decisions or policies of OMNI's
Board of Directors.
F. Registration Rights. In addition, and in connection with the issuance
of the Common Shares described above, OMNI warrants and represents that if for
any reason, OMNI causes a registration statement to be filed with the intention
of satisfying the requirements of the Securities and Exchange Act of 1933 for
the purpose of authorizing the issuance of any additional Common Shares of OMNI,
irrespective of the primary purpose of said issuance of additional Common
Shares, OMNI shall include in said registration statement the 50,000 Common
Shares issued to Becker, the 50,000 Common Shares issued to Hargrave the 50,000
Common Shares issued to N. R. Broussard and the 50,000 Common Shares issued to
Danny Broussard without having Becker, Hargrave, N. R. Broussard and Danny
Broussard incur any costs whatsoever. Notice of filing the registration
statement shall be provided within 7 days of such filing.
G. Rule 144. Should any party need a Rule 144 Opinion of Counsel letter to
sale or transfer all or any portion of their respective Common Shares, OMNI will
engage securities counsel at its sole cost and expense to render and deliver the
opinion. In addition, OMNI will help facilitate any such transfer or sale by
engaging brokers, to handle the transfer at OMNI's discount brokerage rate, but
such fee is to be paid by the selling party, not OMNI.
H. Agreement Not to Sue. OMNI agrees to not bring any action against or
otherwise pursue Becker, Hargrave, N. R. Broussard or Danny Broussard for any
breaches under the Agreements. OMNI reserves its rights to sue or otherwise
pursue any and all other parties to the Agreements for breaches thereof. OMNI
agrees to defend, indemnify and hold harmless Becker, Hargrave, N.R. Broussard
and Danny Broussard from and against any action that Edward Laborde and/or Karl
Comeaux might bring against one or more of them under or with respect to the
Agreements.
I. Confidentiality. The parties hereto agree to keep the terms and
provisions of this Agreement confidential, except that the provisions hereof and
a copy of this Agreement may be provided to GECC, WBCC and their respective
counsel.
J. Miscellaneous. This Agreement shall be binding upon the heirs, estates,
representatives, successors, and assigns of the parties hereto. This Agreement
shall constitute the entire agreement of the parties hereto relating to the
subject matter hereof. It does not however, affect matters provided for in the
original Agreements that are unaffected by this Agreement. No provision of this
Agreement shall be amended, modified, or waived except as agreed in writing by
the parties hereto. This Agreement shall be construed and enforced in accordance
with the laws of the State of Louisiana. In the event any of the sections,
paragraphs, provisions, sub-paragraphs, or portions thereof of this Agreement
are held to be unenforceable and invalid by any Court of competent jurisdiction,
the validity and enforceability of the remaining sections, paragraphs,
provisions, sub-paragraphs, or portions thereof shall not be affected thereby,
and each term and provision of the Agreement shall be valid and enforceable to
the fullest extent permitted by law. This Agreement is the product of mutual
negotiations between Becker, Hargrave, N. R. Broussard, Danny Broussard, OMNI,
Trussco and Trussco Properties. Becker, Hargrave, N. R, Broussard and Danny
Broussard have obtained the advice of counsel prior to
entering into this Agreement. This Agreement has been negotiated and drafted by
all parties, and if any disagreement shall arise as to the construction or
meaning of this Agreement, the parties hereto agree that the rule of contract
interpretation that documents may be construed against the drafter shall have no
application to this Agreement.
K. Prevails Party Attorney Fees. If any party has to resort to legal
action in order to enforce any provision of this Agreement, said party, if that
party prevails, is entitled to reasonable attorney's fees to be set by the
court.
L. Representations and Warranties. Hargrave hereby represents that prior
to the assignment set forth above, he had a 1/3 interest in each of Seller Note
No.1 and Seller Note No. 2 and had not otherwise sold, assigned, encumbered or
pledged any of his interest in such notes to any person or entity. Hargrave
further represents and warrants that he had full right, power and authority to
transfer and assign such interest to Omni Properties Corp. free and clear of all
liens, security interests and encumbrances. Each of Becker, N. R. Broussard and
Danny Broussard represent that he has not sold, assigned, encumbered or pledged
any or all of his interest in Seller Note No. 3. Becker, N. R. Broussard and
Danny Broussard hereby collectively represent and that they have full right,
power and authority to surrender Seller Note No. 3 and accept the obligations of
OMNI set forth herein in full satisfaction of Seller Note No. 3 and further
authorize and direct any attorney holding Seller Note No. 3 on their behalf to
deliver such note to OMNI contemporaneously with the execution of this
Agreement.
M. Further Assurances. At any time and from time to time, upon the written
request of OMNI, each of Becker, Hargrave, N.R. Broussard and Danny Broussard
agrees that he will promptly and duly execute and deliver any and all such
further instruments and documents and take such further actions as OMNI may deem
desirable to accomplish the surrender, release and satisfaction of Seller Note
No. 3 and the transfer and assignment of Hargrave's 1/3 interest in Seller Note
No. 1 and Seller Note No. 2.
TRUSSCO, INC.
May 18, 2005 BY: /s/ James C. Eckert
-------------------------------------
Name: James C. Eckert
Title: Chief Executive Officer
TRUSSCO PROPERTIES, LLC
May 18, 2005 BY: /s/ James C. Eckert
-------------------------------------
Name: James C. Eckert
Title: Chief Executive Officer
OMNI ENERGY SERVICES CORP.
May 18, 2005 BY: /s/ James C. Eckert
-----------------------------------------
Name: James C. Eckert
Title: Chief Executive Officer
OMNI PROPERTIES CORP.
May 18, 2005 BY: /s/ James C. Eckert
-----------------------------------------
Name: James C. Eckert
Title: Chief Executive Officer
May 18, 2005 /s/ Larry Becker
-----------------------------------------
Larry Becker
May 18, 2005 /s/ Jacqueline Guilbeau Becker
-----------------------------------------
Jacqueline Guilbeau Becker
May 18, 2005 /s/ Craig Hargrave
-----------------------------------------
Craig Hargrave
May 18, 2005 /s/ Michele Broussard Hargrave
-----------------------------------------
Michele Broussard Hargrave
May 18, 2005 /s/ N. R. Broussard
-----------------------------------------
N. R. Broussard
May 18, 2005 /s/ Toni Faulk Broussard
-----------------------------------------
Toni Faulk Broussard
May 18, 2005 /s/ Danny P. Broussard
-----------------------------------------
Danny P. Broussard
May 18, 2005 /s/ Katherine Broussard
-----------------------------------------
Katherine Broussard