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EXHIBIT 10.5.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is entered
into as of the 31st day of December, 1996, between SEITEL GEOPHYSICAL, INC.
("Assignor") a Delaware corporation, with its principal place of business at 00
Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000 and EAGLE GEOPHYSICAL,
INC. ("Assignee"), a Delaware corporation, with its principal place of business
at 00 Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000.
WITNESSETH:
WHEREAS, Assignor, as Debtor, entered into a certain Loan and Security
Agreement dated February 22, 1996 and Supplemental Security Agreement No. One,
thereto dated February 22, 1996 (the "LSA") with MetLife Capital Corporation, a
Delaware corporation ("MetLife"), as secured party/payee, whereby Assignor
granted to MetLife a security interest in certain collateral more specifically
described in the Supplemental Security Agreement No. One (the "Collateral")
attached hereto as part of Exhibit "A"; and
WHEREAS, pursuant to such LSA, MetLife made a loan to Assignor and
Assignor executed a certain Term Promissory Note dated March 14, 1996 in the
original principal amount of $433,000.00 ("Note") payable to MetLife to
evidence its obligation to MetLife and to set forth the terms of repayment.
The LSA and the Note are sometimes collectively referred to herein as the
"Loan." (Copies of the Loan and Security Agreement, Supplemental Security
Agreement No. One and the Note are attached hereto and made a part hereof as
EXHIBIT "A"); and
WHEREAS, Assignor has assigned or now wishes to assign to Assignee all
of Assignor's right, title and interest in and to the Collateral; and
WHEREAS, Assignor desires to assign its rights and obligations under
the Loan to Assignee, and Assignee desires to accept such assignment and to
assume Assignor's obligations under the Loan; and
WHEREAS, the Loan provides that MetLife's prior consent is required
for the effectiveness and enforceability of any such assignment and assumption;
and
WHEREAS, MetLife is willing to give such consent provided that the
parties enter into the covenants and make the representations and warranties
set forth in this Agreement;
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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1. Defined Terms. Terms used in this Agreement are, unless
otherwise defined herein, used as defined in the Loan.
2. Assignment and Assumption. Assignor hereby sells, assigns,
transfers and sets over unto Assignee and unto Assignee's successors and
assigns, all right, title, interest and obligations of Assignor under, in and
to the Collateral and the Loan. Assignee hereby accepts such assignment, and
hereby assumes, and covenants with Assignor and MetLife to perform fully, all
the duties of the Assignor under the Loan. It is expressly understood and
agreed that Assignee assumes all such obligations notwithstanding the fact that
some of such obligations may have accrued prior to the date hereof.
3. Security Interest. Assignee acknowledges and agrees that it
acquires the Collateral subject to MetLife's prior security interest. As
security for the obligations referred to in this Agreement, including but not
limited to the Notes, now existing or hereafter arising, Assignee hereby
conveys, warrants, mortgages, assigns, pledges and grants to MetLife, its
successors and assigns, a security interest in all of Assignee's right, title
and interest in and to the properties, rights, interests, and privileges in the
Collateral.
4. Representations and Warranties of Assignor and Assignee.
Assignor and Assignee represent and warrant individually and respectively, as
applicable, to MetLife as follows:
a. The Assignee is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware and has the power and authority to enter into and perform its
obligations under this Agreement;
b. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the part
of the Assignee and the Assignor, does not require any stockholder
approval, or approval or consent of any general or limited partner,
trustee or holders of any indebtedness or obligations of the Assignee
or Assignor except such as have been duly obtained and does not and
will not contravene any law, judgment, governmental rule, regulation
or order applicable to or binding on the Assignee or Assignor or any
of their subsidiaries or the certificates of incorporation or bylaws
of the Assignee or Assignor or any of their subsidiaries or contravene
the provisions of, or constitute a default under, or result in the
creation of any lien (other than as permitted under the Loan) upon the
property of the Assignee or Assignor under any indenture, mortgage,
chattel mortgage, deed of trust, conditional sales contract, bank loan
or agreement or instrument, or other contract or agreement to which
the Assignee or Assignor or any of their subsidiaries
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are a party or by which they or any of their subsidiaries may be bound
or affected;
c. This Agreement constitutes the legal, valid and
binding obligation of Assignee and Assignor enforceable against said
parties in accordance with its terms;
d. Except for the filings and recordings consummated at
the time of execution of the Loan and except for the filing and
recording of this Agreement, no further action, including any filing
or recording of any document, is necessary or advisable in order to
establish and protect MetLife's interest in the Collateral as against
the Assignee, the Assignor, and any third parties in any applicable
jurisdictions in the United States.
5. Assignor's Continuing Obligation and Guaranty. Assignor
covenants with MetLife that notwithstanding its assignment of the Loan to the
Assignee, Assignor will duly and punctually perform and observe each and every
obligation, covenant, representation, warranty and agreement to be performed
and observed by the Debtor under the provisions of the Loan, notwithstanding
the fact that Assignee is similarly obligated by the terms of this Agreement to
perform or observe those obligations, covenants, representations or warranties
of Debtor arising pursuant to the terms of the Loan; provided, however, that
Assignor shall have no obligation hereunder to make any payment to MetLife
required by any Loan provision to the extent that Assignee has satisfied the
obligations of the Debtor arising pursuant to such Loan provision. Except as
expressly set forth in the preceding sentence, Assignor is not released in any
respect from its obligations to MetLife arising under the Loan or related
documents. The Assignor hereby acknowledges and consents that MetLife may
agree with the Assignee to extend the time for making payments for any or all
of the amounts due or to become due under the Loan and documents executed in
conjunction therewith or that the Loan and documents in conjunction therewith
may be changed in any manner at the option of said Assignee and without
Assignor's consent and that Assignor's obligation to perform in accordance with
this Paragraph 5 shall extend to such agreements as changed in the same manner
as if such changes had been part of the agreements as originally executed and
delivered.
Assignor hereby absolutely and unconditionally guarantees to MetLife
the full and timely performance by Assignee of all obligations whatsoever which
the Assignee has incurred or is under or which the Assignee may at any time
incur or be under to MetLife pursuant to or in connection with any of the
transactions contemplated by the Loan and this Agreement; including but not
limited to all obligations of the Assignee for the payment of money whether by
reason of covenant, indemnity, breach of warranty or otherwise. MetLife shall
not be bound to exhaust its recourse nor
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to take any other action against the Assignee or other parties or on any
Collateral it may hold before being entitled to payment by Assignor of all
amounts hereby guaranteed. Assignor specifically agrees that it shall not be
necessary or required in order to enforce the obligations of the Assignor
hereunder that there be, and specifically waives: notice of performance or
nonperformance of the Loan; demand of payment from the Assignee; presentment
for payment upon Assignee or the making of any protest; notice of the amount of
guaranteed obligations outstanding at any time; notice of nonpayment or failure
to perform on the part of the Assignee; and any other circumstances which might
otherwise constitute a legal or equitable defense or discharge of a guarantor.
6. Financial Data. During the term of this Agreement, Assignee
will furnish to MetLife and will cause any guarantor of Assignee's obligations
to furnish to MetLife on request (i) annual balance sheet and profit and loss
statements prepared in accordance with generally accepted accounting principles
and practices consistently applied and, if MetLife so requires, accompanied by
the annual audit report of an independent certified public accountant
reasonably acceptable to MetLife, and (ii) all other financial information and
reports that MetLife may from time to time reasonably request, including, if
MetLife so requires, income tax returns of Assignee and any guarantor of
Assignee's obligations hereunder.
Assignee shall, from time to time, furnish all such information as
MetLife may reasonably request concerning Assignee and its affairs and shall
execute and deliver such documents and perform all such other acts that MetLife
may reasonably request in order to carry out any transactions contemplated by
this Agreement.
7. Miscellaneous.
a. The representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement or
any other agreements or documents executed in connection herewith, and
the performance of this Agreement.
b. This Agreement shall be binding upon, and inure to
the benefit of the parties hereto and their respective successors and
assigns.
c. Neither Assignor nor Assignee may assign or transfer
any rights under this Agreement without MetLife's prior written
consent.
d. This Agreement shall be governed by and construed
according to the laws of the State of Washington.
e. This Agreement shall not be altered or amended except
by an agreement in writing signed by the parties hereto
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or their successors or assigns, and may not be altered or amended
without the express written consent of MetLife.
f. This Agreement constitutes the entire agreement
between the parties relating to the assignment from Assignor to
Assignee of the Assignor's rights and obligations under the Loan or in
the Collateral, superseding all prior agreements between the parties.
8. Counterparts.
This Agreement may be signed in any number of counterparts required
for the convenience of the parties, all of which when taken together shall form
one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ASSIGNOR: ASSIGNEE:
SEITEL GEOPHYSICAL, INC. EAGLE GEOPHYSICAL, INC.
By: Xxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxxxx
Its: President Its: President
By: /s/ [illegible signature] By: /s/ [illegible signature]
Its: Assistant Secretary Its: Assistant Secretary
CONSENT OF METLIFE
On the terms and conditions set forth above, MetLife Capital Corporation hereby
consents to the assignment by SEITEL GEOPHYSICAL, Inc. of its rights and
obligations under the Loan described above to EAGLE GEOPHYSICAL, INC. dated
this 30th day of December, 1996.
METLIFE CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxxxx
Its: Vice President
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Exhibit "A"
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT entered into as of the 22nd day of February,
1996 by and between MetLife Capital Corporation, a Delaware corporation, whose
address is 00000 XX 0xx, Xxxxx #000, Xxxxxxxx, XX 00000 ("Lender") and Seitel
Geophysical, Inc., a Delaware corporation whose address is 50 Briar Hollow
Lane, West Building, 7th Floor, Houston, TX 77027 ("Borrower").
WHEREAS, Lender has agreed to make a commercial loan or loans to
Borrower; and
WHEREAS, as a condition to making the loans, and in order to secure
the repayment thereof, Lender has required Borrower to execute and deliver to
Lender this Loan and Security Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Borrower and Lender agree as
follows:
1. Creation of Security Interest. As security for the due and
punctual payment of any and all of the present and future obligations of the
Borrower to Lender, whether direct or contingent or joint or several, Borrower
hereby conveys, assigns and grants to Lender a continuing security interest in
all of Borrower's rights, title and interests in and to the equipment described
in the Supplemental Security Agreement(s) entered into pursuant to this Loan
and Security Agreement from time to time ("Equipment") including all present
and future additions, attachments and accessories thereto, all substitutions
therefor and replacements thereof and all proceeds thereof, including all
proceeds of insurance (such Equipment and property hereinafter called
"Collateral").
2. The Loans. (a) Subject to the terms and conditions of this
Loan and Security Agreement, Lender agrees to make a loan or loans to Borrower.
The maximum principal amount of any loan or loans to be made by Lender to
Borrower shall be within Lender's discretion, subject to the exercise of
Lender's reasonable business judgment, and shall be as stated in the loan
commitment letter issued by Lender to Borrower, or in the event a commitment
letter is not issued by Lender, in Lender's internal credit approval (each such
loan or loans shall be referred to as "the Loan Amount").
(b) The Loan Amount shall be repaid by Borrower as a term
loan or term loans ("Term Loan"). The Term Loan shall
be evidenced by a promissory note or notes in the
form attached hereto as Exhibit "A" ("Term Note").
The payment provisions of each Term Note shall be
stated therein.
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(c) If requested by Borrower, and in accordance with the
terms and conditions of Section 3 hereof, Lender
shall make interim fundings to Borrower of a Term
Loan as partial advances of the Loan Amount ("Interim
Loans"). The Interim Loans shall either be for the
payment of the acquisition cost of any items of
Equipment delivered and accepted by Borrower prior to
the expiration date of Lender's loan commitment to
Borrower ("Commitment Expiration Date") or to fund
progress payments to the vendor or manufacturer of
the Equipment, if the making of progress payments was
agreed to by Lender in its commitment or approval to
make the loan or loans to Borrower. The Interim
Loans shall be evidenced by promissory notes in the
form attached hereto as Exhibit "B" ("Interim Note").
Interest on all Interim Loans shall be payable as
provided therein. The principal amount due under the
Interim Loans shall be due as provided in the Interim
Notes, at which time, provided no Event of Default
hereunder has occurred and is continuing or event
which with the passing of time or giving of notice or
both would become an Event of Default hereunder has
occurred and is continuing, Lender shall consolidate
all Interim Loans and convert them to a Term Loan
evidenced by a Term Note or Notes. Whether or not a
Term Loan is evidenced by one or more Term Notes
shall be as agreed between Lender and Borrower, or in
the absence of such an agreement, as decided by
Lender, in the exercise of its reasonable business
judgment.
(d) In the event that the amount loaned pursuant to the
Interim Loans is less than the Loan Amount, subject
to Borrower's compliance with the terms and
conditions of this Loan and Security Agreement
(including the satisfaction of the conditions of
borrowing set forth in Section 7 of this Loan and
Security Agreement, including but not limited to
providing Lender with a description of the items of
Equipment), Lender shall disburse to Borrower the
balance of the Loan Amount on the same date that the
Interim Loans are convened into a term loan.
3. Method For Borrowing On Interim Loan. Borrower shall give
Lender at least five (5) business days written notice of a request for the
disbursement of an Interim Loan ("Request"), specifying the date on which the
Interim Loan is to be disbursed. Such Request shall be in the form attached
hereto as Exhibit "C". Such Request shall be accompanied by an original copy of
the invoice or invoices to be paid from the Interim Loan. Such Request shall
constitute a representation and warranty by the Borrower that
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(i) as of the date of the Request no Event of Default or event which with the
passing of time or the giving of notice or both would constitute an Event of
Default hereunder has occurred and is continuing and (ii) in the event items of
Equipment have been delivered to the Borrower, Borrower has unconditionally
accepted the Equipment from the vendor thereof. Subject to the conditions of
this Loan and Security Agreement, Lender shall disburse the Interim Loan to the
invoicing party, or if Borrower shall have paid the amount of such invoice,
Lender shall reimburse Borrower, upon receipt of proof of payment from
Borrower.
4. Cross Collateral/Cross Default. All Collateral shall secure
the payment and performance of all of Borrower's liabilities and obligations to
Lender hereunder and under any of the loan documents relating hereto including,
but not limited to, all Interim Notes and all Term Notes (the Loan and Security
Agreement, the interim Notes, the Term Notes, the Supplemental Security
Agreement(s) and all other loan documents may be referred to herein
collectively as the "Loan Documents"). Lender's security interest in the
Collateral shall not be terminated until and unless all of Borrower's
obligations to Lender under any of the Loan Documents are fully paid and
performed. The occurrence of an event of default under any other of the Loan
Documents shall be deemed to be an Event of Default hereunder and an Event of
Default hereunder shall be deemed to be an event of default under any other of
the Loan Documents.
5. Representations And Warranties. Borrower hereby represents
and warrants as follows:
(a) Power and Authorization. Borrower has the full power
and (corporate) authority to execute, deliver and
perform Borrower's obligations under the Loan
Documents. The execution and delivery of the Loan
Documents have been authorized by all requisite
corporate (or partnership) action on the part of
Borrower. The execution, delivery and performance of
the Loan Documents have not constituted and will not
constitute a breach, default, or violation of or
under Borrower's articles of incorporation, by-laws
(partnership agreement), or any other agreement,
indenture, contract, lease, law, order, decree,
judgment, or injunction to which Borrower is a party
or may be bound and have not resulted and will not
result in the creation of any lien upon the Equipment
pursuant to any agreement, indenture, lease, contract
or other instrument to which Borrower is a party,
except the lien created by this Loan and Security
Agreement.
(b) Existence. If Borrower is a corporation, Borrower
(i) is duly incorporated, validly existing and in
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good standing under the laws of its state of
incorporation, (ii) has all corporate powers and all
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted, and (iii) is duly qualified to transact
business as a foreign corporation in each
jurisdiction where the Equipment will be located and
in the jurisdiction where its principal place of
business is located. If Borrower is a partnership,
Borrower (i) has been duly formed as a (limited or
general) partnership under the laws of the state of
its organization, (ii) is comprised of the general
partner(s) listed on the Schedule of Partners
attached to this Loan and Security Agreement, and
(iii) is in good standing under the laws of the state
of its formation.
(c) Binding Effect. This Loan and Security Agreement
constitutes the valid and binding agreement of the
Borrower; the Interim Notes and the Term Note, when
executed and delivered, will constitute the valid and
binding obligations of the Borrower; and the Loan
Documents are enforceable in accordance with their
terms except as (i) the enforceability thereof may be
limited by the bankruptcy laws, and (ii) rights of
acceleration and the availability of equitable
remedies may be limited by equitable principles of
general applicability.
(d) Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Borrower,
threatened against or affecting the Borrower, before
any court or arbitrator or any governmental body,
agency or official which has not been previously
disclosed to the Lender in writing and in which there
is a reasonable possibility of an adverse decision
which could materially adversely affect the business,
financial condition or results of operations of the
Borrower or which would in any manner draw into
question the validity of any of the Loan Documents.
(e) Filing of Tax Returns. The Borrower has filed all
tax returns required to have been filed and has paid
all taxes shown to be due and payable on such
returns, including interest and penalties, and all
other taxes which are payable by it, to the extent
the same have become due and payable. The Borrower
knows of no proposed tax assessment against it and
all tax liabilities of the Borrower are adequately
provided for.
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(f) Title. The Borrower has or shall have at the time it
executes the Term Note good and indefeasible title to
the Collateral free and clear of all liens other than
the Lender's lien.
(g) Compliance with Law. The business and operations of
the Borrower have been and are being conducted in
accordance with all applicable laws, rules and
regulations, other than violations which could not
(either individually or collectively) have a material
adverse effect on the financial condition or
operations of the Borrower.
(h) Full Disclosure. All documents, records,
instruments, certificates, statements (including, but
not by way of limitation, financial statements of
Borrower) and information provided to Lender by
Borrower in connection with this Loan and Security
Agreement are true and accurate in all material
respects and do not contain any untrue statement, or
fail to contain any statement of a material fact
necessary to make the statements contained herein or
therein not misleading. There is no fact known to
the Borrower that Borrower has not disclosed in
writing which could materially and adversely affect
the financial condition or operations of Borrower.
(i) Security Interest. The security interest granted to
Lender hereunder is a valid, first priority security
interest in the Collateral and has been or promptly
after the execution of the Supplemental Security
Agreement describing the Collateral will be,
perfected in accordance with the requirements of all
states in which any item of the Collateral is
located.
(j) Personal Property. Under the laws of the state(s) in
which the Collateral is to be located, the Collateral
is deemed to consist solely of personal property.
(k) Pollution and Environmental Control. Borrower has
obtained all permits, licenses and other
authorizations which are required under, and is in
material compliance with, all federal, state, and
local laws and regulations relating to pollution,
reclamation, or protection of the environment,
including laws relating to emissions, discharges,
releases or threatened releases of pollutants,
contaminants, or hazardous or toxic materials or
wastes into air, water, or land, or otherwise
relating to the manufacture, processing,
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distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or
hazardous or toxic materials or wastes. Borrower
shall maintain all such permits, licenses, and
authorizations current.
6. Covenants. Borrower hereby agrees and covenants as follows:
(a) Payment. Borrower shall pay the indebtedness secured
hereby as provided herein and in the Interim Notes
and Term Notes.
(b) Location of Collateral. Borrower will keep the
Collateral located at the location or locations
stated on the Supplemental Security Agreements,
provided, however, that Borrower may change the
location of the collateral with Lender's prior
written consent.
(c) No Liens. Except for the security interest granted
hereby or under any other agreement under which
Lender is the secured party, whether as mortgagee,
beneficiary or otherwise, Borrower shall keep the
Collateral free and clear of any security interest,
lien or encumbrance of any kind and Borrower shall
not sell, assign (by operation of law or otherwise)
exchange or otherwise dispose of any of the
Collateral.
(d) Insurance. Borrower shall procure and continuously
maintain and pay for (a) all risk physical damage and
property insurance covering loss or damage to the
equipment for not less than the full replacement
value thereof naming Lender as loss payee and (b)
bodily injury and property damage combined single
limit liability insurance, all in such amounts and
against such risks and hazards as are reasonably
required by Lender, with insurance companies and
pursuant to contracts or policies held with
deductibles satisfactory to Lender. All contracts
and policies shall include provisions for the
protection of Lender notwithstanding any act or
neglect of or breach or default by Borrower, shall
provide for payment of insurance proceeds to Lender
shall provide that they may not be modified,
terminated or cancelled unless Lender is given at
least thirty (30) days' advance written notice
thereof, and shall provide that the coverage is
"primary coverage" for the protection of Borrower or
Lender notwithstanding any other coverage carried by
Lender protecting against similar risks.
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Borrower shall promptly notify any appropriate
insurer and Lender of each and every occurrence,
which may become the basis of a claim or cause of
action against the insured and provide Lender with
ail data pertinent to such occurrence. Borrower
shall furnish Lender with certificates of such
insurance or copies of policies upon request and
shall furnish Lender with renewal certificates not
less than thirty (30) days prior to the renewal date.
Proceeds of all insurance are payable first to Lender
to the extent of its interest.
(e) Financing Statements. At the request of Lender,
Borrower will join Lender in executing one or more
financing statements pursuant to the Uniform
Commercial Code and other documents deemed necessary
by Lender under applicable law to record or perfect
its security interest in the Collateral, including
continuation statements, in form satisfactory to
Lender and will pay the cost of filing the same in
all public offices wherever filing is deemed by
Lender to be necessary or desirable. Borrower hereby
authorizes Lender, in such jurisdictions where such
action is authorized by law, to effect any such
recordation or filing of financing statements or
other documents without Borrower's signature thereto.
(f) Change of Name or Address. Borrower will immediately
notify Lender in writing of any change in its place
of business or the adoption or change of any
tradename or fictitious business name, and will upon
request of Lender, execute any additional financing
statements or other similar documents necessary to
perfect or maintain its security interest.
(g) Use of Equipment, Maintenance. Borrower will cause
the Equipment to be used in a careful and proper
manner, will comply with and conform to all
governmental laws, rules and regulations relating
thereto, and will cause the Equipment to be operated
in accordance with the manufacturer's or supplier's
instructions or manuals and only by competent and
duly qualified personnel. Borrower will cause the
Equipment to be kept and maintained in good repair,
condition and working order and will furnish all
pans, replacements, mechanisms, devices and servicing
required therefor so that the value, condition and
operating efficiency thereof will at all times be
maintained and preserved, normal wear and tear
excepted. All such repairs,
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pans, mechanisms, devices and replacements shall
immediately, without further act, become part of the
Equipment and subject to the security interest
created by this Loan and Security Agreement.
Borrower will not make any improvement, change,
addition or alteration to the Equipment if such
improvement, change, addition or alteration will
impair the originally intended function or use of the
Equipment or impair the value of the Equipment as it
existed immediately prior to such improvement,
change, addition or alteration. Any part added to
the Equipment in connection with any improvement,
change, addition or alteration shall immediately,
without further act, become part of the Equipment and
subject to the security interest created by this Loan
and Security Agreement.
(h) Inspection. Lender may at any reasonable time or
times inspect the Equipment and may at any reasonable
time or times inspect the books and records of
Borrower.
(i) Taxes. Borrower shall promptly pay, when due, all
charges, fees, assessments and taxes (excluding all
taxes measured by Lender's income) which may now or
hereafter be imposed upon the ownership, leasing,
possession, sale or use of the Collateral.
(j) Performance by Lender. If Borrower fails to perform
any agreement or obligation contained herein, Lender
may itself perform, or cause the performance of such
agreement or obligation. Borrower will pay, or
reimburse Lender, on demand, for any and all fees,
including attorneys' fees, costs and expenses of
whatever kind or nature incurred by Lender in
connection with (i) the creation, preservation and
protection of Lender's security interest in the
Collateral, including, without limitation, all fees
and taxes in connection with the recording or filing
of instruments and documents in public offices, (ii)
payments or discharge of any taxes or liens upon or
in respect of the Collateral, (iii) premiums for
insurance with respect to the Equipment and (iv) this
Loan and Security Agreement and with protecting,
maintaining or preserving the Collateral and Lender's
interests therein, whether through judicial
proceedings or otherwise, or in connection with
defending or prosecuting any actions, suits or
proceedings arising out of or related to the Loan and
Security Agreement and the Loan Documents or in
connection with any debt
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restructuring, loan workout negotiations or
bankruptcy or insolvency case or proceedings. All
such amounts shall constitute obligations of Borrower
secured by the Collateral. In the event that
Borrower fails to perform any of its agreements
contained herein, Borrower will, on demand, reimburse
Lender for all such expenditures, together with
interest thereon from the date of such expenditure
until fully reimbursed at the rate of two percent
(2%) per month on the outstanding balance of such
expenditures or the highest rate permitted by law,
whichever is less.
(k) Power of Attorney. Borrower hereby irrevocably
appoints Lender Borrower's attorney-in-fact, with
full authority in the place and stead of Borrower and
in the name of Borrower or otherwise, from time to
time in the Lender's discretion, to take any action
and to execute any instrument which Lender may deem
necessary or advisable to accomplish the purposes of
this Loan and Security Agreement, including, without
limitation: (i) to obtain, compromise and adjust
insurance required to be paid to Lender; (ii) to ask,
demand, collect, xxx for, recover, receive, and give
acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(iii) to receive, endorse, and collect any drafts or
other instruments, documents, and chattel paper in
connection with clause (i) or (ii) above; and (iv) to
file any claims or take any action or institute any
proceedings which Lender may deem necessary or
desirable for the collection of any of the Collateral
or otherwise to enforce the rights of Lender with
respect to any of the Collateral.
(l) No Duties. The powers conferred on Lender hereunder
are solely to protect its interest in the Collateral
and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any
Collateral in its possession and the accounting for
moneys actually received by it hereunder, Lender
shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining
to any Collateral.
(m) Financial Data. Borrower will furnish to Lender and
will cause any guarantor of Borrower's obligations to
furnish to Lender on request (i) annual balance sheet
and profit and loss statements prepared in accordance
with generally accepted
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15
accounting principles and practices consistently
applied and, if Lender so requires, accompanied by
the annual audit report of an independent certified
public accountant reasonably acceptable to Lender,
and (ii) all other financial information and reports
that Lender may from time to time reasonably request,
including, if Lender so requires, income tax returns
of Borrower and any guarantor of Borrower's
obligations hereunder.
7. Conditions of Borrowing. Lender shall not be obligated to
make any loan hereunder unless:
(a) The Interim Notes or Term Notes evidencing such loan
shall have been duly executed and delivered to
Lender;
(b) Borrower shall have executed and delivered to Lender
the Supplemental Security Agreement describing the
Collateral and stating, except with respect to
progress payment fundings, the location thereof;
(c) Except with respect to progress payment fundings,
Lender shall have received evidence (as described in
Section 6d hereof) that insurance has been obtained
in accordance with the provisions of this Loan and
Security Agreement;
(d) Lender shall have received any and all third party
consents, waivers or releases deemed necessary or
desirable by it in connection with the loan and the
Collateral being financed, including, without
limitation, Uniform Commercial Code lien releases and
the consent and waiver, in form and substance
satisfactory to Lender, of each and every realty
owner, landlord and mortgagee holding an interest in
or encumbrance on the real property where any of the
Collateral is to be located;
(e) All filings, recordings and other actions deemed
necessary or desirable by Lender in order to
establish, protect, preserve and perfect its security
interest in the Collateral being financed by such
loan as a valid perfected first priority security
interest shall have been duly effected, including,
without limitation, the filing of financing
statements and the recordation of landlord (owners)
and/or mortgagee waivers or disclaimers, all in form
and substance satisfactory to Lender, and all fees,
taxes and other charges
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16
relating to such filings and recordings shall have
been paid by Borrower;
(f) The representations and warranties contained in this
Loan and Security Agreement shall be true and correct
in all respects on and as of the date of the making
of any loan hereunder with the same effect as if made
on and as of such date;
(g) In the sole judgment of Lender, there shall have been
no material adverse change in the financial
condition, business or operations of Borrower from
the earliest date of any financial statement, credit
report, business report or similar document submitted
to Lender for its review;
(h) All Loan Documents shall be satisfactory to Lender's
attorneys; and
(i) Lender shall have received, in form and substance
satisfactory to Lender, such other documents as
Lender shall require including, but not limited to a
Request, proof of payment, vendor invoices and
certificates of authority and incumbency.
8. Default. The occurrence of any of the following events,
following the giving of any required notice and/or the expiration of any
applicable period of grace, shall constitute an event of default ("Event of
Default") hereunder:
(a) Borrower's default in payment of any installment of
the principal of or interest on any Interim Note or
Term Note when and after the same shall become due
and payable, whether at the due date thereof or by
acceleration or otherwise, which default shall
continue unremedied for ten (10) days; or
(b) The failure by Borrower to make payment of any other
amount payable hereunder or under any Interim Note or
Term Note, and the continuance of such failure for
more than ten (10) days after written notice thereof
by Lender to Borrower; or
(c) The failure by Borrower to perform or observe any
covenant, condition, obligation or agreement to be
performed or observed by it hereunder, which failure
shall continue unremedied for thirty (30) days after
written notice thereof by Lender to Borrower; or
(d) The occurrence of a default described in Section 4
hereof; or
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17
(e) Any warranty, representation or statement made or
furnished with respect to the Borrower or the
Collateral to Lender by or on behalf of Borrower, in
connection with this Loan and Security Agreement, or
the indebtedness secured hereby, shall prove to have
been false in any adverse, material respect when made
or furnished; or
(f) Borrower shall become insolvent or bankrupt or make
an assignment for the benefit of creditors or consent
to the appointment of a trustee or receiver; or a
trustee or a receiver shall be appointed for Borrower
or for a substantial pan of its property without its
consent and shall not be dismissed for a period of
sixty (60) days; or bankruptcy, reorganization,
liquidation, insolvency or dissolution proceedings
shall be instituted by or against Borrower and, if
instituted against Borrower, shall be consented to or
be pending and not dismissed for a period of sixty
(60) days; or any execution or writ of process shall
be issued under any action or proceeding against
Borrower in such capacity whereby any of the
Collateral may be taken or restrained; Borrower shall
cease doing business as a going concern; or, without
the prior written consent of Lender, Borrower shall
sell, transfer or dispose of all or substantially all
of its assets or property; or
(g) The liquidation, merger, consolidation,
reorganization, conversion to an "S" status or
dissolution, if Borrower is a corporation or
partnership, of Borrower, if in Lender's reasonable
opinion, such act shall materially and adversely
affect Borrower's ability to perform under any of the
Loan Documents; or
(h) Any item of Collateral is seized or levied on under
legal or governmental process or for any reason
Lender deems itself insecure. Lender shall be
entitled to deem itself insecure when some event
occurs, fails to occur or is threatened or some
objective condition exists or is threatened which
significantly impairs the prospects that any of
Borrower's obligations to Lender will be paid when
due, which significantly impairs the value of the
Collateral to Lender or which significantly affects
the financial or business condition of Borrower.
The occurrence of an Event of Default shall
terminate any commitment or obligation by Lender to
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18
make any of the loans contemplated by this Loan and
Security Agreement.
9. Remedies Upon Default. Upon the occurrence of an Event of
Default hereunder, Lender may, at its option, do any one or more of the
following:
(a) Declare all obligations of Borrower to Lender to be
immediately due and payable, whereupon all unpaid
principal of and interest on said indebtedness and
other amounts declared due and payable shall be and
become immediately due and payable;
(b) Take possession of all or any of the Collateral and
exclude therefrom Borrower and all others claiming
under Borrower, and thereafter hold, store, use,
operate, manage, maintain and control, make repairs,
replacements, alterations, additions and improvements
to and exercise all rights and powers of Borrower in
respect to the Collateral or any pan thereof. In the
event Lender demands, or attempts to take possession
of the Collateral in the exercise of any rights under
this Loan and Security Agreement, Borrower promises
and agrees to promptly turn over and deliver complete
possession thereof to Lender;
(c) Require Borrower to assemble the Collateral, or any
portion thereof, at a place designated by Lender and
reasonably convenient to both parties, and promptly
to deliver such Collateral to Lender, or an agent or
representative designated by it;
(d) Sell, lease or otherwise dispose of the Collateral at
public or private sale, without having the Collateral
at the place of sale, and upon terms and in such
manner as Lender may determine (and Lender may be a
purchaser at any sale); and
(e) Exercise any remedies of a secured party under the
Uniform Commercial Code as adopted in the state where
the Collateral is located or any other applicable
law.
Except as to portions of the Collateral which
are perishable or threaten to decline speedily in
value or are of a type customarily sold on a
recognized market, Lender shall give Borrower at
least ten (10) days' prior written notice of the time
and place of any public or private sale of the
Collateral or other intended disposition thereof to
be made. Such notice may be mailed to Borrower at
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19
the address set forth in the first paragraph of this
Loan and Security Agreement. Borrower hereby
specifically agrees (to the extent that applicable
law and public policy allows it to effectively do so)
that any public or private sale held in accordance
with the terms of this Loan and Security Agreement
shall, for the purpose of the Uniform Commercial Code
as adopted in the state where the Collateral is
located and for all other purposes, be deemed to have
been conducted in a commercially reasonable manner
and in good faith.
The proceeds of any sale under Section 9(d)
shall be applied as follows:
(i) To the repayment of the costs and
expenses of retaking, holding and
preparing for the sale and the
selling of the Collateral (including
legal expenses and attorneys' fees)
and the discharge of all
assessments, encumbrances, charges
or liens, if any, on the Collateral
prior to the lien hereof (except any
taxes, assessments, encumbrances,
charges or liens subject to which
such sale shall have been made);
(ii) To the payment of the whole amount
then due and unpaid of the
indebtedness of Borrower to Lender;
(iii) To the payment of other amounts then
secured hereunder; and
(iv) The surplus, if any shall be paid to
the Borrower or to whomsoever may be
lawfully entitled to receive the
same.
Lender shall have the right to enforce one or
more remedies hereunder, successively or
concurrently, and such action shall not operate to
estop or prevent Lender from pursuing any funkier
remedy which it may have, and any repossession or
retaking or sale of the Collateral pursuant to the
terms hereof shall not operate to release Borrower
until full payment of any deficiency has been made in
cash.
10. Limitation on Interest. It is the intent of the parties to
this Loan and Security Agreement to contract in strict compliance with
applicable usury laws from time to time in effect. In furtherance thereof, the
parties stipulate and agree that none
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20
of the terms and provisions contained in the Loan Documents shall ever be
construed to create a contract to pay for the use, forbearance or detention of
money at a rate in excess of the maximum interest rate permitted to be charged
by applicable law from time to time in effect.
11. Personal Property/Tags. No item of Equipment will be attached
or affixed to realty or any building without Lender's prior knowledge and
written consent and waiver of the landlord and the mortgagee, if any, of the
real property. If so requested by Lender, Borrower will affix tags supplied by
Lender, reflecting Lender's security interest in the Equipment.
12. Loss and Damage. Borrower shall bear the risk of damage,
loss, theft, or destruction, partial or complete of the Equipment, whether or
not such loss or damage is covered by insurance, except that while Borrower is
not in default, Lender agrees to apply toward payment of obligations of
Borrower insurance proceeds payable to Lender by reason of such damage, loss,
theft, or destruction. In the event of any damage, loss, theft, or
destruction, partial or complete, of any item of Equipment, Borrower shall
promptly notify Lender in writing and at the option of Lender (a) repair or
restore the Equipment to good condition and working order, or (b) replace the
Equipment with similar equipment in good repair, condition and working order,
or (c) pay Lender, in cash, an amount equal to the unamortized equipment cost
for the item or if the Equipment was not purchased with the loan proceeds, the
pro rata portion of the outstanding principal balance due under the Interim
Note or Term Note, as the case may be, and all other amounts relating to that
item of Equipment then due and owing hereunder, and upon payment of that
amount, Lender's lien shall be terminated with respect to that item of
Equipment only and Lender will release its interest in that item of Equipment.
13. Assignment. Borrower may not assign or transfer any rights
under this Loan and Security Agreement or to the Collateral without Lender's
prior written consent.
14. Indemnification. Borrower shall indemnify and hold harmless
Lender from and against any and all claims, losses, liabilities, causes of
action, costs and expenses (including the fees of Lender's attorneys)
("Claims") in any way relating to or arising out of this Loan and Security
Agreement, the other Loan Documents or the Collateral, except for any Claims
resulting solely and directly from Lender's gross negligence or willful
misconduct.
15. Notices. Whenever Borrower or Lender shall desire to give or
serve any notice, demand, request or other communication with respect to this
Loan and Security Agreement, each such notice, demand, request or communication
shall be in writing and shall be effective only if the same is physically
delivered or is by certified mail, postage prepaid, return receipt requested,
or by
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21
overnight courier, postage prepaid, mailed to the parties at the addresses set
forth in the first paragraph of this Loan and Security Agreement, with a copy
to Lender's Vice President of Credit. Any party hereto may change its address
for such notices by delivering or mailing to the other parties hereto, as
aforesaid, a notice of such change.
16. No Waiver by Lender. By exercising or failing to exercise any
of its rights, options or elections hereunder, Lender shall not be deemed to
have waived any breach or default on the pan of Borrower or to have released
Borrower from any of the obligations secured hereby, unless such waiver or
release is in writing and is signed by Lender. In addition, the waiver by
Lender of any breach hereof for default in payment of an indebtedness secured
hereby shall not be deemed to constitute a waiver of any succeeding breach or
default.
17. Further Agreements. From time to time, Borrower will execute
such further instruments as Lender may reasonably require, in order to protect,
preserve, and maintain the security interest granted hereby.
18. Binding upon Successors. All agreements, covenants,
conditions and provisions of this Loan and Security Agreement shall apply to
and bind the successors and assigns of all parties hereto.
19. Governing Laws. This Loan and Security Agreement shall be
governed by the laws of the State of Washington.
20. Amendment. This Loan and Security Agreement can be modified
or rescinded only by a writing expressly referring to this Loan and Security
Agreement, signed by both of the parties hereto.
21. Invalidity of Provisions. Every provision of this Loan and
Security Agreement is intended to be severable. In the event that any term or
provision hereof is declared by a court to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding
and enforceable, then to the extent possible all of the other provisions shall
nonetheless remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Lender have duly executed this Loan and
Security Agreement the day and year first above written.
Lender: Borrower:
----------------------- ---------------------
By: By:
--------------------------- ---------------------------
(Print Name): (Print Name):
----------------- -----------------
Title: Title:
------------------------ --------------------------
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22
Social Security Number: ______
(If Borrower is an Individual)
Federal Tax Identification
Number: ______________________
- 22 -
23
SUPPLEMENTAL SECURITY AGREEMENT NO. ONE
LOAN #2004096-001
This Supplemental Security Agreement is executed by SEITEL
GEOPHYSICAL, INC. ("Borrower") pursuant to the terms of a Loan and Security
Agreement dated February 22, 1996 between Borrower and MetLife Capital
Corporation ("Lender"). All capitalized terms used herein that are not
otherwise defined herein shall have the respective meanings given to such terms
in the Loan and Security Agreement.
In order to provide security for the payment and performance of
Borrower's obligations under the Loan Documents, Borrower has granted to Lender
a first priority security interest in the Collateral. In addition to said
grant, Borrower intends by this Supplemental Security Agreement to grant to
Lender a first priority security interest in the items of Equipment identified
herein.
1. To further secure the payment and performance of all of
Borrower's obligations to lender under the Loan Documents, Borrower hereby
grants to Lender a first priority security interest in the items of Collateral
described below, including all present and future additions, attachments and
accessories thereto, all substitutions therefor and replacements thereof and
all proceeds thereof, including all proceeds of insurance:
Qty. Model/Mfr. Description Serial No. Cost or Appraised Value
---- ---------- ----------- ---------- -----------------------
50 Configurable SAR 830 thru 879 $433,000.00
2. Borrower hereby (a) affirms that the representations and
warranties set forth in Section 5 of the Loan and Security Agreement are true
and correct as of the date hereof; (b) represents and warrants that Lender has
a first priority security interest in the Collateral; and (c) represents and
warrants that the above described equipment will be maintained at the following
location(s):
00 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
3. The Loan Amount for loans to be made pursuant to this
Supplemental Security Agreement is $433,000.00.
4. The Commitment Expiration Date for loans to be made pursuant
to this Supplemental Security Agreement is March 31, 1996.
5. The amount of liability insurance required to be maintained by
Borrower pursuant to Section 6(d) of the Loan and Security Agreement is
$300,000.00.
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24
6. All of the terms and provisions of the Loan and Security
Agreement are hereby incorporated in and made a part of this Supplemental
Security Agreement to the same extent as if fully set forth herein.
In witness whereof, Borrower has executed and delivered this
Supplemental Security Agreement this _____day of ___________, 1996.
Borrower: SEITEL GEOPHYSICAL, INC.
By:
--------------------------
(Print Name):
--------------------------
Title:
--------------------------
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25
No. 2004096-001 TERM PROMISSORY NOTE
$433,000.00 March 14, 1996
FOR VALUED RECEIVED, the undersigned, SEITEL GEOPHYSICAL, INC.,
("Maker"), promises to pay to the order of MetLife Capital Corporation
("Payee"), at its office at X.X. Xxx X-00000, Xxxxxxxx, Xxxxxxxxxx 00000, the
principal sum of Four Hundred Thirty Three Thousand and no/100ths ($433,000.00)
Dollars together with interest on unpaid principal from the date of
disbursement of such principal amount until payment in full at a rate of 7.52
percent (7.52%) per annum ("Rate") computed on the basis of a 360 day year of
twelve consecutive thirty day months. Interest hereunder shall be paid on the
unpaid principal, together with principal, in Thirty Six (36) installments of
Thirteen Thousand Four Hundred Seventy Two Dollars and 97/100ths ($13,472.97)
commencing on April 14, 1996 and monthly thereafter until March 14, 1999, on
which date the entire balance of principal and interest unpaid shall be due and
payable. It is agreed that each installment, when paid, shall be applied by
the holder hereof, first so much as shall be required to the payment of
interest accrued as specified hereto, and the balance thereof to the repayment
of the principal sum.
Except as may be otherwise expressly provided herein, this Note may
not be prepaid in whole or in part, except with the prior written consent of
Payee. Maker shall have the privilege of prepaying all (but not part) of the
then outstanding balance under this Note on March 14, 1998 or on any
installment due date thereafter, subject to giving thirty (30) days prior
written notice to Payee specifying the date of prepayment and further subject
to payment of a prepayment premium equal to the amount, if any, required to
offset the adverse impact to Payee of any decline in interest rates. The
prepayment premium is determined by (i) calculating the decrease, expressed in
basis points (but not less than zero) in the current weekly average yield for
Two (2)-year U.S. Treasury Constant Maturities as published in Federal Reserve
Statistical Release H.15(519) (the "Index") from the weekly average yield of
5.040 as of January 23, 1996 to the Friday (or, if Friday is not a business
day, the last business day) of the week immediately preceding the prepayment
date (ii) dividing the difference by 100, (iii) multiplying the result by the
applicable "Premium Factor" set forth below, and (iv) multiplying the product
by the principal to be prepaid. Any prepayment shall be applied first to the
prepayment premium, if any, next to accrued interest and late charges (if any),
and thereafter to the principal then outstanding. The Premium Factor shall be
the amount shown on the following chart for the month in which prepayment
occurs.
Number of Months Remaining (Years) Premium Factor
-------------------------- ------- --------------
12 - 1 (1) .005
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26
In the event the Federal Reserve Board ceases to publish Statistical
Release H.15(519), then the decrease in Two-Year U.S. Treasury Constant
Maturities will be determined from another source designated by Payee.
If Maker shall have given to Payee notice of Maker's intention to so
prepay, Maker shall not then be entitled to withdraw such notice, and the
indebtedness proposed to be prepaid in such notice together with the aforesaid
prepayment fee, if applicable, shall be due and payable upon the date specified
for such prepayment in such notice. Upon the occurrence of an Event of Default
and acceleration of payment of indebtedness evidenced hereby during a period
open to prepayment, Maker shall pay to Payee, in addition to any and all other
sums due and payable hereunder, as liquidated damages for the loss of Payee's
investment and not as a penalty, an amount equal to the prepayment fee which
would have been payable hereunder on such date of acceleration in the event of
a voluntary prepayment. Maker and Payee agree that the foregoing amounts do
not constitute penalties but rather constitute reasonable calculations of the
investment loss that would be sustained by Payee in the event of such
prepayment.
It is specifically understood and agreed by Maker that, in the event
of a default under this Note or under any instrument securing the Note, a
tender of payment of the unpaid principal and accrued interest then outstanding
shall be deemed a prepayment, and, accordingly, said tender must include the
premium herein above required, or if said tender is made prior to the time this
privilege is operative, then said tender must include a premium equal to six
(6) months' interest at the Rate computed on the principal amount so tendered.
It is further understood and agreed by Maker that Payee shall not be obligated
to accept said tender, and said tender shall for all purposes be deemed
ineffectual and deficient, unless said tender shall include the premium herein
above required.
In the event that Payee does not receive any payment on the date due,
Maker will pay Payee a late charge of five percent (5%) of the payment
outstanding together with the payment and, provided said sum is received within
ten (10) days of the date due, Payee agrees not to demand immediate payment of
the whole sum of principal and interest as otherwise permitted herein.
If, from any circumstances whatsoever, payment of any obligation due
under this Note at the time such performance shall be due shall involve
exceeding the maximum amount currently prescribed by any applicable usury
statute or any other applicable law, then such obligation shall be reduced to
such maximum amount, so that in no event shall any payment be possible under
this Note, or under any other instrument evidencing or securing the
indebtedness evidenced hereby, that is in excess of such maximum amount.
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27
In the event that an Event of Default shall occur under the Loan and
Security Agreement (as hereinafter defined) or any other instrument now or
hereafter securing repayment hereof, following any required notice and/or the
expiration of any applicable period of grace, then, and in such event, the
principal indebtedness evidenced hereby, and any other sums advanced hereunder,
together with all unpaid interest accrued thereon, shall, at the option of
Payee, at once become due and payable and may be collected forthwith,
regardless of the stipulated date of maturity. TIME is OF THE ESSENCE WITH
RESPECT TO THIS NOTE. Interest shall accrue on the outstanding principal for
so long as such default continues, regardless of whether or not there has been
an acceleration of the indebtedness evidenced hereby as set forth herein, at
the rate equal to the lesser of fifteen percent (15%) per annum or the maximum
rate allowable under law. All such interest shall be paid at the time of and
as a condition precedent to the curing of any such default should Payee, at its
sole option, allow such default to be cured. In the event this Note, or any
part thereof, is collected by or through an attorney-at-law, Maker agrees to
pay all costs of collection including, but not limited to, reasonable
attorneys' fees, whether or not suit is filed.
This Note is one of the notes referred to in and is secured by the
Loan and Security Agreement dated February 22, 1996 between Maker and Payee.
The terms of the Loan and Security Agreement are incorporated herein by
reference.
This Note consolidates the following Interim Notes executed by Maker
in favor of Payee
Interim Note Number Date Principal Amount
------------------- ---- ----------------
Request for Loan Proceeds One March 14, 1996 $433,000.00
Maker waives any right of exemption and waives presentment, protest
and demand and notice of protest, demand and of dishonor and nonpayment of this
Note, and consents that any holder hereof shall have the right, without notice,
to grant any extension or extensions of time for payment of this Note or any
part thereof or any other indulgences or forbearances whatsoever, or may
release any of the security for this Note without in any way affecting the
liability of any other party for the payment of this Note.
The due payment and performance of Maker's obligations hereunder shall
be without regard to any counterclaim, right of offset, or any other
counterclaim whatsoever which Maker may have against Payee and without regard
to any other obligations of any nature whatsoever which Payee may have to
Maker, and no such counterclaim or offset shall be asserted by Maker in any
action, suit or proceeding instituted by Payee for payment of Maker's
obligations hereunder.
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28
This Note and the Loan and Security Agreement shall be governed by and
construed in accordance with the laws of the State of Washington.
Maker acknowledges that there is no presumption that the value of the
property securing this Note is equal to the face amount of the Note, and that a
deficiency judgment may be necessary in proceedings taken for enforcement
hereof.
No amendment to this Note shall be binding upon Payee unless it is in
writing and duly signed by Payee.
IN WITNESS WHEREOF, the Maker has caused these presents to be duly
signed the date first above written.
Borrower: SEITEL GEOPHYSICAL, INC.
By:
---------------------------
Witness: (Print Name)
-------------------- ---------------------------
Title:
---------------------------
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