WESTERN NATIONAL BANK 508 WEST WALL STREET, SUITE 1100 MIDLAND, TEXAS 79701 June 2, 2011
Exhibit 10.1
June 2, 2011
Xxxxxx Geophysical Company
000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
| RE: | Revolving Line of Credit Loan in the amount of $20,000,000.00 to be advanced by Western National Bank to Xxxxxx Geophysical Company |
Gentlemen:
Pursuant to the terms of a letter loan agreement, dated as of June 2, 2009 (the “Existing Loan
Agreement”), Western National Bank, a national banking association (alternatively, “Western” the
“Lender”, or the “Bank”), has previously committed to provide to Xxxxxx Geophysical Company, a
Texas corporation (alternatively, “Xxxxxx Geophysical” or the “Borrower”), a revolving line of
credit loan in the original principal amount of Twenty Million and No/Dollars ($20,000,000.00) (the
Existing Loan”). The Existing Loan is evidenced by that certain Revolving Line of Credit Note,
also dated as of June 2, 2009, in the original principal amount of Twenty Million and No/100
Dollars ($20,000,000.00), executed by the Borrower, as Maker, in favor of the Bank, as Payee, (the
“Existing Note”). The Existing Note is secured by that certain Security Agreement, also dated as
of June 2, 2009, executed by Borrower, covering those accounts receivable and other items of
collateral described therein (the “Existing Security Agreement”). The Bank’s has perfected the
security interest created under the Existing Security Agreement by filing a financing statement
(the “Existing Financing Statement”). From time to time, the Existing Security Agreement and the
Existing Financing Statement may be collectively referred to herein as the “Existing Security
Instruments”.
Borrower has now requested that Western renew and extend the Existing Loan into a new revolving
line of credit loan in the original principal amount of Twenty Million and No/100 Dollars
($20,000,000.00) (the “Loan”). The Loan will be evidenced by that certain Revolving Line of Credit
Note, of even date herewith, in the original principal amount of Twenty Million and No/100 Dollars
($20,000,000.00), executed by the Borrower, as Maker, in favor of Western, as Payee (the “Note”).
The Borrower’s performance under the Note will be secured by its execution of a new Security
Agreement, of even date herewith, the security interest of which will
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be perfected by the filing of amendments to the existing financing statement, covering all accounts
receivable and equipment described therein (collectively, the “Security Instruments”). This
Agreement, the Note, the Security Instruments, and any other documents executed simultaneously
herewith are collectively referred to as the “Loan Documents”.
Western has agreed to renew the Existing Loan into the Loan. In consideration of Western’s
agreement to renew the Existing Loan into the Loan, Borrower has agreed to execute this Loan
Agreement, the Note, and the Security Instruments required by the Bank. In addition to Borrower’s
execution of these documents, the Bank’s obligation to advance the Loan to the Borrower shall be
subject to the fulfillment of the following terms and conditions of this letter loan agreement (the
“Agreement”):
I. TERMS
Agreement
This Agreement, dated as of June 2, 2011, and any extensions, renewals, or modifications hereof.
Borrower
Xxxxxx Geophysical Company
Bank
Western National Bank
Commitment
The lesser of the following amounts: (a) the face amount of the Note; or (b) the Borrowing Base
then in effect.
Rate
From June 1, 2011 through June 30, 2011, interest under the Note shall accrue at an annual rate
equal to the “Prime Rate”, as defined below, minus three-quarters of one percent (0.75%) (the
“Prime Rate Index”). Beginning as of July 1, 2011, interest under the Note shall accrue at an
annual rate equal to either: (a) the 30-day London Interbank Offered Rate (“LIBOR”), plus two and
one-quarter percentage points (2.25%), or (b) the Prime Rate Index, as the Borrower shall choose
monthly by notifying the Bank in writing, via facsimile or e-mail, by the last day of each month,
with each change to be effective as of the first day of the following month, provided that such
interest rate shall not exceed the “Highest Lawful Rate”, as defined in the Note, or be less than
four percent (4.0%). Should Borrower fail to notify Bank of its election of interest rate for any
given month, the interest rate shall remain at the interest rate index chosen by Borrower for the
month immediately preceding.
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For purposes of this Agreement, LIBOR shall mean, with respect to each Interest Period, as defined
below, the rate as established as the 30-day LIBOR in the money rate table of The Wall Street
Journal, a Dow Xxxxx publication, as of each Business Day, as defined below (and for holidays or
weekends, LIBOR shall be the 30-day LIBOR published in that money rate table of The Wall Street
Journal, as of the close of business on the most recent Business Day immediately preceding such
weekend or holiday). Without notice to the Borrowers or any other person, LIBOR may change from
time to time pursuant to the preceding sentence, with the effective date of each change to be the
effective date reflected in the money rate table of The Wall Street Journal. Without notice to the
Borrowers or any other person, LIBOR may change from time to time pursuant to the preceding
sentence, with the effective date of each change to be the effective date reflected in the money
rate table of The Wall Street Journal. Each change in LIBOR to be charged on the Note will become
effective without notice on the commencement of each Interest Period based upon the Index then in
effect. “Interest Period” means each consecutive one month period (the first of which shall
commence on June 1, 2011), effective as of the first day of each Interest Period and ending on the
last day of each Interest Period, provided that if any Interest Period is scheduled to end on a
date for which there is no numerical equivalent to the date on which the Interest Period commenced,
then it shall end instead on the last day of such calendar month.
Also for purposes of this Agreement, the “Prime Rate” shall be defined as that rate established as
the prime rate in the money rate table of The Wall Street Journal, a Dow Xxxxx publication, as of
each Business Day, as hereinafter defined, (and for holidays or weekends, the Prime Rate shall be
the prime rate published in that money rate table of The Wall Street Journal, as of the close of
business on the most recent Business Day immediately preceding such weekend or holiday). Without
notice to the Borrower or any other person, the Prime Rate may change from time to time pursuant to
the preceding sentence, with the effective date of each change to be the effective date reflected
in the money rate table of The Wall Street Journal. The Prime Rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any customer. The Bank may
make commercial loans or other loans at rates of interest at, above, or below the Prime Rate.
The term “Business Day” shall mean any day other than a Saturday, Sunday or legal holiday for
commercial banks under the laws of the State of Texas.
Security
The Loan shall be secured by the Security Instruments.
Structure
Under the Note, funds will be available on a revolving basis through June 2, 2013, the maturity
date of the Loan (the “Revolving Period”). During the Revolving Period, the Borrower may borrow,
repay, and re-borrow funds as long as the aggregate amount (including outstanding letters of
credit) does not exceed the Commitment.
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Borrowing Base
At any time, and from time to time, the amounts outstanding under the Note shall not exceed the
lesser of: (a) the face amount of the Note; or (b) the Borrowing Base, as determined from time to
time by the Bank, acting in its sole and unlimited discretion (said lesser amount being referred to
herein as the “Commitment”). As used in this Agreement, the term “Borrowing Base” shall mean an
amount equal to eighty percent (80%) of Borrower’s Eligible Accounts.
For the purposes of this Agreement, the term “Eligible Account” shall mean an account receivable of
the Borrower (net of any credit balance, trade discount, or unbilled amount or retention) that is
contractually due, for which each of the following statements is accurate and complete (and the
Borrower, by including such account receivable in any computation of the Borrowing Base, shall be
deemed to represent and warrant to the Bank the accuracy and completeness of such statements):
| a. | Said account receivable is a binding and valid obligation of the obligor thereon, in full force and effect, and enforceable in accordance with its terms; | ||
| b. | Said account receivable is genuine, in all respects, as appearing on its face as represented in the books and records of Borrower, and all information set forth therein is true and correct; | ||
| c. | Said account receivable is free of all default of any party thereto, counterclaims, offsets, and defenses, and from any rescission, cancellation, or avoidance, and all right thereof, whether by operation of law or otherwise; | ||
| d. | The payment of said account receivable is not more than ninety (90) days past due the invoice date thereof; | ||
| e. | Said account receivable is free of concessions or understandings with the obligor thereon of any kind not disclosed to and approved by the Bank in writing; | ||
| f. | Said account receivable is, and at all times will be, free and clear of all liens except those in favor of the Bank; | ||
| g. | Said account receivable is not a receivable arising from intercompany indebtedness existing between or among any of the Borrower; | ||
| h. | Said account receivable is derived from sales made or services rendered to the obligor in the ordinary course of the business of the Borrower; | ||
| i. | The obligor on said account receivable (i) is located within the United States or the District of Columbia; (ii) is not the subject of any bankruptcy or insolvency proceeding, nor has a trustee or receiver been appointed for all or a substantial part of its property, nor has said obligor made an assignment for the benefit of creditors, admitted its inability to pay its debts as they mature or suspended its |
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| business, (iii) is not affiliated, directly or indirectly, with Borrower, as a subsidiary or affiliate, employee or otherwise; and (iv) is not a state or federal government department, commission, board, bureau, or agency; |
| j. | Said account receivable is not owed by a customer whose principal place of business is located in a foreign country; and | ||
| k. | Said account receivable did not arise from sales to an obligor as to whom fifteen percent (15%) or more of the total accounts receivable owing by such obligor to the Borrower are delinquent accounts receivable (that is, an account that is more than ninety (90) days delinquent). |
In addition to the criteria stated above for determining whether an account receivable is an
“Eligible Account”, the Bank and the Borrower agree that no such account receivable shall
constitute an Eligible Account if that account receivable arises from any single customer, other
than Chesapeake Exploration Limited Partnership and its affiliates and subsidiaries (collectively,
“Chesapeake”) or Devon Energy Group and its affiliates and subsidiaries (collectively, “Devon”),
whose accounts receivable constitute more than twenty-five percent (25%) of Borrower’s total
accounts receivable. The Bank agrees that an account receivable owed by Chesapeake to the Borrower
(collectively, the “Chesapeake Accounts”) and, likewise, an account receivable owed by Devon to the
Borrower (collectively, the “Devon Accounts”) may still qualify as an Eligible Account even if the
either set of such Eligible Accounts constitutes more than twenty-five percent (25%) of Borrower’s
total accounts receivable.
Based upon the terms of this Agreement, and the information provided and the representations made
by the Borrower to the Bank, the Bank hereby redetermines the Borrowing Base, and establishes it in
the amount of Twenty Million and No/100 Dollars ($20,000,000.00). The Borrower may request in
writing an additional increase in the Borrowing Base, such request to be accompanied by a
description and evaluation of any additional collateral to be provided by the Bank. The Bank may
evaluate such for an increase in its sole and absolute discretion, and in conjunction with such
evaluation, may conduct a full credit analysis of the Borrower and the existing or additional
collateral.
If the aggregate amounts outstanding under the Note exceeds the Commitment at any time, the Bank
will provide written notice of that event to Borrower. On or before the tenth (10th)
day following Borrower’s receipt of such notification, Borrower will either, at the direction of
the Bank, acting in its sole and absolute discretion: (a) make a mandatory payment to the Bank of
the principal of the Note in an amount at least equal to the amount necessary to cause the
outstanding principal balance of the Note to be less than or equal to the Commitment; or (b)
create liens on other assets of Borrower, satisfactory in nature, quantity, and value to the Bank,
acting in its sole discretion, said assets to have a fair market value sufficient to at least equal
to the amount necessary to cause the outstanding principal balance of the Note to be less than or
equal to the Commitment.
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Non-Recourse
Although the Borrower is responsible on a corporate basis for the full repayment of principal and
interest due on the Obligations and for any other Event of Default for which the Borrower is
responsible, the Bank specifically acknowledges and agrees that neither any of the directors,
officers, or employees of the Borrower nor any of the Borrower’s shareholders shall have any
personal liability whatsoever for the repayment of the Loan. The sole party responsible for
repayment of the Loan shall be the Borrower, and the sole security for the Loan shall be the
Collateral covered by the Security Instruments.
Purpose
Funds from the Loan shall be to renew and extend the Existing Loan and to provide additional funds
for working capital. No proceeds from the Loan shall be used for the purpose of purchasing or
carrying margin stock in violation of Regulations G, U, or X of the Board of Governors of the
Federal Reserve System.
Maturity Date
As stated, the maturity date of the Note is June 2, 2013.
II. REPRESENTATIONS AND WARRANTIES
A. Good Standing and Identity. The Borrower is a corporation, duly organized and in
good standing under the laws of Texas. The Borrower’s legal name is that reflected in the address
of this Agreement. Borrower has the power to own its property and to carry on its business in each
jurisdiction in which the Borrower operates.
B. Authority and Compliance. The Borrower has full power and authority to enter into
this Agreement, to make the borrowing hereunder, to execute and deliver the Note, to mortgage those
interests covered by the Security Instruments, and to incur the obligations provided for herein,
all of which will be duly authorized by all proper and necessary corporate action. No consent or
approval of any public authority is required as a condition to the validity of this Agreement, the
Note, and the Security Instrument, and Borrower is in compliance with all laws and regulatory
requirements to which he is subject.
C. Litigation. There are no proceedings pending or, to the knowledge of Borrower,
threatened before any court or administrative agency that will or may have a material adverse
effect on the financial condition or operations of Borrower, except as disclosed to the Bank in
writing prior to the date of this Agreement.
D. Ownership of Assets. As of the date of this Agreement, Borrower has good title to
the interests covered by the Security Instruments and any other collateral pledged and the other
collateral is owned free and clear of liens. Borrower will at all times maintain its tangible
property, real and personal, in good order and repair, taking into consideration reasonable wear
and tear.
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E. Taxes. All income taxes and other taxes due and payable through the date of this
Agreement have been paid prior to becoming delinquent.
F. Financial Statements. The books and records of the Borrower properly reflect the
financial condition of the Borrower in all material respects, and there has been no material change
in Borrower’s financial condition as represented in its most recent financial statements.
G. Hazardous Wastes and Substances. To the best knowledge of the Borrower, the
Borrower and its properties are in compliance with applicable state and federal environmental laws
and regulations and the Borrower is not aware of and has not received any notice of any violation
of any applicable state or federal environmental law or regulation and there has not heretofore
been filed any complaint, nor commenced any administrative procedure, against the Borrower or any
of its predecessors, alleging a violation of any environmental law or regulation. Currently and
from time to time, the Borrower, in the course of its regular business, may use or generate on a
portion of its properties materials which are “Hazardous Materials”, as that term is defined below.
The Borrower has and will make a good faith attempt to comply with all applicable statutes and
regulations in the use, generation and disposal of such materials. To the best of its knowledge,
the Borrower has not otherwise installed, used, generated, stored or disposed of any hazardous
waste, toxic substance, asbestos or related material on its properties. For the purposes of this
Agreement, the term “Hazardous Materials” shall be defined to include, without limitation, those
substances referred to above, as well those substances defined as “hazardous substances” or “toxic
substances” in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, 42 U.S.C. §9061, et seq., Hazardous Materials Xxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000,
et seq., and the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000, et seq.,
or as “hazardous substances,” “hazardous waste” or “pollutant or contaminant” in any other
applicable federal, state or local environmental law or regulation. There do not exist upon any
property owned by Borrower any underground storage tanks or facilities, and to the knowledge of
Borrower, none of such property has ever been used for the treatment, storage, recycling, or
disposal of any Hazardous Materials.
III. CONDITIONS PRECEDENT
The provisions of this Agreement will serve as the terms of the relationship among the Borrower,
and the Bank.. Prior to any funds being made available, Borrower will execute and deliver to the
Bank, in form and substance satisfactory to the Bank, this Agreement, the Note, and the Security
Instruments.
IV. COVENANTS
Unless the Bank will otherwise consent in writing, and so long as any debt remains outstanding or
the commitment still available, the Borrower agrees to comply with the following covenants:
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A. Affirmative Covenants.
1. As soon as available, but in any event not later than ninety (90) days after the end
of each fiscal year, Borrower will provide financial statements, in form and substance
satisfactory to the Bank, reflecting Borrower’s financial performance as of the end of such
year and the related statements of income and changes in cash flows for such year, with the
next of such fiscal years to be measured being the one ending on September 30, 2011, such
statements to be audited by an independent certified accountant and to be prepared according
to generally accepted accounting principles, consistently applied (“GAAP”).
2. Within ninety (90) days of the end of each fiscal quarter, with the next fiscal
quarter ending as of March 31, 2011, the Borrower will submit to the Bank a financial
statement reflecting Borrower’s financial performance during the previous calendar quarter,
such statements to be reviewed by an independent certified accountant and to be prepared
according to GAAP.
3. Within thirty (30) days of the end of each calendar month, Borrower shall provide
monthly accounts receivable aging reports.
4. Within thirty (30) days of transmitting any tax return to any governmental
authority, the Borrower will submit to the Bank a copy of that tax return.
5. Within thirty (30) days following the end of each calendar month, Borrower shall
provide a monthly borrowing base report and compliance certificate in the form attached
hereto as Exhibit “A”.
6. Borrower shall maintain an average “Cash Flow Coverage Ratio” (as that term is
defined below) of not less than 1.50 to 1.0, calculated quarterly, beginning with the
quarter ending as of March 31, 2011, from the date of the Loan to maturity. For purposes of
this Agreement, the term “Cash Flow Coverage Ratio” means, with respect to any period of
calculation thereof, the ratio of the sum of: (a) the net income (or loss) from continuing
operations of Borrower during such period calculated after any and all distributions to
shareholders, plus (b) interest, depreciation, depletion, and amortization expenses of
Borrower during such period, less (c) gains from the sale of any assets; plus (d) losses
from the sale of any assets; less (e) extraordinary adjustments to net income divided by (f)
all scheduled capital lease obligations and all principal and interest payments due for the
period subject to measurement, all determined in accordance with GAAP.
7. For any time period for which reporting is required, Borrower will maintain a “Debt
to Tangible Net Worth Ratio” of less than 1.50 to 1.00 to be measured quarterly, beginning
with the quarter ending as of March 31, 2011. For purposes of this paragraph, “Debt” shall
mean, all liabilities, obligations, and indebtedness of the Borrower, of any kind or nature,
now or hereafter owing, arising, due or payable, howsoever evidenced, created, incurred,
acquired or owing, whether primary,
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secondary, direct, contingent, fixed, or otherwise, and “Tangible Net Worth” means the
excess, if any, of the total assets of Borrower over all items of indebtedness, obligations,
or liability which would be classified as liabilities of Borrower, for the time period to be
measured, each to be determined in accordance with GAAP; provided, however, that for the
purposes of any such computation of Tangible Net Worth, “assets” will not include (a)
goodwill (whether representing the excess of cost over book value of assets acquired or
otherwise), and (b) patents, trademarks, trade names, copyrights, franchises, and deferred
charges.
8. Borrow shall maintain a “Current Ratio”, as defined below, of not less than 1.50 to
1.0, measured quarterly, beginning with the quarter ending on March 31, 2011, from the date
of the Loan to maturity. For purposes of this Agreement, “Current Ratio” means, with
respect to any period of calculation thereof, the ratio of the sum of: (a) current assets,
plus (b) availability under the Revolver Loan, divided by (c) current liabilities. Current
assets shall include a minimum balance of cash, plus marketable securities, of not less than
$3,500,000.00, provided that this requirement is only applicable if funds are outstanding
under the Note.
9. Borrower shall submit copies of all financial statements, reports, notices, and
proxy statements sent or made available generally by the Borrower to its shareholders, of
all regular and periodic reports and all private placement memorandums and all registration
statements and prospectuses, if any, filed by the Borrower with any securities exchange or
with the Security Exchange Commission; and all press releases and other statements made
available generally by the Borrower to the public concerning material changes in the
business of the Borrower upon their becoming available, but in no event later than 10 days
after the same was sent.
10. Borrower will maintain all primary operating accounts with the
Bank.
11. The Borrower will maintain its existence in good standing and comply with all laws,
regulations and governmental requirements applicable to it or to any of its property,
business operations and transactions.
12. The Borrower will promptly pay any reasonable costs incurred by the Bank in
connection with the preparation or enforcement of this Agreement, the Notes, the Security
Instruments, and any other documentation executed concurrently herewith.
13. The Borrower will remain in substantial compliance with same and will not place or
permit to be placed any Hazardous Materials on any of its properties in violation of
applicable state and federal environmental laws. In the event that the Borrower should
discover any Hazardous Materials on any of its properties that could result in a breach of
the foregoing covenant, the Borrower shall notify the Bank within three (3) days after such
discovery. The Borrower shall dispose of all material amounts of Hazardous Materials that
it generates only at facilities or with carriers that maintain valid governmental permits
under the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000. In the event of any
notice or filing of any procedure against the Borrower
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alleging a violation of any environmental law or regulation, the Borrower shall give notice
to the Bank within five (5) days after receiving notice of such notice or filing.
14. The Borrower will provide such other information as the Bank may reasonably request
from time to time in its sole discretion.
B. Negative Covenants.
1. The Borrower will not make any change in its present accounting method or change its
present fiscal year.
2. The Borrower will not make any substantial change in the nature of its business as
now conducted.
3. The Borrower will not reorganize or merge with any other entity, without the prior
written consent of the Bank.
4. With respect to the Borrower’s interest in any of the properties covered by the
Security Instrument, the Borrower will not sell, contract to sell, convey, assign, transfer,
mortgage, pledge, hypothecate, encumber, or in any way alienate that interest in such
properties, without the consent of the Bank.
V. EVENTS OF DEFAULT
The occurrence and continuing existence of any one of the following will constitute an Event of
Default under this Agreement and the Note:
A. Borrower fails to pay when due any principal, interest, or other amount payable under this
Agreement, the Note, or any other promissory notes executed or guaranteed by the Borrower in favor
of the Bank;
B. Any representation or warranty made by the Borrower hereunder or in any related collateral
security or other documents entered into with the Bank proves to be at any time incorrect in any
significant respect;
C. The Borrower fails to observe or perform any covenant, obligation, agreement, or other
provision contained herein or in any other contract or instrument executed in connection herewith;
D. Any default or defined Event of Default under any security agreement, deed of trust,
promissory note, loan agreement or other contract or instrument executed by the Borrower pursuant
to, or as required by, this Agreement;
E. Any final judgment or judgments for the payment of money is rendered against Borrower and
is not be satisfied or discharged at least thirty (30) days prior to the date on which
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any of their assets could be lawfully sold to satisfy such judgment or judgments, unless Borrower
brings litigation to stay same; or
F. Borrower: (i) becomes insolvent, or suffers or consents to, or applies for the appointment
of a receiver, trustee, custodian or liquidator for himself or any of his property, or generally
fails to pay his debts as they become due, or makes a general assignment for the benefit of
creditors; or (ii) files a voluntary petition in bankruptcy, or seeking reorganization, in order to
effect a plan or other arrangement with creditors or any other relief under the Bankruptcy Reform
Act, Title 11 of the United States Code, as recodified from time to time (“Bankruptcy Code”), or as
now or hereafter in effect, or any involuntary petition or proceeding pursuant to said Bankruptcy
Code or any other applicable state or federal law relating to bankruptcy or reorganization or other
relief for debtors is filed or commenced against Borrower; or (iii) files any answer admitting the
jurisdiction of the court and the material allegations of any such involuntary petition; or (iv) is
adjudicated a bankrupt, under said Bankruptcy Code or any other state or federal law relating to
bankruptcy, reorganization, or other relief for debtors.
VI. REMEDIES
If any Event of Default occurs, any term hereof or of the Note to the contrary notwithstanding, the
Note shall at the Bank’s option become immediately due and payable. In addition, the obligation,
if any, of the Bank to permit further borrowings hereunder will immediately cease and terminate and
the Bank will have all rights, powers, and remedies available under this Agreement, the Note, or
other contracts or instruments executed in connection herewith, or accorded by law, including,
without limitation, the right to resort to any or all of the collateral and to exercise any or all
of its rights, powers, or remedies at any time and from time to time after the occurrence of an
Event of Default.
ONCE AN EVENT OF DEFAULT HAS OCCURRED, WESTERN MAY PURSUE THE REMEDIES PROVIDED FOR IN THIS
AGREEMENT, THE NOTE, AND THE SECURITY INSTRUMENTS WITHOUT PRESENTMENT, DEMAND, PROTEST, NOTICE OF
ACCELERATION, NOTICE OF INTENT TO ACCELERATE, NOTICE OF PROTEST OR NOTICE OF DISHONOR, OR ANY OTHER
NOTICE OF ANY KIND, ALL OF WHICH ARE EXPRESSLY WAIVED BY BORROWER.
All rights, powers, and remedies of the Bank in connection with this Agreement, the promissory
notes or any other contract or instrument on which the Borrower may at any time be obligated to the
Bank (or any holder thereof) are cumulative and not exclusive and will be in addition to any other
rights, powers, or remedies provided by law or equity, including without limitation the right to
set off any liability owing by the Bank to the Borrower (including sums deposited in any deposit
account of Borrower with the Bank) against any liability of the Borrower to the Bank.
VII. WAIVER
No delay, failure, or discontinuation by the Bank, or any holder of the Note, in exercising any
right, power, or remedy under this Agreement, the Note or any other contract or instrument on which
the Borrower may at any time be obligated to the Bank (or any holder thereof) will affect
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or operate as waiver of such right, power or remedy. Any waiver, permit, consent, or approval of
any kind by the Bank (or any holder of the Note), or of any provisions or conditions of, or any
breach or default under this Agreement, the Note or any other contract or instrument on which the
Borrower may at any time be obligated, must be in writing and will be effective only to the extent
set forth in such writing.
VIII. NOTICES
All notices, requests, and demands given to or made upon the respective parties must be in writing
and shall be deemed to have been given or made: (1) at the time of personal delivery thereof, (2)
or two days after any of the same are deposited in the U.S. Mail, first class and postage prepaid,
addressed as follows:
Borrower:
|
Xxxxxx Geophysical Company | |
| 000 Xxxx Xxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxxx, Xxxxx 00000 | ||
Western:
|
Western National Bank | |
| Attention: Xxxxx X. Xxxxx | ||
| 000 Xxxx Xxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxx, Xxxxx 00000 |
or other such address as any party may designate by written notice to all other parties.
IX. SUCCESSORS AND ASSIGNS
This Agreement will be binding on and inure to the benefit of the heirs, executors, administrators,
legal representatives, successors, and assigns of the parties, provided, however, that this
Agreement may not be assigned by the Borrower without the prior written consent of the Bank. The
Bank reserves the right to sell, assign, transfer, negotiate, or grant participations in all or any
part of, or any interest in, the Bank’s rights and benefits under this Agreement, the Note or any
contracts or instruments relating thereto. In connection therewith, the Bank may disclose all
documents and information which the Bank now has or may hereafter acquire relating to the loan or
the Note, the Borrower or his business, or any collateral required hereunder.
X. SEVERABILITY OF PROVISIONS
If any of the provisions of this Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or any remaining provisions of this Agreement.
XI. VENUE AND JURISDICTION
Any suit, action or proceeding against the Borrower arising out of or relating to this Agreement or
any judgment entered by any court in respect thereof, may be brought or enforced in the courts of
the State of Texas, County of Midland, or in the United States District Court for the Western
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District of Texas, as Western in its sole discretion may elect, and Borrower hereby submits to the
nonexclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding.
The Borrower hereby irrevocably consents to service of process in any suit, action or proceeding in
any of said courts by the mailing thereof by the Bank by registered or certified mail, postage
prepaid, to the Borrower, at the address set forth herein.
THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTIONS THAT THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
BROUGHT IN ANY OF SAID COURTS AND HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND ANY
RIGHT GRANTED BY STATUTE, RULE OR COURT OR OTHERWISE TO HAVE SUCH SUIT, ACTION, OR PROCEEDING TRIED
BY A JURY.
XII. MISCELLANEOUS
A. Texas Law Applicable. This Agreement, the Note, the Security Instruments, and any
contracts or instruments relating thereto, shall be governed by and construed in accordance with
the laws of the State of Texas, except to the extent that the Bank has greater rights or remedies
under federal law or the law of any jurisdiction in which the collateral properties are located, in
which case such choice of Texas law shall not be deemed to deprive the Bank of such rights and
remedies under federal law or the law of any jurisdiction in which the collateral properties are
located, in which case such choice of Texas law shall not be deemed to deprive the Bank of such
rights and remedies as may be available under such law.
B. Notice of Final Agreement. THIS AGREEMENT, THE NOTE, ANY CONTRACTS OR INSTRUMENTS
RELATING THERETO, REPRESENT THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND IT IS EXPRESSLY
UNDERSTOOD THAT ALL PRIOR CONVERSATIONS OR MEMORANDA BETWEEN THE PARTIES REGARDING THE TERMS OF
THIS AGREEMENT SHALL BE SUPERSEDED BY THIS AGREEMENT. ANY AMENDMENT, APPROVAL, OR WAIVER BY
WESTERN OF THE TERMS OF THIS AGREEMENT, THE NOTE AND ANY CONTRACTS OR INSTRUMENTS RELATING THERETO,
MUST BE IN WRITING OR CONFIRMED WRITING, AND SHALL BE EFFECTIVE ONLY TO THE EXTENT SPECIFICALLY SET
FORTH IN SUCH WRITING. THIS AGREEMENT, IN CONJUNCTION WITH THE NOTE AND ANY CONTRACTS OR
INSTRUMENTS RELATING THERETO, SHALL SERVE TO EVIDENCE THE TERMS OF THE ENTIRE AGREEMENT BETWEEN THE
PARTIES.
{The remainder of this page is intentionally left blank. Signature page follows.}
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Please acknowledge your acceptance of and agreement to the terms of this Agreement by dating
and executing where indicated.
| Very truly yours, WESTERN NATIONAL BANK |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| President — San Antonio | ||||
| AGREED TO AND ACCEPTED AS OF THE 2nd DAY OF JUNE 2011. BORROWER: XXXXXX GEOPHYSICAL COMPANY |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| President | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Xxxxxxxxx X. Xxxxx | ||||
| Secretary | ||||
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