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EXHIBIT 10.5.1
METLIFE CAPITAL 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 00 Xxxxx Xxxxxx Xxxx, Xxxx Bldg., 7th Floor, Houston, Texas 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 of 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, 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 converted 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 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 (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
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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 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. REPRESENTATION 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 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
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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 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.
(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
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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 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,
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.
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(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 with deductibles to Lender. All contracts and
policies shall include provisions for the protection of
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. 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
all 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
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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 manufacture'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 parts, 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, parts, 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
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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
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 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
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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
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 evidence 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
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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 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
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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 thereby 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
(e) Any warranty, representation or statement made or furnished
with respect to 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
part 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
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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 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 part 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.
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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 date 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 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
taking, 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 received 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 further 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.
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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 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.
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15. NOTICES. Whenever Borrower or Lender shall desire to give or
service 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 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 part of 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 hold 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 WHERE, Borrower and Lender have duly executed this Loan and Security
Agreement the day and year first above written.
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Lender: MetLife Capital Corporation Borrower: Seitel Geophysical, Inc.
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By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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(Print Name): Xxxx Xxxxxxxx (Print Name): Xxxxx X. Xxxxxx
Title: Vice President Title: Secretary/Treasurer
Social Security No.:
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(If Borrower is an individual)
Federal Tax
Identification No.: 00-0000000
