Attached files
file | filename |
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10-Q - FORM 10-Q - MIND TECHNOLOGY, INC | h78188e10vq.htm |
EX-31.2 - EX-31.2 - MIND TECHNOLOGY, INC | h78188exv31w2.htm |
EX-32.1 - EX-32.1 - MIND TECHNOLOGY, INC | h78188exv32w1.htm |
EX-31.1 - EX-31.1 - MIND TECHNOLOGY, INC | h78188exv31w1.htm |
Exhibit 10.1
SECURED PROMISSORY NOTE
$4,847,927.25 | Houston, Texas | October 15, 2010 | ||
Please note this amount
is not the total for sales order EQL1475. It represents the amount invoiced on September 23, 2010 |
FOR VALUE RECEIVED, the undersigned, MITCHAM INDUSTRIES, an entity organized
under the laws of Texas (hereinafter called Maker, whether one or more), jointly and
severally, promises to pay to the order of SERCEL, INC., an Oklahoma corporation
(hereinafter called Payee, which term shall herein in every instance refer to any owner
or holder of this Note), the sum of Four Million Eight Hundred Forty Seven Thousands Nine
Hundred Twenty Seven United States Dollars and Twenty Five United States Cents,
$4,847,927.25, together with interest on the principal hereof from time to time
outstanding from the date hereof until maturity at the per annum rate hereinafter stated,
said principal and interest being payable in lawful money of the United States of America
at the offices of 17200 Park Row, Houston, Harris County, Texas 77084, or at such other
place which Payee may hereafter designate in writing.
The unpaid principal amount from time to time outstanding on this Note shall bear
interest during each day of the term of the loan evidenced hereby at a fixed per annum
rate of eight percent (8%) per annum. The interest rate applicable to the unpaid
principal amount from time to time outstanding on this Note, whether prior to or
following maturity, is referred to herein as the Agreed Rate. After maturity (whether
by acceleration in the event of default or otherwise), all amounts outstanding hereunder
shall bear interest at the Highest Lawful Rate (as such term is hereinafter defined).
Interest on this Note shall be calculated on a per annum basis of 365 days;
All sums paid hereon (whether regularly scheduled payment or prepayment) shall be
applied first to the satisfaction of accrued unpaid interest and the remainder, if any,
to the reduction of the principal balance hereof.
This Note is due and payable as follows: a down payment of One Million Two Hundred
Ten Thousand Six Hundred Seventy Two United States Dollars and Twenty Five United States
Cents, $1,210,672.25 is due at time of signing this note. The remaining balance to be
paid in eighteen (18) monthly installments of principal and interest that is defined in
the Attached Payment Schedule, Appendix A, the first such installment being due and
payable on or before November 15, 2010, and continuing regularly thereafter on the 15th
day of each month thereafter through and including April 30, 2012, at which time the
entire remaining outstanding principal balance of this Note and all unpaid accrued
interest, if not sooner paid, shall be due and payable in full.
Maker shall have the privilege to prepay this Note at any time, and from time to
time, in whole or in part, without penalty or fee. All such partial prepayments applied
against the principal under this Note shall be applied in the inverse order of maturity.
Any
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prepayment of principal under this Note shall include accrued interest to the date of
prepayment on the principal amount being prepaid.
In the case of an Event of Default (as defined below), then Payee shall have the option, to
the extent permitted by applicable law, to declare this Note due and payable (unless, as provided
below, an Event of Default occurs which causes this Note to be automatically due and payable, upon
which no declaration shall be required), whereupon the entire unpaid principal balance of this
Note and all accrued unpaid interest thereon shall thereupon at once mature and become due and
payable without presentment, demand, protest or notice of any kind (including, but not limited to,
notice of intention to accelerate or notice of acceleration), all of which are hereby expressly
waived by Maker.
The occurrence of any one or more of the following events with regard to Maker shall
constitute an Event of Default hereunder:
(A) | Maker shall fail to pay, for a period longer than three (3) days after when due, any installment of principal or interest hereunder or under any other instrument or agreement between Maker and Payee; | ||
(B) | Maker shall fail to perform any of the obligations, covenants or agreements legally imposed by the terms of this Note or any instrument securing its payment or any of the obligations, covenants or agreements legally imposed by the terms of any other instrument or agreement between Maker and Payee, including the Security Agreement (as defined below), which is not cured within ten (10) days after Maker receives written notice from Payee; | ||
(C) | Maker shall breach any representation and warranty made under this Note or under the Security Agreement (as defined below) ; | ||
(D) | Maker shall be merged with any entity when Maker is not the surviving company or all or part of its assets or businesses are transferred to any third party. | ||
(E) | Maker shall admit its inability to pay its debts as they mature or shall make any assignment for the benefit of itself or any of its creditors; | ||
(E) | Maker or any guarantor hereof shall default in the payment of any other indebtedness Maker or any guarantor hereof owes to Payee or default in the performance of any obligation set forth in any instrument securing the payment of any other indebtedness Maker or such guarantor owes to Payee; | ||
(F) | A receiver or trustee shall be appointed for the Maker or for any substantial part of its assets, or any proceedings shall be instituted for the dissolution or the full or partial liquidation of the Maker and, except with respect to any such appointments requested or instituted by Maker, such receiver or trustee shall not be discharged within thirty (30) days of his appointment, and, except with respect to any such proceedings instituted by Maker, such |
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proceedings shall not be discharged within thirty (30) days of their commencement, or Maker shall discontinue business or materially change the nature of its business; or | |||
(G) | A creditor of Maker shall file or commence any levy of attachment, execution or other similar process against assets of Maker valued in excess of $25,000 which potential loss is not covered by insurance or which proceeding is not being contested in good faith by Maker, or obtain possession of any of the Collateral (as defined in the Security Agreement) by any means, including (without implied limitation) levy, distraint, replevin, or self-help. |
Following the occurrence of any Event of Default, the Payee at its option, may declare the
entire principal balance and accrued interest owing hereon at once and immediately due and payable
on demand and the entire unpaid principal amount owed hereunder, all interests accrued thereon and
all other obligations of the Maker shall automatically become due and payable without further
action of any kind. Failure to exercise this option shall not constitute a waiver of the right to
exercise the same in the event of a subsequent default. The occurrence of events mentioned in
points D to G inclusive shall cause this Note to be automatically accelerated and to be due and
payable in its entirety without any other declaration.
It is the intention of the parties hereto to conform strictly to applicable usury laws as in
effect from time to time during the term of this Note. Accordingly, it is agreed that,
notwithstanding any provision of this Note to the contrary, if any transaction or transactions
contemplated hereby would be usurious under applicable law (including the laws of the United
States of America, or of any other jurisdiction whose laws may be mandatory), then, in that event,
notwithstanding anything to the contrary in this Note, or any agreement entered into in connection
with this Note, it is agreed as follows: (i) the provisions of this paragraph shall govern and
control; (ii) the aggregate of all interest under applicable law that is contracted for, charged
or received under this Note shall under no circumstances exceed the maximum amount of interest
allowed by applicable law, and any excess shall be promptly credited to Maker by Payee (or, if
such consideration shall have been paid in full, such excess shall be promptly refunded to Maker
by Payee); (iii) neither Maker nor any other person or entity now or hereafter liable in
connection with this Note shall be obligated to pay the amount of such interest to the extent that
it is in excess of the maximum interest permitted by the applicable usury laws; and (iv) the
effective rate of interest shall be ipso facto reduced to the Highest Lawful Rate. All
sums paid, or agreed to be paid, to Payee for the use, forbearance and detention of the
indebtedness of Maker to Payee shall, to the extent permitted by applicable law, be amortized, pro
rated, allocated and spread throughout the full term of the indebtedness described in this Note,
until payment in full so that the actual rate of interest does not exceed the Highest Lawful Rate
in effect at any particular time during the full term thereof. The maximum lawful interest rate,
if any, referred to in this paragraph that may accrue pursuant to this Note is referred to herein
as the Highest Lawful Rate. If at any time the Agreed Rate shall exceed the Highest Lawful Rate,
and thereafter the Agreed Rate should become less than the Highest Lawful Rate, the rate of
interest payable in such latter time shall be the Highest Lawful Rate until Payee shall have
received
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the amount of interest which Payee would have otherwise received if the Agreed Rate had not
been limited by the Highest Lawful Rate during the period of time that the Agreed Rate exceeded
the Highest Lawful Rate. If at maturity or final payment of this Note the total amount of interest
paid or accrued under the foregoing provisions is less than the total amount of interest which
would have accrued if the Agreed Rate had at all times been in effect, then Maker agrees to pay to
Payee, to the extent allowed by law, an amount equal to the difference between (a) the lesser of
(i) the amount of interest which would have accrued if the Highest Lawful Rate had at all times
been in effect or (ii) the amount of interest which would have accrued if the Agreed Rate had at
all times been in effect, and (b) the amount of interest accrued in accordance with the other
provisions of this Note.
Except as otherwise provided herein, Maker and any and all sureties, guarantors and endorsers
of this Note and all other parties now or hereafter liable hereon severally waive grace, demand,
presentment for payment, protest, notice of any kind (including, but not limited to, notice of
dishonor, notice of protest, notice of intention to accelerate and notice of acceleration) and
diligence in collecting and bringing suit against any party hereto and agree (i) to all extensions
and partial payments, with or without notice, before or after maturity, (ii) to any substitution,
exchange or release of any security now or hereafter given for this Note, (iii) to the release of
any party primarily or secondarily liable hereon, and (iv) that it will not be necessary for
Payee, in order to enforce payment of this Note, to first institute or exhaust Payees remedies
against Maker or any other party liable therefore or against any security for this Note.
In the event of any default hereunder and this Note is collected by suit or legal proceedings
or through bankruptcy proceedings, Maker agrees to pay, in addition to all other amounts owing
hereunder, all expenses and costs of collection, including reasonable attorneys fees incurred by
the holder hereof.
If any payment of principal or interest on this Note shall become due on a Saturday, Sunday
or legal banking holiday, such payment shall be made on the next succeeding business day and such
extension of time shall in such case be included in computing interest in connection with such
payment.
Any check, draft, money order or other instrument given in payment of all or any portion
hereof may be accepted by Payee and handled in collection in the customary manner, but the same
shall not constitute payment hereunder or diminish any rights of Payee except to the extent that
actual cash proceeds of such instrument are unconditionally received by Payee. In connection
therewith, any such payments received by the holder hereof after noon of any business day shall be
posted and applied to the indebtedness evidenced by this Note on the next business day of the
holder hereof.
Maker shall pay to Payee a late charge of five percent (5%) of any monthly installment not
received by Payee within five (5) days after the installment is due.
This Note has been executed and delivered in and shall be construed in accordance with and
governed by the laws of the State of Texas and of the United States of America, except that Tex.
Fin. Code Ann. Ch. 346, as amended (which regulates certain revolving
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credit loan accounts and revolving tri-party accounts) shall not apply hereto. Debtor
irrevocably submits to the exclusive jurisdiction of Texas courts for the purpose of any action or
other proceeding arising out of this Agreement. The Parties expressly waive any right to a trial
by jury in any action or proceeding to enforce or defend any rights under this Agreement and agree
that any such action or proceeding shall be tried before a court and not before a jury.
Maker represents, warrants and covenants that (i) the loan evidenced by this Note is made
solely for business, commercial or investment purposes (and not for personal, family, or
agricultural purposes), (ii) Maker is a corporation in existence and in good standing in its state
of incorporation and in each state in which Makers business requires Maker to qualify to do
business, (iii) Maker is duly authorized to enter into and execute this Note and each of the other
documents and instruments executed in connection therewith and (iv) the person executing this note
and all other documents executed in connection therewith is a duly elected officer of Maker and is
authorized to execute this Note and (v) this Note represents valid and binding obligations of
Maker enforceable in accordance with its terms.
This Note, the obligations evidenced hereby or Payees rights hereunder may be assigned from
time to time, and in any such case the assignee shall be entitled to all of the rights, privileges
and remedies granted in this note and in any other documents and instruments executed in
connection herewith.
This Note is entitled to the benefits and security afforded by that certain Security
Agreement of even date herewith executed by Maker in favor of Payee (the Security Agreement),
creating a lien on certain personal property more fully described in said Security Agreement.
Makers Address: |
MAKER: MITCHAM INDUSTRIES, a corporation organized under the laws of Texas |
|||
8175 Highway 75 South | By: | /s/ Robert P. Capps | ||
Huntsville TX 77340 | Name: | Robert P. Capps | ||
USA | Title: | Executive Vice President | ||
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Appendix A
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Total Amount = |
4,847,927.25 | |||
Number of Payments = |
18 | |||
Down Payment |
1,210,672.25 | |||
Interest Rate = |
8.00 | % | ||
Amount financed: |
3,637,255.00 | |||
Due Date | Payment | Principal | Interest | Principal Balance | ||||||||||||||
Ship Date: |
10/8/2010 | |||||||||||||||||
1 |
November 15, 2010 | 215,443.09 | 185,149.24 | 30,293.85 | 3,452,105.76 | |||||||||||||
2 |
December 15, 2010 | 215,443.09 | 192,744.31 | 22,698.78 | 3,259,361.45 | |||||||||||||
3 |
January 15, 2011 | 215,443.09 | 193,297.29 | 22,145.80 | 3,066,064.15 | |||||||||||||
4 |
February 15, 2011 | 215,443.09 | 194,610.65 | 20,832.44 | 2,871,453.50 | |||||||||||||
5 |
March 15, 2011 | 215,443.09 | 197,821.02 | 17,622.07 | 2,673,632.48 | |||||||||||||
6 |
April 15, 2011 | 215,443.09 | 197,277.04 | 18,166.05 | 2,476,355.44 | |||||||||||||
7 |
May 15, 2011 | 215,443.09 | 199,160.20 | 16,282.89 | 2,277,195.23 | |||||||||||||
8 |
June 15, 2011 | 215,443.09 | 199,970.64 | 15,472.45 | 2,077,224.59 | |||||||||||||
9 |
July 15, 2011 | 215,443.09 | 201,784.63 | 13,658.46 | 1,875,439.96 | |||||||||||||
10 |
August 15, 2011 | 215,443.09 | 202,700.37 | 12,742.72 | 1,672,739.59 | |||||||||||||
11 |
September 15, 2011 | 215,443.09 | 204,077.63 | 11,365.46 | 1,468,661.96 | |||||||||||||
12 |
October 15, 2011 | 215,443.09 | 205,786.13 | 9,656.96 | 1,262,875.82 | |||||||||||||
13 |
November 15, 2011 | 215,443.09 | 206,862.45 | 8,580.64 | 1,056,013.37 | |||||||||||||
14 |
December 15, 2011 | 215,443.09 | 208,499.44 | 6,943.65 | 847,513.93 | |||||||||||||
15 |
January 15, 2012 | 215,443.09 | 209,684.64 | 5,758.45 | 637,829.29 | |||||||||||||
16 |
February 15, 2012 | 215,443.09 | 211,109.35 | 4,333.74 | 426,719.93 | |||||||||||||
17 |
March 15, 2012 | 215,443.09 | 212,730.79 | 2,712.30 | 213,989.14 | |||||||||||||
18 |
April 15, 2012 | 215,443.09 | 213,989.14 | 1,453.95 | 0.00 | |||||||||||||
3,877,975.66 | 3,637,255.00 | 240,720.66 | ||||||||||||||||
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SECURITY AGREEMENT
This Security Agreement dated as of the 15th day of October, 2010 is between
MITCHAM INDUSTRIES, an entity organized under the laws of Texas (Debtor), and SERCEL, INC., an
Oklahoma corporation (Secured Party).
WITNESSETH:
WHEREAS, effective as of the date hereof, Secured Party sold, transferred and conveyed to
Debtor that certain equipment described on Exhibit A hereto (the Equipment), in
exchange for a promissory note of Debtor to Secured Party in the original principal amount of Four
Million Eight Hundred Forty Seven Thousand Nine Hundred Twenty Seven United States Dollars and
Twenty Five Cents, $4,847,927.25, (*Please note this amount is not the total for sales order
EQL1475. It represents the amount invoiced on September 23, 2010) dated of even date herewith (the
Note);
WHEREAS, Debtor desires to provide security to Secured Party for the performance and payment
of the Note;
NOW, THEREFORE, in consideration of the premises and agreements contained herein, Debtor and
Secured Party hereby agree as follows:
Section 1. Definitions. Any terms used in this Security Agreement that are
defined in the Texas Business and Commerce Code (the U.C.C.) shall have the meaning assigned to
those terms by the U.C.C. in effect as of the date hereof or as otherwise required by law.
Section 2. Security Interest, Collateral and Obligations.
2.01. Grant and Obligations. Debtor hereby grants to Secured Party a
security interest in the Collateral as defined in Section 2.02 below to secure the
performance and payment of the Obligations. Obligations shall mean, collectively,
(a) the punctual payment of any and all amounts owing, or to be owing, by Debtor to
Secured Party under the Note; and (b) any renewals, extensions, or rearrangements
of the Note.
2.02. Collateral. Collateral shall mean (i) the Equipment including all modifications
thereto, substitutions and exchange, (ii) all proceeds, other profits, rentals or receipts, in
whatever form , arising from the collection, sale, lease, exchange, assignment, licensing or other
dispositions of, or realization upon, any Collateral described above including, without
limitation, all claims of Debtor against third parties for loss of, damage to or destruction of,
or for proceeds payable under policies of insurance with respect to any Collateral, in each case
whether now existing or hereafter arising, (iii) all books and records relating to the Equipment
in the possession or control of Debtor.
Section 3. Debtors Representations, Warranties and Agreements. Debtor represents and
warrants to Secured Party and agrees that:
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3.01. Disposal of Collateral. Debtor will not sell, transfer or otherwise
dispose of any of the Collateral.
3.02. Information. Debtor shall keep accurate and complete records of the
Collateral, shall give Secured Party or its representatives reasonable access to such records
during normal business hours and upon prior written notice to Debtor shall provide such other
information concerning Debtor and the Collateral as Secured Party may reasonably require. The
address of Debtors place of business, chief executive office and office where Debtor keeps its
records concerning the Collateral is at the address set forth beside Debtors signature on this
Security Agreement. Debtor shall notify Secured Party ten (10) days in advance of any change in
its address, any change of or additions to the location of its place of business, chief
executive office or office where it keeps its records, and any change in its name, identity, or
structure.
3.03. Other Liens. There is no certificate of title, financing statement or other
writing showing any lien on the Collateral. Debtor has good and marketable title to the
Collateral, free and clear of all other liens and encumbrances, subject only to the security
interest of Secured Party. Debtor has full power and lawful authority to grant to Secured Party
a security interest in the Collateral as provided in this Security Agreement. Debtor will defend
the Collateral against the claims and demands of all third persons and will not permit the
creation of any charge, lien, security interest, adverse claim or encumbrance of any and every
nature whatsoever against the Collateral or any part thereof.
3.04.
Covenants Concerning the Collateral. The Collateral shall remain in Debtors
possession or control. Debtor shall bear all risk of loss with respect to the Collateral. At any
reasonable time and upon reasonable prior written notice to Debtor, Secured Party may inspect
during normal business hours the Collateral. Debtor shall assist Secured Party in making any
such inspection. Debtor shall maintain all equipment that is Collateral in the same good
condition existing as of the date of this Security Agreement, except for reasonable wear and
tear, and such equipment will not be used in violation of any statute or ordinance or in a not
careful and improper manner. Debtor shall replace within a reasonable time all parts that may be
worn out, lost, destroyed or otherwise rendered unfit for use with appropriate replacement
parts.
3.05. Insurance. Debtor will maintain reasonable amounts of insurance on the
Collateral (in an amount not less than the outstanding balance under the Note) and name the
Secured party as a loss payee and additional insured on its policies of insurance. Such
insurance shall also include general liability insurance in an amount of not less than
$1,000,000 per incident and $5,000,000 in the aggregate. If any insurance required hereby
expires, is cancelled or is otherwise not in full force and effect, at Secured Partys option,
Secured Party may obtain replacement insurance, which may, but need not, be single interest
insurance in favor of Secured Party. Secured Party may pay the premiums thereunder and add the
amount of such premiums to the Obligations. Debtor agrees to reimburse Secured Party on demand
for any amounts so paid.
The all risk policy shall (i) name Secured Party and its assigns as sole loss payee (ii)
contain a breach of warranty endorsement insuring Secured Party and its assigns notwithstanding
a breach or violation of the policy by Debtor; (iii) be issued by a company that is approved to
do business in the State of Texas and that is acceptable to Secured Party in its sole
discretion; (iv) contain a clause in a form acceptable to Secured Party providing that the
insurer shall waive all of
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its rights of recovery, under legal or conventional subrogation or otherwise, against Secured
Party, and (v) provide for no less than thirty (30) days prior written notice of cancellation or
non-renewal to Lessor and its successors or assigns.
Debtor hereby appoints Secured Party as its attorney-in-fact with full power, rights, and
authority with respect to the policies required under this Section, including, without limitation,
the right to request payments and execute and endorse all documents, checks, drafts or other
instruments necessary or advisable to secure payments due under any policy required under this
Section._ The foregoing appointment shall not relieve Debtor from its obligation to procure the
insurance policies required herein, to make timely insurance claims and to otherwise cooperate
with insurance carriers. Proceeds from any policy required hereunder shall be made payable first
to Secured Party to the extent of its liability or loss, if any. Debtor shall deliver to Secured
Party a certificate of insurance with respect to the policy required under this Section together
with a copy of the endorsement naming Secured Party as additional insured and loss payee not later
than the Effective Date, and a certificate of insurance with respect to each renewal or
replacement thereof not later than fifteen (15) days before any such insurance policy expires.
Lessee will be responsible for all deductible amounts.
3.06. Further Assurances. Debtor will do, make, procure, execute and deliver all
acts, things, writings and assurances as Secured Party may at any time reasonably request to
perfect, protect, assure or enforce its interest, rights and remedies created by or arising in
connection with this Security Agreement, including the execution of financing statements.
3.07. Power, Authority and Existence. The execution, delivery and performance of this
Security Agreement and all other instruments and agreements executed by Debtor are within Debtors
power and authority, are not on the date of execution of this Agreement and thereafter will not be
in contravention of law, or any indenture, agreement or undertaking to which Debtor is a party or
by which Debtor is bound or will be bound after the execution of this Agreement.
3.08. Assessments. Debtor shall promptly pay when due all taxes, assessments, license
fees, registration fees, and governmental charges levied or assessed against Debtor or with
respect to the Collateral or any part thereof.
3.09. Time of the Essence. Debtor agrees that in performing any act under this
Security Agreement, time shall be of the essence and Secured Partys acceptance of partial or
delinquent payments, or failure of Secured Party to exercise any right or remedy, shall not be a
waiver of any obligation of Debtor or right of Secured Party or constitute a waiver of any similar
or dissimilar default subsequently occurring.
Section 4. Event of Default. Debtor shall be in default under this Security
Agreement (any such default being referred to as an Event of Default) if a default has occurred
in any obligation of Debtor under the Note or this Security Agreement or if the Debtor is in the
breach of any representation, warranty, covenant, agreement or condition hereunder.
Section 5. Rights of Secured Party.
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5.01.
Rights After Default. Secured Party may, in its discretion, after the
occurrence of an Event of Default: (a) bring any action at law or in equity to protect its
interest in the Collateral or to obtain damages for or to prevent deterioration or destruction of
the Collateral other than ordinary wear and tear in connection with its intended primary use and
(b) exercise any right of a secured creditor under the U.C.C. or other applicable laws or(c)
exercise any right of a debtor under maritime laws.
5.02.
Discharges, Liens, etc. At its option, Secured Party may make payments to
discharge taxes, liens or security interest or other encumbrances at any time levied or placed on
the Collateral and take any other action necessary to obtain, preserve, and enforce the security
interest and the rights and remedies granted in this Security Agreement and maintain and preserve
the Collateral. Such payments and any other expenses incurred by Secured Party in taking such
action shall become part of the Obligations. Debtor agrees to reimburse Secured Party on demand
for any such payments made or expenses incurred by Secured Party.
5.03. U.C.C. Remedies. Upon the occurrence and during the continuance of an Event of
Default, and at any time thereafter, Secured Party may declare the Obligations or any part thereof
immediately due and payable, without demand, notice of intention to accelerate, notice of
acceleration, notice of non payment, presentment, protest notice of dishonor or any other notice
whatsoever all of which are hereby waived by Debtor and may demand payment of the Obligations and
shall have the rights and remedies of a secured party under the U.C.C. or any other applicable
laws, including without limitation, the right to sell, lease or otherwise dispose of any or all of
the Collateral in any manner allowed by the U.C.C. Secured Party may require Debtor to assemble
the Collateral and make it available to Secured Party at a place to be designated by Secured Party
which is reasonably convenient for both parties. Secured Party shall have the right to take
possession of all or any part of the Collateral or any security therefore and of all books,
records, papers and documents of Debtor or in Debtors possession or control relating to the
Collateral and may lawfully and without breach of the peace enter upon any premises upon which any
of the Collateral or any security therefore or any of such books, records, papers or documents are
situated and remove the same therefrom without any liability for trespass or damages thereby
occasioned unless arising out of Secured Partys gross negligence or willful misconduct. Unless
the Collateral is perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Secured Party will send Debtor ten (10) days prior written notice of
the time and place of any public sale or other disposition thereof or of the time after which any
private sale or other disposition thereof is to be made. The requirement of sending reasonable
notice shall be met if such notice is deposited in the U.S. Mail, postage prepaid, certified mail,
return receipt requested, addressed to Debtor at the address set forth beside Debtors signature
on this Security Agreement at least ten (10) days before the time of the sale or disposition of
the Collateral. Debtor shall be liable for all expenses, including without limitation, reasonable
attorneys fees and court costs, actually incurred by Secured Party in repossessing, storing,
preparing for sale, lease or other disposition, or selling, leasing or otherwise disposing of the
Collateral. The Collateral may be sold, leased or otherwise disposed of as an entirety or in such
parcels as Secured Party may elect, and it shall not be necessary for Secured Party to have actual
possession of the Collateral or to have it present when the sale, lease or other disposition is
made. Debtor shall remain liable for any deficiency.
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5.04.
No Waiver. Debtor may remedy any Event of Default and the Secured Party
may waive any Event of Default without waiving any other Event of Default. The remedies of
Secured Party are cumulative, and the exercise or partial exercise of any one or more of the
remedies provided for herein shall not be construed as a waiver of any of the other remedies of
Secured Party. No delay of Secured Party in exercising any power or right shall operate as a
waiver thereof. Secured Partys failure to exercise this security interest against all or any
portion of the Collateral at any time, does not waive any right of Secured Party to later assert
any or any other right, power or remedy of Secured Party with respect to such Collateral as
provided herein.
5.05.
Assignment. This Security Agreement, the Obligations or Secured Partys
rights hereunder may be assigned from time to time by the Secured Party, and in any such case
the assignee shall be entitled to all of the rights, privileges and remedies granted in this
Security Agreement to Secured Party.
Section 6. Additional Agreements.
6.01. Miscellaneous. Secured Party and Debtor as used in this Security
Agreement include the successors, legal representatives, receivers and assigns of those parties.
The divisions of this Security Agreement into sections and subsections and the titles thereto
have been made for convenience only and shall be given no substantive meaning or significance
whatever in construing the terms and provisions of this Security Agreement.
6.02. Choice of Law. Unless expressly provided elsewhere in this Security
Agreement, this Security Agreement shall be governed by and construed and enforced in accordance
with the laws of the State of Texas. Debtor irrevocably submits to the exclusive jurisdiction of
Texas courts for the purpose of any action or other proceeding arising out of this Agreement.
The Parties expressly waive any right to a trial by jury in any action or proceeding to
enforce or defend any rights under this Agreement and agree that any such action or proceeding
shall be tried before a court and not before a jury.
6.03.
Illegality. If any provision of this Security Agreement is rendered or
declared invalid, illegal or ineffective by reason of any existing or subsequently enacted
legislation or by decree of a court of competent jurisdiction, such legislation or decree shall
not impair, invalidate or nullify the remainder of this Security Agreement which shall remain in
full force and effect.
6.04.
Continuing Agreement. The security interest hereby granted and all of the
terms and provisions in this Agreement shall be deemed a continuing agreement. They shall
continue in full force and effect and remain effective between the parties until full and
indefeasible payment of the Obligations.
SERCEL MICHAM INDUSTRIES
EQL1475
October 15, 2010
EQL1475
October 15, 2010
Page 5 of 7
6.05. Amendments. No modification, variation or amendment of or to this
Security Agreement shall be effective unless in writing signed by Debtor and Secured Party.
6.06. Notice. Any notice or demand to Debtor or Secured Party hereunder or in
connection herewith may be given and shall conclusively be deemed and considered to have been given
and received upon the deposit thereof in the U.S. Mail, in writing, duly stamped and mailed by
certified mail, return receipt requested and addressed to the address set forth on this Security
Agreement, or at such other address as Debtor or Secured Party may designate to the other in
writing.
DEBTOR:
Address: | MITCHAM INDUSTREIS |
|||
8175 Highway 75 South | By: | /s/ Robert P. Capps | ||
Huntsville, TX 77340 | Name: | Robert P. Capps | ||
Title: | Executive Vice President | |||
SECURED PARTY:
Address: | SERCEL, INC. |
|||
17200 Park Row | By: | |||
Houston, Texas 77084 | Name: | |||
Title: | ||||
SERCEL MICHAM INDUSTRIES
EQL1475
October 15, 2010
EQL1475
October 15, 2010
Page 6 of 7
MITCHAM INDUSTRIES 8175 Highway 75 South Huntsville, TX 77340 USA |
Exhibit A
Please note this amount is not the total for sales order EQL1475. It represents the
amount invoiced on September 23, 2010.
INVOCE No. | INVOICE DATE | INVOICE TOTAL | ||||
50329 |
June 30, 2010 | 4,441,598.68 | ||||
51125 |
August 31, 2010 | 2,745.27 | ||||
51137 |
August 31, 2010 | 357,828.80 | ||||
51414 |
September 23, 2010 | 45,754.50 | ||||
TOTAL INVOICED AMOUNT: | $ | 4,847,927.25 |
SERCEL MICHAM INDUSTRIES
EQL1475
October 15, 2010
EQL1475
October 15, 2010
Page 7 of 7