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NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.
A CARBON, PHOTOGRAPHIC, FACSIMILE, OR OTHER REPRODUCTION OF THIS INSTRUMENT IS SUFFICIENT AS A FINANCING STATEMENT.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS, SECURES PAYMENT OF FUTURE ADVANCES, AND COVERS PROCEEDS OF COLLATERAL.
A POWER OF SALE HAS BEEN GRANTED IN THIS INSTRUMENT. A POWER OF SALE MAY ALLOW TRUSTEE OR MORTGAGEE TO TAKE THE COLLATERAL AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS INSTRUMENT.
DEED OF TRUST, SECURITY
AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING
by and from
GLOBAL GEOPHYSICAL SERVICES, INC., a Delaware corporation,
(Mortgagor, Debtor and Grantor)
Aaron Roffwarg, an individual, as Trustee, “Trustee”
for the benefit of
BANK OF AMERICA, N.A., as Administrative Agent,
(Mortgagee, Beneficiary and Grantee)
dated as of April 30, 2010
THIS INSTRUMENT IS A DEED OF TRUST AND A FIXTURE FILING AND SHOULD BE FILED FOR RECORD IN THE RECORDS WHERE DEEDS OF TRUST ON REAL ESTATE ARE RECORDED. THIS INSTRUMENT SHOULD BE APPROPRIATELY INDEXED, NOT ONLY AS A DEED OF TRUST, BUT ALSO AS A FINANCING STATEMENT COVERING GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN.
Bracewell & Giuliani
RECORDING REQUESTED BY AND WHEN RECORDED, RETURN TO:
Bracewell & Giuliani
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING (TEXAS)
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND FIXTURE FILING (TEXAS) (this “ Deed of Trust ”) is dated as of the 30th day of April, 2010, by and from GLOBAL GEOPHYSICAL SERVICES, INC., a Delaware corporation (“ Mortgagor ”), whose address is 13927 South Gessner Road, Missouri City, TX 77489, to Aaron Roffwarg, an individual, as trustee (“ Trustee ”), whose address is 711 Louisiana, Suite 2300, Houston, TX 77002, for the benefit of Bank of America, N.A., as Administrative Agent (“ Mortgagee ”), for the holders of the Secured Obligations (as defined below), having an address at Agency Management, 901 Main Street, 14 th Floor, Dallas, Texas 75202-3714.
All capitalized terms used herein without definition shall have the respective meanings ascribed to them in that certain Credit Agreement dated as of April 30, 2010, among GLOBAL GEOPHYSICAL SERVICES, INC. (the “ Borrower ”), the financial institutions from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “ Administrative Agent ”), Swing Line Lender and L/C Issuer (as amended, amended and restated, supplemented, extended, or otherwise modified from time to time, the “ Credit Agreement ”). As used in this Deed of Trust, the following terms shall have the following meanings:
1.1 “ Cash Collateral Accounts ” means any deposit account with Mortgagee which is designated, maintained, and under the control of Mortgagee and over which Mortgagee has a security interest, and which has been established pursuant to the provisions of this Deed of Trust for the purposes described in this Deed of Trust, including for collecting, holding, disbursing, or applying certain funds, all in accordance with this Deed of Trust.
1.2 “ Event of Default ” shall have the meaning set forth in Article IV hereof.
1.3 “ Indemnified Party ” means the Mortgagee (and any sub-agent thereof), the Trustee, each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons.
1.4 “ Mortgaged Property ”: All of Mortgagor’s present and future right, title and interest in and to (1) the fee interest in the real property described in Exhibit A attached hereto and incorporated herein by this reference, together with any greater estate therein as hereafter may be acquired by Mortgagor (the “ Land ”), (2) all improvements now owned or hereafter acquired by Mortgagor, now or at any time situated, placed or constructed upon the Land (the “ Improvements ”; the Land and Improvements are collectively referred to as the “ Premises ”), (3) all materials, supplies, equipment, apparatus and other items of personal property now owned or hereafter acquired by Mortgagor and now or hereafter attached to, installed in or used in connection with any of the Improvements or the Land, and water, gas, electrical, telephone, storm and sanitary sewer facilities and all other utilities whether or not situated in easements (the “ Fixtures ”), (4) all goods, accounts, general intangibles, instruments, documents, chattel paper
and all other personal property of any kind or character, including such items of personal property as defined in the UCC (defined below), now owned or hereafter acquired by Mortgagor and now or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Premises (the “ Personalty ”), (5) all reserves, escrows or impounds required under the Credit Agreement and all deposit accounts maintained by Mortgagor with respect to the Mortgaged Property (the “ Deposit Accounts ”), (6) all leases, licenses, concessions, occupancy agreements or other agreements (written or oral, now or at any time in effect) which grant to any Person a possessory interest in, or the right to use, all or any part of the Mortgaged Property, together with all related security and other deposits (the “ Leases ”), (7) all of the rents, revenues, royalties, income, proceeds, profits, security and other types of deposits, and other benefits paid or payable by parties to the Leases for using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the Mortgaged Property (the “ Rents ”), (8) all other agreements, such as construction contracts, architects’ agreements, engineers’ contracts, utility contracts, maintenance agreements, management agreements, service contracts, listing agreements, guaranties, warranties, permits, licenses, certificates and entitlements in any way relating to the construction, use, occupancy, operation, maintenance, enjoyment or ownership of the Mortgaged Property (the “ Property Agreements ”), (9) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the foregoing, (10) all property tax refunds (the “ Tax Refunds ”), (11) all accessions, replacements and substitutions for any of the foregoing and all proceeds thereof, howsoever arising, including from the collection, sale, lease, exchange, assignment, licensing or other disposition of such property, and all claims of Mortgagor against third parties for loss, damage or impairment of value of such property the (“ Proceeds ”), (12) all insurance policies, unearned premiums therefor and proceeds from such policies covering any of the above property now or hereafter acquired by Mortgagor (the “ Insurance ”), and (13) all awards, damages, remunerations, reimbursements, settlements or compensation heretofore made or hereafter to be made by any governmental authority pertaining to the Land, Improvements, Fixtures or Personalty (the “ Condemnation Awards ”). As used in this Deed of Trust, the term “ Mortgaged Property ” shall mean all or, where the context permits or requires, any portion of the above or any interest therein.
1.5 “ Permitted Liens ”: Liens permitted by the Credit Agreement.
1.6 “ Secured Obligations ”: means (without duplication):
(a) the Obligations; and
(b) any increases, extensions, renewals, replacements, and rearrangements of the foregoing obligations under any amendments, supplements, and other modifications of the agreements creating the foregoing obligations, in each case, whether direct or indirect, absolute or contingent.
1.7 “ UCC ”: The Uniform Commercial Code of Texas or, if the creation, perfection and enforcement of any security interest herein granted is governed by the laws of a state other than Texas, then, as to the matter in question, the Uniform Commercial Code in effect in that state.
2.1 Grant . To secure the full and timely payment and performance of the Secured Obligations, Mortgagor GRANTS, BARGAINS, ASSIGNS, SELLS and CONVEYS, to Trustee the Mortgaged Property, subject, however, to the Permitted Liens, TO HAVE AND TO HOLD the Mortgaged Property, IN TRUST FOR MORTGAGEE, WITH POWER OF SALE, and Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto Trustee, against anyone claiming by, though or under Mortgagor, but not otherwise.
2.2 Revolving Credit and Future Advances . It is contemplated and acknowledged that the Secured Obligations may include revolving credit loans and advances from time to time, and that this Deed of Trust shall have effect as of the date hereof to secure all Secured Obligations, regardless of whether any amounts are advanced on the date hereof or on a later date or, whether having been advanced, are later repaid in part or in whole and further advances made at a later date. This Deed of Trust secures all future advances and obligations constituting Secured Obligations.
2.3 Mortgagor Remains Liable . The granting of the liens, security interests, and assignments and the exercise by Trustee or Mortgagee of its rights hereunder shall not release Mortgagor from any obligations nor cause Trustee or Mortgagee to assume any obligations with respect to the Mortgaged Property.
Mortgagor warrants, represents and covenants to Mortgagee as follows:
3.1 Incorporation of Representations and Warranties from Credit Agreement . The representations and warranties contained in Article V of the Credit Agreement are hereby confirmed and restated, each such representation and warranty, together with all related definitions and ancillary provisions, being hereby incorporated into this Deed of Trust by reference as though specifically set forth in this Section, subject to the limitations thereon as set forth in the Credit Agreement.
3.2 Title to Mortgaged Property; Lien of this Instrument; Filings . Mortgagor owns the Mortgaged Property free and clear of any liens, claims or interests, except the Permitted Liens and the matters described in Exhibit B attached hereto and incorporated by this reference. This Deed of Trust creates valid, enforceable first priority liens and security interests against the Mortgaged Property, and the recording of this Deed of Trust in the real property records of Fort Bend County, Texas is the only recording or filing necessary to create a valid mortgage lien that is effective against third parties and recognized in bankruptcy on the Land. Except for such recording and the recording described in Section 6.2 , there are no recordings or filings with, or authorizations, consents, approvals, licenses, permits, privileges, or other rights granted by, any governmental authorities required to be held by Mortgagee or Mortgagor in
connection with the execution and delivery of this Deed of Trust, the performance of this Deed of Trust, or the exercise of rights and remedies under this Deed of Trust.
3.3 First Lien Status . Mortgagor shall preserve and protect the first lien and security interest status of this Deed of Trust and the other Loan Documents. If any lien or security interest other than the Permitted Liens is asserted against the Mortgaged Property, Mortgagor shall promptly, and at its expense, (a) give Mortgagee a detailed written notice of such lien or security interest (including origin, amount and other terms), and (b) pay the underlying claim in full or take such other action so as to cause it to be released or contest the same in compliance with the requirements of the Credit Agreement (including the requirement of providing a bond or other security satisfactory to Mortgagee). If the proceeds of the Secured Obligations are used to pay any indebtedness secured by prior liens, Mortgagee is subrogated to all of the rights and liens of the holders of such indebtedness.
3.4 Payment and Performance . Mortgagor covenants that it shall timely pay and perform the Secured Obligations.
3.5 Replacement of Fixtures and Personalty . Mortgagor shall not, without the prior written consent of Mortgagee, not to be unreasonably withheld, permit any of the Fixtures or Personalty owned or leased by Mortgagor to be removed at any time from the Land or Improvements, unless such item is removed in the ordinary course of Mortgagor’s business or the removed item is removed temporarily for maintenance and repair or, if removed permanently, is permitted to be removed by the Credit Agreement, or is obsolete and is replaced by an article of equal or better suitability and value, owned by Mortgagor subject to the liens and security interests of this Deed of Trust and the other Loan Documents, and free and clear of any other lien or security interest except such as may be permitted under the Credit Agreement or first approved in writing by Mortgagee.
3.6 Other Covenants . Mortgagor agrees to comply with all the covenants, both affirmative and negative, in the Credit Agreement, and each such covenant is hereby incorporated by reference as if fully set forth herein.
3.7 Condemnation Awards and Insurance .
(a) Condemnation Awards . Mortgagor collaterally assigns all awards and compensation to which it is entitled for any condemnation or other taking of the Mortgaged Property, or any purchase in lieu thereof, to Mortgagee, and, upon the occurrence and continuance of an Event of Default, Mortgagee may receive such monies.
(b) Further Acts . Mortgagor covenants that Mortgagor shall execute and deliver such other and further instruments, and shall do such other and further acts as in the reasonable opinion of Mortgagee may be necessary to carry out more effectively the purposes of this Deed of Trust, including without limiting the generality of the foregoing, (i) prompt correction of any defect in the execution or acknowledgment of this Deed of Trust, any written instrument comprising part or all of the Secured Obligations, or any other document executed and delivered in connection herewith; (ii) prompt correction of any defect which may hereafter be discovered in the title to the Mortgaged Property, to
the extent such defect would cause any representation and warranty made herein, if deemed repeated at such time, to not be true and correct; and (iii) prompt payment when due and owing of all taxes, assessments and governmental charges imposed on this Deed of Trust.
(c) Maintenance of Lien and Security Interest . Mortgagor covenants that Mortgagor shall maintain and preserve the Lien and security interest herein created as a valid first priority security interest on the Mortgaged Property, subject only to Permitted Liens, until the Liens created hereby are, or Mortgagor is, as the case may be, released by the applicable provisions of Section 8.4 .
(d) Change of Address . Mortgagor shall immediately notify Mortgagee of any discontinuance of or change in the address of Mortgagor’s chief executive office or office where it keeps records concerning accounts, contract rights and general intangibles.
(e) Insurance . To the extent that insurance is carried by a third party operator on behalf of Mortgagor, upon request by Mortgagee, Mortgagor shall obtain and provide Mortgagee with copies of certificates of insurance showing Mortgagor as a named insured. To the extent not prohibited by the terms of such insurance or any agreement with such third party operator (unless otherwise consented by such operator, which consent Mortgagor will use commercially reasonable efforts to obtain if requested by Mortgagee), and to the extent related coverage is not terminated or the benefits available thereunder are not otherwise prejudiced or impaired, Mortgagor hereby collaterally assigns to Mortgagee any and all monies that may become payable under any such policies of insurance by reason of damage, loss or destruction of any of the Mortgaged Property and, upon the occurrence and continuance of an Event of Default, Mortgagee may receive such monies.
4.1 Events of Default . An Event of Default under the terms of the Credit Agreement shall constitute an “ Event of Default ” under this Deed of Trust.
4.2 Remedies . If an Event of Default exists, Mortgagee may, at Mortgagee’s election, and in its own name or through Trustee or otherwise (all further references in this Section 4 , to Mortgagee shall be deemed to refer to Mortgagee or Trustee acting on behalf of Mortgagee), exercise any or all of the following rights, remedies and recourses:
(a) Acceleration . Declare the Secured Obligations to be immediately due and payable, without further notice, presentment, protest, notice of intent to accelerate, notice of acceleration, demand or action of any nature whatsoever (each of which hereby is expressly waived by Mortgagor), whereupon the same shall become immediately due and payable.