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DE
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76-0447780
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(State or other jurisdiction of
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(IRS Employer
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incorporation)
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Identification No.)
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In addition, the Third Amendment modifies the definition of the terms Indebtedness and Loan Documents as used in the 2011 Loan Agreement to include various hedge and exchange agreements. The Note Extension extends the maturity date of the 2011 Loan Agreement to March 2, 2015.
The above description of the Third Amendment and Note Extension are qualified in their entirety by reference to the complete text of the same, filed as Exhibit 10.1 and Exhibit 10.2, respectively, attached hereto, which are incorporated herein by reference.
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GEOSPACE TECHNOLOGIES CORPORATION
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Date: February 27, 2013
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By:
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/s/ James Y'Barbo
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James Y'Barbo
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Assistant Secretary
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Exhibit No.
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Description
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EX-10.2
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Note Modification, Renewal and Extension Agreement dated February 22, 2013, by and between Frost Bank and Geospace Technologies Corporation.
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EX-10.1
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Third Amendment to Loan Agreement dated February 22, 2013 by and among Geospace Technologies Corporation, as borrower, certain subsidiaries of Geospace Technologies Corporation, as guarantors, and Frost Bank, as lender.
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NOTE MODIFICATION, Renewal and Extension AGREEMENT
This NOTE MODIFICATION, RENEWAL AND EXTENSION Agreement (this "Agreement") is entered into as of February 22, 2013, by and between FROST BANK, a Texas state bank, formerly known as The Frost National Bank ("Lender") and GEOSPACE TECHNOLOGIES CORPORATION, a Delaware corporation, formerly known as OYO Geospace Corporation ("Borrower").
RECITALS:
NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Borrower hereby agree as follows:
AGREEMENTS:
1. Acknowledgment of Outstanding Balance.
The parties hereto acknowledge that the outstanding principal balance of the Note as of the date hereof is ZERO AND NO/100 DOLLARS ($0.00) and there remains to be advanced on the Note (as of the effective date hereof), pursuant to the Loan Agreement, an amount not in excess of TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00).
2. Renewal and Extension of Maturity.
The Note is hereby renewed and the maturity of the Note is hereby extended to March 2, 2015.
3. Payment Terms.
Section 1 of the Note is hereby deleted and the following paragraph is hereby substituted in its place for all purposes:
"1. Payment Terms. Interest only on amounts outstanding hereunder shall be due and payable monthly as it accrues, on the 2nd day of each and every calendar month, beginning April 2, 2011, and continuing regularly and monthly thereafter until March 2, 2015, when the entire amount hereof, principal and accrued interest then remaining unpaid, shall be then due and payable; interest being calculated on the unpaid principal each day principal is outstanding and all payments made credited to any collection costs and late charges, to the discharge of the interest accrued and to the reduction of the principal, in such order as Lender shall determine."
4. Interest Rate.
The annual interest rate provided for in the Note shall remain as set forth in Paragraph 2 of the Note.
5. Usury. No provisions of this Agreement or the Loan Documents shall require the payment or permit the collection, application or receipt of interest in excess of the maximum permitted by applicable state or federal law. If any excess of interest in such respect is herein or in any such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this paragraph shall govern, and neither Borrower nor any endorsers of the Note nor their respective successors, assigns or personal representatives shall be obligated to pay the amount of such interest to the extent it is in excess of the amount permitted by applicable law. It is expressly stipulated and agreed to be the intent of Borrower and Lender to at all times comply with the usury and other laws relating to the Loan Documents and any subsequent revisions, repeals or judicial interpretations thereof, to the extent applicable thereto. In the event Lender or other holder of the Note ever receives, collects or applies as interest any such excess, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of the Note and, if upon such application the principal balance of the Note is paid in full, any remaining excess shall be forthwith paid to Borrower and the provisions of the Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without the necessity of execution of any new document, so as to comply with the then applicable law, but so as to permit the recovery of the fullest amount otherwise called for thereunder. In determining whether or not the interest paid or payable under any specific contingency exceeds the maximum interest allowed to be charged by applicable law, Borrower and Lender or other holder hereof shall, to the maximum extent permitted under applicable law, amortize, prorate, allocate and spread the total amount of interest throughout the entire term of the Note so that the amount or rate of interest charged for any and all periods of time during the term of the Note is to the greatest extent possible less than the maximum amount or rate of interest allowed to be charged by law during the relevant period of time. Notwithstanding any of the foregoing, if at any time applicable laws shall be changed so as to permit a higher rate or amount of interest to be charged than that permitted prior to such change, then unless prohibited by law, references in the Note to "applicable law," for purposes of determining the maximum interest or rate of interest that can be charged shall be deemed to refer to such applicable law as so amended to allow the greater amount or rate of interest.
6. RELEASE AND WAIVER OF CLAIMS. IN CONSIDERATION OF (I) THE MODIFICATION OF CERTAIN PROVISIONS OF THE NOTE, AS HEREIN PROVIDED, AND (II) THE OTHER BENEFITS RECEIVED BY BORROWER HEREUNDER, BORROWER HEREBY RELEASES, RELINQUISHES AND FOREVER DISCHARGES LENDER, AS WELL AS ITS PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES, OF AND FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OF WHICH BORROWER HAS ACTUAL KNOWLEDGE ON THE DATE HEREOF, OF ANY AND EVERY KIND OR CHARACTER, PAST OR PRESENT, WHICH BORROWER MAY HAVE AGAINST LENDER AND ITS PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES ARISING OUT OF OR WITH RESPECT TO (A) ANY RIGHT OR POWER TO BRING ANY CLAIM AGAINST LENDER FOR USURY OR TO PURSUE ANY CAUSE OF ACTION AGAINST LENDER BASED ON ANY CLAIM OF USURY, AND (B) ANY AND ALL TRANSACTIONS RELATING TO THE LOAN DOCUMENTS OCCURRING PRIOR TO THE DATE HEREOF, INCLUDING ANY LOSS, COST OR DAMAGE, OF ANY KIND OR CHARACTER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH OR IN ANY WAY RESULTING FROM THE ACTS, ACTIONS OR OMISSIONS OF LENDER, AND ITS PREDECESSORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES AND REPRESENTATIVES, INCLUDING ANY BREACH OF FIDUCIARY DUTY, BREACH OF ANY DUTY OF FAIR DEALING, BREACH OF CONFIDENCE, BREACH OF FUNDING COMMITMENT, UNDUE INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE, BAD FAITH, MALPRACTICE, INTENTIONAL OR NEGLIGENT INFLICTION OF MENTAL DISTRESS, TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS, TORTIOUS INTERFERENCE WITH CORPORATE GOVERNANCE OR PROSPECTIVE BUSINESS ADVANTAGE, BREACH OF CONTRACT, DECEPTIVE TRADE PRACTICES, LIBEL, SLANDER OR CONSPIRACY, BUT IN EACH CASE ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7. Reaffirmation of Representations, Etc. Borrower hereby reaffirms to Lender each of the representations, warranties, covenants and agreements of Borrower set forth in the Loan Documents.
8. Enforceable Obligations. Borrower hereby ratifies, affirms, reaffirms, acknowledges, confirms and agrees that the Loan Documents represent valid and enforceable obligations of Borrower, and Borrower further acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Note, and Borrower further acknowledges and represents that no event has occurred and no condition exists which would constitute a default under the Loan Documents or this Agreement, either with or without notice or lapse of time, or both.
9. No Release of Liens. This Agreement in no way acts as a release or relinquishment of the liens, security interests and rights (the "Liens") created or evidenced by the Pledge and Security Agreement. The Liens are hereby ratified and confirmed by Borrower in all respects and are extended to secure (i) the principal amount of the Note, (ii) all interest, charges and other sums payable with respect thereto, and (iii) the performance of all other obligations under the Pledge and Security Agreement.
10. Additional Renewals and Extensions. Notwithstanding anything to the contrary contained herein or inferred hereby or in any other instrument executed by Borrower or in any other action or conduct undertaken by Borrower on or before the date hereof, the agreements, covenants and provisions contained herein shall constitute the only evidence of Lender's consent to extend the terms and provisions of the Loan Documents in the manner set forth herein. No express or implied consent to any further extensions and/or modifications involving any of the matters set forth in this Agreement or otherwise, shall be inferred or implied from Lender's execution of this Agreement. Further, Lender's execution of this Agreement shall not constitute a waiver (either express or implied) of the requirement that any further extensions and/or modifications of the Loan Documents shall require the express written approval of Lender, no such approval (either express or implied) having been given as of the date hereof.
11. Miscellaneous.
NOTICE TO COMPLY WITH STATE LAW
For the purpose of this Notice, the term "WRITTEN AGREEMENT" shall include the document set forth above, together with each and every other document relating to and/or securing the same loan transaction, regardless of the date of execution.
NOTICE OF FINAL AGREEMENT
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature(s) appear on following page(s)]
IN WITNESS WHEREOF, Lender and Borrower have caused this Note Modification Agreement to be executed and delivered effective as of the date first above written.
LENDER:
FROST BANK, a Texas state bank, formerly known as The Frost National Bank
By: /s/ Larry Hammonds
Name: Larry Hammonds
Title: Market President - New Braunfels
BORROWER:
GEOSPACE TECHNOLOGIES CORPORATION,
a Delaware corporation, formerly known as OYO
Geospace Corporation
By: /s/Thomas T. McEntire
Thomas T. McEntire, Vice President,
Chief Financial Officer and Secretary
THIRD AMENDMENT TO LOAN AGREEMENT
This THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered into as of February 22, 2013, by and among Geospace TECHNOLOGIES Corporation, a Delaware corporation, formerly known as OYO Geospace Corporation ("Borrower"), EACH OF THE DOMESTIC SUBSIDIARIES OF THE BORROWER identified on Schedule 1 hereto (collectively, "Guarantors"), and FROST BANK, a Texas state bank, formerly known as The Frost National Bank ("Lender").
RECITALS:
NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Guarantors and Lender hereby agree as follows:
AGREEMENTS:
(a) Effective as of October 1, 2012, a wholly owned subsidiary of OYO Geospace Corporation merged with and into OYO Geospace Corporation with OYO Geospace Corporation being the surviving entity upon consummation of such merger (the "Merger"). In connection with the Merger, OYO Geospace Corporation's name was changed to "Geospace Technologies Corporation." In addition, simultaneously with the Merger, certain of the Subsidiaries were either converted, merged into other Subsidiaries or dissolved, with the result the Guarantors of the Obligations as of the date of this Amendment are the entities listed on Schedule 1 to this Amendment.
(b) The definition of "Indebtedness" in Section 1.01 of the Loan Agreement is hereby amended to read as follows:
"Indebtedness" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than those evidencing trade accounts payable in the ordinary course of business); (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments issued for the account of such Person; (c) net obligations of such Person under any Interest Rate Protection Agreement; (d) all obligations of such Person to pay the deferred purchase price of Property or services (other than trade accounts payable in the ordinary course of business that are not more than 180 days past due); (e) indebtedness (excluding prepaid interest thereon) of others secured by a Lien on Property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness will have been assumed by such Person or is limited in recourse; (f) Capital Lease Obligations and Synthetic Lease Obligations; and (g) all Guarantees of such Person in respect of any of the obligations of another Person described in the preceding clauses (a) through (f). For all purposes hereof, the Indebtedness of any Person will include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venture to the extent such Person is liable therefor as a result of such Person's ownership interest in such entity, unless such Indebtedness is expressly made non-recourse to such Person.
(c) The definition of "Loan Documents" in Section 1.01 of the Loan Agreement is hereby amended to read as follows:
"Loan Documents" means this Loan Agreement, the Revolving Credit Note, all Guaranties, the Security Agreement, all Interest Rate Protection Agreements, all Letters of Credit, all Letter of Credit Request Forms, and such other documents, instruments and agreements, evidencing, securing or pertaining to the Obligations as will from time to time be executed and delivered to Lender by Borrower, any Guarantor, or any other party pursuant to this Loan Agreement, and any future amendments, restatements, modifications, ratifications, confirmations, extensions or supplements hereto or thereto.
(d) Section 1.01 of the Loan Agreement is hereby amended to add the following definition:
"Interest Rate Protection Agreement" means any interest rate swap agreement, interest rate exchange agreement, currency exchange agreement, foreign exchange agreement, interest rate and currency exchange agreement, forward rate agreement, rate floor agreement, interest rate protection agreement, interest rate cap agreement, rate collar agreement, any option agreement respecting the foregoing, International Swaps and Derivatives Association, Inc. (ISDA) Master Agreement, or any similar agreement or arrangement, and any schedule, confirmation, exhibit, annex, document or instrument evidencing any interest in a derivative hedging transaction covered by any such agreement now existing or hereafter entered into by a Person to hedge the risk of variable interest rate volatility or fluctuations of interest rates or currency rates, or other risk, as the same may be modified, supplemented, amended or revised and in effect from time to time.
(e) Schedule 5.09(a) to the Loan Agreement is hereby deleted and Schedule 5.09(a) attached to this Amendment is substituted in its place for all purposes.
Except as specifically modified or amended herein, all terms, provisions and requirements of the Loan Agreement shall remain as written.
Borrower and Guarantors hereby reaffirm all covenants, conditions, representations and warranties contained in the Loan Agreement, as amended by this Amendment.
This Amendment and all other Loan Documents shall be governed by, and construed in accordance with, the laws of the State of Texas, excluding those laws relating to the resolution of conflicts between laws of different jurisdictions.
The headings preceding the text of the paragraphs of this Amendment have been inserted solely for convenience of reference and shall neither constitute a part of this Amendment nor affect its meaning, interpretation, or effect.
NOTICE TO COMPLY WITH STATE LAW
For the purpose of this Notice, the term "WRITTEN AGREEMENT" shall mean this Amendment, the Loan Agreement, and the other Loan Documents, together with each and every other document relating to and/or securing the Loans, regardless of the date of execution.
NOTICE OF FINAL AGREEMENT
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
LENDER:
FROST BANK, a Texas state bank, formerly
known as The Frost National Bank
By: /s/ Larry Hammonds
Name: Larry Hammonds
Title: Market President - New Braunfels
BORROWER:
GEOSPACE TECHNOLOGIES
CORPORATION, a Delaware corporation,
formerly known as OYO Geospace Corporation
By: /s/Thomas T. McEntire
Thomas T. McEntire, Vice President, Chief Financial Officer and Secretary
GUARANTORS:
GTC, INC.
EXILE TECHNOLOGIES CORPORATION
GEOSPACE ENGINEERING RESOURCES
INTERNATIONAL, INC.
GEOSPACE FINANCE CORP.
By: /s/Thomas T. McEntire
Thomas T. McEntire, Vice President, Chief Financial Officer and Secretary of each of the Guarantors named above
SCHEDULE 1
TO
THIRD AMENDMENT TO LOAN AGREEMENT
Guarantors
(1) GTC, Inc., a Texas corporation
(2) Exile Technologies Corporation, a Texas corporation
(3) Geospace Engineering Resources International, Inc., a Texas corporation
(4) Geospace Finance Corp., a Texas corporation
SCHEDULE 5.09(a)
TO
THIRD AMENDMENT TO LOAN AGREEMENT
(1) GTC, Inc., a Texas corporation
(2) Exile Technologies Corporation, a Texas corporation
(3) Geospace Engineering Resources International, Inc., a Texas corporation
(4) Geospace Finance Corp., a Texas corporation
(5) Geospace J.V., Inc., a Texas corporation
(6) Geospace Technologies Canada, Inc., a corporation organized under the laws of Canada
(7) Exile Technologies Limited, a limited partnership organized under the laws of the United Kingdom
(8) Geospace Technologies Eurasia, LLC, a limited liability company organized under the laws of Russia
(9) GTC, Inc. Beijing Representative Office
(10) Geospace Technologies Corporation Azerbaijan Branch, a corporation organized under the laws of Azerbaijan