TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Security Agreement"), dated as of
November 17, 1997, is executed by and between 3-D GEOPHYSICAL, INC., a Delaware
corporation ("Grantor"), and Sanwa Business Credit Corporation, a Delaware
corporation ("Lender").
RECITALS
A. Grantor has executed in favor of Lender a guaranty and certain
related documents dated as of November 17, 1997 (collectively, the "Guaranty")
in connection with loans made by Lender to Northern Geophysical of America, Inc.
B. To secure Grantor's obligations under the Guaranty, Grantor has
agreed to deliver this duly executed Security Agreement to Lender.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Grantor hereby agrees with Lender as follows:
1. Definitions and Interpretation. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"Affiliate" shall mean any person or entity controlling,
controlled by or under common control with another person or entity.
"Collateral" shall have the meaning given to that term in
Paragraph 2 hereof.
"Obligations" shall mean and include all loans, advances,
debts, liabilities and obligations, howsoever arising, owed by Grantor
to Lender of every kind and description (whether or not evidenced by
any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of the Guaranty,
including without limitation all interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to and payable by
Grantor hereunder and thereunder.
"Patent and Trademark Office" shall mean the United States
Patent and Trademark Office or any successor office or agency thereto.
"Trademarks" shall have the meaning given to that term in
Attachment I hereto.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of California from time to time.
Unless otherwise defined herein, all other capitalized terms
used herein and defined in the Guaranty shall have the respective meanings given
to those terms in the Guaranty, and all terms defined in the UCC shall have the
respective meanings given to those terms in the UCC.
2. Grant of Security Interest. As security for the
Obligations, Grantor hereby pledges, mortgages and grants to Lender a security
interest in the property described in Attachment I annexed hereto (collectively
and severally, the "Collateral"), which Attachment I is incorporated herein by
this reference.
3. Representations and Warranties. Grantor represents and
warrants to Lender that:
(a) Grantor is the owner of the Collateral (or, in the case of
after-acquired Collateral, at the time Grantor acquires rights in the
Collateral, will be the owner thereof) and that no other Person has
(or, in the case of after-acquired Collateral, at the time Grantor
acquires rights therein, will have) any right, title, claim or interest
(by way of Lien or otherwise) in, against or to the Collateral;
(b) Lender has (or in the case of after-acquired Collateral,
at the time Grantor acquires rights therein, will have) a first
priority perfected security interest in the Collateral;
(c) Grantor has full corporate power and authority to grant
the security interest herein granted, and the execution and delivery of
this Security Agreement by Grantor and the performance of its
obligations hereunder, have been duly authorized by all necessary
corporate action on the part of Grantor;
(d) Grantor does not own any Trademarks registered in, or the
subject of pending applications in, the Patent and Trademark Office or
any similar offices or agencies in any other country or any political
subdivision thereof, other than those described in Schedule A or
Schedule B to Attachment I hereto;
(e) Grantor has the sole and full right, title and interest in
and to each of the Trademarks shown on Schedule A to Attachment I
hereto for the goods and services covered by the registrations thereof,
unencumbered except as set forth in Schedule C to Attachment I hereto,
and such registrations are valid and enforceable and in full force and
effect;
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(f) There is no claim by any third party that any Trademarks
are invalid or unenforceable or do or may violate the rights of any
Person;
(g) All licenses of Trademarks which Grantor has granted to
any Person are set forth in Schedule C to Attachment I hereto; and
(h) All licenses of Trademarks which any Person has granted to
Grantor are set forth in Schedule D to Attachment I hereto.
4. Covenants of Grantor. Grantor hereby agrees:
(a) Grantor shall perform all acts and execute all documents,
including, without limitation, Grants of Security Interest
substantially in the form of Attachment II annexed hereto, that may be
necessary or desirable to record, maintain, preserve, protect and
perfect Lender's interest in the Collateral, the Lien granted to Lender
in the Collateral and the first priority of such Lien;
(b) Except to the extent that Lender shall give its prior
written consent,
(i) Grantor shall continue to use the Trademarks in
connection with each and every trademarked class of goods or
services applicable to its current line as reflected in its
current catalogs, brochures, price lists or similar materials
in order to maintain the Trademarks in full force and effect
free from any claim of abandonment for nonuse, and Grantor
shall not (and will not permit any licensee thereof to) do any
act or omit to do any act whereby any Trademark may become
invalidated and shall notify Lender immediately if Grantor
knows of any reason or has reason to know that any application
or registration may become invalidated; and
(ii) Grantor shall not assign, sell, mortgage, lease,
transfer, pledge, hypothecate, grant a security interest in or
Lien upon, encumber, grant an exclusive or non-exclusive
license, or otherwise dispose of any of the Collateral, and
nothing in this Security Agreement shall be deemed a consent
by Lender to any such action except as expressly permitted
herein;
(c) Grantor shall promptly pay Lender for any and all sums,
costs, and expenses which Lender may pay or incur pursuant to the
provisions of this Security Agreement or in enforcing the Obligations,
the Collateral or the security interest granted hereunder, including,
without limitation, all filing or recording fees, court costs,
collection charges, travel, and reasonable attorneys' fees and
expenses, all of which together with interest at the highest rate then
payable on the Obligations
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shall be part of the Obligations and be payable on demand;
(d) Grantor shall promptly notify Lender upon the filing with
the Patent and Trademark Office or any similar office or agency in any
other country or any political subdivision thereof, either by Grantor
or by any agent, employee, licensee or designee of Grantor, of (i) an
application for the registration of any Trademark with the Patent and
Trademark Office or any similar office or agency in any other country
or any political subdivision thereof or (ii) any assignment of any
Trademark which Grantor may acquire from a third party. Upon the
request of Lender, Grantor shall execute and deliver any and all
documents, instruments, and agreements as Lender may request to
evidence Lender's security interest in such Trademark (and the goodwill
and general intangibles of Grantor relating thereto or represented
thereby), and Grantor authorizes Lender to amend an original
counterpart of the applicable Grant of Security Interest executed
pursuant to Subparagraph 4(a) of this Security Agreement without first
obtaining Grantor's approval of or signature to such amendment, and to
record such security interest with the Patent and Trademark Office;
(e) Grantor shall keep the Collateral free of all Liens,
except in favor of Lender;
(f) Grantor shall take all necessary steps in any proceeding
before the Patent and Trademark Office or any similar office or agency
in any other country or any political subdivision thereof, to
diligently prosecute or maintain, as applicable, each application and
registration of the Trademarks;
(g) So long as any of the Obligations are outstanding, Grantor
shall make application to the Patent and Trademark Office (and assign
any such application to Lender as security) to register any
registerable but unregistered material Trademarks used by Grantor in
connection with its products or services, unless Grantor, in the
exercise of its prudent business judgment, deems any such Trademark not
to have any significant commercial value or determines that its rights
thereunder are better preserved as a trade secret;
(h) Grantor shall (i) use proper statutory notice in
connection with any use of the Trademarks, and (ii) maintain consistent
standards of quality in its manufacture of products sold under the
Trademarks or provision of services in connection with the Trademarks;
(i) Grantor agrees that if it or any Affiliate learns of any
use by any Person of any term or design likely to cause confusion with
any Trademark, Grantor shall promptly notify Lender of such use and of
all steps taken and to be taken to remedy any infringement of any
Trademark; and
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(j) Grantor shall at all times keep at least one complete set
of its records concerning the Collateral at its chief executive office
and shall make such records available for inspection by Lender at such
times as Lender may reasonably request.
5. Authorized Action by Lender.
(a) Lender may, in its sole discretion, pay any amount or do
any act required of Grantor hereunder or requested by Lender to
preserve, defend, protect, maintain, record or enforce Grantor's
obligations contained herein, the Obligations, the Collateral, or the
right, title and interest granted Lender by this Security Agreement,
and which Grantor fails to do or pay, and any such payment shall be
deemed an advance by Lender to Grantor and shall be payable on demand
together with interest at the highest rate then payable on the
Obligations.
(b) Grantor agrees to execute and deliver to Lender three
originals of a Special Power of Attorney in substantially the form of
Attachment III to this Agreement for the implementation of the
recording, giving of notice, preservation, assignment, sale or other
disposal of the Collateral pursuant to Paragraph 2 and Subparagraphs
5(a) and 7(a).
(c) Grantor hereby grants to Lender and its employees and
agents the right to visit Grantor's business facilities at which
Grantor manufactures products or provides services, which products or
services are sold under or provided in connection with any of the
Trademarks, and to inspect such products and the quality control
records relating thereto or observe the provision of such services.
6. Litigation and Other Proceedings.
(a) Unless Grantor determines in the exercise of its
reasonable business judgment that (i) the Trademark at issue is of
immaterial value and (ii) loss of the exclusive use of such Trademark
would not have a material adverse effect on Grantor's condition
(financial or otherwise) or on the collateral, Grantor shall have the
obligation to commence and diligently prosecute such suits, proceedings
or other actions for infringement or other damage, or reexamination or
reissue proceedings, or opposition or cancellation proceedings as are
reasonable to protect any of the Trademarks. No such suit, proceeding
or other actions shall be settled or voluntarily dismissed, nor shall
any party be released or excused of any claims of or liability for
infringement, without the prior written consent of Lender, which
consent shall not be
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unreasonably withheld.
(b) Upon the occurrence and during the continuation of an
Event of Default, Lender shall have the right but not the obligation to
bring suit or institute proceedings in the name of Grantor or Lender to
enforce any rights in the Collateral, including any license thereunder,
in which event Grantor shall at the request of Lender do any and all
lawful acts and execute any and all documents required by Lender in aid
of such enforcement. If Lender elects not to bring suit to enforce any
right under the Collateral, including any license thereunder, Grantor
agrees to use all reasonable measures, whether by suit, proceeding or
other action, to prevent the infringement of any right under the
Collateral by any Person and for that purpose agrees to diligently
maintain any action, suit or proceeding against any Person so
infringing necessary to prevent such infringement.
7. Default and Remedies.
(a) Grantor shall be deemed in default under this Security
Agreement upon the occurrence of an Event of Default. Upon the
occurrence and during the continuation of any such Event of Default,
Lender may, at its option, and (except if otherwise specified below)
without notice to or demand on Grantor, and in addition to all rights
and remedies available to Lender under the Guaranty or the other loan
documents, do any one or more of the following:
(i) upon ten (10) days' prior notice to Grantor,
direct Grantor not to make any further use of the Trademarks
(or any mark similar thereto) for any purpose;
(ii) at any time and from time to time, upon ten (10)
days' prior notice to Grantor, license, whether general,
special or otherwise, and whether on an exclusive or
nonexclusive basis, any of the Trademarks throughout the world
for such term or terms, on such conditions, and in such
manner, as Lender shall in its sole discretion determine;
(iii) at any time and from time to time, enforce (and
upon notice to Grantor have the exclusive right to enforce)
against any licensee or sublicensee all rights and remedies of
Grantor in, to and under any one or more license agreements
with respect to the Collateral (without assuming any
obligations or liability thereunder), and take or refrain from
taking any action under any thereof;
(iv) at any time and from time to time, upon ten (10)
days' prior
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notice to Grantor, assign, sell, or otherwise dispose of, the
Collateral or any of it, either with or without special or
other conditions or stipulations, with power to buy the
Collateral or any part of it, and with power also to execute
assurances, and do all other acts and things for completing
the assignment, sale or disposition which Lender shall, in its
sole discretion, deem appropriate or proper; and
(v) in addition to the foregoing, in order to
implement the assignment, sale or other disposal of any of the
Collateral pursuant to clause (a)(iv) hereof, Lender may, at
any time, pursuant to the authority granted in the Power of
Attorney executed pursuant to Subparagraph 5(b) hereof,
execute and deliver on behalf of Grantor, one or more
instruments of assignment of the Trademarks (or any
application for registration thereof), in form suitable for
filing, recording or registration in any country.
(b) Grantor agrees to pay when due all reasonable costs
incurred in any such transfer of the Trademarks, including, without
limitation, any taxes, fees and reasonable attorneys' fees and
expenses, and all such costs shall be added to the Obligations. Lender
may apply the proceeds actually received from any such license,
assignment, sale or other disposition to the reasonable costs and
expenses thereof, including, without limitation, reasonable attorneys'
fees and all legal, travel and other expenses which may be incurred by
Lender, and then to the Obligations, in such order as to principal or
interest as Lender may desire; and Grantor shall remain liable and will
pay Lender on demand any deficiency remaining, together with interest
thereon at a rate equal to the highest rate then payable on the
Obligations and the balance of any expenses unpaid. Nothing herein
contained shall be construed as requiring Lender to take any such
action at any time. In the event of any such license, assignment, sale
or other disposition of the Collateral, or any of it, after the
occurrence or continuation as hereinabove provided of an Event of
Default, Grantor shall supply its know-how and expertise relating to
the manufacture and sale of the products bearing the Trademarks or in
connection with which the Trademarks are used, and its consumer or
customer lists and other records relating to the Trademarks and to the
distribution of products or the provisions of services, to Lender or
its designee.
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(c) In furtherance of Lender's rights hereunder, Grantor
hereby grants to Lender an irrevocable, non-exclusive license
(exercisable without royalty or other payment by Lender) to use,
license or sublicense any Trademark in which Grantor now or hereafter
has any right, title or interest together with the right of access to
all media in which any Trademark may be recorded or stored. Such
license shall be exercisable only upon the occurrence and during the
continuation of an Event of Default (after any applicable cure periods
have expired).
8. Reassignment. Upon the payment in full of the Obligations and the
termination of the Guaranty and Lender's obligation to provide advances
thereunder, Lender shall execute and deliver to Grantor (at no expense to
Lender) all assignments and other instruments as may be necessary to vest in
Grantor full right, title and interest in and to the Collateral, subject to any
disposition thereof which may have been made by Lender pursuant to the
provisions of this Security Agreement.
9. Indemnification and Release.
(a) Grantor assumes all responsibility and liability arising
from the use of the Trademarks, and Grantor shall indemnify and hold
Lender and its directors, officers, employees, agents and any of their
respective Affiliates ("Indemnitees") harmless from and against any
claim, suit, loss, damage or expense (including, without limitation,
reasonable attorneys' fees and expenses) arising out of or in
connection with any alleged infringement of any trademark or alleged
defect in any product manufactured, promoted or sold by Grantor (or any
Affiliate of Grantor) in connection with any Trademark, or out of the
manufacture, promotion, labeling, sale or advertisement of any product
or service by Grantor (or any Affiliate of Grantor). Grantor agrees
that Lender does not assume, and shall have no responsibility for, the
payment of any sums due or to become due under any agreement or
contract included in the Collateral or the performance of any
obligations to be performed under or with respect to any such agreement
or contract by Grantor, and Grantor hereby agrees to indemnify and hold
each Indemnitee harmless with respect to any and all claims by any
Person relating thereto.
(b) Grantor agrees to indemnify and hold each Indemnitee
harmless from and against any claim, suit, loss, damage or expense
(including, without limitation, reasonable attorneys' fees and
expenses) arising out of or in connection with any action taken or
omitted to be taken by Lender pursuant to clause 7(a)(iii) hereof with
respect to any license agreement of Grantor.
(c) Grantor agrees to indemnify and hold each Indemnitee
harmless
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from and against any claim, suit, loss, damage or expense (including,
without limitation, reasonable attorneys' fees and expenses) arising
out of or in connection with (i) any claim, suit or proceeding
instituted by Grantor or (ii) any action taken or omitted to be taken
by Lender pursuant to Subparagraph 6(b).
(d) Grantor hereby releases the Indemnitees from any claims,
causes of action and demands at any time arising out of or with respect
to any actions taken or omitted to be taken by the Indemnitees under
the powers of attorney granted under the Special Power of Attorney
executed pursuant to Subparagraph 5(b) herein, other than actions taken
or omitted to be taken through the gross negligence or willful
misconduct of such Indemnitees.
(e) Grantor agrees to cause Lender to be named as an
additional insured with respect to any policy of insurance held by
Grantor from time to time covering product liability or intellectual
property infringement risk.
10. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands or other communications to or upon Lender or Grantor
hereunder shall be addressed to Lender or Grantor at the respective
addresses indicated below or at such other address as Lender or Grantor
may designate by written notice to the other party, and shall be deemed
to have been given (i) in the case of notice by letter, three (3) days
after deposited in the mails registered and return receipt requested,
or (ii) in the case of notice given by telecommunication, when sent
with appropriate confirmation received:
Lender: Sanwa Business Credit Corporation
550 N. Brand Boulevard
Suite 950
Glendale, California 91203
Attention: Regional Manager
Telephone: (818) 545-0090
Telecopy: (818) 545-0095
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Grantor: 3-D Geophysical, Inc.
8226 Park Meadows Drive
Littleton, Colorado 80124
Attention: Ronald L. Koons
Telephone:
Telecopy:
with a copy to: Rothgerber, Appel, Powers & Johnson, LLP
Norwest Bank Tower
90 S. Cascade Ave., Suite 1100
Colorado Springs, CO 80903
Attention: Bruce Warren, Esq.
Telephone:
Telecopy:
(b) Nonwaiver. No failure or delay on Lender's part in
exercising any right hereunder shall operate as a waiver thereof or of
any other right nor shall any single or partial exercise of any such
right preclude any other further exercise thereof or of any other
right.
(c) Amendments and Waivers. Except with respect to action by
Lender pursuant to Subparagraph 4(d), this Security Agreement may not
be amended or modified, nor may any of its terms be waived, except by
written instruments signed by Grantor and Lender as required by the
Guaranty. Each waiver or consent under any provision hereof shall be
effective only in the specific instances and for the purpose for which
given.
(d) Assignments. This Security Agreement shall be binding upon
and inure to the benefit of Lender and Grantor and their respective
successors and assigns; provided, however, that Grantor and Lender may
sell, assign and delegate their respective rights and obligations
hereunder only as permitted by the Guaranty.
(e) Cumulative Rights, etc. The rights, powers and remedies of
Lender under this Security Agreement shall be in addition to all
rights, powers and remedies given to Lender by virtue of any applicable
law, rule or regulation of any governmental authority, the Guaranty or
any other agreement, all of which rights, powers, and remedies shall be
cumulative and may be exercised successively or concurrently without
impairing Lender's rights hereunder. Grantor waives any right to
require Lender to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Lender's power.
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(f) Payments Free of Taxes, Etc. All payments made by Grantor
under this Security Agreement shall be made by Grantor free and clear
of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, Grantor
shall pay upon demand any stamp or other taxes, levies or charges of
any jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Security Agreement. Upon request by
Lender, Grantor shall furnish evidence satisfactory to Lender that all
requisite authorizations and approvals by, and notices to and filings
with, governmental authorities and regulatory bodies have been obtained
and made and that all requisite taxes, levies and charges have been
paid.
(g) Partial Invalidity. If at any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in
any respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Security
Agreement nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
(h) Governing Law. This Security Agreement shall be governed
by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
(i) Submission to Jurisdiction. Grantor hereby irrevocably and
unconditionally:
(i) Submits for itself and its property in any legal
action or proceeding relating to this Security Agreement, or
for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive jurisdiction of the courts
located in Los Angeles, and consents and agrees to suit being
brought in such courts as Lender may elect;
(ii) Waives any objection that it may now or
hereafter have to the venue of any such action or proceeding
in any such court or that such proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) Agrees as an alternate means of service of
process in any such legal action or proceeding to service by
mailing of copies thereof (by registered or certified mail, if
practicable) postage prepaid, or by telecopy, to the then
active agent or to Grantor at its address set forth in
Subparagraph 10(a) hereof or at such other address of which
Lender shall have
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been notified pursuant thereto, and agrees that failure to
receive such copy or notice shall not affect or impair the
validity of such service or of any judgment rendered in any
action or proceeding based thereon; and
(iv) Agrees that nothing herein shall affect Lender's
right to effect service of process in any other manner
permitted by law, and that Lender shall have the right to
bring any legal proceedings (including a proceeding for
enforcement of a judgment entered by any of the aforementioned
courts) against Guarantor in such courts or in any other court
or jurisdiction in accordance with applicable law.
(j) Jury Trial. EACH OF GRANTOR AND LENDER, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
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IN WITNESS WHEREOF, Grantor and Lender have caused this Security
Agreement to be executed as of the day and year first above written.
"GRANTOR"
3-D GEOPHYSICAL, INC.,
a Delaware corporation,
By: /s/ Ronald L. Koons
-------------------------------------
Name: Ronald L. Koons
Title: Vice President
"LENDER"
SANWA BUSINESS CREDIT CORPORATION,
a Delaware corporation
By: /s/ Timothy K. Turner
-------------------------------------
Name: Timothy K. Turner
Title: First Vice President
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ATTACHMENT I
TO TRADEMARK SECURITY AGREEMENT
(a) All trademarks, trade names, trade styles and service marks, and
all prints and labels on which said trademarks, trade names, trade styles and
service marks have appeared or appear, and all designs and general intangibles
of like nature, now existing or hereafter adopted or acquired, all right, title
and interest therein and thereto, all registrations and recordings thereof,
including without limitation, (i) all applications, registrations and recordings
in the Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof, or any foreign country or any political
subdivision thereof, all whether now owned or hereafter acquired by Grantor,
including, but not limited to, those described in Schedules A and B to this
Attachment I, which Schedules A and B are incorporated herein by this reference,
and (ii) all reissues, extensions or renewals thereof and all licenses thereof
(collectively, the "Trademarks");
(b) All goodwill of Grantor's business symbolized by the Trademarks and
all customer lists and other records of Grantor relating to the distribution of
products or provision of services bearing or covered by the Trademarks;
(c) All claims by Grantor against any Person for past, present or
future infringement of the Trademarks, including, without limitation, the right
to take any action to enforce such claims;
(d) All proceeds of the foregoing (including, without limitation,
whatever is receivable or received when Collateral or proceeds are sold,
collected, exchanged, licensed or otherwise disposed of, whether such
disposition is voluntary or involuntary, including, without limitation, rights
to payment and return premiums and insurance proceeds under insurance with
respect to any Collateral, and all rights to payment with respect to any cause
of action affecting or relating to the Collateral).
I-A
SCHEDULE A TO ATTACHMENT I
TO TRADEMARK SECURITY AGREEMENT
TRADEMARKS
Trademark Jurisdiction Reg. Date Reg. No.
--------- ------------ --------- --------
None.
SCHEDULE B TO ATTACHMENT I
TO TRADEMARK SECURITY AGREEMENT
APPLICATIONS FOR TRADEMARKS
Trademark Jurisdiction Date Filed Serial No.
--------- ------------ ---------- ----------
3-D Geophysical U.S. 10/8/96 75-179,174
SCHEDULE C TO ATTACHMENT I
TO TRADEMARK SECURITY AGREEMENT
LICENSES GRANTED BY GRANTOR TO THIRD PARTIES
None
SCHEDULE D TO ATTACHMENT I
TO TRADEMARK SECURITY AGREEMENT
LICENSES GRANTED BY THIRD PARTIES TO GRANTOR
None
ATTACHMENT II TO TRADEMARK SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
TRADEMARKS
THIS GRANT OF SECURITY INTEREST, dated as of November 17,
1997, is executed by 3-D Geophysical, Inc., a Delaware corporation ("Grantor"),
in favor of Sanwa Business Credit Corporation, a Delaware corporation
("Lender").
A. Grantor has executed in favor of Lender a guaranty and
certain related documents dated as of November 17, 1997 (collectively, the
"Guaranty") in connection with loans made by Lender to Northern Geophysical of
America, Inc.;
B. Grantor has adopted, used and is using certain trademarks,
more particularly described on Schedules 1-A and 1-B annexed hereto as part
hereof, which trademarks are registered or subject to an application for
registration in the United States Patent and Trademark Office (collectively, the
"Trademarks");
C. Grantor has entered into a Trademark Security Agreement
dated the date hereof (the "Security Agreement") in favor of Lender; and
D. Pursuant to the Security Agreement, Grantor has granted to
Lender a security interest in all right, title and interest of Grantor in and to
the Trademarks, together with the goodwill of the business symbolized by the
Trademarks and the customer lists and records related to the Trademarks and the
applications and registrations thereof, and all proceeds thereof, including,
without limitation, any and all causes of action which may exist by reason of
infringement thereof (the "Collateral"), to secure the prompt payment,
performance and observance of the Obligations, as defined in the Security
Agreement;
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, Grantor does hereby further grant to Lender a
security interest in the Collateral to secure the prompt payment, performance
and observance of the Obligations.
Grantor does hereby further acknowledge and affirm that the
rights and remedies of Lender with respect to the security interest in the
Collateral granted hereby are more fully set forth in the Security Agreement,
the terms and provisions of which are hereby incorporated herein by reference as
if fully set forth herein.
Lender's address is: Sanwa Business Credit Corporation
550 N. Brand Boulevard
Suite 950
Glendale, California 91203
Attention: Regional Manager
Telephone: (818) 545-0090
Telecopy: (818) 545-0095
IN WITNESS WHEREOF, Grantor has caused this Grant of Security
Interest to be executed as of the day and year first above written.
"GRANTOR"
3-D GEOPHYSICAL, INC.,
a Delaware corporation,
By: /s/ Ronald L. Koons
----------------------
Name: Ronald L. Koons
Title: Vice President
II-2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
- -------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) ss.
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On , before me, ,
(Name And Title Of Officer)
personally appeared
,
personally known to me
-OR-
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
- -------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
Title(s) Title Or Type Of Document
Partner(s) Limited
General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Number Of Pages
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies) Date Of Document
Signer(s) Other Than Named Above
- -------------------------------------------------------------------------------
SCHEDULE 1-A TO GRANT OF SECURITY INTEREST
TRADEMARKS
Mark Registration Date Registration No.
---- ----------------- ----------------
None.
SCHEDULE 1-B TO GRANT OF SECURITY INTEREST
TRADEMARK APPLICATIONS
Mark Application Date Application No.
---- ---------------- ---------------
3-D Geophysical 10/8/96 75-179,174
ATTACHMENT III TO TRADEMARK SECURITY AGREEMENT
SPECIAL POWER OF ATTORNEY
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
KNOW ALL PERSONS BY THESE PRESENTS, THAT 3-D Geophysical,
Inc., a Delaware corporation ("Grantor"), pursuant to a Trademark Security
Agreement, dated as of November 17, 1997 (the "Security Agreement"), by and
between Grantor and Sanwa Business Credit Corporation, a Delaware corporation
("Lender"), hereby appoints and constitutes Lender its true and lawful attorney,
with full power of substitution, and with full power and authority to perform
the following acts on behalf of Grantor:
1. For the purpose of assigning, selling, licensing or
otherwise disposing of all right, title and interest of Grantor in and to any
trademarks, trade names, trade styles and service marks, and all registrations,
recordings, reissues, extensions and renewals thereof, and all pending
applications therefor, and for the purpose of the recording, registering and
filing of, or accomplishing any other formality with respect to, the foregoing,
to execute and deliver any and all agreements, documents, instruments of
assignment or other papers necessary or advisable to effect such purpose.
2. For the purpose of evidencing and perfecting Lender's
interest in any trademark not previously assigned to Lender as security, or in
any trademark which Grantor may acquire from a third party, and for the purpose
of the recording, registering and filing of, or accomplishing any other
formality with respect to, the foregoing, to execute and deliver any and all
agreements, documents, instruments of assignment or other papers necessary or
advisable to effect such purpose.
3. To execute any and all documents, statements, certificates
or other papers necessary or advisable in order to obtain the purposes described
above as Lender may in its sole discretion determine.
This power of attorney is made pursuant to the Security
Agreement and takes effect solely for the purposes of Paragraph 2 and
Subparagraphs 5(a) and 7(a) thereof and is subject to the conditions thereof and
may not be revoked until the payment in full of all "Obligations" as defined in
the Security Agreement.
Dated: November 17, 1997
"GRANTOR"
3-D GEOPHYSICAL, INC.,
a Delaware corporation,
By: /s/ Ronald L. Koons
----------------------
Name: Ronald L. Koons
Title: Vice President
III-2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
- -------------------------------------------------------------------------------
STATE OF CALIFORNIA )
) ss.
)
On , before me, ,
(Name And Title Of Officer)
personally appeared
,
personally known to me
-OR-
proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
- -------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
Individual
Corporate Officer
Title(s) Title Or Type Of Document
Partner(s) Limited
General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Number Of Pages
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies) Date Of Document
Signer(s) Other Than Named Above
- -------------------------------------------------------------------------------