Exhibit 10.12
AMENDMENT NUMBER TWO
TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT (this
"AMENDMENT"), dated effective as of September 23, 1999, is entered into by
and among Grant Geophysical, Inc., a Delaware corporation ("BORROWER"),
Foothill Capital Corporation, a California corporation ("FOOTHILL"), and
▇▇▇▇▇▇▇ Associates, L.P., a Delaware limited partnership ("EALP"), in light
of the following:
WHEREAS, Borrower, EALP and Foothill are parties to that certain Loan
and Security Agreement (the "LOAN AND SECURITY AGREEMENT"), dated as of May
11, 1999, as amended by Amendment Number One to Loan and Security
Agreement, dated to be effective as of August 13, 1999, by and among
Borrower, Foothill and EALP; and
WHEREAS, Borrower has acquired seven seismic vibrator buggies
(collectively, the "ACQUIRED EQUIPMENT") in accordance with the terms of
the Loan and Security Agreement and has requested that certain provisions
of the Loan and Security Agreement be amended, so as to provide for the
following:
(a) an increase in the principal amount of the FCC Term Loan to
$11,673,500, and provide a revised payment schedule for the repayment
of the FCC Term Loan; and
(b) the amendment and restatement of the FCC Term Note to reflect
the changes of referenced above.
WHEREAS, subject to the conditions set forth in this Amendment,
Foothill and EALP have agreed to amend the Loan and Security Agreement as
set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, conditions, and provisions as hereinafter set forth, the parties
hereto agree as follows:
1. DEFINITIONS. Initially capitalized terms used herein have the
meanings defined in the Loan and Security Agreement unless otherwise
defined herein.
2. AMENDMENTS.
2.01 AMENDMENT TO THE SECTION 1.1 OF THE LOAN AND SECURITY AGREEMENT.
SECTION 1.1 of the Loan and Security Agreement is hereby amended by adding
the following definition of "Second Amendment to Loan and Security
Agreement" to such section in the appropriate alphabetical order, such
definition to read in its entirety as follows:
"'SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT' means that
certain Second Amendment to Loan and Security Agreement, dated to be
effective as of September 23, 1999, by and among Borrower, Foothill
and EALP."
2.02 AMENDMENT AND RESTATEMENT OF SECTION 2.3 OF THE LOAN AND SECURITY
AGREEMENT. Effective as of the date hereof, SECTION 2.3 of the Loan and
Security Agreement is hereby amended and restated in its entirety to read
as follows:
"2.3 FCC TERM LOAN.
(a) GENERAL. Foothill has agreed to make a term loan
(the "FCC TERM LOAN") to Borrower in the stated principal amount not
to exceed Eleven Million Six Hundred Seventy-three Thousand Five
Hundred Dollars ($11,673,500.00). The FCC Term Loan shall be repaid
in thirty-two monthly installments, and one final installment, of
principal in the following amounts:
Month Installment Amount
------------------------------------- ------------------------------
October 1, 1999 $287,500.00
November 1, 1999, through May 1, 2002 $313,400.00/month
May 11, 2002 The outstanding principal
balance of the FCC Term Loan
Each such principal installment shall be due and payable on the first
day of each month commencing October 1, 1999, and continuing on the
first day of each succeeding month until and including the date on
which the unpaid balance of the FCC Term Loan is paid in full. The
outstanding principal balance and all accrued and unpaid interest
under the FCC Term Loan shall be due and payable upon the termination
of this Agreement, whether by its terms, by prepayment, by
acceleration, or otherwise. Subject to SECTION 3.6, the unpaid
principal balance of the FCC Term Loan may be prepaid in whole or in
part at any time during the term of this Agreement upon 30 days prior
written notice by Borrower to Foothill, all such prepaid amounts to be
applied to the installments due on the FCC Term Loan in the inverse
order of their maturity. All amounts outstanding under the FCC Term
Loan shall constitute Obligations.
(b) PREPAYMENT UPON DISPOSITION OF ELIGIBLE EQUIPMENT.
Except as otherwise expressly permitted by SECTION 7.4 of this
Agreement, Borrower shall prepay the FCC Term Loan in an amount equal
to the net proceeds of any disposition of Eligible Equipment,
regardless of whether such disposition is permitted under SECTION 7.4
of this Agreement (but without approving any such disposition not
otherwise expressly permitted under SECTION 7.4 of this Agreement).
The mandatory prepayment shall be due and payable immediately upon the
corresponding disposition of Eligible Equipment. Mandatory
prepayments shall be applied to installments under the FCC Term Loan
in inverse order of maturity.
(c) FCC TERM NOTE. The FCC Term Loan shall be
evidenced by that certain Amended and Restated Secured Promissory
Note, dated September 23, 1999, in the original principal amount of
$11,673,500.00, executed by Borrower, payable to the order of
Foothill, the form of which is attached as EXHIBIT A to the Second
Amendment to Loan and Security Agreement (together with any and all
renewals, extensions and modifications thereof, the "FCC TERM NOTE")."
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon fulfillment of the following conditions, in each case to the
satisfaction of Foothill:
(a) a counterpart of this Amendment shall be executed by
Borrower and delivered to Foothill;
(b) a counterpart of this Amendment shall be executed by EALP
and delivered to Foothill;
(c) each of AST, GGC and GGII shall reaffirm its obligations
under the applicable Subsidiary Guaranty, pursuant to an instrument in
form and substance satisfactory to Foothill;
(d) Borrower shall execute and deliver to Foothill an amended
and restated secured promissory note in the form attached hereto as
EXHIBIT A; and
(e) Borrower shall pay all fees and expenses required to be paid
by Borrower pursuant to SECTION 6.03 of this Amendment.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.
4.01 REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to Foothill as follows:
(a) the execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary corporate action
of Borrower and do not and will not require any registration with,
consent or approval of, notice to or action by, any Person in order to
be effective and enforceable;
(b) the execution, delivery and performance by Borrower of this
Amendment will not violate the articles of incorporation, bylaws or
any other agreement to which Borrower is a party or by which the
property of Borrower may be bound;
(c) the Loan and Security Agreement, as amended by this
Amendment, constitutes the legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms,
without defense, counterclaim or offset;
(d) the representations and warranties contained in the Loan and
Security Agreement (as amended by this Amendment) and each other Loan
Document are true and correct on and as of the date hereof as though
made on and as of the date hereof, except to the extent such
representations and warranties relate to an earlier date;
(e) Borrower is in full compliance with all covenants and
agreements contained in the Loan and Security Agreement, as amended by
this Amendment, and all such covenants and agreements are, and shall
remain, in full force and effect;
(f) an indication of the Agent's security interests on
certificates of title issued with respect to the Acquired Equipment is
not required to perfect the security interests of the Agent in the
Acquired Equipment; and
(g) the security interests of the Agent granted by the Loan and
Security Agreement in the Acquired Equipment constitute perfected,
first-priority security interests in the Acquired Equipment.
4.02 COVENANTS OF BORROWER. Within fifteen days of the date hereof,
Borrower shall, or shall cause each of GGBL, PTGI and SSGI to, take the
following actions:
(a) each of GGBL, PTGI and SSGI shall reaffirm their respective
obligations under the applicable Subsidiary Guaranties, pursuant to an
instrument in form and substance satisfactory to Foothill; and
(b) provide Foothill with evidence satisfactory to Foothill of
the filing of a duly executed and completed "Application for
Registration of Water Well Drilling or Construction Machinery"
(collectively, the "APPLICATIONS") with the Texas Department of
Transportation with respect to each of the seven pieces of Acquired
Equipment.
Upon receipt of the approved copies of the Applications, Borrower promptly
shall forward copies of same to Foothill, and Borrower promptly shall
proceed to purchase the requested plates from the appropriate county tax
assessor-collector in accordance with the requirements of the Applications.
The failure of Borrower to comply with any portion of the requirements of
this SECTION 4.02 shall constitute an "Event of Default" pursuant to
SECTION 8 of the Loan and Security Agreement, as amended by this Amendment.
5. AGREEMENT OF EALP. EALP hereby joins in this Amendment for the
purpose of consenting to the terms hereof. EALP hereby agrees that all
terms, covenants and provisions of the Loan and Security Agreement and the
other Loan Documents are, and shall remain, in full force and effect,
including (without limitation) the subordination provisions set forth at
SECTION 17.16 of the Loan and Security Agreement and EALP's guaranty of the
Obligations of Borrower (other than the EALP Term Loan) pursuant to the
EALP Guaranty, which EALP Guaranty is hereby acknowledged and reaffirmed
with respect to all Obligations of Borrower (other than the EALP Term Loan)
arising pursuant to the Loan and Security Agreement and other Loan
Documents, as amended by this Amendment.
6. MISCELLANEOUS.
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made herein and in the Loan and Security Agreement shall
survive the execution and delivery of this Amendment, and no investigation
by Foothill or any closing shall affect the representations and warranties
or the right of Foothill to rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. The Loan and Security Agreement, as
amended hereby, and all other Loan Documents, whether now or hereafter
executed and delivered, are hereby amended so that any reference to the
Loan and Security Agreement shall mean a reference to the Loan and Security
Agreement, as amended by this Amendment.
6.03 EXPENSES OF FOOTHILL AND WAIVER FEE. In consideration of
Foothill's execution and delivery of this Amendment, Borrower shall pay to
Foothill an amendment fee in the amount of $10,000, which fee shall be
earned by Foothill and shall be due and payable upon the execution by
Foothill of a counterpart of this Amendment. In addition to such waiver
fee and as provided in the Loan and Security Agreement, Borrower agrees to
pay on demand all costs and expenses incurred by Foothill in connection
with the preparation, negotiation and execution of this Amendment,
including, without limitation, the costs and fees of Foothill's legal
counsel and appraiser, and all costs and expenses incurred by Foothill in
connection with the enforcement or preservation of any rights under the
Loan and Security Agreement, as amended hereby, or any other Loan Document.
6.04 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Foothill and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of
its rights or obligations hereunder without the prior written consent of
Foothill.
6.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument.
6.07 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
6.08 SCHEDULE C-1. Notwithstanding the execution of this Amendment,
Schedule C-1 to the Loan and Security Agreement shall not be changed or
modified, and the percentages and limitations set forth in such schedule
shall be applied by the parties to the Loan and Security Agreement without
change or modification as a result of this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
6.10 FINAL AGREEMENT. THE LOAN AND SECURITY AGREMENT, AS AMENDED
HEREBY, AND THE OTHER LOAN DOCUMENTS REPRESENT THE ENTIRE EXPRESSION OF THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF ON THE DATE
THIS AMENDMENT IS EXECUTED. THE LOAN AND SECURITY AGREEMENT, AS AMENDED
HEREBY, 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. NO MODIFICATION, RESCISSION, WAIVER,
RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE,
EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND FOOTHILL.
6.11 RELEASE. BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR
NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY
PART OF ITS LIABILITY TO REPAY THE OBLIGATIONS (AS DEFINED IN THE LOAN AND
SECURITY AGREEMENT) OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR
NATURE FROM FOOTHILL. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES
AND FOREVER DISCHARGES FOOTHILL, ITS PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES
OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR
UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN
PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE BORROWER
MAY NOW OR HEREAFTER HAVE AGAINST FOOTHILL, ITS PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY
SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS,
OR OTHERWISE, AND ARISING FROM ANY OBLIGATIONS (AS DEFINED IN THE LOAN
AGREEMENT), INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING,
TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE
MAXIMUM RATE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AND
SECURITY AGREEMENT OR ANY AGREEMENT, DOCUMENT OR INSTRUMENT ENTERED INTO IN
CONNECTION THEREWITH.
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IN WITNESS HEREOF, this Amendment has been executed and delivered as
of the date first set forth above.
GRANT GEOPHYSICAL, INC.,
a Delaware corporation
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇,
Vice President
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By:___________________________________
Name:_________________________________
Title:________________________________
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
a Delaware limited partnership
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Partner
EXHIBIT A
(FORM OF FCC TERM NOTE)
AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$11,673,500.00 Boston, Massachusetts
September 23, 1999
FOR VALUE RECEIVED, GRANT GEOPHYSICAL, INC., a Delaware
corporation ("BORROWER"), promises to pay to the order of FOOTHILL CAPITAL
CORPORATION, a California corporation ("FOOTHILL"), at its offices at ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other
place or places as Foothill may from time to time designate in writing, the
principal sum of Eleven Million Six Hundred Seventy-three Thousand Five
Hundred and No/100 Dollars ($11,673,500.00), plus interest in the manner
and upon the terms and conditions set forth below. This Amended and
Restated Secured Promissory Note (this "NOTE") is made pursuant to that
certain Loan and Security Agreement (the "LOAN AGREEMENT"), dated as of May
11, 1999, among Borrower, the lending entities from time to time party
thereto (together with their respective successors and assigns, the
"LENDERS"), and Foothill, as agent for the Lenders (the "AGENT"), the
provisions of which are incorporated herein by this reference, and
evidences the FCC Term Loan, as defined and described in the Loan
Agreement. Capitalized terms herein, unless otherwise noted, shall have
the meaning set forth in the Loan Agreement.
1.0 SCHEDULE OF PAYMENTS; RATE AND PAYMENT OF INTEREST; PREPAYMENT.
1.1 Except to the extent this Note may become due and payable
earlier in accordance with the Loan Agreement, this Note shall be due and
payable as follows:
(a) a principal installment in the amount of Two Hundred Eighty-
Seven Thousand Five Hundred Dollars ($287,500.00) on the first day
of October, 1999;
(b) thirty-one (31) equal successive monthly installments of
principal of Three Hundred Thirteen Thousand Four Hundred Dollars
($313,400.00) each on the first day of each month, beginning November
1, 1999, and continuing through and including May 1, 2002;
(c) accrued interest on the principal balance from time to time
remaining unpaid, payable monthly on the first day of each and every
month, beginning October 1, 1999; and
(d) a final principal installment equal to the unpaid principal
balance of this Note on May 11, 2002, together with accrued interest
on the principal balance remaining unpaid.
1.2 Prepayment may be made under this Note in whole or in part,
subject to the provisions of Section 3.6 set forth in the Loan Agreement.
Notwithstanding anything herein to the contrary, in the event that the Loan
Agreement is terminated by Borrower, by Foothill or by any other person at
any time, then the entire unpaid principal balance of this Note, together
with all accrued and unpaid interest hereon, shall become immediately due
and payable in full on the effective date of such termination, without
presentment, notice or demand of any kind.
1.3 Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed, and shall be at the rate of one and
one-half (1- 1/2 ) percentage points above the Reference Rate (as
hereinafter defined), computed on the basis of a 360-day year; provided,
however, upon the occurrence and during the continuance of an Event of
Default (as hereinafter defined), interest shall accrue on the outstanding
principal balance of this Note at a default rate (the "DEFAULT RATE") of
five and one-half (5- 1/2 ) percentage points above the Reference Rate, and
shall be payable on demand. "REFERENCE RATE" means, for any day, the rate
of interest per annum (over a year of 360 days) announced by Norwest Bank
Minnesota, National Association, or any successor thereto (the "BANK"),
from time to time, as its "base rate" (or any successor thereto) in effect
on such day. The Reference Rate is not necessarily the lowest rate charged
by the Bank. As of the date of this Note, the Reference Rate is seven and
three-quarters percent (7- 3/4 %) per annum. The applicable rate of
interest assessed hereunder will be increased or decreased from time to
time hereafter in an amount equal to any increase or decrease hereafter
made by the Bank in the Reference Rate. A change in the Reference Rate
shall be effective automatically and immediately on the occurrence of such
change.
2.0 EVENTS OF DEFAULTS; REMEDIES.
2.1 The occurrence of an Event of Default under the Loan
Agreement shall constitute a default by Borrower under this Note
(hereinafter an "EVENT OF DEFAULT").
2.2 Upon the occurrence of any Event of Default hereunder, the
Lenders and the Agent shall have all rights and remedies as may be provided
under the Loan Agreement or applicable law.
3.0 GENERAL PROVISIONS.
3.1 Borrower warrants and represents to the Agent and the
Lenders that Borrower has used and will continue to use the loans and
advances represented by this Note solely for proper business purposes, and
consistent with all applicable laws and statutes.
3.2 This Note is secured by the Collateral described in the Loan
Agreement.
3.3 Borrower waives presentment, demand and protest, notice of
protest, notice of presentment, notice of intention to accelerate, notice
of acceleration, and all other notices and demands in connection with the
enforcement of the Lenders', Foothill's or the Agent's rights hereunder or
under the Loan Agreement, except as specifically provided and called for by
this Note or the Loan Agreement, and hereby consents to, and waives notice
of, the release, addition, or substitution, with or without consideration,
of any collateral or of any person liable for payment of this Note or any
other Obligation. Any failure of the Lenders or the Agent to exercise any
right available hereunder, under the Loan Agreement or otherwise shall not
be construed as a waiver of the right to exercise the same or as a waiver
of any other right at any other time.
3.4 If this Note is not paid when due or upon the occurrence of
an Event of Default, Borrower further promises to pay all costs of
collection, foreclosure fees, attorneys' fees and expert witness fees
incurred by the Lenders or the Agent, whether or not suit is filed hereon,
and the fees, costs and expenses as provided in the Loan Agreement.
3.5 It is the intent of the parties to comply with applicable
usury laws (the "APPLICABLE USURY LAW"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Note, or in any of
the documents securing payment hereof or otherwise relating hereto, in no
event shall this Note or such documents require the payment or permit the
collection of interest in excess of the Maximum Interest Rate, then in any
such event (1) the provisions of the paragraph shall govern and control,
(2) neither Borrower nor any other person or entity now or hereafter liable
for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the Maximum Interest Rate,
(3) any such excess which may have been collected shall be either applied
as a credit against the then unpaid principal amount hereof or refunded to
Borrower, at Foothill's option, and (4) the effective rate of interest
shall be automatically reduced to the Maximum Interest Rate. It is further
agreed, without limiting the generality of the foregoing, that to the
extent permitted by the Applicable Usury Law; (x) all calculations of
interest which are made for the purpose of determining whether such rate
would exceed the Maximum Interest Rate shall be made by amortizing,
prorating, allocating and spreading during the period of the full stated
term of the loan evidenced hereby, all interest at any time contracted for,
charged or received from Borrower or otherwise in connection with such
loan; and (y) in the event that the effective rate of interest on the loan
should at any time exceed the Maximum Interest Rate, such excess interest
that would otherwise have been collected had there been no ceiling imposed
by the Applicable Usury Law shall be paid to Foothill from time to time, if
and when the effective interest rate on the loan otherwise fall below the
Maximum Interest Rate, until the entire amount of interest which would
otherwise have been collected had there been no ceiling imposed by the
Applicable Usury Law has been paid in full. Borrower further agrees that
should the Maximum Interest Rate be increased at any time hereafter because
of a change in the Applicable Usury Law, then to the extent not prohibited
by the Applicable Usury Law, such increases shall apply to all indebtedness
evidenced hereby regardless of when incurred; but, again to the extent not
prohibited by the Applicable Usury Law, should the Maximum Interest Rate be
decreased because of a change in the Applicable Usury Law, such decreases
shall not apply to the indebtedness evidenced hereby regardless of when
incurred.
3.6 Subject to the applicable provisions of the Loan Agreement,
Foothill may at any time transfer this Note and Foothill's rights in any or
all collateral securing this Note, and Foothill thereafter shall be
relieved from all liability with respect to such collateral arising after
the date of such transfer.
3.7 This Note shall be binding upon Borrower and its legal
representatives, successors and assigns. Wherever possible, each provision
of this Note shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of the Note shall be
prohibited by or invalid under such law, such provision shall be severable,
and be ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provision of this Note.
THIS NOTE HAS BEEN DELIVERED FOR ACCEPTANCE BY FOOTHILL IN
BOSTON, MASSACHUSETTS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF
THE COMMONWEALTH OF MASSACHUSETTS, AS THE SAME MAY FROM TIME TO TIME BE IN
EFFECT, INCLUDING, WITHOUT LIMITATION, THE UNIFORM COMMERCIAL CODE AS
ADOPTED IN MASSACHUSETTS. BORROWER HEREBY (i) IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN SUFFOLK COUNTY,
MASSACHUSETTS OVER ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER
ARISING FROM OR RELATED TO THIS NOTE; (ii) IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING;
(iii) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST
FOOTHILL OR ANY OF FOOTHILL'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
PROPERTY, CONCERNING ANY MATTER ARISING OUT OF OR RELATING TO THIS NOTE IN
ANY COURT OTHER THAN ONE LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS; AND (iv)
IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING UNDER
OR IN CONNECTION WITH THIS NOTE. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR
IMPAIR FOOTHILL'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY
LAW OR FOOTHILL'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER
OR BORROWER'S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
This Note amends, modifies, restates and replaces, but does not
extinguish the indebtedness evidenced by, that certain Secured Promissory
Note, dated May 11, 1999, executed by Borrower and payable to the order of
Foothill in the original stated principal amount of $11,500,000.00 (the
"PRIOR NOTE").
GRANT GEOPHYSICAL, INC.
a Delaware corporation
By:
▇▇▇▇ ▇▇▇▇▇▇▇,
Vice President
"Borrower"
Federal Taxpayer Identification
Number: ▇▇-▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇