EXHIBIT 10.1
AMENDMENT NUMBER SEVEN TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SEVEN TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated effective as of May 24, 2002, is entered into by and among
Grant Geophysical, Inc., a Delaware corporation ("Borrower"), Foothill Capital
Corporation, a California corporation ("Foothill"), as Agent and as a Lender,
and ▇▇▇▇▇▇▇ Associates, L.P., a Delaware limited partnership ("EALP"), as a
Lender, as follows:
WHEREAS, Borrower, EALP and Foothill are parties to that certain Loan
and Security Agreement (including any and all amendments, the "Loan 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, Amendment Number Two to Loan and Security
Agreement, dated to be effective as of September 23, 1999, by and among
Borrower, Foothill and EALP, Amendment Number Three to Loan and Security
Agreement, dated to be effective as of February 14, 2000, by and among Borrower,
Foothill and EALP, Amendment Number Four to Loan and Security Agreement, dated
to be effective as of February 7, 2001, by and among Borrower, Foothill and
EALP, Amendment Number Five to Loan and Security Agreement, dated to be
effective as of March 21, 2001, by and among Borrower, Foothill and EALP, and
Amendment Number Six to Loan and Security Agreement, dated to be effective as of
July 1, 2001, by and among Borrower, Foothill and EALP;
WHEREAS, Borrower has requested that certain provisions of the Loan
Agreement be amended, so as to provide for the following:
(a) an additional loan facility to be provided by Foothill in
the principal amount of up to $16,500,000, to be evidenced by a
promissory note of Borrower and secured by, among other collateral, a
cash collateral account maintained with Foothill;
(b) a reduction in the Maximum Revolving Amount to $8,000,000;
and
(c) amendment of certain other provisions of the Loan
Agreement;
WHEREAS, subject to the conditions set forth in this Amendment,
Borrower, Foothill, and EALP have agreed to amend the Loan 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 Agreement unless otherwise defined herein.
AMENDMENT NO. 7 - PAGE 1
2. Amendments.
2.01 MODIFICATIONS TO SECTION 1.1 OF THE LOAN AGREEMENT. (a) Section
1.1 of the Loan Agreement is hereby amended by adding the following definitions
to such section in the appropriate alphabetical order, such definitions to read
in their entirety as follows:
"'Approved Budget' means a budget of projected EBITDA from the
operations of the Borrower and its Designated Subsidiaries for each
month of a calendar year, prepared by Borrower, in form and substance
reasonably satisfactory to EALP, and delivered to each of the Lenders
on or before the effective date of the Seventh Amendment to Loan and
Security Agreement, with respect to the calendar year ending December
31, 2002, and on or before the December 15 next preceding each calendar
year thereafter.
"'Certificated Securities' means all "certificated
securities," as such term is defined in the Code, now owned or
hereafter acquired by Borrower and the Designated Subsidiaries.
"'Chattel Paper' means all "chattel paper," electronic chattel
paper" and "tangible chattel paper," as such terms are defined in the
Code, now owned or hereafter acquired by Borrower and the Designated
Subsidiaries.
"'Commercial Tort Claims' means all "commercial tort claims,"
as such term is defined in the Code, that have arisen in the course of
Borrower's and the Designated Subsidiaries' businesses.
"'Contract Right' means any right of Borrower or any
Designated Subsidiary to payment under a contract for the sale or lease
of goods or the rendering of services, which right is at the time not
yet earned by performance.
"'Deposit Account' means each demand, time, savings, passbook
or similar account maintained with a bank or Foothill, including a
nonnegotiable certificate of deposit, whether owned by Borrower, a
Designated Subsidiary or other Person, and in which Agent, for the
benefit of the Lender Group, is granted a security interest to secure
payment of any or all of the Obligations, and including a cash
collateral account maintained with Foothill in which Agent, for the
benefit of the Lender Group, is granted a security interest to secure
payment of any or all of the Obligations of Borrower under the FCC
Supplemental Loan.
"'Documents' means all "documents," as such term is defined in
the Code, now owned or hereafter acquired by Borrower and the
Designated Subsidiaries.
"'FCC Supplemental Loan' has the meaning set forth in Section
2.3A.
"'FCC Supplemental Note' has the meaning set forth in Section
2.3A.
"'Fixtures' means all "fixtures," as such term is defined in
the Code, now owned or hereafter acquired by Borrower and the
Designated Subsidiaries.
AMENDMENT NO. 7 - PAGE 2
"'Goods' means all "goods," as such term is defined in the
Code, now owned or hereafter acquired by Borrower and the Designated
Subsidiaries.
"'Instruments' means all "instruments," as such term is
defined in the Code, now owned or hereafter acquired by Borrower and
the Designated Subsidiaries.
"'Investment Property' means all "investment property," as
such term is defined in the Code, now owned or hereafter acquired by
Borrower and the Designated Subsidiaries.
"'Letter-of-Credit Rights' means all "letter-of-credit
rights," as such term is defined in the Code, now owned or hereafter
acquired by Borrower and the Designated Subsidiaries.
"'Payment Intangibles' means all "payment intangibles," as
such term is defined in the Code, now owned or hereafter acquired by
Borrower and the Designated Subsidiaries.
"'Proceeds' means all "proceeds," as such term is defined in
the Code.
"'Securities Account' means a "securities account" as such
term is defined in the Code.
"'Security Entitlements' means all "security entitlements," as
such term is defined in the Code, now owned or hereafter acquired by
Borrower and the Designated Subsidiaries.
"'Seventh Amendment to Loan and Security Agreement' means that
certain Amendment Number Seven to Loan and Security Agreement, dated to
be effective as of May 24, 2002, by and among Borrower, Foothill and
EALP.
"'Software' means all "software," as such term is defined in
the Code, now owned or hereafter acquired by Borrower and the
Designated Subsidiaries.
"'Uncertificated Securities' means all "uncertificated
securities," as such term is defined in the Code, now owned or
hereafter acquired by Borrower and the Designated Subsidiaries."
(b) Subsections (h), (i) and (j) of the definition of "Eligible
Domestic Accounts" are hereby amended and restated to read in their entirety as
follows:
"(h) Accounts with respect to an Account Debtor, other than a
Designated Account Debtor, whose total obligations owing to Borrower
exceed ten percent (10%) of all Eligible Accounts, to the extent of the
obligations owing by such Account Debtor in excess of such percentage;
AMENDMENT NO. 7 - PAGE 3
"(i) Accounts with respect to which a Designated Account
Debtor is the Account Debtor, to the extent that the Accounts owed by
such Designated Account Debtor exceed fifty percent (50%) of all
Eligible Accounts;
"(j) Accounts with respect to which any of the Designated
Account Debtors is the Account Debtor, to the extent that the aggregate
amount of all Accounts owed by all Designated Account Debtors exceeds
seventy-five percent (75%) of all Eligible Accounts;"
(c) The definitions of the following terms in Section 1.1 of the Loan
Agreement are hereby amended and restated to read in their entirety as follows:
"'Accounts' means all "accounts," as such term is defined in
the Code, currently existing and hereafter arising, including accounts,
contract rights, and all other forms of obligations owing to Borrower
or its Subsidiaries arising out of the sale or lease of goods or the
rendition of services by Borrower or its Subsidiaries, irrespective of
whether earned by performance, and any and all credit insurance,
guaranties, or security therefor, and including "health-care-insurance
receivables" (as such term is defined in the Code).
"'Code' means the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of New York; provided,
that in the event that, by reason of mandatory provisions of law, any
or all of the attachment, perfection or priority of Agent's security
interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the
term "Code" shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions of this Agreement
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
"'Collateral' means all right, title and interest of Borrower,
any of the Designated Subsidiaries and any other Person that grants a
Lien in favor of Agent, for the benefit of the Lenders, in and to each
of the following:
(a) the Accounts,
(b) Borrower's Books,
(c) the Commercial Tort Claims,
(d) the Contract Rights,
(e) the Deposit Accounts,
(f) each Subsidiary's Books,
(g) the Equipment,
(h) the Fixtures,
AMENDMENT NO. 7 - PAGE 4
(i) the General Intangibles, including without
limitation, the Data Library, the Payment Intangibles and the
Software,
(j) the Inventory,
(k) the Letter-of-Credit Rights, (l) the Negotiable
Collateral, (m) the Securities Accounts,
(n) any money (of every jurisdiction whatsoever), and
to the extent not included in the foregoing, all other
personal property of any kind or description of Borrower or
any Designated Subsidiary that now or hereafter come into the
possession, custody, or control of the Lender Group, and
(o) the Proceeds and products, whether tangible or
intangible, of any of the foregoing, including Proceeds of
insurance covering any or all of the Collateral, and any and
all Accounts, Borrower's Books, Commercial Tort Claims,
Contract Rights, Deposit Accounts, Subsidiary's Books,
Documents, Equipment, Fixtures, General Intangibles,
Inventory, Letter-of-Credit Rights, Negotiable Collateral,
Securities Accounts, money, and other tangible or intangible
property resulting from the sale, exchange, collection, or
other disposition of any of the foregoing, or any portion
thereof or interest therein, and the Proceeds thereof.
"'Designated Account Debtor' means one of three Account
Debtors designated by the Borrower, at any time and from time to time,
by written notice to Agent, as being one of the three Account Debtors
to which clauses (h), (i) and (j) of the definition of Eligible
Domestic Accounts apply.
"'EBITDA' of any Person for any period shall mean the sum of:
(a) the net income (or net loss) from operations of
such Person and its Subsidiaries on a consolidated basis (determined in
accordance with GAAP) for such period, without giving effect to any
extraordinary gains (losses) or gains (losses) from the sale of assets
(other than the sale of assets in the ordinary course of business) or
unrealized currency gains (losses); plus
(b) to the extent that any of the items referred to
in any of clauses (i) through (iii) below were deducted in calculating
such net income:
(i) consolidated interest expense of such
Person for such period;
AMENDMENT NO. 7 - PAGE 5
(ii) income tax expense of such Person and
its Subsidiaries with respect to their operations for
such period; and
(iii) the amount of all non-cash charges
(including, without limitation, depreciation and
amortization), if any, of such Person and its
Subsidiaries for such period.
"'Equipment' means all "equipment," as such term is defined
in the Code, now owned or hereafter acquired by Borrower and its
Designated Subsidiaries, including any and all machinery, machine
tools, motors, equipment, furniture, furnishings, fixtures, tools,
parts, goods (other than consumer goods, farm products, or Inventory),
wherever located, including, (a) any interest of Borrower or such
Subsidiary in any of the foregoing, and (b) all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing.
"'General Intangibles' means all "general intangibles," as
such term is defined in the Code, now owned or hereafter acquired by
Borrower and the Designated Subsidiaries, including Contract Rights,
rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, patents, trade names, trademarks, service
marks, copyrights, blueprints, drawings, purchase orders, customer
lists, monies due or recoverable from pension funds, route lists,
rights to payment and other rights under any royalty or licensing
agreements, infringement claims, computer programs, information
contained on computer disks or tapes, literature, reports, catalogs,
insurance premium rebates, tax refunds, and tax refund claims), other
than Goods, Accounts, and Negotiable Collateral.
"'Inventory' means all "inventory," as such term is defined in
the Code, now owned or hereafter acquired by Borrower or any of the
Designated Subsidiaries and in which Borrower or any of the Designated
Subsidiaries has any interest, including goods held for sale, lease or
license or to be furnished under a contract of service and all of
Borrower's and the Designated Subsidiaries' present and future raw
materials, work in process, finished goods, and packing and shipping
materials and proprietary seismic data, wherever located.
"'Maximum Revolving Amount' means Eight Million Dollars
($8,000,000.00).
"'Negotiable Collateral' means all of Borrower's and any of
the Designated Subsidiaries' present and future letters of credit,
notes, drafts, Instruments, Investment Property, Security Entitlements,
Certificated Securities and Uncertificated Securities (including the
shares of stock of Subsidiaries of Borrower), Documents, personal
property leases (wherein Borrower or such Designated Subsidiary is the
lessor), Chattel Paper, and Borrower's Books and such Subsidiary's
Books relating to any of the foregoing.
AMENDMENT NO. 7 - PAGE 6
2.02 AMENDMENT OF SECTION 2.1(a)(x)(2)(C) OF THE LOAN AGREEMENT.
Section 2.1(a)(x)(2)(C) of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"(C) the lower of (I) Six Million Dollars ($6,000,000.00) or
(II) sixty percent (60%) of Eligible Foreign Billed Accounts;"
2.03 ADDITION OF SECTION 2.3A TO THE LOAN AGREEMENT. Upon satisfaction
of the conditions precedent set forth in Section 3 hereof, Section 2.3A is
hereby added to the Loan Agreement to read as follows:
2.3A FCC SUPPLEMENTAL LOAN.
(a) General. Foothill has agreed to make additional
loans (each, an "FCC Supplemental Loan") to Borrower in an aggregate principal
amount outstanding not to exceed at any time Sixteen Million Five Hundred
Thousand Dollars ($16,500,000.00). The unpaid principal balance of the FCC
Supplemental Loan and all accrued and unpaid interest thereon shall be due and
payable upon the earlier of May 11, 2005, or the termination of this Agreement,
whether by its terms, by prepayment, by acceleration, or otherwise. All amounts
outstanding under the FCC Supplemental Loan shall constitute Obligations and
Foothill Obligations and payment thereof shall be secured by all Collateral in
accordance with Section 4 hereof.
(b) FCC Supplemental Note. The FCC Supplemental Loan
shall be evidenced by a promissory note, dated as of May 24, 2002, in the
maximum principal amount of $16,500,000, executed by Borrower, payable to the
order of Foothill, the form of which is attached as Exhibit A to the Seventh
Amendment to Loan and Security Agreement (together with any and all renewals,
extensions and modifications thereof, the "FCC Supplemental Note").
(c) Procedure for Requesting a Borrowing of an FCC
Supplemental Loan. Each Borrowing of an FCC Supplemental Loan shall be made upon
Borrower's irrevocable request for such Borrowing, delivered to Foothill and
EALP (which notice must be received by Foothill no later than 10:00 a.m.
(California time) and which request must be acknowledged by EALP (in writing) on
the day prior to the requested Funding Date) specifying (i) the amount of the
Borrowing, which shall not be less than Two Hundred Fifty Thousand Dollars
($250,000) and shall be a multiple of $250,000, and (ii) the requested Funding
Date, which shall be a Business Day.
(d) Making an Advance of an FCC Supplemental Loan.
Foothill shall make the amount of the requested Borrowing of an FCC Supplemental
Loan available to the Borrower on the applicable Funding Date by transferring
same day funds equal to the proceeds of such Borrowing to the Designated Account
if and only if, on or before such Funding Date, Agent, for the benefit of the
Lender Group, shall have been granted a first priority perfected security
interest in a Deposit Account maintained with Foothill, in an aggregate amount
not less than the amount of the requested Borrowing and the outstanding
principal amount of the FCC Supplemental Loan on such date. Amounts borrowed
pursuant to this Section 2.3A may be
AMENDMENT NO. 7 - PAGE 7
repaid and, subject to the terms and conditions of this Agreement, re-borrowed
at any time during the term of this Agreement.
(e) Interest Rate. Notwithstanding the provisions of
Section 2.6 hereof, the outstanding principal amount of each Borrowing of an FCC
Supplemental Loan shall bear interest in accordance with the terms of the FCC
Supplemental Note.
(f) Payments. Interest payable on the FCC
Supplemental Loan shall be due and payable, in arrears, in accordance with the
terms of the FCC Supplemental Note. Borrower hereby authorizes Agent, at its
option, without prior notice to Borrower, to charge such interest and all
installments or other payments due under the FCC Supplemental Loan to Borrower's
Loan Account, which amounts thereafter shall accrue interest at the rate then
applicable to Advances (as defined in the FCC Supplemental Note) under the FCC
Supplemental Note. Any interest not paid when due shall be compounded and shall
thereafter accrue interest at the rate then applicable to Advances under the FCC
Supplemental Note.
(g) Prepayments. Notwithstanding the provisions of
Sections 3.6 and 3.7 hereof, the unpaid principal balance of the FCC
Supplemental Loan may be prepaid in whole or in part at any time during the term
of this Agreement in an amount of not less than $250,000, or the unpaid balance
thereof, upon five (5) Business Days' prior written notice by Borrower to Agent
and EALP, and no Early Termination Premium shall be applicable to the amount of
FCC Supplemental Loan so prepaid.
(h) Condition Precedent to Borrowing under FCC
Supplemental Loan. The following shall be a condition precedent to a Borrowing
under the FCC Supplemental Loan hereunder (the failure by Borrower to satisfy
such condition shall not, however, constitute a Default or an Event of Default):
(i) The Borrower shall have delivered to the Agent (with a
copy to EALP), a Compliance Certificate demonstrating in reasonable
detail that for each calendar month ending on or after May 31, 2002,
and prior to the thirtieth day preceding the date of request for such
Borrowing, Borrower's EBITDA for such calendar month, is not less than
ninety percent (90%) of the EBITDA projected for such calendar month in
the applicable Approved Budget or (ii) EALP shall have waived the
condition precedent set forth in the preceding clause (i) as evidenced
by the written acknowledgment by EALP of a request by Borrower for a
Borrowing of an FCC Supplemental Loan.
2.04 AMENDMENT OF SECTION 2.6(d) OF THE LOAN AGREEMENT. Section 2.6(d)
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(d) Minimum Interest. [Intentionally Left Blank]."
2.05 AMENDMENT OF SECTION 4.3(a) OF THE LOAN AGREEMENT. The first
sentence of Section 4.3(a) of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
AMENDMENT NO. 7 - PAGE 8
"Subject to the provisions of Section 9.3(b) and 9.5(f), at any time
after an Event of Default, Agent or Agent's designee may (a) notify
customers or Account Debtors of Borrower that the Accounts, General
Intangibles, or Negotiable Collateral have been assigned to Agent for
the benefit of the Lender Group or that Agent for the benefit of the
Lender Group has a security interest therein, and (b) collect the
Accounts, General Intangibles, and Negotiable Collateral directly and
charge the collection costs and expenses to the Loan Account."
2.06 AMENDMENT OF SECTION 5.8(e) OF THE LOAN AGREEMENT. Section 5.8(e)
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(e) The Liens granted by Borrower to Agent (for the benefit
of the Lender Group) in and to its properties and assets located in the
United States and Canada pursuant to this Agreement and the other Loan
Documents are (except as to any Commercial Tort Claim that has not been
specifically described herein) validly created and (except as to
Fixtures for which a fixture filing has not been made and as to any
Deposit Account or Letter-of-Credit Right as to which the Agent does
not have control) perfected and first priority Liens, subject only to
Permitted Liens."
2.07 AMENDMENT OF SECTION 5.11 OF THE LOAN AGREEMENT. The first
sentence of Section 5.11 of the Loan Agreement is hereby deleted and not
replaced.
2.08 AMENDMENT OF SECTION 6 OF THE LOAN AGREEMENT. Sections 6.3 and
6.14 of the Loan Agreement are hereby amended and restated in their entirety to
read as follows:
"6.3 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. Deliver to
Agent (with a copy to each Lender):
(a) as soon as available, but in any event within 45 days
after the end of each month, other than March, June, September and
December, and within 60 days after the end of each March, June,
September and December, during each of Borrower's fiscal years: (i) a
company prepared balance sheet, income statement, and statement of cash
flow covering Borrower's operations during such period; (ii) a copy of
the then-current "Grant Geophysical, Inc. Financial Reports" or such
other report as may be generated for the management personnel of
Borrower in lieu thereof from time to time; and (iii) a report
analyzing investments in, and revenue attributable to, the Data
Library;
(b) as soon as available, but in any event within 120 days
after the end of each of Borrower's fiscal years, financial statements
of Borrower for each such fiscal year, audited by independent certified
public accountants reasonably acceptable to Agent and certified,
without any qualifications as to the scope of the audit or as to any
other matter (except as to the Borrower's being a going concern), by
such accountants to have been prepared in accordance with GAAP,
together with a certificate of such accountants addressed to Agent
stating that such accountants do not have knowledge of the existence of
any Default or Event of Default (or, if in the opinion of such
accounting firm, a Default or Event of Default has occurred or is
continuing, a statement as to the nature thereof); and
AMENDMENT NO. 7 - PAGE 9
(c) on or before the effective date of the Seventh Amendment
to Loan and Security Agreement and on or before each December 15 thereafter, an
Approved Budget.
Such audited financial statements shall include a
balance sheet, profit and loss statement, and statement of cash flow and, if
prepared, such accountants' letter to management. In addition to the financial
statements referred to above, Borrower agrees to deliver financial statements
prepared on a consolidated basis, and, beginning with the monthly financial
statements required to be provided by Borrower for the month ending August 31,
1999, on a consolidating basis, so as to present Borrower and each such related
entity separately.
Together with the above, Borrower also shall deliver
to Agent Borrower's Form 10-Q Quarterly Reports, Form 10-K Annual Reports, and
Form 8-K Current Reports, and any other filings made by Borrower with the
Securities and Exchange Commission, if any, as soon as the same are filed, or
any other similar financial information that is provided by Borrower to its
shareholders, and any other report reasonably requested by Agent relating to the
financial condition of Borrower.
Each month, together with the financial statements
provided pursuant to Section 6.3(a), Borrower shall deliver to Agent and each
Lender a certificate signed by its chief financial officer to the effect that:
(i) all financial statements delivered or caused to be delivered to Agent
hereunder have been prepared in accordance with GAAP (except, in the case of
unaudited financial statements, for the lack of footnotes and being subject to
yearend audit adjustments) and fairly present in all material respects the
financial condition of Borrower, (ii) the representations and warranties of
Borrower contained in this Agreement and the other Loan Documents are true and
correct in all material respects on and as of the date of such certificate, as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date), (iii) for the
month for which financial statements are being delivered, a Compliance
Certificate demonstrating in reasonable detail whether or not the condition
precedent set forth in Section 2.3(h) has been satisfied, and (iv) on the date
of delivery of such certificate to Agent there does not exist any condition or
event that constitutes a Default or Event of Default (or, in the case of clauses
(i), (ii), (iii) or (iv), to the extent of any non-compliance, describing such
non-compliance as to which he or she may have knowledge and what action Borrower
has taken, is taking, or proposes to take with respect thereto).
Borrower shall have issued written instructions to
its independent certified public accountants authorizing them to communicate
with Agent and to release to Agent whatever financial information concerning
Borrower that Agent may reasonably request. Borrower hereby irrevocably
authorizes and directs all auditors, accountants, or other third parties to
deliver to Agent, at Borrower's expense, copies of Borrower's financial
statements, papers related thereto, and other accounting records of any nature
in their possession, and to disclose to Agent any information they may have
regarding Borrower's business affairs and financial conditions."
AMENDMENT NO. 7 - PAGE 10
"6.14 MILLENNIUM COMPLIANT. [Intentionally Left Blank]."
2.09 AMENDMENT OF SECTION 7.1(j) OF THE LOAN AGREEMENT. Section 7.1(j)
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(j) Additional unsecured Indebtedness of Borrower or any of
its Subsidiaries in the aggregate principal amount (for Borrower and
all Subsidiaries) not to exceed (i) $1,500,000 at any one time
outstanding, if the unsecured Indebtedness is for insurance premiums
that are due by Borrower, and (ii) $8,000,000 at any one time
outstanding, if the unsecured Indebtedness is for Indebtedness other
than insurance premiums."
2.10 AMENDMENT OF SECTION 7.4 OF THE LOAN AGREEMENT. Section 7.4 of the
Loan Agreement is hereby amended by adding the following text after the last
sentence of Section 7.4.
"The parties acknowledge that this Section 7.4 does not
prohibit Dispositions of cash or other assets by the Borrower or Subsidiaries
thereof to any Designated Subsidiary or the Borrower that (i) do not violate
Section 7.12 hereof, (ii) do not violate Section 7.13 hereof and (iii) are
otherwise permitted by this Agreement."
2.11 MODIFICATION OF SECTION 7.18 OF THE LOAN AGREEMENT. Section 7.18
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows.
"7.18 FINANCIAL COVENANT. [Intentionally Left Blank]."
2.12 AMENDMENT OF SECTION 8 OF THE LOAN AGREEMENT. Proviso (b) in the
parenthetical expression in the first sentence of Section 8 of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
"(b) EALP shall have the right to cure an Event of Default as
provided in Section 9.3"
2.13 AMENDMENT OF SECTION 9.1(g) OF THE LOAN AGREEMENT. The term
"Section 9-505" in Section 9.1(g) of the Loan Agreement is hereby replaced by
the term "Section 9-620".
2.14 AMENDMENT OF SECTION 9.3 OF THE LOAN AGREEMENT. Section 9.3 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"9.3 EALP'S RIGHT TO CURE CERTAIN OVERADVANCES.
"(a) General. In the case of an Event of Default, EALP shall
have the right to cure such Event of Default during the 5-day
Standstill Period (as defined in paragraph (b) below) .
"(b) Standstill Period. Agent and Lenders agree that, so long
as EALP continues to observe and perform the terms and conditions set
forth in Section 17.16,
AMENDMENT NO. 7 - PAGE 11
Agent will temporarily forbear or "standstill" from exercising certain
of the Lender Group's rights and remedies for a period (the "5-Day
Standstill Period") in order to allow EALP the opportunity to cure, as
described in Section 9.3(a). The Standstill Period will begin upon the
occurrence of an Event of Default and will terminate on the fifth (5th)
Business Day after Agent sends notice to EALP of the occurrence of such
Event of Default. During the 5-Day Standstill Period, Agent will "stand
still" and temporarily forbear from exercising the rights and remedies
set forth in Section 9.1 of this Agreement and the other Loan
Documents, except as provided in the next following sentence. The
existence of the 5-Day Standstill Period shall not affect exercise of
the rights and remedies set forth in clauses (b), (g), and (h) of
Section 9.1, the first sentence of clause (f) of Section 9.1, or the
charging of interest on the Foothill Obligations at the default rate
provided for in Section 2.6(c)."
2.15 AMENDMENT OF SECTION 9.5 OF THE LOAN AGREEMENT. Section 9.5(a),
(c) and (f) of the Loan Agreement are hereby amended and restated in their
entirety to read as follows:
"(a) General. Upon (i) the occurrence and during the
continuance of an Event of Default, or (ii) receipt by Foothill of not
less than five (5) Business Days' written notice, EALP shall have the
right (the "Purchase Right") to purchase all, but not less than all, of
the Foothill Obligations from Foothill for a price (the "Purchase
Price") equal to the amount of the Foothill Obligations, plus the Early
Termination Premium (to the extent not already included in the Foothill
Obligations) that would have been applicable if Borrower had exercised
its rights under Section 3.6 hereof on the Purchase Date (as hereafter
defined), except that, with regard to Foothill Obligations constituting
Letters of Credit that as of the date of EALP's payment of the Purchase
Price (the "Purchase Date") remain outstanding, that portion of the
Purchase Price shall be calculated as an amount (the "L/C Payment
Amount") equal to 102% of the maximum amount of Foothill's obligations
under such Letters of Credit. Any amount paid in respect of undrawn and
unreimbursed Letters of Credit outstanding as of the Purchase Date
shall be repaid to EALP by Foothill on a dollar-for-dollar basis
(without interest) when the outstanding Letters of Credit expire,
terminate, or are replaced, after reducing such amount by the amount,
if any, drawn by or paid to any beneficiary under such Letters of
Credit, and to the extent any L/C Payment Amount remains unpaid to EALP
following the expiration, termination or replacement of all outstanding
Letters of Credit, such amount shall be repaid to EALP by Foothill. The
Purchase Price shall be paid in cash, by wire transfer, in accordance
with instructions to be provided by Foothill. In conjunction with
EALP's purchase of the Foothill Obligations, each of EALP, Borrower and
the Designated Subsidiaries shall deliver to Foothill (i) an
acknowledgment of the purchase of the Foothill Obligations by EALP,
(ii) an acknowledgment and agreement that Foothill's duties and
obligations under this Agreement and the other Loan Documents have been
purchased by, and transferred and assigned to, EALP, (iii) an
acknowledgement and agreement that Foothill has no further duties or
obligations under this Agreement and the other Loan Documents, and (iv)
a release of Foothill, its officers, directors, employees, and agents
from any and all liability, whether past, present, and future, whether
as Agent or as a Lender, arising under or in connection with this
Agreement and the other Loan Documents; provided, that, in the event
the Borrower or any Designated Subsidiary refuses or is unable to
deliver any of the foregoing,
AMENDMENT NO. 7 - PAGE 12
then EALP shall deliver to Foothill, in lieu thereof, an indemnity
whereby EALP shall indemnify Foothill from the consequences of not
receiving any of the foregoing and from and against any and all claims
of Borrower and its Designated Subsidiaries that would have been
released by delivery of the foregoing. The acknowledgments, agreement
and release (the "Release Agreements") and the indemnity (the
"Indemnity") described in the preceding sentence shall be in form and
substance reasonably satisfactory to Foothill and its counsel. Upon
receipt of the Purchase Price and the Release Agreements or, if
applicable, the Indemnity, Foothill will deliver to EALP an assignment
of Foothill's rights, titles and interests in and to the Foothill
Obligations.
* * *
(c) EALP's Rights and Obligations. From and after the
date that Foothill and EALP execute and deliver the Assignment and
Acceptance and payment of the Purchase Price, (i) EALP shall be a party
hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, shall
have the rights and obligations of Foothill under the Loan Documents,
and (ii) Foothill shall relinquish its rights and be automatically
released from its obligations under this Agreement (and Foothill shall
cease to be a party hereto and thereto).
* * *
"(f) Standstill Period. Agent and Lenders agree that,
so long as EALP continues to observe and perform the terms and
conditions set forth in Section 17.16, Agent will temporarily forbear
or "standstill" from exercising certain of the Lender Group's rights
and remedies for a period (the "Standstill Period") in order to allow
EALP to exercise the Purchase Right. The Standstill Period will begin
upon the occurrence of an Event of Default and will terminate on the
fifteenth (15th) calendar day after Agent sends notice to EALP of the
occurrence of such Event of Default. During the Standstill Period,
Agent will "stand still" and temporarily forbear from exercising the
rights and remedies set forth in Section 9.1 of this Agreement and the
other Loan Documents, except as provided in the next following
sentence. The existence of the Standstill Period shall not affect
exercise of the rights and remedies set forth in clauses (b), (g), and
(h) of Section 9.1, the first sentence of clause (f) of Section 9.1, or
the charging of interest on the Foothill Obligations at the default
rate provided for in Section 2.6(c)."
2.16 AMENDMENT OF SECTION 12 OF THE LOAN AGREEMENT. Section 12 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
" 12. NOTICES.
Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other Loan Document
shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid)
shall be sent by telefacsimile, and may, in addition, be personally delivered
or sent by
AMENDMENT NO. 7 - PAGE 13
registered or certified mail (postage prepaid, return receipt requested), or
overnight courier, to Borrower, Agent, Foothill or EALP, as the case may be, at
its address set forth below:
If to Borrower: GRANT GEOPHYSICAL, INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to (which shall AKIN, GUMP, STRAUSS, ▇▇▇▇▇ & ▇▇▇▇,
not constitute notice): L.L.P.
1900 Pennzoil Place - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Foothill or Agent: FOOTHILL CAPITAL CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Business Finance Division Manager
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Null or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to EALP: ▇▇▇▇▇▇▇ ASSOCIATES, L.P.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to (which shall
not constitute notice): ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given to
the other. All notices or demands sent in accordance with this Section 12, other
than notices by Agent in connection with Sections
AMENDMENT NO. 7 - PAGE 14
9-611, 9-620 or 9-621 of the Code, shall be deemed received on the date of
transmission by telefacsimile. Borrower acknowledges and agrees that notices
sent by Agent in connection with Sections 9-611, 9-620 or 9-621 of the Code
shall be deemed sent when deposited in the mail or personally delivered, or,
where permitted by law, transmitted by telefacsimile or other similar method set
forth above."
2.17 AMENDMENT OF SECTION 13 OF THE LOAN AGREEMENT. Section 13 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"13. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN
DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND
THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT
TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR
THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. THE PARTIES AGREE
THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED
ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ OR, AT THE SOLE OPTION OF FOOTHILL, IN ANY OTHER
COURT IN WHICH FOOTHILL SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS
AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN
CONTROVERSY. BORROWER, AGENT AND EACH LENDER WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 13. BORROWER,
AGENT AND EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY
OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW OR STATUTORY CLAIMS. BORROWER, AGENT AND EACH LENDER
REPRESENTS THAT THEY HAVE REVIEWED THIS WAIVER AND EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT."
AMENDMENT NO. 7 - PAGE 15
2.18 AMENDMENT OF SECTION 17 OF THE LOAN AGREEMENT. Section 17 of the
Loan Agreement is hereby amended by deleting and not replacing the last sentence
of Section 17.16(a) and by adding to Section 17 a new paragraph (f) to read in
its entirety as follows:
"(f) Notwithstanding anything set forth in this Article 17 or
anywhere else in this Agreement, the right of EALP to receive proceeds
from the foreign accounts receivable previously sold to EALP under the
Agreement for Purchase and Assignment of Foreign Accounts Receivable,
dated August 3, 2001, as amended, shall not be affected or impaired by
reason of any provision of this Agreement."
2.19 REPLACEMENT OF SCHEDULE C-1, EXHIBIT C-1 AND EXHIBIT 9.5 OF THE
LOAN AGREEMENT. Each of Schedule C-1, Exhibit C-1 and Exhibit 9.5 of the Loan
Agreement is hereby amended and restated in its entirety to read as set forth
in Schedule C-1, Exhibit C-1 and Exhibit 9.5, respectively, to this Amendment,
and all references in the Loan Agreement to Schedule C-1, Exhibit C-1 or
Exhibit 9.5, or any information set forth therein, shall hereinafter be deemed
to be references to Schedule C-1, Exhibit C-1 or Exhibit 9.5, as the case may
be, as so amended and restated.
3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon fulfillment of the following conditions, in each case to the satisfaction
of Agent and each Lender:
(a) a counterpart of this Amendment shall be executed by
Borrower and delivered to Agent;
(b) a counterpart of this Amendment shall be executed by EALP
and delivered to Agent;
(c) each of AST, GGC and GGII shall reaffirm its obligations
under the Loan Documents to which it is a party, pursuant to an
instrument in form and substance satisfactory to Agent;
(d) Borrower shall execute and deliver to Agent the "FCC
Supplemental Note" in the form attached hereto as Exhibit A;
(e) EALP and Foothill shall execute and deliver to Agent a
Cash Collateral Account Agreement in the form provided by Foothill;
(f) Agent shall have received a Company Certificate, duly
executed by Borrower in form and substance satisfactory to Agent,
together with certified resolutions of the Board of Directors of
Borrower authorizing the transactions contemplated by this Amendment;
(g) Borrower shall pay all fees and expenses required to be
paid by Borrower pursuant to Section 7.03 of this Amendment; and
AMENDMENT NO. 7 - PAGE 16
(h) Borrower shall deliver to each Lender an Approved Budget
for the calendar year ending December 31, 2002.
4. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to each Lender 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 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
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 only a prior specified date;
(e) Borrower is in full compliance with all covenants and
agreements contained in the Loan Agreement, as amended by this
Amendment, and all such covenants and agreements are, and shall remain,
in full force and effect; and
(f) no Default or Event of Default is continuing as of the
date hereof after giving effect to, nor shall any Default or Event of
Default occur as a result of, the execution and delivery hereof, or the
Borrower's performance of the obligations herein or under the Loan
Agreement, as amended hereby.
5. RATIFICATIONS.
5.01 AGREEMENT OF DESIGNATED SUBSIDIARIES. The Designated Subsidiaries
hereby join in this Amendment for the purpose of consenting to the terms
hereof. The Designated Subsidiaries hereby agree that all terms, covenants and
provisions of the Loan Agreement and the other Loan Documents are, and shall
remain, in full force and effect, including (without limitation) the Designated
Subsidiaries' guaranty of the Obligations of Borrower pursuant to the
Subsidiary Guaranties, which Subsidiary Guaranties are hereby acknowledged and
reaffirmed with respect to all Obligations of Borrower arising pursuant to the
Loan Agreement and other Loan Documents, as amended by this Amendment.
5.02 AGREEMENTS OF EALP. (a) EALP hereby joins in this Amendment for
the purpose of consenting to the terms hereof and agreeing to certain amendments
of the EALP Guaranty. EALP hereby agrees, that all terms, covenants and
provisions of the Loan Agreement
AMENDMENT NO. 7 - PAGE 17
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 Agreement, as amended by this Amendment, 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 Agreement and the other Loan Documents, as amended and
increased by this Amendment.
(b) Notwithstanding the provisions set forth in Section 5 of
the EALP Guaranty, EALP hereby waives and disclaims any right of subrogation
EALP has or may have as against Borrower with respect to the Guaranteed
Obligations (as defined in the EALP Guaranty) and EALP, Agent and Foothill
hereby agree that Section 19 of the EALP Guaranty is hereby amended and restated
in its entirety to read as follows:
"19. CHOICE OF LAW AND VENUE. THE VALIDITY OF THIS
GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT, AND THE
RIGHTS OF GUARANTOR AND AGENT, SHALL BE DETERMINED UNDER, GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW
YORK. GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING
IN CONNECTION WITH THIS GUARANTY SHALL BE TRIED AND DETERMINED ONLY IN
THE COUNTY OF
NEW YORK, STATE OF
NEW YORK OR, AT THE SOLE OPTION OF
AGENT, IN ANY OTHER COURT IN WHICH AGENT SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER
THE MATTER IN CONTROVERSY. GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT
IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT
TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION."
6. CONSENT TO LIEN AND AMENDMENT OF SUBORDINATION AGREEMENT.
Notwithstanding anything to the contrary contained in Section 7.2 of the Loan
Agreement or in any other provision of the Loan Agreement, Foothill hereby
consents to (i) the sale by Grant Geophysical (Int'l) Inc., a Texas corporation
("GGII"), to EALP pursuant to that certain Agreement for Purchase and Assignment
of Foreign Accounts Receivable, dated as of August 3, 2001, as amended to the
date hereof, between GGII and EALP (the "Foreign Receivables Agreement") of the
accounts described on Exhibit B attached hereto and made a part hereof (the
"Foreign Accounts") for the purchase price set forth in Section 4 of the Foreign
Receivables Agreement, (ii) the grant of a first priority perfected Lien on the
Foreign Accounts and on all books and records pertaining thereto, for the
benefit of EALP to secure obligations relating to the sale of the Foreign
Accounts to EALP and all other obligations of GGII under the Foreign Receivables
Agreement and (iii) the grant by GGII and each of its Designated Affiliates (as
defined in the Foreign Receivables Agreement) of a security interest in and Lien
on all currently existing and hereafter acquired or arising Collateral (as set
forth on Exhibit A to Amendment No. Five to Agreement for Purchase and
Assignment of Foreign Accounts Receivable, dated as May
AMENDMENT NO. 7 - PAGE 18
24, 2002, among EALP, GGII and the Designated Affiliates (as such term is
defined therein)) in order to secure the prompt payment and performance by GGII
and such Designated Affiliates of their obligations under the Foreign
Receivables Agreement. Foothill and EALP hereby amend that certain Subordination
Agreement, dated as of March 21, 2002, between Foothill and EALP, to change the
definition of EALP Lien therein so that hereafter "EALP Lien" shall mean the
security interests granted by GGII and certain of its Affiliates in the
Collateral subject to the Loan Agreement to secure the obligations of GGII and
such Affiliates to EALP pursuant to the Foreign Receivables Agreement.
7. MISCELLANEOUS.
7.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made herein and in the Loan Agreement shall survive the execution
and delivery of this Amendment, and no investigation by any Lender or any
closing shall affect the representations and warranties or the right of any
Lender to rely upon them.
7.02 REFERENCE TO LOAN AGREEMENT. The Loan 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 Agreement shall
mean a reference to the Loan Agreement, as amended by this Amendment.
7.03 EXPENSES OF AGENT AND LENDERS. As provided in the Loan Agreement,
Borrower agrees to pay on demand all costs and expenses incurred by Agent and
each Lender in connection with the preparation, negotiation and execution of
this Amendment, including, without limitation, the reasonable costs and fees of
Agent's and each Lender's legal counsel, and all costs and expenses incurred by
Agent and the Lenders in connection with the enforcement or preservation of any
rights under the Loan Agreement, as amended hereby, or any other Loan Document.
7.04 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.
7.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of the parties hereto 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 the Lenders.
7.06 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.
7.07 FACSIMILE TRANSMISSION OF SIGNATURES. Any party to this Amendment
may indicate its intention to be bound by its execution and delivery of this
Amendment by its signature to the signature page hereof and the delivery of the
signature page hereof, to the other
AMENDMENT NO. 7 - PAGE 19
party or its representatives by facsimile transmission or telecopy. The delivery
of a party's signature on the signature page by facsimile transmission or
telecopy shall have the same force and effect as if such party signed and
delivered this Amendment in person.
7.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
7.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF
NEW YORK.
7.10 FINAL AGREEMENT. THE LOAN AGREEMENT, 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 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, THE AGENT AND THE LENDERS.
7.11 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, IMPAIR OR ELIMINATE ALL OR ANY PART
OF ITS LIABILITY TO REPAY THE OBLIGATIONS (AS DEFINED IN THE LOAN AGREEMENT) OR
TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM AGENT OR ANY
LENDER. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES AGENT AND EACH LENDER, THE PREDECESSORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS OF EACH, 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 AGENT OR SUCH LENDER, THE PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, OF EACH, 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
AMENDMENT NO. 7 - PAGE 20
INTEREST IN EXCESS OF THE MAXIMUM RATE, THE EXERCISE OF ANY RIGHTS AND REMEDIES
UNDER THE LOAN AGREEMENT OR ANY AGREEMENT, DOCUMENT OR INSTRUMENT ENTERED INTO
IN CONNECTION THEREWITH.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
AMENDMENT NO. 7 - PAGE 21
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President & CEO
------------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Sr. Vice President
------------------------------
▇▇▇▇▇▇▇ Associates, L.P.
By: ▇▇▇▇▇▇▇ Capital Advisors, L.P.,
as general partner
By: ▇▇▇▇▇▇▇ Associates, Inc.,
as general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
ADVANCED SEISMIC TECHNOLOGY, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President & CEO
------------------------------
AMENDMENT NO. 7 - PAGE 22
GRANT GEOPHYSICAL DO BRASIL LTDA.,
a corporation organized under the
laws of the Republic of Brazil,
South America
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title:
------------------------------
GRANT GEOPHYSICAL CORP.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President & CEO
------------------------------
GRANT GEOPHYSICAL (INT'L) INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President & CEO
------------------------------
PT. GRANT GEOPHYSICAL INDONESIA, a
corporation organized under the laws
of the Republic of Indonesia
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title:
------------------------------
AMENDMENT ▇▇. ▇ - ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇ GEOPHYSICAL INC., a
corporation organized under the laws
of the Province of Alberta, Canada
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title:
------------------------------
AMENDMENT NO. 7 - PAGE 24
Schedule C-1
To
Loan and Security Agreement
Commitments on Effective Date of Seventh Amendment to Loan and
Security Agreement
Percent of
Lender Facility Amount Facility Pro Rata Share
------ -------- ------ -------- --------------
Foothill Capital Corporation Revolving Facility $8,000,000 100% 20.0000%
Foothill Capital Corporation FCC Term Loan $8,000,000 100% 20.0000%
▇▇▇▇▇▇▇ Associates, L.P. EALP Term Loan $7,500,000 100% 18.7500%
Foothill Capital Corporation FCC Supplemental Loan $16,500,000 100% 41.2500%
___________ _____
Total $40,000,000 100%
Schedule C-1 - Page 1
EXHIBIT A
(Form of FCC Supplemental Note Attached)
EXECUTION COPY
SECURED PROMISSORY NOTE
$16,500,000.00 May 24, 2002
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 Sixteen Million Five Hundred Thousand and No/100 Dollars
($16,500,000.00), or so much thereof as shall have been advanced and remain
outstanding hereunder, plus interest in the manner and upon the terms and
conditions set forth below and in the Loan Agreement referred to below. This
Secured Promissory Note (this "Note") is made pursuant to that certain Loan and
Security Agreement (as amended, 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"), as amended from time to time, the
provisions of which are incorporated herein by this reference, and evidences the
FCC Supplemental 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 ADVANCES, SCHEDULE OF PAYMENTS; RATE AND PAYMENT OF INTEREST; PREPAYMENT.
1.1 The principal amount of this Note may be advanced to Borrower in one
or more advances (each, an "Advance") by Foothill, each Advance to be in an
amount of not less than Two Hundred Fifty Thousand and No/100 Dollars
($250,000.00) and a multiple of $250,000, and in accordance with the terms and
provisions of the Loan Agreement. Amounts borrowed hereunder may be repaid and,
subject to the terms and conditions of the Loan Agreement, re-borrowed at any
time during the term hereof.
1.2 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: accrued interest on the unpaid principal balance of this Note from time
to time remaining unpaid, shall be due and payable, in arrears, on the first day
of each calendar month during the term hereof, and the unpaid principal balance
of this Note, together with accrued interest on the principal balance remaining
unpaid, shall be due and payable on May 11, 2005.
1.3 Prepayment may be made under this Note in whole or in part, subject to
the provisions of Section 2.3A(g) of 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.
SECURED PROMISSORY NOTE - Page 1
1.4 Interest on the unpaid principal balance of this Note shall be
computed for each day on the basis of a 360-day year for the actual number of
days elapsed, and shall be at the Deposit Rate (as hereinafter defined) for such
day; 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 Deposit Rate
and shall be payable on demand.
1.5 (a) "Deposit Rate" means, for any day, (i) the rate of interest per
annum (over a year of 360 days) payable on such day on the sums on deposit by
EALP with Foothill securing payment of the Advances hereunder as specified in
paragraph 2 of that certain Cash Collateral Account Letter Agreement, dated as
of the date hereof, as amended from time to time, among Foothill, EALP and
Borrower with respect to the related cash collateral account pursuant to which
such sums are on deposit, or (ii) from and after the day that this Note is
transferred to EALP pursuant to Section 9.5 of the Loan Agreement, the rate of
interest per annum (over a year of 360 days) that would have been payable in
accordance with such Cash Collateral Account Letter Agreement on a sum equal to
the unpaid balance hereof on such day whether or not such sum is actually on
deposit with Foothill.
(b) The Deposit Rate is not necessarily the lowest rate charged by
Foothill. 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 in the Deposit Rate. A change in the Deposit Rate shall be
effective automatically and immediately on the occurrence of such change.
1.6 Foothill shall record on its books the principal amount of each
Advance hereunder, from time to time. In addition, Foothill is authorized, at
its option, to note the date and amount of each payment or prepayment of
principal hereof in its books and records, including computer records, such
books and records constituting rebuttably presumptive evidence, absent manifest
error, of the accuracy of the information contained therein.
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 and 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.
SECURED PROMISSORY NOTE - Page 2
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 rate permitted by the Applicable Usury Law ("Maximum Interest
Rate"), and in any such event (1) the provisions of this 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.
SECURED PROMISSORY NOTE - Page 3
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 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
NEW YORK, AS THE SAME MAY FROM TIME TO TIME BE IN EFFECT, INCLUDING, WITHOUT
LIMITATION, THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE STATE OF
NEW YORK.
BORROWER HEREBY (i) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN
NEW YORK COUNTY, NEW YORK, 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; 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.
SECURED PROMISSORY NOTE - Page 4
GRANT GEOPHYSICAL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President & CEO
"Borrower"
Federal Taxpayer Identification
Number: ▇▇-▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SECURED PROMISSORY NOTE - Page 5
