EXHIBIT 10.1
AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated effective as of July 1, 2001, 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"), 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, and Amendment Number Five to Loan and Security Agreement, dated to be
effective as of March 21, 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) a readvance of principal under the FCC Term Loan such that
the aggregate outstanding principal balance as of the date of this
Amendment will be $10,500,000, to be evidenced by an amendment and
restatement of the FCC Term Note, including a revised amortization
schedule; and
(b) a modification in the sublimit for Eligible Foreign Billed
Accounts in the definition of Borrowing Base and the maximum
permissible unsecured Indebtedness of the Borrower and its
Subsidiaries;
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.
2. AMENDMENTS.
2.01 ADDITION TO SECTION 1.1 OF THE LOAN AGREEMENT. Section 1.1 of the
Loan Agreement is hereby amended by adding the following definition of "Sixth
Amendment to Loan and Security Agreement" to such section in the appropriate
alphabetical order, such definition to read in its entirety as follows:
AMENDMENT NO. 6 - PAGE 1
"'Sixth Amendment to Loan and Security Agreement' means that
certain Amendment Number Six to Loan and Security Agreement, dated to
be effective as of July 1, 2001, by and among Borrower, Foothill and
EALP."
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) Four Million Dollars
($4,000,000.00) or (II) sixty percent (60%) of Eligible Foreign Billed
Accounts;"
2.03 AMENDMENT AND RESTATEMENT OF SECTION 2.3 OF THE LOAN AGREEMENT.
Upon satisfaction of the conditions precedent set forth in Section 3 hereof,
Section 2.3 of the Loan 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 Ten Million Five Hundred Thousand Dollars
($10,500,000.00). The FCC Term Loan shall be repaid in forty-one
monthly installments, and one final installment, of principal in the
following amounts:
Month Installment Amount
----- ------------------
August 1, 2001, through December 1, 2004 $250,000.00/month
January 1, 2005 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 August 1, 2001, 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
AMENDMENT NO. 6 - PAGE 2
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 Fourth Amended and Restated Secured
Promissory Note, dated July 1, 2001, in the original principal amount
of $10,500,000.00, executed by Borrower, payable to the order of
Foothill, the form of which is attached as Exhibit A to the Sixth
Amendment to Loan and Security Agreement (together with any and all
renewals, extensions and modifications thereof, the "FCC Term Note")."
2.04 AMENDMENT TO 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) $4,000,000 at any one time
outstanding, if the unsecured Indebtedness is for Indebtedness other
than insurance premiums."
2.05 REPLACEMENT OF SCHEDULE C-1 OF THE LOAN AGREEMENT. Schedule C-1 of
the Loan Agreement is hereby amended and restated in its entirety to read as set
forth in Schedule C-1 to this Amendment, and all references in the Loan
Agreement to Schedule C-1, or any information set forth therein, shall
hereinafter be deemed to be references to Schedule C-1 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 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 Loan Documents to which it is a party, pursuant to an
instrument in form and substance satisfactory to Foothill;
(d) Borrower shall execute and deliver to Foothill the "FCC
Term Note" in the form attached hereto as Exhibit A;
AMENDMENT NO. 6 - PAGE 3
(e) Foothill shall have received a Company Certificate, duly
executed by Borrower in form and substance satisfactory to Foothill,
together with certified resolutions of the Board of Directors of
Borrower authorizing the transactions contemplated by this Amendment;
(f) Borrower shall pay all fees and expenses required to be
paid by Borrower pursuant to Section 6.03 of this Amendment; and
(g) Borrower shall pay to Foothill an amount equal to the
interest accrued in respect of the Fourth Prior Note (as such term is
defined in the FCC Term Note attached hereto as Exhibit A) for the
period commencing on, and including, June 1, 2001, and extending to,
but excluding, July 1, 2001.
Upon satisfaction of the foregoing conditions to effectiveness,
Foothill shall advance to Borrower the amount by which $10,500,0000 exceeds the
unpaid principal balance of the Fourth Prior Note (as such term is defined in
the FCC Term Note attached hereto as Exhibit A).
4. 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 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, 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.
AMENDMENT NO. 6 - PAGE 4
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 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 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 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 Agreement and other Loan Documents, as
amended and increased by this Amendment.
6. MISCELLANEOUS.
6.01 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 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 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.
6.03 EXPENSES OF FOOTHILL. As provided in the Loan 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 all costs and expenses incurred by Foothill in connection with the
enforcement or preservation of any rights under the Loan 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.
AMENDMENT NO. 6 - PAGE 5
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 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 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.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation 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 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 AND FOOTHILL.
6.10 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 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
AMENDMENT NO. 6 - PAGE 6
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
AGREEMENT OR ANY AGREEMENT, DOCUMENT OR INSTRUMENT ENTERED INTO IN CONNECTION
THEREWITH.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
AMENDMENT NO. 6 - PAGE 7
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: Executive Vice President-
Finance & Administration
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
a Delaware limited partnership
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Partner
ADVANCED SEISMIC TECHNOLOGY, INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
AMENDMENT NO. 6 - PAGE 8
GRANT GEOPHYSICAL DO BROSIL LTDA.,
a corporation organized under the laws of the
Republic of Brazil, South America
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
GRANT GEOPHYSICAL CORP.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
GRANT GEOPHYSICAL (INT'L) INC.,
a Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
PT. GRANT GEOPHYSICAL INDONESIA,
a corporation organized under the laws of the
Republic of Indonesia
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
AMENDMENT ▇▇. ▇ - ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ GEOPHYSICAL INC.,
a corporation organized under the laws of the
Province of Alberta, Canada
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
AMENDMENT NO. 6 - PAGE 10
Schedule C-1
To
Loan and Security Agreement
Commitments on Effective Date of Sixth Amendment to Loan and Security Agreement
Percent of
Lender Facility Amount Facility Pro Rata Share
------ -------- ------ ---------- --------------
Foothill Capital Corporation Revolving Facility $10,000,000 100% 35.71428%
Foothill Capital Corporation FCC Term Loan $10,500,000 100% 37.5%
▇▇▇▇▇▇▇ Associates, L.P. EALP Term Loan $ 7,500,000 100% 26.78572%
----------- ---------
Total $28,000,000 100%
Schedule C-1 - Page 1
EXHIBIT A
(Form of FCC Term Note Attached)
FOURTH AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$10,500,000.00 Boston,
Massachusetts
July 1, 2001
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 Ten Million Five Hundred Thousand and No/100 Dollars
($10,500,000.00), plus interest in the manner and upon the terms and conditions
set forth below. This Fourth Amended and Restated 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"), 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 in as follows:
(a) forty-one (41) equal successive monthly installments of
principal of Two Hundred Fifty Thousand and No/100 ($250,000.00), each
on the first day of each month, beginning August 1, 2001, and
continuing through and including December 1, 2004;
(b) accrued interest on the principal balance from time to
time remaining unpaid, payable monthly on the first day of each and
every month, beginning August 1, 2001; and
(c) a final principal installment equal to the unpaid
principal balance of this Note on January 1, 2005, 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 ▇▇▇▇▇ Fargo Bank, 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. The applicable rate of interest assessed
hereunder will be increased or
Secured Promissory Note - Page 1
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
Secured Promissory Note - Page 2
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
falls 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 Third Amended and
Restated Secured Promissory Note, dated March 21, 2001, effective as of February
14, 2000, executed by Borrower and payable to the order of Foothill in the
original principal amount of $11,500,000 (the "Fourth Prior Note"), which Fourth
Prior Note, in turn, amended, modified, restated and replaced but did not
extinguish the indebtedness evidenced by, that certain Second Amended and
Restated Secured Promissory Note, dated February 14, 2000, executed by Borrower
and payable to the order of Foothill in the original principal amount of
$11,500,000 (the "Third
Secured Promissory Note - Page 3
Prior Note"), which Third Prior Note, in turn, amended, modified, restated and
replaced but did not extinguish the indebtedness evidenced by, that certain
Amended and Restated Secured Promissory Note, dated September 23, 1999, executed
by Borrower and payable to the order of Foothill in the original stated
principal amount of $11,637,500.00 (the "Second Prior Note"), which Second Prior
Note, in turn, amended, modified, increased, restated and replaced, but did 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 ("First Prior Note"). All
rights, titles, liens, security interests and agreements securing or benefiting
the Third Prior Note, the Second Prior Note or the First Prior Note, or all of
them, are preserved, maintained and carried forward to secure and benefit this
Note.
GRANT GEOPHYSICAL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President-
Finance & Administration
"Borrower"
Federal Taxpayer Identification
Number: ▇▇-▇▇▇▇▇▇▇
Address:
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Secured Promissory Note - Page 4
