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EXHIBIT 10.23
AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT AND CONSENT
THIS AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT AND CONSENT (this
"Amendment"), dated effective as of March 21, 2001, is entered into by and among
Grant Geophysical, Inc., a Delaware corporation ("Borrower"), Foothill Capital
Corporation, a California corporation ("Foothill"), and Xxxxxxx 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 and Amendment Number Four to Loan and Security Agreement,
dated to be effective as of February 7, 2001, by and among Borrower, Foothill
and EALP;
WHEREAS, Borrower has informed Lenders of Borrower's intention to sell to
Seitel, Inc., or its subsidiaries (collectively, "Seitel") certain seismic data
from Borrower's non-exclusive data library, all licenses and other contracts
relating to the use of such data by third persons and all revenue relating to
such data from February 15, 2001 or a specified date thereafter, as more
particularly described on Exhibit "B" attached hereto (collectively, the "Sale
Assets"), such sale hereinafter referred to as the "Sale" and Borrower
acknowledges that the Sale is a Disposition prohibited by Section 7.4(d) of the
Loan Agreement without the prior written consent of the Lenders;
WHEREAS, Borrower has requested that Lenders consent to the Sale and
release the Lenders' security interests in the Sale Assets;
WHEREAS, Borrower and Lenders have agreed to extend the term of the Loan
Agreement for three years from the currently effective Renewal Date; and
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. AMENDMENT.
2.01 ADDITIONS TO SECTION 1.1 OF THE LOAN AGREEMENT. Section 1.1 of the
Loan Agreement is hereby amended by adding the following definition of "Fifth
Amendment to Loan
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and Security Agreement" to such section in the appropriate alphabetical order,
such definition to read in its entirety as follows:
"'Fifth Amendment to Loan and Security Agreement' means that certain
Amendment Number Five to Loan and Security Agreement, dated to be effective
as of March 21, 2001, by and among Borrower, Foothill and EALP."
2.02 AMENDMENT AND RESTATEMENT OF SECTION 2.3 OF THE LOAN AGREEMENT.
Effective as of the date 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 Eleven
Million Five Hundred Thousand Dollars ($11,500,000.00). The FCC Term Loan
shall be repaid in thirty-one monthly installments, and one final
installment, of principal in the following amounts:
=====================================================================================
Month Installment Amount
-------------------------------------------------------------------------------------
April 1, 2000, through October 1, 2002 $363,260.00/month
-------------------------------------------------------------------------------------
November 1, 2002 The outstanding principal balance of the
FCC Term Loan
=====================================================================================
Each such principal installment shall be due and payable on the first day
of each month commencing April 1, 2000, and continuing on the first day of
each succeeding month until and including the date on which the unpaid
balance of the FCC Term Loan is paid in full. The outstanding principal
balance and all accrued and unpaid interest under the FCC Term Loan shall
be due and payable upon the termination of this Agreement, whether by its
terms, by prepayment, by acceleration, or otherwise. Subject to Section
3.6, the unpaid principal balance of the FCC Term Loan may be prepaid in
whole or in part at any time during the term of this Agreement upon 30
days' prior written notice by Borrower to Foothill, all such prepaid
amounts to be applied to the installments due on the FCC Term Loan in the
inverse order of their maturity. All amounts outstanding under the FCC Term
Loan shall constitute Obligations.
(b) Prepayment Upon Disposition of Eligible Equipment. Except as
otherwise expressly permitted by Section 7.4 of this Agreement, Borrower
shall prepay the FCC Term Loan in an amount equal to the net proceeds of
any disposition of Eligible Equipment, regardless of whether such
disposition is permitted under Section 7.4 of this Agreement (but without
approving any such disposition not otherwise expressly permitted under
Section 7.4 of this Agreement). The mandatory prepayment shall be due and
payable immediately upon the corresponding disposition of Eligible
Equipment.
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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 Third Amended and Restated Secured Promissory Note, dated as of
February 14, 2000, in the original principal amount of $11,500,000.00,
executed by Borrower, payable to the order of Foothill, the form of which
is attached as Exhibit A to the Fifth Amendment to Loan and Security
Agreement (together with any and all renewals, extensions and modifications
thereof, the "FCC Term Note")."
2.03 AMENDMENT AND RESTATEMENT OF SECTION 3.4 OF THE LOAN AGREEMENT.
Effective as of the date hereof, Section 3.4 of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"3.4 TERM; AUTOMATIC RENEWAL. This Agreement shall become effective
upon May 11, 1999 and shall continue in full force and effect for a term ending
on May 11, 2005 (the "Renewal Date") and automatically shall be renewed for
successive one-year periods thereafter, unless sooner terminated pursuant to the
terms hereof. Either Borrower or the Required Lenders may terminate this
Agreement without, in the case of Borrower, penalty or premium effective on the
Renewal Date by giving the other party at least ninety days' prior written
notice. Thereafter, Borrower may terminate this Agreement at any time without
penalty or premium subject to Section 3.5 hereof, provided that the Required
Lenders may only terminate this Agreement on the annual anniversary of the
Renewal Date by giving Borrower at least ninety days' prior written notice. The
foregoing notwithstanding, the Lenders shall have the right to terminate their
respective obligations under this Agreement immediately and without notice upon
the occurrence and during the continuation of an Event of Default."
2.04 AMENDMENT AND RESTATEMENT OF SECTION 3.6 OF THE LOAN AGREEMENT.
Effective as of the date hereof, Section 3.6 of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"3.6 EARLY TERMINATION BY BORROWER. The provisions of Section 3.4 that
may prohibit termination of this Agreement by Borrower prior to the Renewal Date
notwithstanding, Borrower has the option, at any time upon 30 days' prior
written notice to Agent, to terminate this Agreement prior to the Renewal Date
by paying to Agent (for the benefit of Foothill), in cash, the Obligations
(including an amount equal to 102% of the undrawn and unreimbursed amount of the
Letters of Credit that remain outstanding as of the date of termination of this
Agreement), in full, together with a premium (the "Early Termination Premium")
equal to the Maximum Amount multiplied by the percentage indicated below that
corresponds to the period during which Borrower pays the Obligations in full, in
cash:
Percentage Period
---------- ------
3% From the Closing Date, through and including May 11, 2002;
2% After May 11, 2002, through and including August 11, 2002;
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1-3/4% After August 11, 2002, through and including November 11, 2002
1-1/2% After November 11, 2002, through and including February 11, 2003
1-1/4% After February 11, 2003, through and including May 11, 2003
1% After May 11, 2003, through and including August 11, 2003
3/4% After August 11, 2003, through and including November 11, 2003
1/2% After November 11, 2003, through and including February 11, 2004
1/4% After February 11, 2004, and prior to the Renewal Date; and
0% On the Renewal Date and thereafter.
"Any amount paid in respect of undrawn and unreimbursed Letters of Credit
outstanding as of the termination of this Agreement shall be repaid to Borrower
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.
"Borrower may prepay the FCC Term Loan in whole or in part at any time
without payment of an Early Termination Premium so long as the prepayment is
made with proceeds derived from the sale of Borrower's equity securities. The
following prepayments may be made without payment of an Early Termination
Premium: (a) mandatory prepayments of the FCC Term Loan required under Section
2.3(b) as a result of a disposition of Eligible Equipment otherwise permitted by
Section 7.4, but only to the extent all such Dispositions during any Fiscal Year
result in aggregate net proceeds of less than $1,000,000; and (b) prepayments
pursuant to Section 2.5 as a result of an Overadvance. Any prepayment on the FCC
Term Loan will apply to payments due under the FCC Term Loan in the inverse
order of maturities. Borrower may not prepay the EALP Term Loan in whole or in
part unless and until all other Obligations have been repaid in full to Foothill
and to Agent."
3. CONSENT TO SALE. Subject to Borrower's satisfaction of the terms and
conditions set forth herein, the Lenders hereby (i) consent (the "Consent") to
the Sale of the Sale Assets, (ii) release their security interest in the Sale
Assets, and (iii) agree to execute and deliver partial releases of financing
statements to evidence the release of security interests in the Sale Assets. The
Consent and release set forth herein apply only to the Sale of the Sale Assets
and nothing contained herein or any other communication among Foothill, any
Lender, and/or Borrower shall constitute a course of dealing or other basis for
altering any obligation of Borrower under the Loan Agreement or any other Loan
Document or any right, privilege or remedy of Agent or Lenders under the Loan
Agreement, any other Loan Document or any other contract or instrument or any
consent to any future Dispositions of any property.
4. CONDITIONS TO EFFECTIVENESS.
4.01 CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment (other than
the Consent) shall become effective upon fulfillment of the following
conditions, in each case to the satisfaction of Foothill:
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(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; and
(e) Borrower shall pay all fees and expenses required to be paid by
Borrower pursuant to Section 7.03 of this Amendment.
4.02 CONDITIONS TO EFFECTIVENESS OF CONSENT. The Consent set forth in this
Amendment shall become effective upon fulfillment of the conditions to the
effectiveness of this Amendment and the fulfillment of the following additional
conditions, in each case to the satisfaction of Foothill:
(a) Borrower shall have received cash consideration in the aggregate
amount of $15,000,000 upon consummation of the Sale of the Sale
Assets.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.
5.01 REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents
and warrants to Foothill as follows:
(a) the execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary corporate action of
Borrower and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person in order to be effective
and enforceable;
(b) the execution, delivery and performance by Borrower of this
Amendment will not violate the articles of incorporation, bylaws or any
other agreement to which Borrower is a party or by which the property of
Borrower may be bound;
(c) the Loan 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;
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(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.
5.02 COVENANTS OF BORROWER. Borrower hereby agrees as follows:
(a) Borrower agrees to pay in full all sums owing to EALP relating to
all net revenue interests acquired by EALP from Borrower; and
(b) Borrower shall cause to be prepared and delivered to Foothill all
partial releases of financing statements required in connection with the
release of Lenders' security interests in the Sale Assets.
6. RATIFICATIONS.
6.01 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.
6.02 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 by this Amendment.
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 Foothill or any closing
shall affect the representations and warranties or the right of Foothill to rely
upon them.
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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 FOOTHILL AND AMENDMENT AND CONSENT FEE. In consideration
of Foothill's execution and delivery of this Amendment and the Consent, Borrower
shall pay to Foothill a fee in the aggregate amount of $75,000, which fee shall
be earned by Foothill and shall be due and payable upon the execution by
Foothill of a counterpart of this Amendment. In addition to such fee and 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.
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 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.
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 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 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.
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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 AND FOOTHILL.
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 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
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]
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IN WITNESS HEREOF, this Amendment has been executed and delivered as of the
date first set forth above.
GRANT GEOPHYSICAL, INC.,
a Delaware corporation
By:
-------------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President-Finance and
Administration
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and
as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX ASSOCIATES, L.P.
a Delaware limited partnership
By:
-------------------------------------
Xxxx X. Xxxxxx,
General Partner
ADVANCED SEISMIC TECHNOLOGY, INC.,
a Texas corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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GRANT GEOPHYSICAL DO BROSIL LTDA.,
a corporation organized under the laws of the
Republic of Brazil, South America
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GRANT GEOPHYSICAL CORP.,
a Texas corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GRANT GEOPHYSICAL (INT'L) INC.,
a Texas corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PT. GRANT GEOPHYSICAL INDONESIA,
a corporation organized under the laws of
the Republic of Indonesia
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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SOLID STATE GEOPHYSICAL INC.,
a corporation organized under the laws of the
Province of Alberta, Canada
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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EXHIBIT A
(FORM OF FCC TERM NOTE ATTACHED)
13
THIRD AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$11,500,000.00 Boston, Massachusetts
March 21, 2001, effective as of February 14, 2000
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 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxxxxxxxx 00000-0000, or at such other place or places
as Foothill may from time to time designate in writing, the principal sum of
Eleven Million Five Hundred Thousand and No/100 Dollars ($11,500,000.00), plus
interest in the manner and upon the terms and conditions set forth below. This
Third 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) thirty-one (31) equal successive monthly installments of principal
of Three Hundred Sixty-Three Thousand Two Hundred Sixty Dollars and No/100
($363,260.00), each on the first day of each month, beginning April 1,
2000, and continuing through and including October 1, 2002;
(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 March 1, 2000; and
(c) a final principal installment equal to the unpaid principal balance
of this Note on November 1, 2002, together with accrued interest on the
principal balance remaining unpaid.
1.2 Prepayment may be made under this Note in whole or in part, subject
to the provisions of Section 3.6 set forth in the Loan Agreement.
Notwithstanding anything herein to the contrary, in the event that the Loan
Agreement is terminated by Borrower, by Foothill or by any other person at any
time, then the entire unpaid principal balance of this Note, together with all
accrued and unpaid interest hereon, shall become immediately due and payable in
full on the effective date of such termination, without presentment, notice or
demand of any kind.
1.3 Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed, and shall be at the rate of one and one-half
(1-1/2) percentage points above the Reference Rate (as hereinafter defined),
computed on the basis of a 360-day year; provided, however, upon the occurrence
and during the continuance of an Event of Default (as hereinafter defined),
interest shall accrue on the outstanding principal balance of this Note at a
default rate (the "Default Rate") of five and one-half (5-1/2) percentage
points above the Reference Rate, and shall be payable on demand. "Reference
Rate" means, for any day, the rate of interest per annum (over a year of 360
days) announced by Xxxxx 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
SECURED PROMISSORY NOTE--Page 1
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rate charged by the Bank. The applicable rate of interest assessed hereunder
will be increased or decreased from time to time hereafter in an amount equal to
any increase or decrease hereafter made by the Bank in the Reference Rate. A
change in the Reference Rate shall be effective automatically and immediately on
the occurrence of such change.
2.0 EVENTS OF DEFAULTS; REMEDIES.
2.1 The occurrence of an Event of Default under the Loan Agreement
shall constitute a default by Borrower under this Note (hereinafter an "Event of
Default").
2.2 Upon the occurrence of any Event of Default hereunder, the Lenders
and the Agent shall have all rights and remedies as may be provided under the
Loan Agreement or applicable law.
3.0 GENERAL PROVISIONS.
3.1 Borrower warrants and represents to the Agent and the Lenders that
Borrower has used and will continue to use the loans and advances represented by
this Note solely for proper business purposes, and consistent with all
applicable laws and statutes.
3.2 This Note is secured by the Collateral described in the Loan
Agreement.
3.3 Borrower waives presentment, demand and protest, notice of protest,
notice of presentment, notice of intention to accelerate, notice of
acceleration, and all other notices and demands in connection with the
enforcement of the Lenders', Foothill's or the Agent's rights hereunder or under
the Loan Agreement, except as specifically provided and called for by this Note
or the Loan Agreement, and hereby consents to, and waives notice of, the
release, addition, or substitution, with or without consideration, of any
collateral or of any person liable for payment of this Note or any other
Obligation. Any failure of the Lenders or the Agent to exercise any right
available hereunder, under the Loan Agreement or otherwise shall not be
construed as a waiver of the right to exercise the same or as a waiver of any
other right at any other time.
3.4 If this Note is not paid when due or upon the occurrence of an
Event of Default, Borrower further promises to pay all costs of collection,
foreclosure fees, attorneys' fees and expert witness fees incurred by the
Lenders or the Agent, whether or not suit is filed hereon, and the fees, costs
and expenses as provided in the Loan Agreement.
3.5 It is the intent of the parties to comply with applicable usury
laws (the "Applicable Usury Law"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Note, or in any of the
documents securing payment hereof or otherwise relating hereto, in no event
shall this Note or such documents require the payment or permit the collection
of interest in excess of the Maximum Interest Rate, then in any such event (1)
the provisions of the paragraph shall govern and control, (2) neither Borrower
nor any other person or entity now or hereafter liable for the payment hereof
shall be obligated to pay the amount of such interest to the extent that it is
in excess of the Maximum Interest Rate, (3) any such excess which may have been
collected shall be either applied as a credit against the then unpaid principal
amount hereof or refunded to Borrower, at Foothill's option, and (4) the
effective rate of interest shall be automatically reduced to the Maximum
Interest Rate. It is further agreed, without limiting the generality of the
foregoing, that to the extent permitted by the Applicable Usury Law, (x) all
calculations of interest which are made for the purpose of determining whether
such rate would exceed the Maximum Interest Rate shall be made by amortizing,
prorating, allocating and spreading during the period of the full stated term of
the loan evidenced hereby, all interest at any time contracted for, charged or
received from Borrower or otherwise in connection with such loan; and (y) in
SECURED PROMISSORY NOTE--Page 2
15
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 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 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 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
SECURED PROMISSORY NOTE--Page 3
16
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:
-------------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President-Finance and
Administration
"Borrower"
Federal Taxpayer Identification
Number: 00-0000000
Address:
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
SECURED PROMISSORY NOTE--Page 4
17
EXHIBIT B
Description of Sale Assets
All of the Borrower's right, title and interest in and to approximately 1,300
square miles of 3-D seismic data in the Matagorda, Bay City, Polk County,
Tri-County, Xxxxxx and Xxxxx Xxxxxxx surveys, including all processed tapes,
field tapes, other tapes and support data, files, films, microfilms, mylar,
blacklines, sections (stack and migration), shot points base maps, x-y
coordinates and derivatives related to such surveys (collectively, the "Data");
All of the Borrower's right, title and interest in and to the Borrower's
agreements regarding the acquisition, ownership or licensing of the Data which
may be assigned by the Borrower without the consent of any person or for which
Borrower has obtained all necessary consents to assign (the "Assumed Contracts")
as of the date specified (the "Closing Date") in the Seismic Data Purchase
Agreement between Seitel Data, Ltd. and Borrower, entered into after February
15, 2001;
All of the Borrower's rights accruing after the Closing Date under any
agreements regarding the acquisition, ownership or licensing of Data, which may
not be assigned by the Borrower without the consent of a third party and which
consents have not been obtained as of the Closing Date (the "Assigned Rights");
and
Any and all copyrights, trade secrets, know-how, inventions, rights to software,
patents, patent applications, and other intellectual property rights, whether
registered or unregistered, existing in the Data (the "Intellectual Property
Rights").
