EXHIBIT 10.1
AMENDMENT NUMBER EIGHT TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER EIGHT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated effective as of July 8, 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 Xxxxxxx 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,
Amendment Number Six to Loan and Security Agreement, dated to be effective as of
July 1, 2001, by and among Borrower, Foothill and EALP, and Amendment Number
Seven to Loan and Security Agreement, dated to be effective as of May 24, 2002,
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 increase in the maximum principal amount of the FCC
Supplemental Loan to $19,500,000;
(b) the amendment and restatement of the FCC Supplemental
Note to reflect the change in the maximum principal amount thereof
referenced in (a) above; and
(c) the 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.
2. AMENDMENTS.
2.01 MODIFICATIONS TO SECTION 1.1 OF THE LOAN AGREEMENT. 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:
""Applicable Appraisal" means, at any time, the most recent
appraisal of the Eligible Equipment delivered to Borrower and Lenders
pursuant to Section 4.6 or, with respect to any item of Eligible
Equipment not covered by such appraisal, a more recent appraisal of
such item of Eligible Equipment delivered to Borrower and Lenders
pursuant to Section 4.6."
""Eighth Amendment to Loan and Security Agreement" means that
certain Amendment Number Eight to Loan and Security Agreement, dated to
be effective as of July 8, 2002, by and among Borrower, Foothill and
EALP."
2.02 AMENDMENT OF SECTION 1.1 OF THE LOAN AGREEMENT. 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:
""Eligible Equipment" means all Equipment (a) that is owned by
the Borrower or any Designated Subsidiary, (b) is located in the United
States or Canada, (c) in the case of Equipment other than Mobile Goods,
is located at a location identified on Schedule 6.10, (d) in which
Agent has a first-priority, perfected security interest, subject to
Permitted Liens, (e) that has been appraised as shown on an Applicable
Appraisal or has been acquired or moved to the United States or Canada
since the date of the most recent Applicable Appraisal and (f) as to
which each representation and warranty contained in Sections 5.1, 5.3
and 5.4 is true and correct."
""Mobile Goods" means Equipment and Inventory as provided in
Section 9-103(3) of the Code (as in effect prior to July 1, 2001)."
2.03 AMENDMENT OF SECTION 2.3(b) OF THE LOAN AGREEMENT. Section 2.3(b)
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"(b) Prepayment Upon Disposition or Removal of Eligible Equipment. (i)
Except as otherwise expressly permitted by Section 7.4 of this
Agreement, upon the disposition of any item of Eligible Equipment,
Borrower shall, immediately upon such disposition, prepay the FCC Term
Loan in an amount equal to the net proceeds of such disposition,
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); and
(ii) upon (x) the removal of any item of Eligible Equipment other than
Mobile Goods from a location identified on Schedule 6.10 to a location
not identified on Schedule 6.10 or (y) the removal of any item of
Eligible Equipment constituting Mobile Goods to a location outside the
United States and Canada, Borrower shall, no later than the date five
Business Days after the end of the month in which such removal took
place, prepay the FCC Term Loan in an amount sufficient to
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cause the outstanding balance of the FCC Term Loan (following such
prepayment) to be no greater than two-thirds (2/3) of the sum of:
(A) the Forced Liquidation Value of all Eligible
Equipment other than Mobile Goods then located at a location
identified on Schedule 6.10, plus
(B) the net book value of any Eligible Equipment other
than Mobile Goods then located at a location identified on
Schedule 6.10 but not covered by an Applicable Appraisal, plus
(C) the Forced Liquidation Value of all Eligible
Equipment constituting Mobile Goods then located in the United
States or Canada, plus
(D) the net book value of any Eligible Equipment
constituting Mobile Goods then located in the United States or
Canada but not covered by an Applicable Appraisal.
Mandatory prepayments shall be applied to installments under the FCC
Term Loan in the inverse order of maturity."
2.04 AMENDMENT AND RESTATEMENT OF SECTION 2.3A OF THE LOAN AGREEMENT.
Upon satisfaction of the conditions precedent set forth in Section 3 hereof,
Section 2.3A of the Loan Agreement is hereby amended and restated in its
entirety 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 Nineteen Million Five Hundred Thousand
Dollars ($19,500,000.00). 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 an amended and restated secured promissory note, dated as of July 8, 2002, in
the maximum principal amount of $19,500,000, executed by Borrower, payable to
the order of Foothill, the form of which is attached as Exhibit A to the Eighth
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
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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 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
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evidenced by the written acknowledgment by EALP of a request
by Borrower for a Borrowing of an FCC Supplemental Loan."
2.05 AMENDMENT OF SECTION 4.6. Section 4.6 is hereby amended by adding
the following at the conclusion of Section 4.6:
"Agent shall, promptly after Borrower's request and at
Borrower's expense, appraise the Forced Liquidation Value of any item
of Eligible Equipment not covered by the most recent appraisal of the
Eligible Equipment delivered to Borrower and Lenders pursuant to this
Section 4.6. Agent shall deliver a copy of any appraisal pursuant to
this Section 4.6 to the Borrower and the Lenders promptly after the
completion thereof."
2.06 AMENDMENT OF SECTION 6.2 OF THE LOAN AGREEMENT. Section 6.2 of the
Loan Agreement is hereby amended by deleting the word "and" in the last line of
paragraph 6.2(g), changing paragraph "(h)" to "(i)" and inserting new paragraph
6.2(h) to read in its entirety as follows:
"(h) on a monthly basis and, in any event, by no later than the 15th
day of each month during the term of this Agreement, a list
identifying:
(x) each item of Eligible Equipment other than Mobile
Goods which, during the preceding month, was (i) removed from
a location identified on Schedule 6.10 to a location not
identified on Schedule 6.10, or (ii) moved to a location
identified on Schedule 6.10 from a location not identified on
Schedule 6.10;
(y) each item of Eligible Equipment constituting Mobile
Goods which, during the preceding month, was (i) removed from
a location in the United States or Canada to a location
outside the United States and Canada or (ii) moved to a
location in the United States or Canada from a location
outside the United States and Canada; and
(z) each item of Eligible Equipment which, during the
preceding month was disposed of,
in each case, with an indication of its net book value as of the end of
the preceding month, and."
2.07 AMENDMENT OF SECTION 17.16(f) OF THE LOAN AGREEMENT. Section
17.16(f) of the Loan Agreement is hereby amended and restated in its entirety to
read 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, and to be 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."
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2.08 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.
2.09 REPLACEMENT OF SCHEDULE 6.10 OF THE LOAN AGREEMENT. Schedule 6.10
of the Loan Agreement is hereby amended and restated in its entirety to read as
set forth in Schedule 6.10 to this Amendment, and all references in the Loan
Agreement to Schedule 6.10, or any information set forth therein, shall
hereinafter be deemed to be references to Schedule 6.10 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 an amended and restated
FCC Supplemental Note in the form attached hereto as Exhibit A;
(e) 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; and
(f) Borrower shall pay all fees and expenses required to be paid by
Borrower pursuant to Section 7.03 of this Amendment.
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;
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(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. 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, 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.
5.03 CONTINUATION OF LIENS. Foothill, Borrower and EALP hereby renew
and affirm the Liens created and granted in the Loan Documents, including,
without limitation, that certain Cash Collateral Account Agreement, dated as of
May 24, 2002, among EALP, Foothill and Borrower, and agree that this Amendment
shall in no manner affect or impair such Liens securing the Obligations,
including the FCC Supplemental Loan, as increased hereby, and that such Liens
continue to be valid and subsisting.
6. CONSENT TO SALE OF AND LIEN ON ADDITIONAL ACCOUNTS Notwithstanding
anything to the contrary contained in Sections 7.1, 7.2 and 7.4 of the Loan
Agreement or in any other
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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 all current and future
billed and unbilled non-Dollar denominated foreign accounts, including, without
limitation, all those foreign accounts existing on July 8, 2002 (such sold
accounts collectively, 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, on all books and records
pertaining thereto and all Proceeds thereof, for the benefit of EALP to secure
obligations relating to the sale of the Foreign Accounts to EALP and all other
obligations of GGII and the Designated Affiliates (as defined in the Foreign
Receivables Agreement) 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 July 1, 2001, 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.
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
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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 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
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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 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: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent and as a Lender
By: /s/ XXXXXX XXXXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
XXXXXXX ASSOCIATES, L.P.
a Delaware limited partnership, as a Lender
By: /s/ XXXXXXX XXXXXXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ADVANCED SEISMIC TECHNOLOGY, INC.,
a Texas corporation
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
GRANT GEOPHYSICAL DO BRASIL LTDA.,
a corporation organized under the laws
of the Republic of Brazil, South America
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
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GRANT GEOPHYSICAL CORP.,
a Texas corporation
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
GRANT GEOPHYSICAL (INT'L) INC.,
a Texas corporation
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
PT. GRANT GEOPHYSICAL INDONESIA,
a corporation organized under the laws of the
Republic of Indonesia
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOLID STATE GEOPHYSICAL INC.,
a corporation organized under the laws of the
Province of Alberta, Canada
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
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Schedule C-1
To
Loan and Security Agreement
Commitments on Effective Date of Eighth Amendment to Loan and Security Agreement
Percent of Pro Rata
Lender Facility Amount Facility Share
------ -------- ------ -------- -----
Foothill Capital Corporation Revolving Facility $ 8,000,000 100% 18.60465%
Foothill Capital Corporation FCC Term Loan $ 8,000,000 100% 18.60465%
Xxxxxxx Associates, L.P. EALP Term Loan $ 7,500,000 100% 17.44186%
Foothill Capital Corporation FCC Supplemental Loan $19,500,000 100% 45.34884%
----------- ---------
Total $43,000,000 100%
Schedule 6.10
to
Loan and Security Agreement
Location of Inventory and Equipment
1. 00000 Xxxx Xxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
2. 0000 Xxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
3. 000 XX 000 Xxxxx
Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
EXHIBIT A
(FORM OF AMENDED AND RESTATED FCC SUPPLEMENTAL NOTE ATTACHED)
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$19,500,000.00 July 8, 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 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, or at such other
place or places as Foothill may from time to time designate in writing, the
principal sum of Nineteen Million Five Hundred Thousand and No/100 Dollars
($19,500,000.00), 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
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"), 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.
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 May 24, 2002 (the "Cash Collateral Account Letter Agreement") 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 the 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.
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
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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.
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
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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 XXX XXXXXXX XX XXX XXXX XXXXXX, XXX XXXX; AND (iv) IRREVOCABLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING UNDER OR IN CONNECTION
WITH THIS NOTE. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR IMPAIR FOOTHILL'S
RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR FOOTHILL'S RIGHT
TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR BORROWER'S PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION.
This Note amends, modifies, restates and replaces, but does not
extinguish the indebtedness evidenced by, that certain Secured Promissory Note,
dated May 24, 2002, executed by Borrower and payable to the order of Foothill in
the original stated principal amount of $16,500,000 (the "Prior Note"). All
rights, titles, liens, security interests and agreements securing or benefiting
the Prior Note are preserved, maintained and carried forward to secure and
benefit this Note.
GRANT GEOPHYSICAL, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name:
Title:
"Borrower"
Federal Taxpayer Identification
Number: 00-0000000
Address:
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
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