EXHIBIT 10.2
AMENDMENT NUMBER FIVE TO AGREEMENT FOR PURCHASE AND
ASSIGNMENT OF FOREIGN ACCOUNTS RECEIVABLE
THIS AMENDMENT NUMBER FIVE TO AGREEMENT FOR PURCHASE AND
ASSIGNMENT OF FOREIGN ACCOUNTS RECEIVABLE (this "Amendment "), dated effective
as of May 24, 2002, is entered into by and among Grant Geophysical (Int'l) Inc.,
a Texas corporation ("Grant"), the entities listed on the signature pages hereof
(such entities, the "Designated Affiliates"), and Xxxxxxx Associates, L.P., a
Delaware limited partnership ("Xxxxxxx").
WHEREAS, Grant and Xxxxxxx are parties to that certain
Agreement for Purchase and Assignment of Foreign Accounts Receivable, dated
August 3, 2001 (as heretofore amended, supplemented or otherwise modified, the
"Agreement ");
WHEREAS, Grant has requested that certain provisions of the
Agreement be amended so as to provide for
(a) a grant of security interest to Xxxxxxx by Xxxxx and
the Designated Affiliates; and
(b) an amendment to Article 15 of the Agreement; and
WHEREAS, subject to the terms and conditions set forth in this
Amendment, Grant, each Designated Affiliate and Xxxxxxx have agreed to amend the
Agreement as set forth more fully below.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Security Interest. Each of Grant and the
Designated Affiliates hereby grants to Xxxxxxx a security interest in all
currently existing and hereafter acquired or arising "Collateral" set forth on
the attached Exhibit A, including but not limited to all specific accounts sold,
pursuant to the Agreement, as well as all books and records pertaining to all of
the foregoing, in order to secure (i) the prompt payment of any and all
liabilities and obligations that may become due and owing by Grant and the
Designated Affiliates by reason of the Agreement, as amended hereby, and (ii)
the prompt performance by Grant and the Designated Affiliates of their
obligations hereunder and under the Agreement, as amended hereby. Each of Grant
and the Designated Affiliates hereby authorizes Xxxxxxx to file such financing
statements under the applicable UCC and agrees to execute and deliver such other
documents, and make such entries and markings in its books and records and take
all such other actions, as Xxxxxxx may request to further evidence, perfect,
preserve or protect the security interest granted to Xxxxxxx hereunder. Xxxxxxx,
at its sole discretion, shall have all rights and remedies with respect to the
lien and security interest herein granted as are provided herein or in the
Agreement, as amended hereby, the UCC and other applicable foreign law,
including the right at any time, before or after any default by Grant or any
Designated Affiliate of any of its obligations hereunder, to notify account
debtors and obligors on instruments to make payment to Xxxxxxx (or its designee)
and to take control of proceeds to which Xxxxxxx is entitled, and to apply
proceeds to (in addition to other obligations of Grant and the Designated
Affiliates to Xxxxxxx) the reasonable attorneys' fees and legal expenses
incurred by Xxxxxxx in connection with the disposition of collateral or the
exercise of other rights and remedies by Xxxxxxx.
2. Amendment of Section 15. Captions; Final Agreement;
Counterparts; Successors and Assigns. Section 15 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"15. Captions; Final Agreement; Counterparts; Successors and
Assigns. Captions and headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement. This Agreement represents the final agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior proposals, negotiations, agreements and understandings,
oral or written, related to such subject manner. This Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument. This Agreement may not be assigned by Grant or any
Designated Affiliate without the prior written consent of Xxxxxxx. This
Agreement may be assigned by Xxxxxxx, in whole or in part, and any foreign
accounts purchased by Xxxxxxx hereunder, together with all rights and interests
related thereto granted to Xxxxxxx hereunder, may be assigned by Xxxxxxx all
without notice to or the consent of Grant and the Designated Affiliates. This
Agreement shall be binding upon the parties hereto and their respective
successors and permitted assigns."
3. Survival of Representations and Warranties. All
representations and warranties made herein and in the Agreement, and all
representations, warranties and covenants relating to the Collateral under that
certain Loan and Security Agreement, dated as of May 11, 1999 and as amended,
supplemented or otherwise modified through and including the date hereof, by and
among Grant Geophysical, Inc., as borrower, the lenders named therein and
Foothill Capital Corporation, as agent, shall survive the execution and delivery
of this Amendment, and no investigation of Xxxxxxx or any closing shall affect
the representations and warranties or the right of Xxxxxxx to rely upon them.
4. Reference to Agreement. The Agreement, as amended hereby,
and all other Exhibits thereto, whether now or hereafter executed and delivered,
are hereby amended so that any reference to the Agreement shall mean a reference
to the Agreement, as amended by this Amendment.
5. Continuing Effect; No Other Amendments or Waivers. Except
as expressly amended pursuant to this Amendment, the Agreement is and shall
continue to be in full force and effect in accordance with its terms, and this
Amendment shall not constitute Xxxxxxx'x consent or indicate its willingness to
consent to any other amendment, modification or waiver of the Agreement.
6. Costs and Expenses. Grant and the Designated Affiliates
shall pay on demand all costs and expenses incurred by Xxxxxxx in connection
with the preparation, negotiation and execution of this Amendment, including,
without limitation, the costs and fees of Xxxxxxx'x
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legal counsel, and all costs and expenses incurred by Xxxxxxx in connection with
the enforcement or preservation of any rights under the Agreement, as amended
hereby.
7. 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.
8. Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Elliott, Grant, the Designated Affiliates and
their respective successors and assigns, except Grant and the Designated
Affiliates may not assign or transfer any of their rights or obligations
hereunder without the prior written consent of Xxxxxxx.
9. 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.
10. Facsimile Transmission of Signature. 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.
11. Governing Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
Address for Notices: GRANT GEOPHYSICAL (INT'L) INC.
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000 By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
Address for Notices: GRANT GEOPHYSICAL, INC.
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000 By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
Address for Notices: GRANT GEOPHYSICAL CORP.
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000 By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
Address for Notices: ADVANCED SEISMIC TECHNOLOGY, INC.
00000 Xxxx Xxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000 By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President & CEO
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Address for Notices: GRANT GEOPHYSICAL DO BRASIL LTDA.
Xxx Xxxxxxx, 00
00xx Xxxxx
Xxx xx Xxxxxxx, X.X., Xxxxxx By: /s/ XXXXXXX X. XXXXX
Fax: ------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
Address for Notices: P.T. GRANT GEOPHYSICAL INDONESIA
Menara Duta Xxxxxx Xxxxxxxx
0xx Xxxxx
Xxxx "X", X0.
H.R. Rasuna Said Kav. B-9 By: /s/ XXXXXXX X. XXXXX
Kuningan -----------------------------------
Jakarta Name: Xxxxxxx X. Xxxxx
Indonesia Fax: Title:
Address for Notices: SOLID STATE GEOPHYSICAL, INC.
0000 Xxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax: By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
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Address for Notices: Xxxxxxx Associates, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx By: Xxxxxxx Capital Advisors, L.P.,
Xxx Xxxx, Xxx Xxxx 00000 as general partner
Attn: Xxx Xxxxxxx and Xxxxxx Xxxx By: Xxxxxxx Associates, Inc.,
Fax: (000) 000-0000 as general partner
By: /s/ XXXXXX XXXXXXXXX
----------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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EXHIBIT A
"COLLATERAL" means all right, title and interest of Grant, the
Designated Affiliates and any other Person that grants a lien in favor of
Xxxxxxx in and to each of the following:
(a) the Accounts,
(b) the Books,
(c) the Commercial Tort Claims,
(d) the Contract Rights,
(e) the Deposit Accounts,
(f) the Designated Affiliates' Books,
(g) the Equipment,
(h) the Fixtures,
(i) the General Intangibles, including without limitation, the
Data Library, the Payment Intangibles and the Software,
(j) the Inventory,
(k) the Letter-of-Credit Rights,
(l) the Negotiable Collateral,
(m) the Securities Accounts,
(n) any money and other assets (of every jurisdiction
whatsoever), and to the extent not included in the
foregoing, all other personal property of any kind or
description of Grant and the Designated Affiliates that
now or hereafter come into the possession, custody, or
control of Xxxxxxx, and
(o) the Proceeds and products, whether tangible or intangible,
of any of the foregoing, including Proceeds of insurance
covering any or all of the Collateral, and any and all
Accounts, Books, Commercial Tort Claims, Contract Rights,
Deposit Accounts, Designated Affiliates' Books, Documents,
Equipment, Fixtures, General Intangibles, Inventory,
Letter-of-Credit Rights, Negotiable Collateral, Securities
Accounts, money, and other tangible or intangible property
resulting from the sale, exchange, collection, or other
disposition of any of the foregoing, or any portion
thereof or interest therein, and the Proceeds thereof.
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"ACCOUNTS" means all "accounts," as such term is defined in the Code,
currently existing and hereafter arising, including accounts, contract rights,
and all other forms of obligations owing to Grant or its Designated Affiliates
arising out of the sale or lease of goods or the rendition of services by Grant
or its Designated Affiliates, irrespective of whether earned by performance, and
any and all credit insurance, guaranties, or security therefor, and including
"health-care-insurance receivables" (as such term is defined in the Code).
"BOOKS" means all of the books and records of Grant, including:
ledgers; records indicating, summarizing, or evidencing Grant's properties or
assets (including the Collateral) or liabilities; all information relating to
Grant's business operations or financial condition; and all computer programs,
disk or tape files, printouts, runs, or other computer-prepared information
comprising Grant's books and records.
"CERTIFICATED SECURITIES" means all "certificated securities," as such
term is defined in the Code, now owned or hereafter acquired by Grant and the
Designated Affiliates.
"CHATTEL PAPER" means all "chattel paper," "electronic chattel paper"
and "tangible chattel paper," as such terms are defined in the Code, now owned
or hereafter acquired by Grant and the Designated Affiliates.
"CODE" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, that in the event that,
by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Xxxxxxx'x security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "Code" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions of
this Agreement relating to such attachment, perfection or priority and for
purposes of definitions related to such provisions.
"COMMERCIAL TORT CLAIMS " means all "commercial tort claims," as such
term is defined in the Code, that have arisen in the course of Grant's and the
Designated Affiliates' businesses.
"CONTRACT RIGHT" means any right of Grant or any Designated Affiliate
to payment under a contract for the sale or lease of goods or the rendering of
services, which right is at the time not yet earned by performance.
"DATA LIBRARY " means the presently owned and hereafter acquired
multi-client seismic data of Grant and the Designated Affiliates, which is
marketed broadly on a non-exclusive basis to persons in the oil and gas
industry.
"DEPOSIT ACCOUNT" means each demand, time, savings, passbook or similar
account maintained with a bank, including a nonnegotiable certificate of
deposit, whether owned by Grant or a Designated Affiliate.
"DESIGNATED AFFILIATES' BOOKS " means all of the books and records of
each Designated Affiliate including: ledgers; records indicating, summarizing,
or evidencing such Affiliate's properties or assets (including all or any
portion of such assets pledged as the Collateral) or
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liabilities; all information relating to such Affiliate's business operations or
financial condition; and all computer programs, disk or tape files, printouts,
runs, or other computer-prepared information comprising such Affiliate's books
and records.
"DOCUMENTS " means all "documents," as such term is defined in the
Code, now owned or hereafter acquired by Grant and the Designated Affiliates.
"EQUIPMENT" means all of "equipment," as such term is defined in the
Code, now owned or hereafter acquired by Grant and the Designated Affiliates,
including any and all machinery, machine tools, motors, equipment, furniture,
furnishings, fixtures, tools, parts, goods (other than consumer goods, farm
products, or Inventory), wherever located, including, (a) any interest of Grant
or such Designated Affiliate in any of the foregoing, and (b) all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing.
"FIXTURES" means all "fixtures," as such term is defined in the Code,
now owned or hereafter acquired by Grant and the Designated Affiliates.
"GENERAL INTANGIBLES" means all "general intangibles," as such term is
defined in the Code, now owned or hereafter acquired by Grant and the Designated
Affiliates, including Contract Rights, rights arising under common law,
statutes, or regulations, choses or things in action, goodwill, patents, trade
names, trademarks, service marks, copyrights, blueprints, drawings, purchase
orders, customer lists, monies due or recoverable from pension funds, route
lists, rights to payment and other rights under any royalty or licensing
agreements, infringement claims, computer programs, information contained on
computer disks or tapes, literature, reports, catalogs, insurance premium
rebates, tax refunds, and tax refund claims), other than Goods, Accounts, and
Negotiable Collateral.
"GOODS " means all "goods," as such term is defined in the Code, now
owned or hereafter acquired by Grant and the Designated Affiliates.
"INSTRUMENTS " means all "instruments," as such term is defined in the
Code, now owned or hereafter acquired by Grant and the Designated Affiliates.
"INVENTORY " means all "inventory," as such term is defined in the
Code, now owned or hereafter acquired by Grant or any of the Designated
Affiliates and in which Grant or any of the Designated Affiliates has any
interest, including goods held for sale, lease or license or to be furnished
under a contract of service and all of Grant's and the Designated Affiliates'
present and future raw materials, work in process, finished goods, and packing
and shipping materials and proprietary seismic data, wherever located.
"INVESTMENT PROPERTY" means all "investment property," as such term is
defined in the Code, now owned or hereafter acquired by Grant and the Designated
Affiliates.
"LETTER-OF-CREDIT RIGHTS" means all "letter-of-credit rights," as such
term is defined in the Code, now owned or hereafter acquired by Grant and the
Designated Affiliates.
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"NEGOTIABLE COLLATERAL" means all of Grant's and any of the Designated
Affiliates' present and future letters of credit, notes, drafts, Instruments,
Investment Property, Security Entitlements, Certificated and Uncertificated
Securities (including the shares of stock of Subsidiaries of Grant), Documents,
personal property leases (wherein Grant or such Designated Affiliate is the
lessor), Chattel Paper, and Books and such Designated Affiliate's Books relating
to any of the foregoing.
"PAYMENT INTANGIBLES" means all "payment intangibles," as such term is
defined in the Code, now owned or hereafter acquired by Grant and the Designated
Affiliates.
"PROCEEDS " means all "proceeds," as such term is defined in the Code.
"SECURITIES ACCOUNT" means a "securities account," as such term is
defined in the Code.
"SECURITY ENTITLEMENTS" means all "security entitlements," as such term
is defined in the Code, now owned or hereafter acquired by Grant and the
Designated Affiliates.
"SOFTWARE " means all "software," as such term is defined in the Code,
now owned or hereafter acquired by Grant and the Designated Affiliates.
"UNCERTIFICATED SECURITIES" means all "uncertificated securities," as
such term is defined in the Code, now owned or hereafter acquired by Grant and
the Designated Affiliates.
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