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EXHIBIT 4.7
AMENDED AND RESTATED
RECEIPT, ASSIGNMENT AND CONVEYANCE
OF NET REVENUE INTEREST
THIS AMENDED AND RESTATED RECEIPT, ASSIGNMENT AND CONVEYANCE OF NET REVENUE
INTEREST (this "AGREEMENT") is made as of the ____ day of ______, 2000, by Grant
Geophysical, Corp., a Texas corporation, with its mailing address at 16850 Park
Row, Houston, Texas 77084, ("GRANT"), in favor of Elliott Associates, L.P., a
Delaware limited partnership, with its mailing address at 712 Fifth Avenue, New
York, New York, 10019 ("ELLIOTT").
RECITALS
A. Grant Geophysical, Inc., a Delaware corporation, and Elliott entered
into that certain Receipt, Assignment and Conveyance of Net Revenue Interest
dated August 14, 2000 (the "ORIGINAL AGREEMENT").
B. Pursuant to that certain Assignment and Assumption Agreement dated
August ___, 2000, Grant Geophysical, Inc. assigned all of its rights and
obligations in, to and under the Original Agreement to Grant.
C. Grant and Elliott now desire to amend the Original Agreement, and, as
amended, restate the Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Grant and Conveyance.
(a) Grant of Net Revenue Interest. Grant hereby grants, bargains,
sells, assigns, conveys, transfers and sets over to Elliott, a net revenue
interest, as more particularly described in Section 4 below (the "NET REVENUE
INTEREST") in and to the Data (hereinafter defined) measured by, and hereinafter
defined as Grant's net revenue, if any, that is realized from the sale or
license of the Data, as such net revenue is computed as provided herein. TO HAVE
AND TO HOLD the Net Revenue Interest, together with all rights, privileges, and
options related thereto, unto Elliott, its successors and assigns forever,
subject to the terms, conditions, exceptions, reservations, covenants, and
agreements herein set forth.
(b) Purchase Price. The purchase price of the Net Revenue Interest
shall be the sum total of the amounts paid by Elliott to Grant as consideration
for the Net Revenue Interest (the "AGGREGATE PURCHASE PRICE"). Elliott is hereby
authorized to record the date and amount of each such payment made by Elliott to
Grant, such recordation may be made by an appropriate entry into Elliott's
computer records, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded; provided that the failure to
make any such recordation or any error in such
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recordation shall not affect the calculation of the Aggregate Purchase Price.
Upon its receipt of each such payment, Grant shall execute and deliver a letter
of acknowledgment confirming its receipt of such payment in the form attached
hereto as Exhibit A.
(c) "Data" Defined. "DATA" means all of Grant's right, title and
interest in and to the multiclient geophysical and geological data (regardless
of their form or the medium on which they are stored, printed or displayed) shot
onshore in the continental United States.
(d) Title Warranty. Grant represents and warrants to Elliott that the
Net Revenue Interest conveyed hereby is free and clear of any mortgages, deeds
of trust, voluntary or contractual or statutory liens, pledges, security
interests, charges, conditional sales or other title retention documents, or
other encumbrances or burdens, and Grant hereby binds itself, its successors and
assigns to warrant and forever defend the title to the Net Revenue Interest
herein granted, conveyed, assigned, and transferred unto Elliott, its successors
and assigns, against the lawful claims and demands of every Person whomsoever
claiming or to claim the same or any part thereof, by, through or under Grant.
2. Term of Net Revenue Interest. The Net Revenue Interest will be effective
as of the date hereof (the "EFFECTIVE DATE") and will remain in effect until
such time as Elliott has earned and received revenue attributable to the Net
Revenue Interest in an amount equal to the Aggregate Purchase Price plus the
Preferred Return (as hereinafter defined), at which time the Net Revenue
Interest shall terminate. As used herein, "PREFERRED RETURN" shall mean, on any
given day, an amount equal to the difference between the Aggregate Purchase
Price and any revenue attributable to the Net Revenue Interest earned and
received by Elliott as of such day multiplied by the rate of one percent (1%)
per month for the number of days between the Effective Date and such day.
3. Provisions and Covenants Applicable to the Net Revenue Interest. The
following provisions and covenants shall apply to the Net Revenue Interest.
(a) Elliott Not Liable For Expenses. Elliott shall never have control
or management authority with respect to the Data and shall never personally be
responsible for payment of any part of the costs and expenses charged against
the Net Revenue Account (hereinafter defined) nor for any other liabilities
related to the Data including, but not limited to, liabilities incurred by
anyone in collecting, developing, processing or storing the Data, before or
after the Effective Date, and Grant hereby agrees to indemnify and save Elliott
harmless from and against any and all such responsibility and liability;
provided, however, all such costs and expenses incurred and allowed as herein
provided shall nevertheless be charged against the Net Revenue Account as and to
the extent herein provided. Nothing herein shall ever be construed to create a
partnership, joint venture, mining partnership or association between Grant and
Elliott.
(b) Access, Inspection and Information. Elliott and its
representatives shall at the risk and expense of Elliott have access at all
reasonable times to the Data and to all activities of Grant related to the Data,
and the right to observe all activities related thereto. Grant shall on
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reasonable request promptly furnish Elliott with any and all information in
Grant's possession and pertaining to the Data. This Section 3(b) is not limited
by, nor does it in any way limit Section 4(a).
(c) Assignment by Grant. Except as permitted by that certain Loan and
Security Agreement dated May 11, 1999 between Grant, Foothill Capital
Corporation, as agent, and certain financial institutions named therein, Grant
shall not (i) sell, assign (by operation of law or otherwise), transfer,
exchange, dispose of or license all or any part of the Data; or (ii) grant any
lien or encumbrance with respect to all or any part of the Data, without the
express written consent of Elliott.
4. Net Revenue Account.
(a) Books and Records. Concurrently herewith Grant shall establish,
and until the Net Revenue Interest terminates, Grant shall maintain a "NET
REVENUE ACCOUNT" in accordance with the terms of this instrument and good
accounting practices. The books of account and records of the Net Revenue
Account shall at all reasonable times be open for examination, inspection,
copying and audit by Elliott and its representatives at Elliott's expense.
(b) Credits. The Net Revenue Account shall be credited with the
following insofar and to the extent the same are properly allocable to the Data,
in each case attributable to the period of time after the Effective Date:
(i) an amount equal to the interest of Grant in the gross
receipts (including both cash and non-cash consideration) for any sale or
license of all or any part of the Data received by Grant after the Effective
Date;
(ii) an amount equal to the interest of Grant in the proceeds of
all insurance collected by Grant (or for it by a third party under any agreement
pertaining to the Data) on account of its ownership of the Data as a consequence
of the loss of or damage to the Data or any part thereof or interest therein;
and
(iii) an amount equal to the interest of Grant in all other
monies and things of value received by or inuring to the benefit of Grant by
virtue of its ownership of the Data.
(c) Debits. The Net Revenue Account shall be charged with an amount
equal to the actual out-of-pocket costs and expenses to Grant of all direct
labor, transportation, marketing, and general and administrative costs that are
reasonable and necessary for marketing, licensing and/or selling the Data, but
expressly excluding interest, fees, costs or other charges for borrowed funds,
insofar and to the extent that any such costs and expenses
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are properly allocable to the Data, in each case attributable to the period of
time after the Effective Date.
(d) Calculation of Elliott's Net Revenue Interest. The amount payable
to Elliott in respect of its ownership of the Net Revenue Interest shall be
calculated and paid to Elliott out of the Net Revenue Account no later than
three (3) business days following receipt of funds on the license or sale of
Data.
(e) Statements and Payments. As soon as reasonably possible (but in
all events not more than fifteen (15) days) after the due date of each payment
hereunder, Grant shall furnish to Elliott a detailed statement in a form
acceptable to Elliott clearly reflecting the basis of the payments hereunder.
(f) Direct Payment. Until otherwise instructed in writing by Elliott,
Grant agrees, for the account of Elliott and as Elliott's agent, in trust, to
collect the proceeds of any sale or license of all or any part of the Data and
to remit such amounts as are attributable to the Net Revenue Interest and are
owing to Elliott in accordance with this Section 4.
(g) Late Payment. Any amount not paid to Elliott with respect to the
Net Revenue Interest when due shall bear interest at the rate of fifteen percent
(15%) per annum.
5. General Provisions.
(a) Notices. All notices, communications and payments required or
permitted to be given hereunder shall be deemed to be properly delivered the
earlier of the date when actually delivered or three (3) days after being
deposited in the U.S. mail as certified mail, return receipt requested, with
adequate prepaid postage affixed thereto at the addresses provided above or such
other address as a party hereto shall designate by giving the other party at
lease fifteen (15) days written notice thereof.
(c) Successors and Assigns. All agreements and conditions between the
parties hereto shall extend to and be binding upon their respective heirs,
permitted successors and permitted assigns.
(d) Headings. The headings of the articles and sections of this Agreement
are for convenience of reference only and shall not limit or otherwise affect
any of the terms or provisions of this Agreement.
(e) Unenforceable or Inapplicable Provisions. If any provision of this
Agreement is invalid or unenforceable in any jurisdiction, the other provisions
hereof shall remain in full force and effect in such jurisdiction and the
remaining provisions shall be liberally construed in order to carry out the
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intent of this Agreement. The invalidity of any provision of this Agreement in
any jurisdiction shall not affect the validity and enforceability of such
provision in any other jurisdiction.
(f) Counterparts. This Agreement may be executed in several original
counterparts. Each counterpart shall be deemed to be an original for all
purposes, and all counterparts shall together constitute but one and the same
instrument.
(g) References. References made in this Agreement, including use of a
pronoun, shall be deemed to include where applicable, masculine, feminine,
singular or plural, individuals, and other persons. As used in this Agreement,
"Person" shall mean an individual, corporation, partnership, limited liability
company, association, joint-stock company, trust or trustee thereof, estate of
executor thereof, unincorporated organization, joint venture, court, government
unit or any agency or subdivision thereof, or any other legally recognizable
entity.
(h) Choice of Law. This Agreement shall be construed under and governed by
the laws of the State of New York without regard to the principles of conflicts
of law.
(i) Modifications. No modifications of this Agreement shall be effective
unless reduced to writing and duly executed by the parties hereto. No course of
dealing between the parties prior or subsequent to the date of this Agreement
shall be construed to change, modify, amend, alter or waive the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
WITNESSES: GRANT GEOPHYSICAL, INC.
By:
--------------------------------- ---------------------------------
Name:
-------------------------------
--------------------------------- Title:
------------------------------
WITNESSES: ELLIOTT ASSOCIATES, L.P.
By: Elliott Capital Advisors, L.P.,
--------------------------------- General Partner
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By: Braxton Associates, Inc.,
--------------------------------- General Partner
By:
---------------------------------
Name: Elliot Greenberg
Title: Vice President
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EXHIBIT A
Form of Acknowledgment Letter
[Grant Letterhead]
Elliott Associates, L.P.
712 Fifth Avenue
New York, New York 10019
Attn: _______________
Re: Receipt of Purchase Price
Dear _______________,
Reference is made to that certain Amended and Restated Receipt,
Assignment and Conveyance of Net Revenue Interest dated _____________[to be
completed when available] (the "ASSIGNMENT") between Grant Geophysical, Inc.
("GRANT") and Elliott Associates, L.P. ("ELLIOTT").
This letter shall confirm Grant Geophysical, Inc.'s receipt of
____________________ ($______________) on [date of receipt] in connection with
the assignment of the Net Revenue Interest (as defined in the Assignment).
Very truly yours,
GRANT GEOPHYSICAL, INC.
[Name]
[Title]
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