EXHIBIT 10.3
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of August 3, 2001, is made by GRANT
GEOPHYSICAL CORP., a Texas corporation (hereinafter called "Guarantor"), in
favor of XXXXXXX ASSOCIATES, L.P., a Delaware limited partnership, ("Xxxxxxx").
WITNESSETH:
WHEREAS, Grant Geophysical (Int'l). Inc. (the "Subsidiary") are the
wholly owned subsidiary of Guarantor;
WHEREAS, the Subsidiary executed an Agreement for Purchase and
Assignment of Foreign Accounts Receivable in favor of Xxxxxxx for a maximum
original principal amount of $4,000,000 USD (the "Factored Accounts");
WHEREAS, the Subsidiary will use the proceeds of the funds made
available to it under the Factored Accounts for general working capital and
other lawful corporate purposes;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Guaranty. (a) Guarantor hereby unconditionally and irrevocably
guarantees to Xxxxxxx and its respective successors, transferees and assigns,
the performance and punctual payment of the revolving factor arrangement of
foreign accounts receivable, when due, whether at stated maturity, by
acceleration or otherwise, of all indebtedness and obligations of the Subsidiary
now or hereafter existing resulting from the Factored Accounts, whether for
principal, interest, fees, expenses or otherwise (collectively, the "Guaranteed
Obligations") due or owing to Xxxxxxx, and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by Xxxxxxx in
enforcing any rights under this Guaranty.
(b) No payment made by the Subsidiary, any other guarantor or
any other person or received or collected by Xxxxxxx from the Subsidiary, any
other guarantor or any other person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Guaranteed Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by the Guarantor in respect of the Guaranteed Obligations or any payment
received or collected from the Guarantor in respect of the Guaranteed
Obligations), remain liable for the Guaranteed Obligations up to the maximum
liability of the Guarantor hereunder until the Guaranteed Obligations are paid
in full.
2. Guaranty Unconditional. The liability of the Guarantor hereunder
shall be unconditional irrespective of, and the Guarantor hereby waives any
defenses it may assert with respect to, (i) any lack of validity or
enforceability of any Guaranteed Obligation or agreement or instrument relating
thereto, (ii) any change in the time, manner or place of placement of, or in any
other term of, any Guaranteed Obligation, (iii) any exchange, release or
non-perfection of any collateral securing payment of any Guaranteed Obligation,
(iv) any moratorium or similar law or any other law, regulation or order of any
jurisdiction affecting any term of any Guaranteed Obligation or Xxxxxxx'x rights
with respect thereto, or (v) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Subsidiary or a
guarantor.
3. No Subrogation. Notwithstanding any payment made by the Guarantor
hereunder or any set-off or application of funds of the Subsidiary or the
Guarantor by Xxxxxxx, Guarantor shall not be entitled to be subrogated to any of
the rights of Xxxxxxx against the Subsidiary or any collateral security or
guarantee or right of offset held by Xxxxxxx for the payment of the Guaranteed
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Subsidiary in respect of payments made by
the Guarantor hereunder, until all amounts owing to Xxxxxxx by the Subsidiary on
account of the Guaranteed Obligations are paid in full. If any amount shall be
paid to the Guarantor on account of such subrogation rights at any time when all
of the Guaranteed Obligations shall not have been paid in full, such amount
shall be held by the Guarantor in trust for Xxxxxxx, segregated from other funds
of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned
over to Xxxxxxx in the exact form received by the Guarantor (duly indorsed by
such Guarantor to Xxxxxxx, if required), to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as Xxxxxxx may
determine.
4. Reinstatement. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be restored or returned by
Xxxxxxx upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Subsidiary, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Subsidiary or any substantial part of its property, or otherwise, all as though
such payments have not been made.
5. Waiver. The Guarantor waives promptness, diligence and notices with
respect to any Guaranteed Obligation and this Guaranty and any requirement that
Xxxxxxx exhaust any right or take any action against the Subsidiary or any other
entity or any collateral.
6. Payments. The Guarantor hereby agrees that payments hereunder will
be paid to Xxxxxxx without set-off or counterclaim in United States Dollars.
7. Continuing Guaranty. This Guaranty is a continuing guaranty, is
joint and several with any other guarantee given in respect of the Guaranteed
Obligations, and shall remain in full force and effect until the payment in full
of the Guaranteed Obligations and all other amounts payable hereunder and shall
be binding upon the Guarantor, its successors and permitted assigns.
8. Representations and Warranties by Guarantor. Guarantor represents
and warrants to Xxxxxxx that:
(a) Guarantor has the lawful power to own its properties and
to engage in its business as presently conducted.
(b) Guarantor's execution, delivery and performance of this
Guaranty is not in violation of any laws and will not result in a default under
any contract, agreement or instrument to which Guarantor is a party or by which
Guarantor or its property may be bound.
(c) Guarantor will receive a direct or indirect material
benefit from the transactions described and contemplated in the recitals hereof.
(d) This Guaranty, when executed and delivered by Guarantor,
will constitute a valid, legal and binding obligation of Guarantor enforceable
in accordance with its terms.
(e) All actions and consents required to be performed,
obtained and/or satisfied prior to the execution and delivery of this Guaranty,
and to constitute this Guaranty as the valid and binding obligation of Guarantor
in accordance with its terms, have been performed, obtained and satisfied in due
and strict compliance with all applicable laws.
9. Additional Documents. Upon the reasonable request of Xxxxxxx,
Guarantor will, at any time, and from time to time, duly execute and deliver to
Xxxxxxx any and all such further instruments and documents, and supply such
additional information as may be necessary or advisable in the opinion of the
Lender, to obtain the full benefits of this Guaranty.
10. Construction. The provisions of this Guaranty shall be in addition
to and cumulative of, and not in substitution, novation or discharge of, any and
all prior or contemporaneous guaranty or other agreements by Guarantor (or any
one or more of them), in favor of Xxxxxxx or assigned to Xxxxxxx by others, all
of which shall be construed as complementing each other. Nothing herein
contained shall prevent Xxxxxxx from enforcing any and all such guaranties or
agreements in accordance with their respective terms.
11. Amendment. No amendment, modification, consent or waiver of any
provision of this Guaranty, and no consent to any departure by Guarantor
therefrom, shall be effective unless the same shall be in writing signed by duly
authorized officers of Xxxxxxx, and then shall be effective only to the specific
instance and for the specific purpose for which given.
12. Successors and Assigns Bound. Guarantor's obligations and
liabilities under this Guaranty shall be binding upon Guarantor's successors,
heirs, legatees, devisees, administrators, executors and assigns. The rights and
remedies granted to the Lender under this Guaranty shall also inure to the
benefit of the Lender's successors and assigns, as well as to any and all
subsequent holder or holders of any of the Indebtedness subject to this
Guaranty.
13. Caption Heading. Caption headings of the section of this Guaranty
are for convenience purposes only and are not to be used to interpret or to
define their provisions. In this Guaranty, whenever the context so requires, the
singular includes the plural and the plural also includes the singular.
14. Governing Law. This Guaranty shall be governed and construed in
accordance with the substantive laws of the State of New York and applicable
federal law and if such law is not applicable, this Guaranty shall be governed
and construed in accordance with the laws of Ecuador or Colombia to the extend
applicable.
15. Severability. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Guaranty shall be
construed and enforceable as if the illegal, invalid or unenforceable provision
had never comprised a part of it, and the remaining provisions of this Guaranty
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Guaranty, a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
and year first above written.
GRANT GEOPHYSICAL CORP.
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Executive Vice President - Finance &
Administration
