EXHIBIT 10.46
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS THIRD AMENDMENT, dated as of November 22, 1999 (the "Amendment"), to
the separate Note Purchase Agreements, dated as of December 28, 1995, is among
Seitel, Inc. (the "Company") and each of the institutions which is a signatory
to this Amendment (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate Note Purchase Agreements dated as of December 28, 1995 (collectively,
as amended and in effect immediately prior to the effectiveness of this
Amendment, the "Existing Note Purchase Agreement"), pursuant to which the
Company issued: (a) $25,000,000 aggregate principal amount of its 7.17% Series A
Senior Notes due December 30, 2001 (the "Series A Notes"), (b) $27,500,000
aggregate principal amount of its 7.17% Series B Senior Notes due December 30,
2002 (the "Series B Notes"), and (c) $22,500,000 of its 7.48% Series C Senior
Notes due December 30, 2002 (the "Series C Notes", and together with the Series
A Notes and the Series B Notes, the "Notes").
B. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Existing Note Purchase Agreement unless herein defined
or the context shall otherwise require.
C. The Company and the Noteholders now desire to amend the Existing Note
Purchase Agreement in the respects, but only in the respects, hereinafter set
forth.
D. All requirements of law have been fully complied with and all other acts
and things necessary to make this Amendment a legal, valid and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1 Amendment to Section 10.6(b)(i). Section 10.6(b)(i) of the Existing
Note Purchase Agreement is hereby amended and restated in its entirety as
follows:
"(i) Notwithstanding the provisions of Section 10.6(a), the
determination of whether a Transfer involves a Substantial Portion of the
property of the Company and the Restricted Subsidiaries, as provided in
Section 10.6(a)(iii)(A), shall be made without taking into account the same
proportion of the book value attributable to the property subject to such
Transfer as shall be equal to the proportion of the Net Asset Sale Proceeds
Amount (the "Designated Portion") to be applied to either (x) a prepayment
of the Notes pursuant to Section 8.2 of this Agreement and a prepayment of
the New Notes pursuant to Section 8.2 of the New Note Purchase Agreement,
pro rata based on the then outstanding principal amount of and required
Make-Whole Amount (with respect to the New Notes, as defined in the New
Note Purchase Agreement) due with respect to the prepayment of each series
of the Notes and the New Notes (a "Prepayment Transfer") or (y) the
acquisition of assets similar to the assets which were the subject of such
Transfer (a "Reinvested Transfer") within one hundred eighty (180) days of
the consummation of such Transfer, as specified in an Officer's Certificate
delivered to each holder prior to, or contemporaneously with, the
consummation of such Transfer."
1.2 Amendment to Schedule B. Schedule B to the Existing Note Purchase
Agreement is hereby amended to add, in the proper alphabetical order, the
following defined terms:
"New Notes -- means the Company's 7.03% Series D Senior Notes due
February 15, 2004 in the original aggregate principal amount of
$20,000,000, 7.28% Series E Senior Notes due February 15, 2009 in the
original aggregate principal amount of $75,000,000, and 7.43% Series F
Senior Notes due February 15, 2009 in the original aggregate principal
amount of $43,000,000 issued pursuant to the New Note Purchase Agreement."
"New Note Purchase Agreement -- means each of the separate Note
Purchase Agreements between the Company and the purchasers of the New
Notes, dated February 12, 1999, as amended from time to time."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Amendment (which
representations shall survive such execution and delivery), the Company
represents and warrants to the Noteholders that:
(a) the Company is a corporation duly organized, validly existing and
in good standing under the laws of the state of Delaware;
(b) this Amendment has been duly authorized, executed and delivered by
the Company and this Amendment constitutes a legal, valid and binding
obligation, contract and agreement of the Company enforceable against it in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights generally;
(c) the Existing Note Purchase Agreement, as amended by this
Amendment, constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating
to or limiting creditors' rights generally;
(d) the execution, delivery and performance by the Company of this
Amendment (i) has been duly authorized by all requisite corporate action
and, if required, shareholder action, (ii) does not require the consent or
approval of any governmental or regulatory body or agency, and (iii) will
not (A) violate (1) any provision of law, statute, rule or regulation or
its certificate of incorporation or bylaws, (2) any order of any court or
any rule, regulation or order of any other agency or government binding
upon it, or (3) any provision of any material indenture, agreement or other
instrument to which it is a party or by which its properties or assets are
or may be bound, or (B) result in a breach of or constitute (alone or with
due notice or lapse of time or both) a default under any indenture,
agreement or other instrument referred to in clause (iii)(A)(3) of this
paragraph (d); and
(e) as of the date hereof and after giving effect to this Amendment,
no Default or Event of Default has occurred which is continuing.
SECTION 3. MISCELLANEOUS.
3.1 This Amendment shall be construed in connection with and as part of the
Existing Note Purchase Agreement, and except as modified and expressly amended
by this Amendment, all terms, conditions and covenants contained in the Existing
Note Purchase Agreement and the Notes are hereby ratified and shall be and
remain in full force and effect.
3.2 This Amendment constitutes a contract between the Company and the
Noteholders for the uses and purposes hereinabove set forth, and may be executed
in any number of counterparts, each executed counterpart constituting an
original, but all together only one agreement.
3.3 Whenever any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party, and all the
promises and agreements contained in this Amendment by or on behalf of the
Company and the Noteholders shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so expressed or not.
3.4 This Amendment constitutes the final written expression of all of the
terms hereof and is a complete and exclusive statement of those terms.
3.5 This Amendment shall be governed by and construed in accordance with
the internal laws of the State of New York.
3.6 This Amendment shall become effective at such time as it has been
executed by the Company and the Required Holders.
[The remainder of this page is intentionally left blank.
Next page is signature page.]
IN WITNESS WHEREOF, the parties hereto have caused the execution of this
Amendment by duly authorized officers of each as of the date hereof.
SEITEL, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx,
Executive Vice President - Finance
Accepted and Agreed to:
[NOTEHOLDER]
By
-------------------------------
Name:
Title:
