EXHIBIT 10.1
AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS AMENDMENT dated as of February 12, 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 in effect immediately prior to this Amendment, the "NOTE PURCHASE
AGREEMENT"). The Company has heretofore issued pursuant to the Note Purchase
Agreement: (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 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"). Capitalized terms used herein shall
have the respective meanings ascribed thereto in the Note Purchase Agreement
unless herein defined or the context shall otherwise require.
B. The Company and the Noteholders now desire to amend the Note Purchase
Agreement in the respects, but only in the respects, hereinafter set forth.
C. 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 Section 7.1(b) of the Note Purchase Agreement is hereby amended and
restated in its entirety as follows:
(B) ANNUAL STATEMENTS -- within ninety (90) days after the end of each
fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year,
(ii) consolidated statements of operations, stockholders' equity
and cash flows of the Company and its consolidated Subsidiaries for
such year, and
(iii) a condensed consolidating balance sheet, and condensed
consolidating statements of operations and cash flows of the Company
and its Subsidiaries setting forth, in each case, consolidating
information sufficient to show the financial position and results of
operations and cash flows of the Company and the Restricted
Subsidiaries,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP,
and accompanied by
(A) in the case of the financial statements identified in
the foregoing clauses (i) and (ii), an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that such financial
statements present fairly, in all material respects, the
financial position of the companies being reported upon and their
results of operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards,
and that such audit provides a reasonable basis for such opinion
in the circumstances, and
(B) a certificate of such accountants stating that they have
reviewed this Agreement and stating further whether, in making
their audit, they have become aware of any condition or event
that then constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then exists,
specifying the nature and period of the existence thereof (it
being understood that such accountants shall not be liable,
directly or indirectly, for any failure to obtain knowledge of
any Default or Event of Default unless such accountants should
have obtained knowledge thereof in making an audit in accordance
with generally accepted auditing standards or did not make such
an audit),
PROVIDED that, so long as the Company shall not have any Unrestricted
Subsidiaries, the delivery within the time period specified above of the
Company's Annual Report on Form 10-K for such fiscal year (together with
the Company's annual report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in accordance with the
requirements therefor and filed with the Securities and Exchange
Commission, together with the accountants' certificates described in
clauses (A) and (B) above, shall be deemed to satisfy the requirements of
this Section 7.1(b);
1.2 Section 7.1(j) of the Note Purchase Agreement shall be relettered as
Section 7.1(k), and a new Section 7.1(j) shall be inserted in its place to read
as follows:
(J) AUDITED FINANCIAL STATEMENTS FOR RESTRICTED GROUP -- with respect
to any fiscal year of the Company as to which both of the following
conditions would be satisfied:
(i) the assets of all Unrestricted Subsidiaries, determined on a
combined basis as of the last day of such year, exceed 20% of the
consolidated total assets of the Company and its consolidated
Subsidiaries, and
(ii) the revenues of all Unrestricted Subsidiaries, determined on
a combined basis for such fiscal year, exceed 20% of the consolidated
revenues of the Company and its consolidated Subsidiaries,
upon the written request of the Required Holders, the Company will deliver
to each holder that is an Institutional Investor the same financial
statements and opinion with respect to the Company and its Restricted
Subsidiaries as is provided pursuant to clauses (i) and (ii) of Section
7.1(b) with respect to the Company and its consolidated Subsidiaries (such
delivery to be made no later than the later of (x) the time delivery is
made of the financial statements referred to in such clauses, if such
request is made at least 60 days before such time, or (y) 60 days after
such request is made).
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 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 (c); 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
Note Purchase Agreement, and except as modified and expressly amended by this
Amendment, all terms, conditions and covenants contained in the 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 law 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.
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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
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Its EXECUTIVE V.P. OF FINANCE
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Accepted and Agreed to:
PRINCIPAL LIFE INSURANCE COMPANY,
By Principal Capital Management, LLC,
a Delaware limited liability company,
Its authorized signatory
By: /s/XXX X XXXXX
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Its: COUNSEL
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By: /s/XXXXXXX X. XXXXXX
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Its: INVESTMENT MANAGER
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By: /s/XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Authorized Agent
J. ROMEO & CO.
By: /s/XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Partner
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: /s/XXXXX X. XXXXXXXX XX.
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Name: Xxxxx X. Xxxxxxxx Xx.
Title: First Vice President
PAN-AMERICAN LIFE INSURANCE COMPANY
By: /s/X. XXXXXXXX XXXXX
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Name: X. Xxxxxxxx Stone
Title: Vice President
Corporate Securities
