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EXHIBIT 10.15.5
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT
This Fifth Amendment to Note Purchase Agreement (this "Fifth Amendment")
dated as of August 6, 1997 is between Universal Seismic Associates, Inc., a
Delaware corporation (the "Company"), and RIMCO Partners, L.P., a Delaware
limited partnership, RIMCO Partners, X.X. XX, a Delaware limited partnership,
RIMCO Partners, L.P. III, a Delaware limited partnership, and RIMCO Partners,
X.X. XX, a Delaware limited partnership (collectively, the "Noteholders").
Preliminary Statements
A. The Company and the Noteholders have heretofore entered into
that certain Note Purchase Agreement, dated January 19, 1996, as amended by that
certain First Amendment dated May 28, 1996, that certain Second Amendment dated
August 13, 1996, that certain Third Amendment dated December 20, 1996 and that
certain Fourth Amendment dated March 27, 1997 (as so amended, the "Note
Agreement").
B. The Company and the Noteholders now desire to amend the Note
Agreement with respect to the matters set forth herein.
C. Capitalized terms used herein shall have the respective
meanings described thereto in the Note Agreement unless herein defined or the
context shall otherwise require.
Agreements
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the Company and the Noteholders agree as follows:
Section 1. Amendments.
The following defined terms in Annex A of the Note Agreement are amended
in their entirety to read as follows:
"New Company Note Agreement" means that certain Note Purchase
Agreement, dated May 28, 1996, among the Company and the Noteholders
(other than RIMCO Partners, L.P. III), as amended or modified from time to
time, that certain Note Purchase Agreement, dated August 6, 1997, among the
Company and the Noteholders, as amended or modified from time to time and
any other note purchase agreement among the Company and any of the
Noteholders entered into from time to time in the future.
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"New Senior Notes" means the 1O% Senior Secured General
Obligation Notes, in the maximum aggregate principal amount of $6,500,000
issued by the Company under the New Company Note Agreement, dated May 28,
1996, the 12% Senior Secured General Obligation Notes, in the maximum
aggregate principal amount of $2,000,000 issued by the Company under the
New Company Note Agreement dated March 27, 1997 and the 12% Senior Secured
General Obligation Notes, in the maximum aggregate principal amount of
$2,000,000 issued by the Company under the New Company Note Agreement
dated August 6, 1997 and any other notes issued by the Company to any of
the Noteholders under any New Company Note Agreement.
Section 2. Representations and Warranties of the Company.
2.1 The Company represents and warrants to the Noteholders that:
(a) this Fifth Amendment has been duly authorized, executed
and delivered by it and this Fifth Amendment constitutes the legal,
valid and binding obligation 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;
(b) The Note Agreement as amended by this Fifth Amendment,
constitutes the legal, valid and binding obligation 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 execution, delivery and performance by the Company
of this Fifth 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 or constitute (alone or with due
notice or lapse of time or both) a default under any such indenture,
agreement or other instrument;
(d) as of the date hereof and after giving effect to this
Fifth Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all representations and warranties contained in Article
V of the Note Agreement and in the other Transaction Documents are
true and correct in all material respects with the same force and
effect as if made by the Company on and as of the date hereof.
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Section 3. Conditions to Effectiveness of This Fifth Amendment.
3.1 This Fifth Amendment shall not become effective until, and shall
become effective when, each of the following conditions shall have been
satisfied:
(a) executed counterparts of this Fifth Amendment, duly
executed by the Company and the Noteholders, shall have been
delivered to the Noteholders;
(b) the Noteholders shall have received a copy of the
resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance by the Company of this Fifth
Amendment, certified by its Secretary or an Assistant Secretary;
(c) the representations and warranties of the Company
set forth in Section 2 hereof are true and correct on and as of the
date hereof; and
(d) the Noteholders shall have received the favorable
opinion of counsel to the Company as to the matters set forth in
Sections 2.1(a), 2.1(b) and 2.1(c) hereof, which opinion shall be in
form and substance satisfactory to the Noteholders.
Section 4. Payment of Noteholders' Counsel Fees and Expenses.
4.1 The Company agrees to pay upon demand, the reasonable fees and
expenses of Xxxxxxx & Xxxxx L.L.P., counsel to the Noteholders, in connection
with the negotiation, preparation, approval, execution and delivery of this
Fifth Amendment.
Section 5. Miscellaneous.
5.1 This Fifth Amendment shall be construed in connection with and as
part of the Note Agreement, and except as modified and expressly amended by
this Fifth Amendment, all terms, conditions, and covenants contained in the
Note Agreement, the Notes and the other Transaction Documents are hereby
ratified and shall be and remain in full force and effect.
5.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Fifth Amendment
may refer to the Note Agreement without making specific reference to this Fifth
Amendment but nevertheless all such references shall include this Fifth
Amendment unless the context otherwise requires.
5.3 The descriptive headings of the various Sections or parts of this
Fifth Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
5.4 This Fifth Amendment shall be governed by and construed in
accordance with New York law.
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UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
RIMCO PARTNERS, L.P.,
RIMCO PARTNERS, X.X. XX,
RIMCO PARTNERS, L.P. III, and
RIMCO PARTNERS, X.X. XX
By: Resource Investors Management Company
Limited Partnership, their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ X. X. XXXXXX
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Name: X. X. Xxxxxx
Title: Vice President
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