THIRD AMENDMENT TO THIRD STANDSTILL AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO THIRD STANDSTILL AGREEMENT
This THIRD AMENDMENT TO THIRD STANDSTILL AND AMENDMENT AGREEMENT (this "Amendment"), dated as of May 15, 2003, is among SEITEL, INC. (the "Company"), a Delaware corporation, each of its subsidiaries (whether direct or indirect and whether or not wholly-owned, collectively, the "Subsidiaries"), and each of the Noteholders listed on the signature pages hereto. Capitalized terms have the respective meanings ascribed thereto in the Third Standstill Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Noteholders, the Company and the Subsidiary Guarantors are party to that certain Standstill and Amendment Agreement dated as of July 17, 2002, that certain Second Standstill and Amendment Agreement dated as of October 15, 2002, and that certain Third Standstill and Amendment Agreement dated as of December 2, 2002, as amended by that Amendment to Third Standstill Agreement dated as of February 28, 2003 and the Second Amendment to Third Standstill Agreement dated as of April 10, 2003 (and together with various preceding standstill, forbearance and/or amendment letters and agreements between the Company and the Noteholders, collectively, the "Existing Third Standstill Agreement" and as amended by this Amendment and as may be further amended from time to time, the "Third Standstill Agreement") pursuant to which such Noteholders agreed to forbear until June 2, 2003 or earlier upon the occurrence of a Termination Event (as defined in the Existing Third Standstill Agreement) or delivery by the Noteholders of a Termination Notice from exercising rights and remedies they have pursuant to the Note Purchase Agreements as a result of the existence and occurrence of certain Events of Default and the Company agreed to comply with certain terms and conditions as more fully described therein; and
WHEREAS, a Termination Event (as defined in the Existing Third Standstill Agreement) will occur if the Company fails to complete and, as applicable, perform under, all documentation required to implement a financial restructuring by May 15, 2003 on terms and conditions satisfactory to the Noteholders (the "Documentation Termination Event"); and
WHEREAS, upon the occurrence of the Documentation Termination Event, the Noteholders will have the right to immediately exercise, without further notice, any one or more rights and remedies that they may have under any of the Note Purchase Agreements, any of the Notes or any of the other Financing Documents, under law and in equity; and
WHEREAS, the Company has requested that the Noteholders extend the deadline for completion and, as applicable, performance under, all documentation required to implement a financial restructuring of the Company and its Subsidiaries and continue to forbear from exercising their rights and remedies, subject to the terms of the Third Standstill Agreement, to allow the Company to implement such financial restructuring; and
WHEREAS, the Company, each Subsidiary and each Noteholder party hereto are desirous of entering into this Amendment on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the matters referred to above, the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS.
Subject to the provisions of Section 5 hereof, the Existing Third Standstill Agreement is amended as follows:
a. Section 1 of the Existing Third Standstill Agreement is hereby amended by amending and restating subsection (ix) of the definition of "Termination Event" to read as follows:
"(ix) the failure of the Company to complete and, as applicable, perform under, all documentation required to implement a financial restructuring by May 30, 2003 on terms and conditions satisfactory to the Noteholders."
b. Section 5(b)(iii) of the Existing Third Standstill Agreement is hereby amended by inserting the following parenthetical immediately after the term "Debt" appearing in the first line thereof:
"(excluding any Debt incurred in connection with the settlement of litigation involving ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇ Litigation") on terms that the Company reasonably believes are in its, and its creditors', best interests, provided however, that nothing contained herein shall be deemed to limit or prejudice the Noteholders' rights in any insolvency proceeding with regard to the ▇▇▇▇▇▇▇▇ Litigation and any settlement related thereto)"
c. Section 5(b)(viii) of the Existing Third Standstill Agreement is hereby amended by deleting the parenthetical immediately after the term "Required Noteholders" appearing in the fourth and fifth lines thereof and there is substituted therefor the following parenthetical:
"(excluding the settlement of litigation in connection with the Winthrop Lease obligations and the ▇▇▇▇▇▇▇▇ Litigation on terms that the Company reasonably believes are in its, and its creditors', best interests, provided however, that nothing contained herein shall be deemed to limit or prejudice the Noteholders' rights in any insolvency proceeding with regard to the Winthrop Lease, the ▇▇▇▇▇▇▇▇ Litigation and any settlement related thereto)"
d. Section 5(b)(x) of the Existing Third Standstill Agreement is hereby amended by inserting the following parenthetical immediately after the term "Subsidiary" appearing in the third line thereof:
"(excluding any settlement payments made in connection with the settlement of the ▇▇▇▇▇▇▇▇ Litigation on terms that the Company reasonably believes are in its, and its creditors', best interests, provided however, that nothing contained herein shall be deemed to limit or prejudice the Noteholders' rights in any insolvency proceeding with regard to the ▇▇▇▇▇▇▇▇ Litigation and any settlement related thereto)"
2. REPRESENTATIONS AND WARRANTIES.
To induce the Noteholders to enter into this Amendment, the Company and the Subsidiaries, as applicable, represent and warrant, as of the Amendment Effective Date, as follows:
a. the Company is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware;
b. each of the Subsidiaries is an organization duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization;
c. the execution and delivery of this Amendment is within the corporate powers of the Company and each Subsidiary, has been duly authorized by the Company and each Subsidiary and constitutes a valid and binding obligation of the Company and each Subsidiary, enforceable in accordance with its terms, except that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors' rights generally and except that such enforceability is subject to the availability of equitable remedies;
d. the execution and delivery of this Amendment does not conflict with, result in any breach of any of the provisions of, constitute a default under, or result in the creation of any Lien upon any property of the Company or any Subsidiary under the provisions of, any agreement, charter instrument, bylaw or other instrument to which the Company or any Subsidiary is a party or by which the Company, any Subsidiary, or any of their respective properties may be bound;
e. each of the Third Standstill Agreement, the Notes, the Note Purchase Agreements and the other Financing Documents to which the Company and each Subsidiary is a party, as each may be have been amended prior to the date hereof, constitutes a valid and binding obligation of the Company and such Subsidiary party thereto, enforceable in accordance with its terms, except that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforceability of creditors' rights generally and except that such enforceability is subject to the availability of equitable remedies;
f. except with respect to Existing Events of Default, there are, to the best present actual knowledge of the Company, no Defaults or Events of Default in existence on the Amendment Effective Date (although the Company continues its investigation and diligence into certain matters that may reveal the existence of additional Defaults or Events of Default); and
g. except as disclosed on Exhibit B to the Existing Third Standstill Agreement, neither the Company nor any Subsidiary has any Debt to any Person or group of Persons that is outstanding (including any drawn or undrawn facilities providing for the incurrence of Debt) in an aggregate principal amount with respect to such Person or group of Persons of more than $5,000,000.
3. AGREEMENTS OF THE COMPANY AND THE SUBSIDIARIES.
a. Good Faith Negotiation of Documents. The Company hereby covenants and agrees to negotiate all documents relating to the financial restructuring in good faith and to take actions consistent therewith as expeditiously as practicable.
b. Ratification by Company. The Company hereby adopts again, ratifies and confirms in all respects, as its own act and deed, each of the Existing Third Standstill Agreement, the Note Purchase Agreements, the Notes and the other Financing Documents and any document or instrument delivered pursuant to or in connection with the Financing Documents and acknowledges (i) that all such instruments and documents shall continue in full force and effect and (ii) that as of the Amendment Effective Date, it has no claim or cause of action against any Noteholder (or any of its respective directors, officers, employees or agents) or any offset right, counterclaim or defense of any kind against any of its obligations, indebtedness or liabilities to any Noteholder. The Company on its own behalf and on behalf of its shareholders, employees, successors and assigns hereby waives, releases and discharges the Noteholders and any of their predecessors and affiliates, and all directors, officers, employees, attorneys and agents of the Noteholders and of any of their predecessors and affiliates, from any and all claims, demands, actions or causes of action.
c. Ratification by Subsidiaries. Each Subsidiary Guarantor hereby adopts again, ratifies and confirms, as its own act and deed, each of the Existing Third Standstill Agreement, its respective Subsidiary Guaranty and any document or instrument delivered pursuant to or in connection with such Subsidiary Guaranty and acknowledges that all such instruments and documents shall continue in full force and effect. Each Subsidiary acknowledges that as of the Amendment Effective Date, it has no claim or cause of action against any Noteholder (or any of its respective directors, officers, employees or agents) or any offset right, counterclaim or defense of any kind against any of its obligations, indebtedness or liabilities to any Noteholder. Each Subsidiary on its own behalf and on behalf of its shareholders, employees, successors and assigns hereby waives, releases and discharges the Noteholders and any of their predecessors and affiliates, and all directors, officers, employees, attorneys and agents of the Noteholders and of any of their predecessors and affiliates, from any and all claims, demands, actions or causes of action.
4. NONWAIVER AND NO AMENDMENT.
TIME IS OF THE ESSENCE WITH RESPECT TO ALL COVENANTS, CONDITIONS, AGREEMENTS, AND OTHER PROVISIONS HEREIN. Except as otherwise expressly provided for in this Amendment, the terms of this Amendment shall not operate as a waiver by any of the Noteholders of, or otherwise prejudice, the Noteholders' rights, remedies or powers under the Existing Third Standstill Agreement, the Notes, the Note Purchase Agreements, the other Financing Documents, the Noteholder Consent or applicable law. Except as expressly provided herein, no terms or provisions of the Existing Third Standstill Agreement are modified or changed by this Amendment, and all of the terms and provisions of the Existing Third Standstill Agreement shall continue in full force and effect. The Company and each Subsidiary hereby acknowledges and reaffirms all of their respective obligations and duties under each of the Existing Third Standstill Agreement, the Note Purchase Agreements, the Notes and the other Financing Documents to which each is a party, as each such Financing Document may have been amended from time to time prior to the date hereof.
5. AMENDMENT EFFECTIVE DATE.
Each provision of this Amendment shall become effective on the first date (but in all respects shall be deemed to be nunc pro tunc to May 15, 2003, the "Amendment Effective Date") on which the Company and the Noteholders required by each Note Purchase Agreement to effect waivers and amendments thereunder respectively shall have executed and delivered this Amendment.
6. ACKNOWLEDGEMENT.
The Company and each Subsidiary acknowledges that the Noteholders shall continue to have the right to deliver a Termination Notice in the manner prescribed by Section 2(b) of the Third Standstill Agreement at any time for any reason or no reason, and after any such delivery any Noteholder shall be entitled to immediately exercise, without further notice, any one or more rights and remedies that it may have under any of the Note Purchase Agreements, any of the Notes or any of the other Financing Documents.
7. HEADINGS.
All headings and captions preceding the text of the several Sections of this Amendment are intended solely for the convenience of reference and shall not constitute a part of this Amendment nor shall they affect its meaning, construction or effect.
8. ENTIRE AGREEMENT.
This Amendment, the Third Standstill Agreement, the Note Purchase Agreement, the Notes and the other Financing Documents, as amended to the date hereof, embody the entire agreement and understanding between the Noteholders, the Company and the Subsidiaries and supersede all prior agreements and understandings relating to the subject matter hereof and thereof.
9. GOVERNING LAW.
This Amendment and the Third Standstill Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York.
10. DIRECTLY OR INDIRECTLY.
Where any provision in this Amendment refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, including actions taken by or on behalf of any partnership or limited liability company in which such Person is a general partner or managing member, as applicable.
11. COUNTERPARTS.
This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. An executed copy of this Amendment sent by facsimile shall be effective as an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their authorized officers as of the date first written above.
SEITEL, INC.
By_/s/_____________________
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as Investment Adviser
By_/s/_____________________
Name:
Title:
C.M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company Inc. as Investment Sub-Adviser
By_/s/_____________________
Name:
Title:
MASSMUTUAL ASIA LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc. as Investment Adviser
By_/s/_____________________
Name:
Title:
SUNAMERICA LIFE INSURANCE COMPANY
By: AIG Global Investment Corp., Investment Adviser
By:_________________________
Name:
Title:
FIRST SUNAMERICA LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
J. ROMEO & CO. as NOMINEE for
MONY LIFE INSURANCE COMPANY
By_/s/_____________________
Name:
Title:
J. ROMEO & CO. as NOMINEE for
MONY LIFE INSURANCE COMPANY OF AMERICA
By_/s/_____________________
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
PAN-AMERICAN LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
PRINCIPAL LIFE INSURANCE COMPANY, ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
By: Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory
By_/s/_____________________
Name:
Title:
By_/s/_____________________
Name:
Title:
CGU LIFE INSURANCE COMPANY OF AMERICA, a Delaware corporation (formerly known as Commercial Union Life Insurance Company of America)
By: Principal Global Investors, LLC, a Delaware limited liability company, its attorney in fact
By_/s/_____________________
Name:
Title:
By_/s/_____________________
Name:
Title:
WIND RIVER CORPORATION
By: Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory
By_/s/_____________________
Name:
Title:
By_/s/_____________________
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By_/s/_____________________
Name:
Title:
By_/s/_____________________
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY OF NEW YORK
By_/s/_____________________
Name:
Title:
By_/s/_____________________
Name:
Title:
PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY
THE ▇▇▇▇ ▇▇▇▇▇▇ LIFE INSURANCE COMPANY
Severally By: Provident Investment Management, LLC
Their: Agent
By_/s/_____________________
Name:
Title:
PHOENIX LIFE INSURANCE COMPANY
By_/s/_____________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY
By: ING Investment Management, LLC, as Agent
By_/s/_____________________
Name:
Title:
NORTHERN LIFE INSURANCE COMPANY
By: ING Investment Management, LLC, as Agent
By_/s/_____________________
Name:
Title:
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By_/s/_____________________
Name:
Title:
SECURITY CONNECTICUT LIFE INSURANCE COMPANY
By: ING Investment Management LLC, as Agent
By_/s/_____________________
Name:
Title:
TRUSTMARK LIFE INSURANCE CO.
By_/s/_____________________
Name:
Title:
REPUBLIC WESTERN INSURANCE COMPANY
By:_________________________
Name:
Title:
OXFORD LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
UNITED LIFE INSURANCE COMPANY
By:_________________________
Name:
Title:
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
By_/s/_____________________
Name:
Title:
FORT DEARBORN LIFE INSURANCE COMPANY
By: Guardian Investor Services
LLC
By_/s/_____________________
Name:
Title:
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By_/s/_____________________
Name:
Title:
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA
By_/s/_____________________
Name:
Title:
NATIONWIDE LIFE INSURANCE COMPANY
By_/s/_____________________
Name:
Title:
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By_/s/_____________________
Name:
Title:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized agent)
By_/s/_____________________
Name:
Title:
LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc. (authorized agent)
By_/s/_____________________
Name:
Title:
▇▇▇▇▇▇▇▇ PARTNERS, L.P.
By:__________________________
Name:
Title:
COHANZICK HIGH YIELD PARTNERS, LP
By:__________________________
Name:
Title:
COHANZICK CREDIT Opportunities Fund, Ltd.
By:__________________________
Name:
Title
AMERICAN INVESTORS LIFE INSURANCE COMPANY
By: AmerUs Capital Management Group, Inc., its authorized attorney-in-fact
By_/s/_____________________
Name:
Title:
Accepted and Agreed:
SEITEL DATA CORP.
By_/s/_____________________
Name:
Title:
SEITEL DATA, LTD.
By: Seitel Delaware, Inc., general partner
By_/s/_____________________
Name:
Title:
N360X, L.L.C.
By: Seitel Management, Inc.,
managing member
By_/s/_____________________
Name:
Title:
SEITEL MANAGEMENT, INC.
By_/s/_____________________
Name:
Title:
818312 ALBERTA LTD
AFRICAN GEOPHYSICAL, INC.
ALTERNATIVE COMMUNICATIONS ENTERPRISES, INC.
DATATEL INC.
DDD ENERGY, INC.
EHI HOLDINGS, INC.
ENDEAVOR EXPLORATION, LLC
ENERGY VENTURES HOLDINGS, LLC
EXPRESS ENERGY I, LLC
EXSOL, INC.
GEO-BANK
MATRIX GEOPHYSICAL, INC.
OLYMPIC SEISMIC LTD.
SEIC HOLDINGS LTD.
SEIC, INC.
SEIC, L.L.C.
SEIC PARTNERS LIMITED PARTNERSHIP
SEIC TRUST ADMINISTRATION, LTD.
SEITEL CANADA HOLDINGS, INC.
SEITEL CANADA, L.L.C.
SEITEL DELAWARE, INC.
SEITEL GAS & ENERGY CORP.
SEITEL GEOPHYSICAL INC.
SEITEL INTERNATIONAL, ▇▇
▇▇▇▇▇▇ INTERNATIONAL INC.
SEITEL IP HOLDINGS, L.L.C.
SEITEL NATURAL GAS INC.
SEITEL OFFSHORE CORP.
SEITEL POWER CORP.
SEITEL SOLUTIONS CANADA, LTD.
SEITEL SOLUTIONS HOLDINGS, LLC
SEITEL SOLUTIONS LTD.
SEITEL SOLUTIONS, INC.
SEITEL SOLUTIONS, L.L.C.
SI HOLDINGS, GP
VISION ENERGY, INC.
By_/s/_____________________
Name:
Title: