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SCHEDULE 10.1.2
ASSUMPTION AND CONSENT
THIS ASSUMPTION AND CONSENT is entered into effective as of December
31, 1996 (this "Agreement") and is by and among SEITEL GEOPHYSICAL, INC., a
Delaware corporation ("Seitel"), EAGLE GEOPHYSICAL, INC., a Delaware
corporation ("Eagle"), NATIONSBANC LEASING CORPORATION OF NORTH CAROLINA, a
North Carolina corporation ("NBLC") and SEITEL, INC., a Delaware corporation
(the "Guarantor").
All defined terms used herein but not otherwise defined shall have the
meaning set forth in that certain Loan and Security Agreement dated as of July
9, 1996 (the "Loan Agreement") between Seitel, as debtor, and NBLC, as secured
party.
W I T N E S S E T H:
WHEREAS, Seitel and NBLC are parties to the Loan Agreement.
WHEREAS, the Guarantor has provided to NBLC a guaranty of all amounts
due and payable by Seitel under the Loan Agreement, the Notes and all other
documents executed in connection therewith.
WHEREAS, Seitel wishes to assign to Eagle all of its right, title,
interests and obligations in, to and under the Loan Agreement, the Notes, the
Bills of Sales and the Equipment and Eagle wishes to accept such assignment.
WHEREAS, the parties hereto entered into this Assumption and Consent
to, among other things, (a) acknowledge and consent to the assignment from
Seitel to Eagle and (b) provide for the Guarantor to acknowledge its continuing
obligations under the Guaranty with respect to Eagle.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledge, the parties hereto agree as
follows:
1. Assignment and Assumption. Seitel, in its capacity as Debtor
under the Loan Agreement, the Notes and all other documents executed in
connection therewith, hereby assigns to Eagle all of Seitel's right, title,
interests and obligations in, to and under the Loan Agreement, the Notes, the
Bills of Sale and the Equipment in accordance with that certain Contribution
and Assumption Agreement effective as of December 31, 1996 (the "Contribution
Agreement") between Seitel and Eagle. Eagle hereby acknowledges and agrees
that from and after December 31, 1996 (the "Effective Date") it shall be a
party to and Debtor under the Loan Agreement, the Notes, the Bills of Sale and
all other documents executed in connection therewith and agrees to be bound by
all of the terms of, and to assume and undertake all the obligations and
liabilities of,
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the Debtor as set forth therein whether such obligations and liabilities arise
prior to, on or after the Effective Date.
2. Consent to Assignment. NBLC hereby consents to the assignment
by Seitel to Eagle of all of Seitel's right, title, interests and obligations
in, to and under the Loan Agreement, the Notes, the Bills of Sale, the
Equipment and all other documents executed in connection therewith.
3. Acknowledgement by Guarantor. The Guarantor hereby
acknowledges and consents to the Contribution Agreement and this Agreement.
Further, the Guarantor agrees that the Guaranty Agreement dated as of July 9,
1996 from the Guarantor to NBLC guaranteeing all obligations of Seitel to NBLC
shall guarantee all obligations of Eagle to NBLC as if Eagle were the original
beneficiary of such Guaranty.
4. Representations, Warranties and Covenants. Eagle, as Debtor,
and the Guarantor hereby represent and warrant that as of the date hereof (a)
the representations and warranties of the Debtor set forth in Section 3.1 of
the Loan Agreement are true and correct in all material respects, (b) Debtor
shall comply with all covenants set forth in Sections 3.2 and 3.3 of the Loan
Agreement and (ii) no Default or Event of Default currently exists and is
continuing with respect to the Debtor or the Guarantor.
5. Conditions Precedent. The effectiveness of this Agreement is
contingent upon the receipt by NBLC of the following items, each in form and
substance satisfactory to NBLC: (a) the Contribution Agreement duly executed by
the parties thereto; (b) this Agreement duly executed by the parties hereto;
(c) Amended, Restated and Substituted Secured Term Note A duly executed by
Eagle in favor of NBLC; (d) Amended, Restated and Substituted Secured Term Note
B duly executed by Eagle in favor of NBLC; (e) an Officer's Certificate of
Eagle stating that (i) no Default or Event of Default has occurred and is
continuing and (ii) the assignment to and assumption by Eagle complies with the
terms and conditions of Section 3.3(k) of the Loan Agreement; (f) a Secretarial
Certificate of Eagle certifying as true and accurate the Articles of
Incorporation, By-Laws and Resolutions of Eagle, which such resolutions shall
authorize the transactions contemplated by this Agreement; (f) Good Standing
Certificates from Eagle's state of incorporation and each state where it is
required to qualify in order to do business; (g) a legal opinion of counsel to
Eagle and the Guarantor in form and substance satisfactory to NBLC; and (h)
such other certificates, financing statements, resolutions and opinions as
deemed necessary or advisable by NBLC.
6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
7. No Other Amendments. Except as modified hereby, all of the
terms and conditions of the Operative Agreements shall remain in full force and
effect.
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8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of North Carolina.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the Effective Date.
SEITEL GEOPHYSICAL, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President
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EAGLE GEOPHYSICAL, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President
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ACKNOWLEDGED, AGREED AND CONSENTED TO:
SEITEL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Sr. Vice President - CFO
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NATIONSBANC LEASING CORPORATION
NORTH CAROLINA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
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Title: Senior Vice President
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