Exhibit 10.30
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is entered into as of
the 31st day December, 1996, between SEITEL GEOPHYSICAL, INC., dba, Eagle
Geophysical ("Assignor") a Delaware corporation, with its principal place of
business at 00 Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000 and EAGLE
GEOPHYSICAL, INC. ("Assignee"), a Delaware corporation, with its principal place
of business at 00 Xxxxx Xxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxx 00000.
RECITALS
A. Assignor, as Lessee, has entered into a Master Equipment Lease Agreement,
dated May 20, 1994, and the respective schedules, amendments, and addendums
thereto, (collectively referred to herein as the 'Lease') with MetLife
Capital, Limited Partnership, a Delaware limited partnership ("MetLife"),
as Lessor, whereby Assignor has leased from MetLife: Opseis Eagle Recording
System and Ancillary Equipment; Opseis Eagle Telemetry Seismic Data
Acquisition System; ATV's, Engine and Generator, Three 1994 Circle M
Utility Trailers; One Spectrum Analyzer with Cables; Cable Strings
Land/Xxxxx; MGA with hardware, Geophone Analyzer Test Equipment; Multiple
Cables, all more fully described in the attached copies of the Lease
documents herein as Exhibit "A" (the "Equipment"). Terms used in the
agreement are, unless defined herein, used as defined in the Lease.
B. Lease documents attached as Exhibit "A", herein incorporated by this
reference, are as follows: Master Equipment Lease Agreement dated 5/20/94;
Addendum No. One dated 5/20/94; Amendment No. One dated 5/20/94; Amendment
No. Two dated 9/16/94; Request to Purchase Addendum No. One dated 5/20/94
as amended by Amendment No. One dated 5/20/94 and Amendment No. Two dated
9/16/94; Request to Purchase Addendum No. Two dated 5/20/94 as amended by
Amendment No. One dated 5/20/94 and Amendment No. Two dated 9/16/94; Lease
Closing Schedules 001, 002, 003, 004, 005, 006, 007, and 008 dated 7/29/94,
7/7/94, 7/7/94, 7/25/94, 7/25/94, 7/29/94, 7/29/94, and 9/19/94,
consecutively; and the 9/16/94 Letter of Correction (collectively referred
to herein as "the Lease").
C. The Assignor wishes to assign to the Assignee, and the Assignee wishes to
accept an assignment from the Assignor, of the Assignor's right, title and
interest in and to the Lease.
D. Pursuant to the terms of the Lease, MetLife's consent to the assignment of
Assignor's interest in the Lease is required. One of the conditions to
MetLife's willingness to give that consent is that the parties enter into
the covenants and make the representations and warranties set forth in this
Agreement.
NOW, THEREFORE, The parties agree as follows:
1. Assignment and Assumption.
Assignor hereby sells, assigns, transfers and sets over unto Assignee and
unto Assignee's successors and assigns, all right, title, and interest of
Assignor under, in and to the Lease. The Assignee hereby assumes, and
covenants with Assignor and MetLife to perform fully, all the duties of the
Assignor under the Lease. It is expressly understood and agreed that
Assignee assumes all such obligations notwithstanding the fact that some of
such obligations may have accrued prior to the date hereof.
2. Representations and Warranties of Assignee and Assignor. Assignee and
Assignor represent and warrant individually and respectively as applicable,
to MetLife as follows:
a. The Assignee is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware and has the
power and authority to enter into and perform its obligations under
this Agreement. The execution, delivery and performance of this
Agreement has been duly authorized by all necessary action on the part
of the Assignee and the Assignor, does not require any stockholder
approval, or approval or consent of any general or limited partner,
trustee or holders of any indebtedness or obligations of the Assignee
or Assignor except such as have been duly obtained and does not and
will not contravene any law, judgment, governmental rule, regulation
or order applicable to or binding on the Assignee or Assignor or any
of their subsidiaries or the certificates of incorporation or bylaws
of the Assignee or Assignor or any of their subsidiaries or contravene
the provisions of, or constitute a default under, or result in the
creation of any lien (other than as permitted under the Lease) upon
the property of the Assignee or Assignor under any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract,
bank loan or agreement or instrument, or other contract or agreement
to which the Assignee or Assignor or any of their subsidiaries are a
party or by which they or any of their subsidiaries may be bound or
affected;
b. This agreement constitutes the legal, valid and binding obligation of
the Assignee and Assignor enforceable against said parties in
accordance with its terms;
c. Except for the filings and recordings consummated at the time of
execution of the Lease and except for the filing and recording of this
Agreement, no further action, including any filing or recording of any
document, is necessary or advisable in order to establish and protect
MetLife's title to and interest in the Equipment as against the
Assignee, the Assignor, and any third parties in any applicable
jurisdictions in the United States.
3. Assignors Continuing Obligation and Guaranty.
Assignor covenants with MetLife that notwithstanding its assignment of the
Lease to the Assignee, Assignor will duly and punctually perform and
observe each and every obligation, covenant, representation, warranty and
agreement to be performed and observed by the Lessee under the provisions
of the Lease, notwithstanding the fact that Assignee is similarly obligated
by the terms of this Agreement to perform or observe those obligations,
covenants, representations or warranties of Lessee arising pursuant to the
terms of the Lease; provided, however, that Assignor shall have no
obligation hereunder to make any payment to MetLife required by any Lease
provision to the extent that Assignee has satisfied the obligations of the
Lessee arising pursuant to such Lease provision. Except as expressly set
forth in the preceding sentence, Assignor is not released in any respect
from its obligations to MetLife arising under the Lease or related
documents. The Assignor hereby acknowledges and consents that MetLife may
agree with the Assignee to extend the time for making payments for any or
all of the amounts due or to become due under the Lease and documents
executed in conjunction therewith or that the Lease and documents in
conjunction therewith may be changed in any manner at the option of said
Assignee and without Assignor's consent and that Assignor's obligation to
perform in accordance with this Paragraph 3 shall extend to such agreements
as changed in the same manner as if such changes had been part of the
agreements as originally executed and delivered.
The Assignor hereby absolutely and unconditionally guarantees to MetLife
the full and timely performance by the Assignee of all obligations
whatsoever which the Assignee has incurred or is under or which the
Assignee may at any time incur or be under to MetLife pursuant to or in
connection with any of the transactions contemplated by the Lease and this
Agreement; including but not limited to all obligations of the Assignee for
the payment of money whether by reason of covenant, indemnity, breach of
warranty or otherwise. MetLife shall not be bound to exhaust their recourse
nor to take any other action against the Assignee or other parties or on
any collateral they may hold before being entitled to payment by the
Assignor of all amounts hereby guaranteed. The Assignor specifically agrees
that it shall not be necessary or required in order to enforce the
obligations of the Assignor hereunder that there be, and specifically
waives: notice of performance or nonperformance of the Lease; demand of
payment from the Assignee; presentment for payment upon Assignee or the
making of any protest; notice of the amount of guaranteed obligations
outstanding at any time; notice of nonpayment or failure to perform on the
part of the Assignee; and any other circumstances which might otherwise
constitute a legal or equitable defense or discharge of a Guarantor.
4. Financial Data.
During the term of this Agreement, Assignee will furnish to MetLife and
will cause any guarantor of Assignee's obligations to furnish to MetLife on
request (i) annual balance sheet and profit and loss statements prepared in
accordance with generally accepted accounting principles and practices
consistently applied and, if MetLife so requires, accompanied by the annual
audit report of an independent certified public accountant reasonably
acceptable to MetLife, and (ii) all other financial information and reports
that MetLife may from time to time reasonably request, including, if
MetLife so requires, income tax returns of Assignee and any guarantor of
Assignee's obligations hereunder.
Assignee shall, from time to time, furnish all such information as MetLife
may reasonably request concerning Assignee and its affairs and shall
execute and deliver such documents and perform all such other acts that
MetLife may reasonably request in order to carry out any transactions
contemplated by this Agreement.
5. Miscellaneous.
This Agreement may not be amended without the express written consent of
MetLife. This Agreement supersedes all prior agreements between the parties
relating to the assignment from Assignor to Assignee of the Assignor's
interest in the Lease or the Equipment.
6. Counterparts.
This Agreement may be signed in any number of counterparts required for the
convenience of the parties, all of which when taken together shall form one
and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ASSIGNOR:
SEITEL GEOPHYSICAL, INC., dba EAGLE GEOPHYSICAL
By /s/ Xxx X. Xxxxxxxxx
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Its President
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By /s/ Xxxxxx Xxxxxxxx
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Its Assistant Secretary
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ASSIGNEE:
EAGLE GEOPHYSICAL, INC.
By /s/ Xxx X. Xxxxxxxxx
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Its President
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By /s/ Xxxxxx Xxxxxxxx
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Its Assistant Secretary
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CONSENT OF METLIFE
On the terms and conditions set forth above, MetLife Capital, Limited
Partnership hereby consents to the assignment by SEITEL GEOPHYSICAL INC., dba
Eagle Geophysical of its interest under the Lease described above to EAGLE
GEOPHYSICAL, INC. dated this 30th day of December, 1996.
METLIFE CAPITAL, LIMITED PARTNERSHIP
By MetLife Capital Corporation
Its General Partner
By /s/Xxxx Xxxxxxxx
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Its Vice President
