Exhibit 10.28
ASSUMPTION AND LOAN MODIFICATION AGREEMENT
THIS ASSUMPTION AND LOAN MODIFICATION AGREEMENT (this "Agreement") 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"), COMPASS BANK (f/k/a Central
Bank of the South), an Alabama state banking corporation ("Compass"), and
SEITEL, INC., a Delaware corporation (the "Guarantor").
All capitalized terms used herein but not otherwise defined herein
shall have the meaning set forth in that certain Term Credit and Security
Agreement dated as of July 15, 1993, together with any Schedules thereto, all as
amended (the "Loan Agreement") between Seitel and Compass.
WITNESSETH:
WHEREAS, Seitel and Compass are parties to the Loan Agreement.
WHEREAS, the Guarantor has provided to Compass a guaranty of, inter
alia, all amounts due and payable by Seitel under the Loan Agreement, the Note
and all the other Loan Documents pursuant to that certain Continuing Guaranty
(Unlimited) dated JULY 15, 1993 executed by Guarantor in favor of Compass, as
AMENDED (the "Guaranty").
WHEREAS, Seitel wishes to assign and delegate to Eagle all of its
right, title, interests and obligations in, to and under the Loan Agreement, the
Note, and the Loan Documents and Eagle wishes to accept such assignment and
delegation.
WHEREAS, the parties hereto have entered into this Agreement to, among
other things, (a) acknowledge and consent to the assignment and delegation from
Seitel to Eagle on the terms and conditions hereinafter set forth and (b)
provide for the Guarantor to acknowledge its continuing obligations under the
Guaranty with respect to Eagle.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. ASSIGNMENT, ASSUMPTION AND MODIFICATION. Seitel, in its capacity as Borrower
under the Loan Agreement, the Note and all the other Loan Documents, hereby
assigns and delegates to Eagle all of Seitel's right, title, interests and
obligations in, to and under the Loan Agreement, the Note, and the other Loan
Documents pursuant to that certain Contribution and Assumption Agreement
effective as of December 31, 1996 (the "Contribution Agreement") between Seitel
and Eagle. Eagle hereby accepts and agrees to perform such assignment and
delegation and acknowledges and agrees that from and after December 31, 1996
(the "Effective Date") it shall be a party to and be the "Borrower" for all
purposes under the Loan Agreement, the Note, the Guaranty and all the other Loan
Documents executed in connection therewith and agrees to be bound by all of the
terms of, and to assume, undertake and perform all the obligations and
liabilities of, the Borrower as set forth therein whether such obligations and
liabilities arise prior to, on or after the Effective Date. Without limiting the
foregoing, the Loan Documents shall be and the same hereby are amended by
deleting any and all references to the name "Seitel Geophysical, Inc." and
substituting in place thereof the name "Eagle Geophysical, Inc." The Loan
Documents also shall be and the same hereby are amended by deleting any and all
references to "Central Bank of the South" and substituting in place thereof
"Compass Bank".
2. CONSENT TO ASSIGNMENT. Compass hereby, subject to the terms of this
Agreement, consents to the Contribution Agreement and the assignment and
delegation by Seitel to Eagle of all of Seitel's right, title, interests and
obligations in, to and under the Loan Agreement, the Note and the other Loan
Documents.
3. ACKNOWLEDGMENT BY GUARANTOR. The Guarantor hereby acknowledges and
consents to the Contribution Agreement and this Agreement. Further, the
Guarantor agrees that the Guaranty from the Guarantor to Compass guaranteeing
all obligations of Seitel to Compass shall guarantee all obligations of Eagle to
Compass. Without limiting the foregoing, (i) any and all references in said
Guaranty to "Seitel Geophysical, Inc." shall be and hereby are amended to read
and refer to "Eagle Geophysical, Inc." and (ii) any and all references in said
Guaranty to "Central Bank of the South" shall be and hereby are amended to read
and refer to "Compass Bank".
4. ABSENCE OF DEFAULTS. Eagle, as Borrower, and the Guarantor hereby
represent and warrant that as of the date hereof no default or event of default
currently exists and is continuing with respect to the Borrower or the Guarantor
under any of the Loan Documents.
5. CONDITIONS PRECEDENT. Eagle, as Borrower, and Guarantor agree to
deliver to Compass the following items on or before the Effective Date, each in
form and substance satisfactory to Compass: (a) the Contribution Agreement duly
executed by the parties thereto; (b) this Agreement duly executed by the parties
hereto; (c) Good Standing Certificates from Eagle's state of incorporation and
each state where it is required to qualify in order to do business; (d) a legal
opinion of counsel to Eagle and the Guarantor in form and substance satisfactory
to Compass; and (e) such other certificates, financing statements, resolutions
and opinions as deemed necessary or advisable. by Compass.
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. EFFECT ON LOAN DOCUMENTS. Each of the Loan Documents shall be deemed amended
as set forth hereinabove and to the extent necessary to carry out the intent of
this Agreement. Without limiting the generality of the foregoing, each reference
in the Loan Documents to the Note, the Guaranty or any other Loan Documents
shall be deemed to be references to said documents, as heretofore and hereby
amended. Except as is expressly set forth herein, all of the Loan Documents
shall remain in full force and effect in accordance with their respective terms
and shall continue to evidence, secure, guarantee or relate to, as the case may
be, the Term Loan.
8. REPRESENTATIONS, WARRANTIES, COVENANTS, ETC. Each representation,
warranty, covenant, grant of security interest and other agreement originally
made by Seitel and contained or referenced in the Loan Documents is hereby
expressly affirmed, adopted, stated and ratified and agreed to by Eagle, and
incorporated herein by reference, as if fully set forth herein. Seitel, Eagle
and Guarantor hereby represent that neither Seitel, Eagle nor Guarantor has any
offsets or claims against Compass arising under, related to, or connected with
the Term Loan, the Loan Agreement, the Guaranty or any of the other Loan
Documents.
9. EXPENSES. Eagle shall pay any recording fees and all other expenses
incurred by Compass in connection with this Agreement and any other transactions
contemplated hereby, including, without limitation, legal expenses, filing fees
and taxes.
10. EXECUTION BY GUARANTOR. Guarantor has executed this Agreement to
evidence its consent to the modification, amendments and other matters described
herein, and to acknowledge the continuing effect of its Guaranty and the
obligations contained therein.
11. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Alabama.
12. CONTINUATION OF LIEN AND SECURITY INTEREST. It is expressly
acknowledged and agreed that Eagle is taking the Assets (as denied in the
Contribution Agreement) subject to all liens and security interests of Compass
in such Assets and nothing contained or implied herein shall be deemed to be,
constitute or result in the release of any such liens and security interests.
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/ ▇▇▇▇ ▇. Frame
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Name: ▇▇▇▇ ▇. Frame
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Title: President
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COMPASS BANK
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Vice President
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